State v. Veleta ( 2023 )

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number: __________________
3 Filing Date: August 14, 2023
4 NO. S-1-SC-38169
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 JAIME VELETA,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Cindy Leos, District Judge
12 Harrison & Hart, LLC
13 Nicholas T. Hart
14 Carter B. Harrison IV
15 Ramon A. Soto
16 Albuquerque, NM
17 for Appellant
18 Hector H. Balderas, Attorney General
19 Walter M. Hart, III, Assistant Attorney General
20 Santa Fe, NM
21 for Appellee
1 OPINION
2 VARGAS, Justice.
3 {1} This case comes to the Court on direct appeal pursuant to Rule 12-102(A)(1)
4 NMRA. Defendant Jaime Veleta appeals his conviction for willful and deliberate
5 first-degree murder, claiming the district court made several evidentiary errors,
6 improperly instructed the jury, permitted the entry of inconsistent verdicts, and
7 violated his double jeopardy rights by allowing the inconsistent verdicts to stand.
8 Defendant presents a novel argument that a verdict convicting him of first-degree
9 murder but acquitting him of the lesser-included offenses of second-degree murder
10 and voluntary manslaughter is legally inconsistent. We take this opportunity to
11 address New Mexico law on inconsistent verdicts to explain that only inconsistent
12 convictions and not inconsistent verdicts are reviewed. When the evidence is
13 sufficient to support the verdict of conviction, 1 we will not speculate as to why the
14 jury acquitted a defendant of other charges. To examine the verdict of acquittal
15 requires that either we rule based on pure speculation or we inquire into the jury’s
16 deliberations, neither of which we are willing to do.
1
This opinion uses verdict of conviction to refer to the jury’s guilty verdict on
a charge, giving rise to the district court’s conviction on that charge. Similarly, we
use verdict of acquittal to refer to the jury’s not guilty verdict on a charge, giving
rise to the district court’s acquittal on that charge.
1 I. BACKGROUND
2 {2} In January 2008, Defendant and four others went to the house of Danny Baca
3 (Victim) to confront him about a missing car that contained drugs. After discovering
4 that the car had been stripped and the drugs were missing, Defendant and the other
5 men took Victim from his home. Eventually, Defendant and two of his accomplices,
6 Jose and Mario Talavera, drove Victim out to the mesa where Defendant shot Victim
7 at least eighteen times, killing him, before lighting his body on fire. Shortly after
8 killing Victim, Jose and Mario took Defendant to the bus depot where Defendant
9 boarded a bus to Mexico. Defendant was charged with the murder of Victim in 2011
10 but was not extradited to New Mexico until 2018.
11 {3} At trial, Jose and another of Defendants’ accomplices, Gerardo Nuñez,
12 testified at length about Defendant’s involvement in Victim’s murder. At the
13 conclusion of the trial, the jury entered verdict forms convicting Defendant of willful
14 and deliberate first-degree murder, felony murder in the first-degree, kidnapping,
15 conspiracy, and tampering with evidence. The jury also entered verdict forms
16 acquitting Defendant of second-degree murder and voluntary manslaughter. The
17 district court vacated his felony murder conviction, merging it into his conviction
18 for willful and deliberate first-degree murder, and sentenced him to life in prison.
19 Defendant appealed directly to this Court. N.M. Const. art. VI, § 2 (“Appeals from
2
1 a judgment of the district court imposing a sentence of death or life imprisonment
2 shall be taken directly to the supreme court.”); Rule 12-102(A)(1).
3 II. DISCUSSION
4 {4} Defendant asks this Court to vacate his convictions, alleging the district court
5 (1) abused its discretion when it permitted the introduction of evidence that
6 Defendant fled the country following the murder of Victim, (2) erred when it
7 improperly limited Defendant’s cross-examination of two witnesses, violating his
8 right to confrontation, (3) erred when it improperly instructed the jury with regard
9 to the stepdown instruction and the lesser-included offenses of first-degree murder
10 leading to a legally inconsistent verdict, and (4) erred when it entered his conviction
11 for first-degree murder despite his implied acquittal. Defendant further claims that
12 he is entitled to the reversal of his convictions and requests that the case be remanded
13 to the district court for a new trial. He argues, however, that retrial for first-degree
14 murder, second-degree murder, or voluntary manslaughter is barred by double
15 jeopardy. Finally, Defendant claims cumulative error. Concluding that there was no
16 error, we affirm the district court.
17 A. Claims of Evidentiary Error
18 {5} Defendant claims that the district court made evidentiary errors requiring
19 reversal by (1) admitting evidence of Defendant’s flight from New Mexico to
3
1 demonstrate consciousness of guilt, (2) denying Defendant the opportunity to cross-
2 examine Gerardo about his uncle’s federal drug charges, and (3) limiting
3 Defendant’s cross-examination of Jose about his cooperation with law enforcement.
4 “The admission or exclusion of evidence is within the discretion of the trial court.
5 On appeal, the trial court’s decision is reviewed for abuse of discretion.” State v.
6 Hughey, 2007-NMSC-036, ¶ 9, 142 N.M. 83, 163 P.3d 470. “An abuse of discretion
7 arises when the evidentiary ruling is clearly contrary to logic” or when the district
8 court “misapplies or misapprehends the law.” State v. Pacheco, 2008-NMCA-131,
9 ¶ 34, 145 N.M. 40, 193 P.3d 587 (internal quotation marks and citation omitted). For
10 the reasons that follow, we conclude that the district court did not abuse its discretion
11 in any of the evidentiary rulings challenged by Defendant.
12 1. Flight evidence as consciousness of guilt
13 {6} Defendant contends the district court abused its discretion by admitting
14 evidence of his travel to Mexico immediately after Victim was killed as evidence of
15 consciousness of guilt because the State failed to show that he knew he was being
16 pursued by law enforcement at the time he left for Mexico. The State contends that
17 knowledge of law enforcement pursuit is not a prerequisite for admission of flight
18 evidence and asserts that “it is the contemporaneity of the occurrence of the crime
19 and the flight that creates the reasonable inference of consciousness of guilt.”
4
1 {7} We agree with the State. “Flight evidence is admissible because [it] tends to
2 show consciousness of guilt.” State v. Trujillo, 1979-NMCA-055, ¶ 4, 93 N.M. 728,
3 605 P.2d 236 (internal quotation marks and citation omitted). “[T]he prosecution is
4 not required to establish the reason for a defendant’s flight,” and “a defendant’s
5 knowledge that he was being pursued is not a predicate to the admission of flight
6 evidence.” Pacheco, 2008-NMCA-131, ¶ 37. Therefore, we determine there was no
7 abuse of discretion and instead defer to the district court’s determination that the
8 probative value of this evidence substantially outweighed its prejudicial effect. See
9 State v. Bailey, 2015-NMCA-102, ¶ 20, 357 P.3d 423 (explaining that Rule 11-403
10 NMRA gives the district court “much leeway” in deciding whether evidence’s
11 probative value substantially outweighs its prejudicial effect (internal quotation
12 marks and citation omitted)), aff’d, 2017-NMSC-001, ¶ 26, 386 P.3d 1007 (“[T]he
13 task under Rule 11-403 is not to exclude all uniquely prejudicial evidence—just that
14 evidence having an unduly prejudicial impact on a defendant that far outweighs the
15 evidence’s probative effect.”).
16 2. Limitation on cross-examination of witnesses
17 {8} Defendant next contends that the district court abused its discretion by
18 limiting his cross-examination of two of the State’s witnesses and that this violated
19 the Confrontation Clause of the Sixth Amendment to the United States Constitution.
5
1 Defendant argues that the district court abused its discretion when it “prohibited
2 [Defendant] from cross-examining [Gerardo] regarding [Gerardo’s] uncle’s federal
3 charges” and limited his questioning of Jose regarding his cooperation with
4 authorities. However, the record reflects that the district court allowed Defendant to
5 cross-examine both witnesses thoroughly with minimal limitation. We hold that the
6 district court did not abuse its discretion or violate Defendant’s right to
7 confrontation.2 See State v. Sanders, 1994-NMSC-043, ¶ 23, 117 N.M. 452, 872
8 P.2d 870 (“The [district] court retain[s] wide latitude insofar as the Confrontation
9 Clause is concerned . . . . The Confrontation Clause merely guarantees an
10 opportunity for effective cross-examination . . . .” (second alteration in original)
11 (internal quotation marks and citation omitted)).
12 {9} “[W]hile the scope of cross-examination usually lies within the sound
13 discretion of the district court, Confrontation Clause claims are issues of law that we
14 review de novo.” State v. Gonzales, 1999-NMSC-033, ¶ 22, 128 N.M. 44, 989 P.2d
15 419 (internal quotation marks and citation omitted). “The Sixth Amendment to the
16 Constitution guarantees the right of an accused in a criminal prosecution to be
2
We note that the State claims that Defendant did not properly preserve his
Confrontation Clause claims. Because we conclude there has been no Confrontation
Clause violation, we need not address the preservation issue.
6
1 confronted with the witnesses against him.” Davis v. Alaska, 415 U.S. 308, 315
2 (1974) (internal quotation marks and citation omitted). “[A] primary interest secured
3 by [the Sixth Amendment] is the right of cross-examination.” Id. (internal quotation
4 marks and citation omitted). “Cross-examination of adverse witnesses is the primary
5 means for testing their truth and credibility and is essential to insure the integrity of
6 the fact-finding process.” Sanders, 1994-NMSC-043, ¶ 22. “Nevertheless, the right
7 of cross-examination of adverse witnesses is not absolute.” Id. ¶ 23. Rather, “[t]he
8 Confrontation Clause merely guarantees an opportunity for effective cross-
9 examination; it does not guarantee that the defense may cross-examine a witness in
10 whatever way, and to whatever extent, the defense might wish.” Id. (internal
11 quotation marks and citation omitted). Therefore, “[r]easonable restrictions on the
12 exercise of a constitutional right are permissible.” State v. Herrera, 1978-NMCA-
13 048, ¶¶ 25, 40, 92 N.M. 7, 582 P.2d 384. With this framework in mind, we turn to
14 Defendant’s arguments regarding the testimony of Gerardo.
15 a. Gerardo Nuñez
16 {10} Defendant argues that the district court abused its discretion on two separate
17 grounds by prohibiting him from inquiring into federal drug charges made against
18 Gerardo’s uncle. Defendant asserts that the district court abused its discretion when
19 it excluded the testimony about the uncle’s drug charges as irrelevant and that the
7
1 exclusion violated Defendant’s Sixth Amendment right to confront witnesses.
2 Defendant explained that he sought to inquire into the uncle’s federal indictment for
3 drug trafficking to show that Gerardo was knowledgeable about drug trafficking.
4 Defendant claimed that this was part of his defense to show that it was Gerardo and
5 the other men who stole the drugs and needed someone to blame. The State objected
6 to Defendant’s inquiry on relevance grounds.
7 {11} The district court concluded that Gerardo’s uncle’s federal drug trafficking
8 charges had limited relevance to Gerardo’s knowledge of drug trafficking and
9 therefore that the value of the evidence was substantially outweighed by its
10 prejudicial effect. See Bailey, 2015-NMCA-102, ¶ 20 (noting the district court’s
11 discretion to exclude evidence when the prejudicial impact substantially outweighs
12 the probative value). Although the district court did not allow Defendant to ask about
13 the federal indictment, it gave Defendant great latitude to ask questions regarding
14 the uncle’s status as a drug dealer and to inquire about the knowledge and experience
15 in the drug trafficking trade gained from his uncle, including the time frame during
16 which Gerardo received this information from his uncle. These questions gave
17 Defendant the “opportunity for effective cross-examination” of Gerardo about his
18 experience and knowledge of the drug trade. Sanders, 1994-NMSC-043, ¶ 23. The
19 district court did not abuse its discretion in excluding evidence of the uncle’s drug
8
1 charges as irrelevant, and Defendant’s right to confrontation was not violated. See
2 State v. Meadors, 1995-NMSC-073, ¶¶ 26, 33, 121 N.M. 38, 908 P.2d 731 (holding
3 that the district court did not violate a defendant’s right to confrontation or abuse its
4 discretion by excluding testimony it deemed more prejudicial than probative as it
5 was not sufficiently indicative of the fact that the defendant sought to prove).
6 b. Jose Talavera
7 {12} Next, Defendant contends that the district court violated his right to confront
8 Jose Talavera and abused its discretion by limiting his cross-examination into Jose’s
9 cooperation with law enforcement. Defendant also asserts that the district court erred
10 by precluding him from impeaching Jose with sealed pleadings after Jose denied
11 cooperating with authorities. Defendant’s arguments lack merit because he was
12 permitted to inquire into Jose’s cooperation with both state and federal authorities,
13 and he was only precluded from inquiring into matters for which the district court
14 determined Jose lacked personal knowledge.
15 {13} To challenge a witness’s credibility before the jury, a defendant is allowed to
16 inquire into “whether a witness hoped to curry favor by cooperating with the
17 prosecution.” Gonzales, 1999-NMSC-033, ¶ 24 (internal quotation marks and
18 citation omitted). The United States Supreme Court has “recognized that the
19 exposure of a witness’ motivation in testifying is a proper and important function of
9
1 the constitutionally protected right of cross-examination.” Delaware v. Van Arsdall,
2 475 U.S. 673, 678-79 (1986) (internal quotation marks and citation omitted).
3 {14} Here, Defendant was permitted to inquire into whether Jose cooperated with
4 the State in exchange for a lighter sentence in this case and another unrelated federal
5 case. Defendant was also permitted to question Jose at length about his federal
6 indictment for drug trafficking. Accordingly, he received the opportunity to cross-
7 examine Jose effectively about his cooperation with authorities, and so his right to
8 confrontation was not violated. Sanders, 1994-NMSC-043, ¶ 23 (explaining that
9 when a defendant is given “an opportunity for effective cross-examination” of a
10 witness, there is no Confrontation Clause violation).
11 {15} Defendant further contends that he was denied the opportunity to impeach
12 Jose with evidence of sealed federal pleadings to show that Jose was lying about
13 cooperating with federal authorities. “Impeachment is crucial to effective cross-
14 examination because it gives a party the opportunity to discredit a witness, so the
15 jury properly has a way to determine whether a witness is untruthful or inaccurate.”
16 State v. Gomez, 2001-NMCA-080, ¶ 12, 131 N.M. 118, 33 P.3d 669. However,
17 impeachment evidence is still subject to the rules of evidence and, as such, is
18 admitted or excluded at the discretion of the district court. See id. ¶¶ 12, 14
19 (explaining that the district court’s admission of impeachment evidence is reviewed
10
1 for an abuse of discretion and is subject to the rules of evidence).
2 {16} Defendant attempted to impeach Jose, after he denied being a federal
3 informant, by asking him why certain pleadings in the federal case were sealed,
4 theorizing that the pleadings were sealed because Jose was a federal informant. The
5 district court barred this line of questioning, concluding that Jose lacked the
6 appropriate knowledge to answer why the documents were sealed. Considering
7 Defendant’s thorough cross-examination into Jose’s charges, sentencing, and
8 potential status as an informant, Defendant was given “the opportunity to discredit
9 [the] witness.” Id. ¶ 12. Therefore, limiting Defendant’s impeachment of Jose due to
10 Jose’s lack of personal knowledge was not an abuse of discretion. Rule 11-602
11 NMRA (“A witness may testify to a matter only if evidence is introduced sufficient
12 to support a finding that the witness has personal knowledge of the matter.”).
13 {17} Having addressed Defendant’s evidentiary challenges, we now turn to
14 Defendant’s contention that improper jury instructions require reversal.
15 B. Jury Instructions
16 {18} Defendant argues that the district court committed reversible error in issuing
17 its stepdown instruction to the jury, resulting in a “constitutionally infirm
18 conviction.” The infirmity, Defendant contends, manifested itself in two ways. First,
19 he alleges the district court erred by not complying with State v. Lewis, which
11
1 requires the jury to be informed that it may “consider both the greater and lesser
2 offenses under a count in any order it deems appropriate provided it return a verdict
3 of not guilty on the greater offense before the court may accept a verdict on the lesser
4 included offense,” 2019-NMSC-001, ¶ 1, 433 P.3d 276. Second, he contends the
5 jury instructions created “serious juror confusion” because they were internally
6 inconsistent and contained undefined terms.
7 1. Standard of review
8 {19} Preservation of a party’s argument generally determines which of two
9 pertinent standards of review will guide this Court’s reviews of claimed error in jury
10 instructions. State v. Sandoval, 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d
11 1016. “Under both standards of review, we determine whether a reasonable juror
12 would have been confused or misdirected by the jury instruction.” Id. (internal
13 quotation marks and citation omitted). Because we conclude that a reasonable juror
14 would not have been confused or misled and therefore that there was no error in the
15 first instance, we need not consider whether Defendant’s argument was preserved.
16 2. Compliance with Lewis
17 {20} In Lewis, this Court considered the “ambiguity in our existing jury instructions
18 regarding the order in which a jury must deliberate on counts which include both
19 greater and lesser included offenses.” 2019-NMSC-001, ¶ 1. Recognizing a
12
1 defendant’s interest in preventing jury deliberations from being improperly
2 restricted and the state’s interest “in requiring the jury to grapple with the prospect
3 of [a] defendant’s guilt of the greatest offense charged,” the Lewis Court adopted the
4 “modified acquit first approach,” providing that “juries shall be instructed that they
5 have discretion to choose the order in which they deliberate on the offenses within a
6 count but that they may not return a verdict on a lesser included offense unless they
7 unanimously find the defendant not guilty on the greater offense.” Id. ¶¶ 37-38, 40
8 (internal quotation marks and citation omitted). Defendant claims that the district
9 court violated this holding in Lewis. The applicable instruction in this case provided
10 in relevant part:
11 You may not find the defendant guilty of an included offense until you
12 have unanimously decided that the defendant is not guilty of the offense
13 that includes the included offense. For example, you may not find the
14 defendant guilty of second degree murder until you have decided that
15 he is not guilty of first degree murder. However, you have the discretion
16 to choose the manner and order in which you deliberate on these
17 offenses.
18 {21} According to Defendant, the stepdown instruction did not comply with Lewis
19 because it did not “state that the jury must acquit of a greater offense before
20 rendering a verdict as to any lesser-included offense.” However, a close examination
21 of the first sentence of the given instruction reveals that it satisfies Lewis. This
22 sentence instructed the jury that it “may not find [D]efendant guilty of an included
13
1 offense until [the jury] ha[s] unanimously decided that [D]efendant is not guilty of
2 the offense that includes the included offense” (emphasis added). Similarly, under
3 the Lewis mandate, a jury cannot return a verdict on the lesser offense unless it first
4 “return[s] a unanimous verdict of not guilty on the greater offense.” 2019-NMSC-
5 001, ¶ 38. Though the given instruction uses the term “included offense” in place of
6 “lesser offense” and “offense that includes the included offense” in place of “greater
7 offense,” both iterations convey the same information to the jury, and therefore the
8 stepdown instruction complied with Lewis. It provided the language necessary to
9 prevent the jury from “grappl[ing] with the prospect of [a] defendant’s guilt of the
10 greatest offense charged.” Id. ¶ 37 (internal quotation marks and citation omitted).
11 Because the Lewis mandate is satisfied, we decline to reverse on this basis.
12 3. Juror confusion
13 {22} Defendant next argues that even if the Lewis mandate was satisfied, the
14 instructions confused the jury, resulting in error. To obtain reversal of his conviction,
15 Defendant must show that a reasonable juror would be “confused or misdirected” by
16 the given jury instructions. Sandoval, 2011-NMSC-022, ¶ 13 (internal quotation
17 marks and citation omitted). The determination of “juror confusion or misdirection
18 may stem not only from instructions that are facially contradictory or ambiguous,
19 but from instructions which, through omission or misstatement, fail to provide the
14
1 juror with an accurate rendition of the relevant law.” State v. Benally, 2001-NMSC-
2 033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. Defendant argues the jury instructions were
3 confusing in three ways: (1) they were inconsistent, (2) they used “the term ‘included
4 offense’ without defining it,” and (3) the curative instruction provided only that the
5 stepdown instruction applied to first-degree willful and deliberate murder, failing to
6 identify the stepdown instruction by instruction number.
7 {23} The stepdown instruction, Instruction No. 18, stated:
8 You have been instructed on the crimes of first degree murder, second
9 degree murder, and voluntary manslaughter. You must consider each
10 of these crimes. You should be sure that you fully understand the
11 elements of each crime before you deliberate further.
12 You will then discuss and decide whether the defendant is guilty of
13 murder in the first degree. If you unanimously agree that the defendant
14 is guilty of murder in the first degree, you will return a verdict of guilty
15 of murder in the first degree. If you do not agree, you should discuss
16 the reasons why there is a disagreement.
17 If, after reasonable deliberation, you do not agree that the defendant is
18 guilty of murder in the first degree you should move to a discussion of
19 murder in the second degree. If you unanimously agree that the
20 defendant is guilty of murder in the second degree, you will return a
21 verdict of guilty of murder in the second degree. If you do not agree
22 you should discuss the reasons why there is a disagreement.
23 If, after reasonable deliberation, you do not agree that the defendant is
24 guilty of murder in the second degree, you should consider whether the
25 defendant is guilty of voluntary manslaughter. If you unanimously
26 agree that the defendant is guilty of voluntary manslaughter, you will
27 return a verdict of guilty of voluntary manslaughter. If you do not agree,
28 you should discuss the reasons why there is a disagreement.
15
1 You may not find the defendant guilty of more than one of the foregoing
2 crimes. If you have a reasonable doubt as to whether the defendant
3 committed any one of the crimes, you must determine that he is not
4 guilty of that crime. If you find him not guilty of all of these crimes,
5 you must return a verdict of not guilty.
6 You may not find the defendant guilty of an included offense until you
7 have unanimously decided that the defendant is not guilty of the offense
8 that includes the included offense. For example, you may not find the
9 defendant guilty of second degree murder until you have decided that
10 he is not guilty of first degree murder. However, you have the discretion
11 to choose the manner and order in which you deliberate on these
12 offenses.
13 (Emphasis added.)
14 a. Internal inconsistency
15 {24} Defendant contends the stepdown instruction was internally inconsistent
16 because it prescribed the order in which the jury “must” consider the offenses then
17 later instructed the jury that it had the discretion to choose the order in which it
18 considered the offenses. However, the relevant portion of the instruction does not
19 use the word “must” as Defendant claims, but rather the term “should.” The term
20 “should,” similar to “may,” is permissive or suggestive—not mandatory. See
21 Cerrillos Gravel Prods., Inc. v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 2004-
22 NMCA-096, ¶ 10, 136 N.M. 247, 96 P.3d 1167 (“The word ‘may’ is permissive, and
23 is not the equivalent of “shall,’ which is mandatory.”), aff’d, 2005-NMSC-023, ¶ 12,
24 138 N.M. 126, 117 P.3d 932; see also, e.g., Aragon v. United States, 146 F.3d 819,
16
1 826 (10th Cir. 1988) (holding that the use of the word “should” is suggestive
2 language, rather than mandatory language). Examining the instructions as a whole,
3 as the jury was instructed to do and as our caselaw requires, State v. Cabezuela,
4 2011-NMSC-041, ¶ 21, 150 N.M. 654, 265 P.3d 705, any permissive suggestion
5 regarding the order of consideration was clarified by the express instruction
6 informing the jury that it had the discretion to consider the offenses in any order it
7 wished.
8 {25} We see no internal inconsistency in the instruction that would confuse or
9 misdirect a reasonable juror. Furthermore, the stepdown instruction provided the
10 jury with an accurate rendition of the relevant law, as it recites the language of UJI
11 14-250 NMRA, the stepdown instruction for varying degrees of homicide in place
12 at the time of trial.3
13 b. Included offense not defined
14 {26} Defendant next claims the district court erred in failing to define “included
3
The stepdown instruction was subsequently amended when we recognized an
ambiguity in New Mexico’s prior uniform stepdown instructions in that it failed to
explain “whether a jury may proceed to consideration of a lesser offense if it is
unable to agree on the greater offense”—an issue that is not presented by this case.
Lewis, 2019-NMSC-001, ¶¶ 1, 24. Following Lewis, our prior stepdown instructions
were replaced with UJI 14-6002B NMRA, which “serve[s] as a single adaptable
instruction” adopted to “clarify the process for the jury to deliberate and return
verdicts on lesser-included offenses.” UJI 14-6002B comm. cmt.
17
1 offense” because it resulted in jury confusion. Defendant contends that a layperson
2 would not comprehend that second-degree murder is a lesser-included offense of
3 first-degree murder or that voluntary manslaughter is a lesser-included offense of
4 second-degree murder based on this instruction.
5 {27} We again apply the error analysis set out in Sandoval, 2011-NMSC-022, ¶ 15.
6 We are unpersuaded that the lack of a definition for “included offense” would
7 confuse or misdirect a reasonable juror because the jury was provided with an
8 example of a lesser-included offense. The jury was instructed that it could not find
9 Defendant guilty of second-degree murder without first finding him not guilty of
10 first-degree murder. Because the jury received this helpful example and because the
11 jury never requested a definition, see State v. Romero, 2009-NMCA-012, ¶ 25, 145
12 N.M. 594, 203 P.3d 125 (inferring that the jury was not confused because it did not
13 request a definition), we conclude that the instructions would not confuse or
14 misdirect a reasonable juror and that there is no error. See Sandoval, 2011-NMSC-
15 022, ¶ 13.
16 c. Curative instruction
17 {28} Defendant also asserts that the jury was confused by the curative instruction
18 given in response to its question about whether it could “charge both felony murder
19 and first-degree murder/second-degree murder/manslaughter” (emphasis added).
18
1 Addressing the jury’s question, the district court gave a curative instruction stating,
2 “The step-down instruction applies only to willful and deliberate murder.”
3 Defendant contends that the curative instruction confused the jury both because it
4 did not refer to the stepdown instruction by its number (eighteen), leaving the jury
5 with no way to know that the curative instruction applied to the stepdown instruction
6 and because the curative instruction only refers to willful and deliberate murder,
7 resulting in “an ambiguous limitation which could be reasonably read to limit”
8 application of the stepdown instruction to only first-degree murder. Defendant
9 claims that the jury’s not-guilty verdicts for second-degree murder and voluntary
10 manslaughter are clear evidence of this confusion.
11 {29} Again applying the Sandoval analysis to Defendant’s claimed error in the
12 curative instruction, this Court must first determine if the lack of reference to
13 Instruction No. 18 and the fact that the instruction was limited to the explanation that
14 the stepdown instruction applied only to willful and deliberate murder would
15 confuse or misdirect a reasonable juror. Sandoval, 2011-NMSC-022, ¶ 15. Here, the
16 jury did not express any confusion as to which instruction the curative instruction
17 applied. The jury also did not express any confusion in relation to whether its
18 consideration should be limited to first-degree murder. The jury’s lack of inquiry
19 suggests that it was not confused. See, e.g., Romero, 2009-NMCA-012, ¶ 25
19
1 (inferring that the jury was not confused because it did not request clarification).
2 While Defendant contends that this confusion is demonstrated by the jury returning
3 verdicts of not guilty for second-degree murder and voluntary manslaughter, the
4 jury’s act of expressly entering these not-guilty verdicts instead demonstrates that it
5 did not limit its consideration to first-degree murder and also understood the
6 stepdown instruction, which explained that the jury “may not find the defendant
7 guilty of more than one of the foregoing crimes.” These verdicts, along with the
8 jury’s conviction of felony murder, demonstrate that the jury connected the curative
9 instruction to the stepdown instruction. Therefore, we conclude that the jury was not
10 confused or misdirected by the curative instruction.
11 {30} Instead, the jury appeared confused as to whether it could convict on both
12 felony murder and the other homicide offenses charged, questioning whether it could
13 “charge both felony murder and first-degree murder/second-degree
14 murder/manslaughter” (emphasis added). The district court correctly interpreted the
15 jury’s question as confusion related to whether the jury could convict for felony
16 murder and one of the other charged homicide offenses. The district court noted that
17 the confusion was likely due to the stepdown instruction referring to first-degree
18 murder, but not differentiating between first-degree, felony murder and willful and
19 deliberate first-degree murder. The jury’s guilty verdicts for both felony murder and
20
1 willful and deliberate first-degree murder support that this was the point of confusion
2 and that the confusion was resolved by the curative instruction. Because any
3 confusion was cured, reversal is unwarranted. See State v. Parish, 1994-NMSC-073,
4 ¶¶ 4, 13, 118 N.M. 39, 878 P.2d 988 (explaining that a confusing instruction, in
5 contrast with a legally erroneous instruction, may be cured when examining the
6 instructions as a whole).
7 C. Inconsistent Verdicts
8 {31} Defendant next claims that reversal is warranted because the verdicts are
9 legally inconsistent. Defendant insists that the verdicts acquitting him of the lesser-
10 included offenses, but convicting him of first-degree murder are inconsistent
11 because the charged homicide offenses share the elements that (1) Defendant killed
12 Victim and (2) that this occurred in New Mexico on or about January 11, 2008.
13 Defendant argues that due to not-guilty verdicts for second-degree murder and
14 voluntary manslaughter, inconsistency is apparent in the guilty verdicts as to the
15 findings of mens rea. Defendant says “it is equally as possible that the jury
16 determined that there was not sufficient evidence to convict” on the shared essential
17 elements as it is that the jury’s verdict shows a rejection of the distinct elements—
18 the mens rea. Defendant reasons that the possibility that the jury found the shared
19 elements for first-degree murder but not for second-degree murder and voluntary
21
1 manslaughter renders the verdicts legally inconsistent.
2 {32} We disagree. This Court reviews inconsistent convictions, not inconsistent
3 verdicts. When the evidence is sufficient to support the verdict of conviction, we
4 will not speculate as to why the jury acquitted a defendant of other charges—even if
5 the conviction and acquittal are allegedly inconsistent. To examine the verdict of
6 acquittal would require us to rule based on pure speculation or else would require an
7 inquiry into the jury’s deliberations, both of which we decline to undertake. See
8 United States v. Powell, 469 U.S. 57, 66 (1984)
9 {33} Whether a legal inconsistency in a jury’s verdict requires acquittal is a matter
10 of law reviewed de novo. United States v. Pierce, 940 F.3d 817, 821 (2d Cir. 2019).
11 The general rule is that “[c]onsistency in the verdict is not necessary.” Dunn v.
12 United States, 284 U.S. 390, 393 (1932). The state must prove each element of a
13 charged offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970)
14 (“[T]he Due Process Clause protects the accused against conviction except upon
15 proof beyond a reasonable doubt of every fact necessary to constitute the crime with
16 which he is charged.”). Where there is sufficient evidence to support the conviction,
17 reversal is not required. See State v. Fernandez, 1994-NMCA-056, ¶ 39, 117 N.M.
18 673, 875 P.2d 1104 (explaining that reversal of a conviction supported by sufficient
19 evidence is not required even if it is irreconcilable with an acquittal because appellate
22
1 courts review convictions—not acquittals).
2 {34} The rule set out in Dunn was upheld more than fifty years later in Powell, 469
3 U.S. at 69. In Powell, the defendant was both acquitted of the predicate offenses of
4 conspiracy to possess cocaine and possession of cocaine and convicted of the
5 compound offense of “using the telephone to facilitate those offenses.” Id. The
6 defendant in Powell, like Defendant in this case, asserted that the alleged
7 inconsistency between the convicted offense and acquitted offenses necessarily
8 required reversal. Id. at 60. The Powell Court disagreed, holding that any
9 inconsistency between acquittal and conviction did not require reversal because “[i]t
10 is equally possible that the jury, convinced of guilt, properly reached its conclusion
11 on the compound offense, and then through mistake, compromise, or lenity, arrived
12 at an inconsistent conclusion on the lesser offense.” Id. at 65. It reasoned that “an
13 individualized assessment of the reason for the inconsistency would be based either
14 on pure speculation, or would require inquiries into the jury’s deliberations that
15 courts generally will not undertake.” Id. at 66. Instead, a criminal defendant, the
16 Powell Court explained, is sufficiently protected “against jury irrationality or error
17 by the independent review of the sufficiency of the evidence” as to those counts upon
18 which a defendant is convicted. Id. at 67.
23
1 {35} Even though New Mexico is not bound by Powell, see, e.g., State v. Halstead,
2 791 N.W.2d 805, 810 (Iowa 2010) (explaining that, because the Powell Court did
3 not base its decision on constitutional considerations, states are free to address
4 inconsistent verdicts as they see fit in state criminal proceedings), we are persuaded
5 by its reasoning and hereby expressly adopt it in New Mexico. Further, we view the
6 Powell approach as consistent with the approach taken by our lower courts over the
7 past fifty years. See, e.g., State v. Roper, 2001-NMCA-093, ¶ 24, 131 N.M. 189, 34
8 P.3d 133 (“We have frequently said that our business is to review the verdicts of
9 conviction, and not concern ourselves with any alleged acquittals, and thus we do
10 not entertain contentions alleging that the verdicts are irreconcilable.”); State v.
11 Leyba, 1969-NMCA-030, ¶¶ 36-37, 80 N.M. 190, 453 P.2d 211 (“The verdict of
12 acquittal is beyond our control. . . . Since we may only speculate as to why the jury
13 acquitted defendant . . . , that acquittal, even though irreconcilable with
14 conviction . . . , does not require the conviction to be set aside as a matter of law.”);
15 State v. Nichols, 2016-NMSC-001, ¶¶ 36-37, 363 P.3d 1187 (discussing inconsistent
16 verdicts in dicta and basing its “ultimate decision” not on any alleged inconsistency,
17 but upon insufficient evidence to support the conviction). Indeed, the majority of
18 jurisdictions have applied the rule announced in Dunn and reaffirmed in Powell. See,
19 e.g., State v. Davis, 466 S.W.3d 49, 72-74 (Tenn. 2015) (recognizing that
24
1 inconsistent verdicts can take multiple forms, and when there is an alleged
2 inconsistency between a conviction and an acquittal, the majority of jurisdictions
3 follow Dunn and Powell in declining to upset a conviction as long as there is
4 sufficient evidence); see also Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010)
5 (reasoning that a jury may return inconsistent verdicts for a number of reasons, and
6 “agree[ing] with and adopt[ing] the federal rule expressed by the United States
7 Supreme Court in Dunn and Powell, which has been for the most part the prevailing
8 rule of Indiana jurisprudence”).
9 {36} Applying Powell, Defendant has not presented this Court with inconsistent
10 convictions, and we decline to examine the jury’s rationale for acquitting Defendant
11 of second-degree murder and voluntary manslaughter while convicting him of
12 willful and deliberate first-degree murder because such an examination would
13 require that we rule based on pure speculation or else inquire into the jury’s
14 deliberations, both endeavors that we decline to undertake. See Powell, 469 U.S. at15 66. As Defendant concedes and the record reflects, the State presented sufficient
16 evidence to support the conviction of willful and deliberate first-degree murder, and
17 we will not vacate that conviction. See Fernandez, 1994-NMCA-056, ¶ 39,
18 (declining to vacate a conviction supported by substantial evidence acknowledging
19 that “we review the verdict of conviction, not the verdict of acquittal”); see also
25
1 Powell, 469 U.S. at 69 (explaining that, when a defendant is given the benefit of
2 acquittal on certain counts, “it is neither irrational nor illogical to require [a
3 defendant] to accept the burden of conviction on the counts on which the jury
4 convicted”).
5 D. Implied Acquittal and Double Jeopardy
6 {37} We now turn to Defendant’s argument that his conviction for willful and
7 deliberate first-degree murder should be vacated under the implied acquittal doctrine
8 as this conviction violates his right to be free from double jeopardy. For the reasons
9 explained below, both the implied acquittal doctrine and double jeopardy are
10 inapposite here.
11 1. Implied acquittal doctrine
12 {38} Defendant contends that State v. Montoya, an implied acquittal case, supports
13 reversal. 2013-NMSC-020, ¶ 25, 306 P.3d 426. In Montoya, we held that the
14 defendant, having been acquitted by a jury of the lesser offense of second-degree
15 murder, was constitutionally protected from subsequent prosecution for that offense
16 or for a related greater offense because acquittal of the lesser offense resulted in an
17 implied acquittal of the greater offense. Id. ¶¶ 25-27.
18 {39} Montoya is of no assistance to Defendant because the implied acquittal
19 doctrine has not been extended to cases where, as here, the jury was not silent on the
26
1 greater offense but rather expressly convicted the defendant of the greater offense.4
2 See United States v. Bordeaux, 121 F.3d 1187, 1192 (8th Cir. 1997) (rejecting the
3 application of the applied acquittal doctrine where the jury was not silent on the
4 greater offense); Saulsberry v. Lee, 937 F.3d 644, 649 (6th Cir. 2019) (explaining
5 that the implied acquittal doctrine only applies where “the jury remained silent in
6 the face of a free choice to convict”). Defendant concedes that there is no New
7 Mexico or federal authority to support his position that the implied acquittal doctrine
8 operates even where the jury has expressly convicted on the greater offense. And
9 where Defendant has not provided authority to support his position, we may assume
10 no such authority exists. Lee v. Lee (In re Doe), 1984-NMSC-024, ¶ 2, 100 N.M.
11 764, 676 P.2d 1329 (noting that where a party fails to cite authority, this Court
12 assumes no such authority exists).
13 2. Double jeopardy
14 {40} Defendant also asserts that his conviction violates double jeopardy and that
4
Defendant insists that Florida caselaw supports his position. The Florida cases
Defendant cites are inapplicable because they did not hold that the implied acquittal
doctrine is automatically invoked where the jury convicts on the greater offense.
Instead, the Florida Supreme Court has made clear that the implied acquittal doctrine
is limited to situations where the jury is silent on the greater offense. Greene v. City
of Gulfport, 103 So. 2d 115, 116 (Fla. 1958) (precluding subsequent trial for the
higher-grade offense “since the verdict convicting of one of the lower grades, but
saying nothing as to the higher, necessarily implies a finding of not guilty of the
higher offense”).
27
1 retrial for any of the homicide offenses would be barred by double jeopardy. “The
2 Fifth Amendment of the United States Constitution prohibits double jeopardy and is
3 made applicable to New Mexico by the Fourteenth Amendment.” State v. Swick,
4 2012-NMSC-018, ¶ 10, 279 P.3d 747. The Double Jeopardy Clause of the Fifth
5 Amendment guarantees that no person shall “be twice put in jeopardy of life or limb”
6 for the same offense. U.S. Const. amend. V. Double jeopardy is implicated where
7 there is “(1) a second prosecution for the same offense after acquittal, (2) a second
8 prosecution for the same offense after conviction, [or] (3) multiple punishments for
9 the same offense.” Montoya, 2013-NMSC-020, ¶ 23 (internal quotation marks and
10 citation omitted). Because this case does not involve any of the enumerated
11 protections, double jeopardy is not implicated.
12 {41} First, there has only been one prosecution, and while Defendant insists retrial
13 would be barred on double jeopardy grounds, as we determine no error below
14 warranting reversal, retrial is not contemplated. In addition, this is not a multiple
15 punishment case. Defendant was only left with one homicide conviction after his
16 felony murder conviction was merged, and he does not argue that his convictions for
17 conspiracy, evidence tampering, and kidnapping are punishments for the same
18 offense in violation of double jeopardy. Rather, Defendant insists that his right to be
19 free from double jeopardy is violated because he was simultaneously convicted of
28
1 willful and deliberate first-degree murder and acquitted of second-degree murder
2 and voluntary manslaughter. Defendant fails to make a justifiable double jeopardy
3 argument.
4 {42} For the first time at oral argument, Defendant argued that the language of the
5 New Mexico Constitution provides greater protection than its federal counterpart
6 and called upon this Court to expand the protections of the New Mexico Constitution
7 based on principles of res judicata and collateral estoppel to cases where, as here, a
8 defendant has been convicted on a greater offense but acquitted on a lesser-included
9 offense. However, under either constitution, double jeopardy and principles of res
10 judicata and collateral estoppel are simply not implicated where there has been
11 neither multiple punishments nor successive prosecutions. See State v. Gallegos,
12 2011-NMSC-027, ¶ 30, 149 N.M. 704, 254 P.3d 655 (providing that both state and
13 federal double jeopardy clauses are applicable when there have been successive
14 prosecutions or multiple punishments); Alba v. Hayden, 2010-NMCA-037, ¶ 6, 148
15 N.M. 465, 237 P.3d 767 (explaining that res judicata and collateral estoppel “only
16 apply to successive litigation and not to issues or claims raised in the same
17 proceeding”). Therefore, we do not further entertain Defendant’s double jeopardy
18 and estoppel arguments.
29
1 E. Cumulative Error
2 {43} Finally, Defendant asserts that, even if the claimed errors above individually
3 do not warrant reversal, cumulative error deprived him of a fair trial requiring
4 reversal. In light of our conclusion that the district court did not err, there can be no
5 cumulative error. See State v. Casillas, 2009-NMCA-034, ¶ 51, 145 N.M. 783, 205
6 P.3d 830.
7 III. CONCLUSION
8 {44} For the foregoing reasons, we affirm.
9 {45} IT IS SO ORDERED.
10
11 JULIE J. VARGAS, Justice
12 WE CONCUR:
13
14 C. SHANNON BACON, Chief Justice
15
16 MICHAEL E. VIGIL, Justice
17
18 DAVID K. THOMSON, Justice
30