Clarifying LWOP Aggravator Instructions in Unbifurcated Murder Trials: No Fundamental Error When Jury Is Told to Reach the Aggravator Only After Finding Deliberate First-Degree Murder

I. Introduction

State v. De La O (No. S-1-SC-40702, filed July 9, 2026) is an unpublished decision of the Supreme Court of New Mexico (citable only as permitted by Rule 12-405 NMRA). The case arises from the shooting death of Alamogordo Police Officer Anthony Ferguson during a foot pursuit after Defendant Dominic De La O fled a traffic stop, led officers on a high-speed chase, crashed, and ran while carrying a sawed-off shotgun.

Defendant did not dispute that he shot the officer; the central trial dispute was mens rea: whether the killing was willful and deliberate first-degree murder or instead an impulsive act amounting to second-degree murder. The jury convicted Defendant of deliberate first-degree murder and found the LWOP aggravator of murder of a peace officer in the discharge of duties, resulting in a sentence of life without possibility of release or parole.

On appeal, Defendant sought a new trial on four grounds: (1) alleged fundamental error from interposing a peace-officer aggravator instruction between first- and second-degree murder instructions; (2) insufficient evidence for first-degree murder and tampering; (3) denial of mistrial after a witness referenced an outstanding warrant; and (4) improper sentence aggravation, including a void-for-vagueness challenge to NMSA 1978, § 31-18-15.1 (2009).

II. Summary of the Opinion

The Court affirmed all convictions and sentences. It held:

  • Although the placement and wording of the LWOP aggravator instruction could arguably confuse a juror, no fundamental error occurred because the instruction expressly conditioned consideration of the aggravator on a prior finding of deliberate first-degree murder.
  • Sufficient evidence supported deliberate intent for first-degree murder under circumstances similar to prior cases involving shootings of officers during flight from lawful stops.
  • The brief mention of an outstanding warrant, followed by a sustained objection and admonition, was at most nonconstitutional harmless error with no reasonable probability of affecting the verdict.
  • Section 31-18-15.1 is not void for vagueness under binding precedent, and the district court properly aggravated sentences for aggravated fleeing and tampering based on use of a sawed-off shotgun and Defendant’s conditions-of-release status.

III. Analysis

A. Precedents Cited

1. Unpublished disposition and scope

  • State v. Gonzales, 1990-NMCA-040: Cited to justify the Court’s limited discussion in a nonprecedential disposition—written primarily for the parties rather than as broad guidance.

2. Jury-instruction review; fundamental error and curing ambiguity

  • State v. Benally, 2001-NMSC-033: Supplies the governing framework—initial question is whether a reasonable juror would be confused or misdirected; for unpreserved claims, reversal requires confusion that remains uncorrected. Also provides the presumption that juries follow instructions.
  • State v. Parish, 1994-NMSC-073: Adds the “read as a whole” cure principle—if an instruction is ambiguous, the court examines whether other instructions cure the ambiguity.
  • State v. Chadwick-McNally, 2018-NMSC-018: Establishes that New Mexico’s scheme for LWOP aggravators “neither requires nor prohibits” bifurcation, explaining why trial courts may confront drafting/placement issues when proceeding in a single phase.

3. Sufficiency of evidence; deliberation

  • State v. Revels, 2025-NMSC-021 and State v. Montoya, 2015-NMSC-010: Provide the standard to view evidence in the light most favorable to the verdict and resolve conflicts in favor of the verdict.
  • State v. Garcia, 1992-NMSC-048: States the “substantial evidence” test for each essential element.
  • State v. Duran, 2006-NMSC-035: Recognizes deliberate intent can be inferred from circumstances and physical evidence.
  • State v. Garcia, 2011-NMSC-003: Emphasizes deference to a rational jury’s conclusions.
  • State v. Sutphin, 1988-NMSC-031: Rejects appellate reweighing based on innocence-consistent hypotheses.
  • State v. Sosa, 2000-NMSC-036: Notes intent is usually inferred rather than directly proven.
  • State v. Astorga, 2015-NMSC-007 and State v. Romero, 2019-NMSC-007: Provide the most substantive analogies: deliberation may be inferred where a defendant, faced with lawful police contact, chooses lethal violence to avoid apprehension.

4. Tampering with evidence

  • State v. Jackson, 2021-NMCA-059: Defendant relied on this to argue that discarding items quickly recovered is not tampering; the Court distinguished Jackson as involving evidence tossed in full view of officers during arrest.
  • State v. Radosevich, 2018-NMSC-028: Supplies the statutory purpose—punishing attempts to frustrate the justice system by obstructing access to evidence.
  • State v. Ramirez, 2018-NMSC-003: Supports the inference that discarding a murder weapon while fleeing evidences intent to avoid prosecution.

5. Mistrial, evidentiary error, and harmless error

  • State v. Gallegos, 2009-NMSC-017: Governs review of mistrial denial for abuse of discretion.
  • State v. Smith, 2025-NMSC-025: Reinforces deference to trial judges on whether a miscarriage of justice occurred.
  • State v. Smith, 2016-NMSC-007: States the general cure principle—striking inadmissible evidence and admonishing the jury typically cures error.
  • State v. Serna, 2013-NMSC-033 and State v. Tollardo, 2012-NMSC-008: Define the nonconstitutional harmless-error test: no reversal absent a reasonable probability the error affected the verdict.
  • State v. Leyba, 2012-NMSC-037: Directs courts to evaluate surrounding circumstances (source of error, emphasis at trial) and to contextualize the error against other evidence of guilt.

6. Sentence aggravation; vagueness; stare decisis

  • State v. Segotta, 1983-NMSC-092: Controls both the vagueness issue (statute not void) and identifies broad categories a judge may consider in aggravation, while not limiting the court to them.
  • State v. Martinez, 2006-NMSC-007 and State v. Montoya, 2013-NMSC-020: Provide the Court’s stare decisis framework and considerations for overruling precedent (abandoned doctrine, unworkability, changing circumstances).
  • State v. Tafoya, 2010-NMSC-019: Underscores district courts’ broad sentencing discretion within the legislative scheme.
  • State v. Roper, 2001-NMCA-093: Supports considering “all matters relevant to the event” as aggravating circumstances, including the nature of the firearm.

B. Legal Reasoning

1. The LWOP aggravator instruction did not cause fundamental error

The Court acknowledged a realistic point of potential confusion: the LWOP aggravator instruction for murder of a peace officer included a mens rea alternative—“intended to kill or acted with a reckless disregard for human life and knew that his acts carried a grave risk of death”—which can resemble the culpability concept jurors may associate with second-degree murder. The confusion risk was heightened because the instruction was placed between the first-degree deliberation instruction and the second-degree instruction.

The Court nevertheless found the ambiguity cured by the instruction’s gateway sentence: “If you find the defendant guilty of first degree murder by a deliberate killing, then you must determine whether the aggravating circumstance … was present.” Applying State v. Benally, 2001-NMSC-033 and State v. Parish, 1994-NMSC-073, the Court held that jurors are presumed to follow that sequencing, meaning the jury necessarily found deliberate first-degree murder before ever reaching the aggravator.

The decision implicitly reinforces a practical drafting principle for unbifurcated LWOP proceedings (recognized as permissible under State v. Chadwick-McNally, 2018-NMSC-018): where an aggravator instruction might contain language that could be misread as modifying elements of the charged offense, the instruction must clearly cabin its application to a post-verdict special finding.

2. Evidence of deliberation was sufficient

The Court relied heavily on the “options” theory articulated in State v. Astorga, 2015-NMSC-007: deliberation can be inferred when, confronted with lawful police action, the defendant has choices (comply, flee, or kill) and chooses lethal violence—even if the ultimate decision is made quickly. Here, Defendant repeatedly chose escalating courses of action (fleeing a stop; keeping a sawed-off shotgun; running from officers; refusing commands; shooting the officer in the face). Under the deferential standards of State v. Revels, 2025-NMSC-021, State v. Garcia, 1992-NMSC-048, and State v. Sutphin, 1988-NMSC-031, those circumstances permitted a rational inference of careful thought and weighing, as required by the deliberation instruction.

3. Tampering: discarding evidence while fleeing, outside officers’ view, supports intent to prevent apprehension

Distinguishing State v. Jackson, 2021-NMCA-059, the Court focused on visibility and purpose. In Jackson, the evidence was tossed in plain view during arrest, undermining concealment/obstruction in a meaningful way. Here, Defendant discarded the murder weapon and clothing while running and not within officers’ view, allowing the inference—consistent with State v. Radosevich, 2018-NMSC-028 and State v. Ramirez, 2018-NMSC-003—that he sought to impede identification and prosecution.

4. The warrant reference did not warrant a mistrial

Even assuming inadmissibility under Rule 11-404(B) NMRA (other-acts propensity evidence), the Court applied nonconstitutional harmless-error review under State v. Serna, 2013-NMSC-033 and State v. Tollardo, 2012-NMSC-008. Using State v. Leyba, 2012-NMSC-037, it examined emphasis and context: the mention was isolated, the objection was sustained, the jury was admonished (a cure recognized in State v. Smith, 2016-NMSC-007), and the admissible evidence of guilt was overwhelming. Therefore, there was no reasonable probability of an effect on the verdict, and the trial court did not abuse its discretion under State v. Gallegos, 2009-NMSC-017.

5. Sentence aggravation: Segotta remains controlling; factors were appropriate

On vagueness, the Court treated State v. Segotta, 1983-NMSC-092 as binding, rejecting Defendant’s request to revisit it. Applying stare decisis principles from State v. Martinez, 2006-NMSC-007 and State v. Montoya, 2013-NMSC-020, the Court found no showing that Segotta was abandoned doctrine, unworkable, or undermined by changed circumstances. It also situated broad sentencing discretion as part of the legislative design, consistent with State v. Tafoya, 2010-NMSC-019.

On the specific aggravators, the Court read State v. Roper, 2001-NMCA-093 broadly: the “nature of the particular firearm used” can aggravate as part of “circumstances surrounding the offense,” regardless of whether it was used specifically to induce fear. It also held that committing crimes while on conditions of release fits Segotta’s permissible considerations of past conduct and a pattern indicating threat to society.

C. Impact

Although unpublished, the decision is practically significant in three ways:

  1. LWOP aggravator instruction management in unbifurcated trials: It highlights a recurrent risk—aggravator language that resembles lesser-homicide mens rea—and signals that clear sequencing language (“only if you first find deliberate first-degree murder”) will generally defeat fundamental-error claims even when the instruction’s placement is awkward.
  2. Deliberation proof in officer killings during flight: By aligning the facts with State v. Astorga, 2015-NMSC-007 and State v. Romero, 2019-NMSC-007, the Court reinforces that deliberation can be inferred from a chain of choices to evade apprehension culminating in a targeted shooting.
  3. Sentencing aggravation doctrine stability: The refusal to revisit State v. Segotta, 1983-NMSC-092 underscores that void-for-vagueness challenges to § 31-18-15.1 face a steep stare decisis barrier, and that “circumstances surrounding the offense” remains a capacious category for aggravation.

IV. Complex Concepts Simplified

  • “Fundamental error” (jury instructions): When a defendant did not object at trial, an appellate court reverses only if the instructions likely confused jurors in a way that remained uncorrected when the instructions are read as a whole.
  • First-degree “deliberate intention” vs. second-degree mens rea: Deliberation requires more than intent to kill; it requires weighing reasons for and against killing—even if that weighing happens quickly. Second-degree murder can be based on knowledge of a strong probability of death or great bodily harm without that deliberate weighing.
  • LWOP aggravator: For first-degree murder, the jury may be asked to make an additional special finding (here, murder of a peace officer in the discharge of duties) that increases the sentence from life to life without parole.
  • “Tampering with evidence”: The key is intent to prevent apprehension/prosecution by changing, hiding, or placing evidence. Discarding items out of officers’ view while fleeing can qualify because it can obstruct recovery or identification—even if the police later find the items.
  • Rule 11-404(B) NMRA: Generally bars evidence of other misconduct (like an outstanding warrant) when offered only to show a person’s propensity to commit the charged crime; even if such evidence slips in, the question on appeal often becomes whether it likely affected the verdict.
  • “Void for vagueness”: A statute is unconstitutional if it is so unclear that people cannot understand what is prohibited or it invites arbitrary enforcement; Segotta holds § 31-18-15.1 gives sufficient guidance through judicially recognized factors and sentencing practice.

V. Conclusion

State v. De La O affirms convictions and sentencing outcomes in a police-officer murder case while addressing several recurring appellate themes: (1) potentially confusing LWOP aggravator instructions do not create fundamental error when they clearly require a prior deliberate first-degree murder finding; (2) deliberation may be inferred from a defendant’s sequence of choices to evade arrest culminating in a targeted killing; (3) isolated inadmissible propensity references can be harmless when promptly cured and not emphasized; and (4) challenges to New Mexico’s sentence-aggravation statute remain foreclosed by State v. Segotta, 1983-NMSC-092, with broad discretion to consider offense circumstances and defendant conduct.