Deliberate Intent in Split-Second Killings and Limits on Prosecutorial Misconduct: Commentary on State v. Gallegos (N.M. 2025)

I. Introduction

The Supreme Court of New Mexico’s nonprecedential decision in State v. Gallegos, No. S-1-SC-40351 (Dec. 4, 2025), offers a dense and instructive treatment of two recurring criminal law issues:

When a very fast, emotionally charged killing can nonetheless qualify as “willful and deliberate” first-degree murder; and
When prosecutorial errors in closing argument warrant reversal, either as an abuse of discretion or as fundamental error.

Although explicitly designated as nonprecedential under Rule 12-405 NMRA, the opinion provides a clear synthesis of existing New Mexico homicide jurisprudence and prosecutorial-misconduct doctrine. It applies longstanding standards to a modern evidentiary setting: a street killing captured almost entirely on surveillance video.

The defendant, Adelio David Gallegos, Jr., was convicted of first-degree murder by deliberate killing under NMSA 1978, Section 30-2-1(A)(1) (1994), and sentenced to life imprisonment. On direct appeal, he raised two principal claims:

Insufficient evidence of “deliberate intention” to kill, arguing the incident was too quick and impulsive to support first-degree murder and supported at most second-degree murder; and
Prosecutorial misconduct in closing argument, including alleged misstatements of the law distinguishing first- and second-degree murder, disparagement of his diminished capacity defense, argument outside the record, and speculative characterizations of his conduct.

The Supreme Court rejected all of these arguments and affirmed the conviction. Along the way, it clarified how juries may infer deliberate intent in a highly compressed time frame and how appellate courts evaluate challenged closing arguments against the backdrop of proper jury instructions and the strength of the evidence.

II. Factual and Procedural Background

A. The Incident

On a January morning in Albuquerque, Defendant sat in his parked car across from a methadone clinic. Victim, Mike Guerra, backed his vehicle into Defendant’s car. Surveillance video from the clinic—silent but visually clear—captured the subsequent events:

Victim began to drive away after the fender-bender.
Defendant exited his car, approached Victim’s vehicle, and tapped on the driver’s side window.
Victim pulled over and got out; the two men exchanged words, visible but not audible on video.
Defendant then walked out of the video frame (back toward his car), while Victim returned to his vehicle.
Approximately 17 seconds later, Defendant reappeared, now carrying and pointing a loaded .22 caliber rifle at Victim, who had again exited his car.
A witness heard two shots; on the video, Victim is seen ducking just before Defendant ultimately shoots him point-blank in the abdomen.
Victim collapses in the street, writhing; Defendant runs away. Seconds later, Defendant’s car drives by, swerving slightly to avoid Victim’s body.

The entire visible sequence—from Victim’s vehicle first appearing to the fatal shot—lasted less than 90 seconds. Victim died from the abdominal gunshot wound.

B. Defendant’s Statements and Trial Testimony

Defendant was not interviewed until about a year after the shooting. At that point, he confessed to shooting Victim, explaining that:

He was angry because Victim called him a “punk.”
Victim refused to pay money or provide insurance information for the perceived damage to his car.

At trial, Defendant testified that:

He sought to resolve the dispute through insurance or cash compensation.
Victim was “getting loud” and insulting him.
He did not remember firing the gun, did not realize it had gone off, and claimed he did not know Victim had been shot until contacted by police nearly a year later.
He did not intend to kill; he only wanted to scare Victim to force him to address the damage.

Defendant emphasized a long history of drug addiction, including:

Chronic substance abuse;
Use of fentanyl in the months prior to the killing;
Participation in methadone treatment for opioid addiction; and
Use of Xanax and marijuana.

He described acting “without thinking” when high and testified he was under the influence of multiple substances during the incident. The defense thus relied on a combination of lack of deliberate intent and diminished capacity from intoxication.

C. Verdict and Appeal

The jury convicted Defendant of first-degree murder by deliberate killing. Under Article VI, Section 2 of the New Mexico Constitution, the life sentence triggered a direct appeal to the Supreme Court of New Mexico.

The Court elected to dispose of the appeal in a nonprecedential decision under Rule 12-405(B) NMRA, limiting its discussion to facts and law necessary to decide the case, consistent with State v. Gonzales, 1990-NMCA-040.

III. Summary of the Court’s Decision

A. Sufficiency of the Evidence: Deliberate Intent

The Court held that, even though the confrontation unfolded very quickly, a rational jury could find beyond a reasonable doubt that Defendant acted with “deliberate intention to take away the life of Mike Guerra,” as required by UJI 14-201 and Section 30-2-1(A)(1). The Court emphasized:

The verbal confrontation and evidence of Defendant’s anger after being insulted and refused money;
Defendant’s choice to walk away, retrieve a loaded rifle from his car, and return to the confrontation rather than disengage;
Evidence consistent with two shots, with Victim ducking after the first and then being shot at point-blank range in the abdomen; and
The unarmed, non-pursuing status of the Victim, visible on video.

From these circumstances, the jury could reasonably infer motive, deliberation, and a calculated decision to kill—even within a short time frame. The Court distinguished defense precedents (Garcia, Adonis, and Carmona) and reaffirmed that even near-instant decisions can be “deliberate” when supported by appropriate evidence.

B. Prosecutorial Misconduct

On the prosecutorial misconduct issues, the Court made three key rulings:

Preserved claim – alleged misstatement of law: The Court assumed (in Defendant’s favor) that the district court overruled defense objections to the prosecutor’s explanation of the difference between first- and second-degree murder. It concluded:
- The trial court did not abuse its discretion.
- The prosecutor’s comments, viewed in context, were aimed at distinguishing specific intent (first-degree) from general intent (second-degree), and emphasized that second-degree still required intentional conduct.
- Even if somewhat imprecise, any misstatement was not so serious as to require reversal, given the correct written instructions and defense counsel’s own explanation to the jury.
Unpreserved claims – fundamental error review: The Court rejected three unpreserved allegations of misconduct:
- Disparagement of the diminished capacity defense as an appeal to sympathy and avoidance of accountability;
- A brief statement that Victim had just been released from hospitalization for COVID—contrary to an earlier evidentiary ruling; and
- A “dramatized narrative” presenting Defendant as a drug-driven aggressor demanding money.
Applying the State v. Sosa factors and fundamental error doctrine, the Court held that none of these statements, singly or together, deprived Defendant of a fair trial or significantly influenced the verdict in light of the evidence.
No cumulative error: Because the Court identified no reversible error, there was nothing to aggregate; the doctrine of cumulative error did not apply.

Accordingly, the Court affirmed the first-degree murder conviction and life sentence.

IV. Detailed Analysis

A. Precedents and Authorities Cited

1. Substantial Evidence and Sufficiency Review

The Court grounded its sufficiency analysis in several key cases:

State v. Flores, 2010-NMSC-002 (overruled on other grounds by State v. Martinez, 2021-NMSC-002):
- Affirmed that appellate courts must respect the jury’s role as factfinder while ensuring verdicts rest on evidence, not speculation.
- Gallegos quotes this to frame the tension between deference and judicial responsibility.
State v. Aguilar, 1994-NMSC-046:
- Articulates New Mexico’s core sufficiency standard: evidence must be viewed in the light most favorable to the verdict, resolving conflicts and drawing all permissible inferences in favor of conviction.
- Asks whether “any rational jury” could find each element beyond a reasonable doubt.
- Gallegos repeatedly grounds its analysis in this test.
State v. Holt, 2016-NMSC-011:
- Reiterates that “the jury instructions are the law of the case” and sufficiency is measured against them.
- This is critical because the Court evaluates deliberate intent through the lens of UJI 14-201 as actually given.
State v. Trujillo, 2002-NMSC-005 and State v. Rojo, 1999-NMSC-001:
- Confirm that assessing credibility and resolving conflicting testimony are exclusively for the jury, not appellate courts.
- Gallegos invokes these to explain why Defendant’s version—no memory of firing, no intent to kill, intoxication—could be rejected by the jury.

2. Deliberate Intent in Homicide Cases

The heart of the opinion builds on a line of New Mexico cases defining and applying “deliberate intention” in first-degree murder:

Pattern Instruction UJI 14-201 (Deliberate Intention):
- Defines “deliberate intention” as:
  “Arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse … is not a deliberate intention to kill.”
- Requires that “the slayer must weigh and consider the question of killing and his reasons for and against such a choice.”
- Gallegos closely tracks and applies this text.
State v. Astorga, 2015-NMSC-007:
- Holds that deliberate intention is “rarely” proven by direct evidence and is typically inferred from circumstances.
- Recognizes that motive may be probative of deliberate intent.
- Gallegos uses Astorga to justify inferring intent from:
  - Defendant’s anger at being called a “punk”; and
  - The refusal to pay or provide insurance information.
State v. Tafoya, 2012-NMSC-030:
- Emphasizes that when a killing happens quickly, courts must look to evidence “beyond the temporal aspect” to find deliberation.
- Also notes that the absence of prior verbal exchange or motive evidence may undercut a finding of deliberate intent.
- Gallegos adopts this analytical move: it acknowledges the short time frame but points to words exchanged, motive, retrieval of the rifle, and shot placement.
State v. Martinez, 2021-NMSC-012 (distinct from the 2021-NMSC-002 overruling Flores in part):
- Clarifies that even a “momentary decision” can constitute deliberate intent if there is evidence of careful thought and weighing of options, however brief.
- Stresses that the brevity of deliberation is assessed case by case.
- Gallegos quotes this to validate inferring a deliberate decision from Defendant’s brief but purposeful retrieval and use of the rifle.
State v. Garcia, 1992-NMSC-048; State v. Adonis, 2008-NMSC-059; and State v. Carmona (nonprecedential):
- Each is invoked by Defendant to argue that quick, emotionally driven killings may be only second-degree murder.
- The Court distinguishes them:
  - Garcia: There were no facts from which a jury could infer deliberate intention to kill. Gallegos underscores that Garcia is factually narrow and has often been distinguished in cases with stronger evidence of deliberation.
  - Adonis: The State presented no evidence of what the defendant did before shooting; in Gallegos, by contrast, the lead-up was captured on video, and Defendant himself described his anger and actions.
  - Carmona (nonprecedential): The Court there noted the defendant did not retrieve a weapon beforehand; in Gallegos, retrieving a rifle was a critical deliberative step.
State v. Martin (nonprecedential, 2010):
- Held that multiple close-range gunshots at an unarmed victim allow a jury to infer deliberate intent.
- Gallegos analogizes this to the two shots fired at close range, the ducking, and the subsequent fatal shot to the abdomen.

3. Post-Offense Conduct and Mens Rea

State v. Chavez, 2024-NMSC-023:
- Clarifies that a defendant’s post-offense statements or conduct are probative of intent only if they “relate back” to the defendant’s mental state before the crime.
- Gallegos applies this by expressly refusing to consider Defendant’s disposal of the gun, evasion of prosecution, or lies to police as evidence of pre-crime deliberate intent.
- This signals a disciplined approach: post-hoc concealment is classic consciousness-of-guilt evidence but not inherently proof of pre-homicide deliberation.

4. Specific vs General Intent; Voluntary Intoxication

State v. Brown, 1996-NMSC-073:
- Defines specific intent crimes as those requiring “intent to do a further act or achieve a further consequence.”
- Gallegos uses Brown to characterize first-degree murder by deliberate killing as a specific intent offense: the defendant must intend the further consequence of causing death, not just intend the underlying act (firing the gun).
Pattern Instruction UJI 14-141 (General Criminal Intent):
- Explains that for general intent crimes, the defendant must act intentionally, even if unaware that his acts are unlawful.
- The jury was instructed that second-degree murder required only this general intent standard.
- The prosecutor’s closing argument tried—imprecisely but permissibly—to navigate this distinction.

5. Prosecutorial Misconduct and Fundamental Error

For the misconduct issues, the Court relies on the well-established New Mexico framework:

State v. Sosa, 2009-NMSC-056:
- Sets out the three-factor test for evaluating alleged prosecutorial misconduct:
  1. Did the statement invade a distinct constitutional protection?
  2. Was it isolated and brief, or repeated and pervasive?
  3. Was it invited by the defense?
- Directs courts to view comments “objectively in the context of the prosecutor’s broader argument and the trial as a whole.”
- Gallegos applies these factors both under abuse-of-discretion review (for preserved error) and under fundamental error review (for unpreserved claims).
State v. Bailey, 2017-NMSC-001:
- Defines abuse of discretion as a ruling that is clearly against the logic and effect of the facts and circumstances, or “clearly untenable or unjustified by reason.”
- Gallegos uses this standard to uphold the trial court’s overruling of objections to the prosecutor’s legal explanation.
State v. Armendarez, 1992-NMSC-012 and State v. Duffy, 1998-NMSC-014 (partially overruled on other grounds):
- Stand for the principle that not every misstatement of law in closing requires reversal.
- Caution that appellate courts presume juries follow the written instructions rather than counsel’s argument.
- Gallegos relies on this presumption in declining to find reversible error in the prosecutor’s arguably imprecise description of first- vs second-degree murder.
State v. Lensegrav, 2025-NMSC-016:
- States that prosecutorial misconduct rises to fundamental error only when so egregious and prejudicial that it deprives a defendant of a fair trial.
- Gallegos uses this threshold to reject claims about disparagement of the intoxication/diminished capacity defense and narrative framing of the encounter.
State v. Diaz, 1983-NMCA-091:
- Found reversible error where the prosecutor flatly misstated the law by telling jurors that an intoxication defense required expert testimony.
- Defendant relied on Diaz to argue the prosecutor here undermined his diminished capacity defense.
- Gallegos distinguishes Diaz: no analogous legal misstatement occurred, the jury was properly instructed on diminished capacity, and Defendant testified fully about his drug use.
State v. Torres, 2012-NMSC-016:
- Holds that a prosecutor’s reference to matters outside the record does not necessarily require reversal when the comment is brief, peripheral, and unrelated to an element of the offense.
- Gallegos treats the COVID-hospitalization remark in a similar way—improper, but peripheral and non-prejudicial.
State v. Laney, 2003-NMCA-144; State ex rel. State Eng’r v. Romero, 2022-NMSC-022; State v. Hobbs, 2022-NMSC-018:
- Remind litigants that unpreserved misconduct claims face a high fundamental error bar, and that issues inadequately argued or unsupported by authority may be disregarded.
- Gallegos notes Defendant’s failure to meaningfully apply the Sosa factors to some misconduct claims as an additional reason not to reverse.

6. Cumulative Error

State v. Salas, 2010-NMSC-028 and State v. Samora, 2013-NMSC-038:
- Establish that cumulative error applies only when multiple individual errors—each insufficient alone to warrant reversal—combine to deprive a defendant of a fair trial.
- No cumulative error exists in the absence of any error to accumulate.
- Gallegos straightforwardly applies this rule in denying cumulative error relief.

B. The Court’s Legal Reasoning

1. Inferring Deliberate Intention from a Rapid Sequence

The central question on sufficiency was whether a rational jury could infer “deliberate intention” from an incident that unfolded in less than 90 seconds and was triggered by a minor car accident and heated words.

The Court’s reasoning proceeds in several steps:

Time alone is not determinative.
- The Court acknowledges the brief time frame and the difficulty of distinguishing “willful and deliberate” from “rash and impulsive” killings.
- But relying on Tafoya and Martinez, it reiterates that a “calculated judgment and decision may be arrived at in a short period of time” and that even a last-second decision can be deliberate, depending on circumstances.
The pre-shooting sequence shows opportunity to think and choose.
- Defendant walked away from Victim and returned to his car.
- At that juncture, he could have:
  - Gotten into his car and left; or
  - Waited for police or exchanged information calmly.
- Instead, he retrieved a loaded rifle and returned to confront Victim.
- This movement—back to the car, retrieval of a weapon, and return—provided time, however brief, to “weigh and consider” whether to escalate the conflict to lethal force.
Motive and mental state evidence support deliberate intent.
- Defendant admitted being angry because Victim called him a “punk” and refused to pay or provide insurance information.
- The video showed an argumentative confrontation before Defendant left to get the rifle.
- Under Astorga, such a motive—retaliation for insult and refusal to compensate—supplies circumstantial evidence that he made a conscious decision to kill.
The manner of shooting supports calculation, not mere rash impulse.
- A witness heard two shots; the video shows Victim ducking before being hit.
- The Court reads this as:
  - An initial shot that missed but caused Victim to duck; followed by
  - A second shot, with Defendant still aiming the rifle, adjusted downward to Victim’s abdomen, fired at point-blank range.
- Shooting an unarmed, elderly victim at close range in the abdomen after an initial miss is treated as strong evidence of deliberate, targeted killing, not an uncontrolled discharge.
Intoxication and claimed lack of memory were for the jury to reject.
- Defendant’s testimony described drug intoxication and lack of recollection; he insisted he only wanted to scare Victim.
- The jury, however, was properly instructed on diminished capacity due to intoxication and on deliberate intent.
- Under Trujillo and Rojo, the Court defers to the jury’s decision to reject Defendant’s narrative in light of the video and other evidence.

Taken together, the Court concludes that a rational jury could find that Defendant:

Had time, albeit brief, to consider killing;
Had a motive grounded in anger and frustration;
Chose to escalate by retrieving a firearm;
Fired deliberately at a vital area after an initial miss; and
Did so against an unarmed, elderly victim who did not pursue or provoke further.

Under the Aguilar standard, that is enough to sustain a conviction for first-degree murder by deliberate killing.

2. Rejecting Analogies to Prior “Quick Killing” Cases

Defendant sought to frame his case as a classic “impulsive” homicide more consistent with second-degree murder. The Court systematically dismantles that argument by contrasting the evidence here with the record in earlier cases:

Garcia: The Court has repeatedly emphasized its narrow factual posture—there were essentially no facts supporting an inference of prior deliberation. In Gallegos, by contrast, the Court notes:
- Clear video of the prior confrontation;
- Defendant’s admission of anger and motive;
- Retrieval of a loaded weapon; and
- Close-range targeting of a vital area.
Adonis: The State could not show what the defendant did before firing. In Gallegos, pre-shooting conduct is not only described but visually recorded.
Carmona (nonprecedential): There, the Court emphasized the defendant did not leave to get a weapon. Here, weapon retrieval is central to the inference of deliberation.

This comparative analysis illustrates how the Court cabins defense-friendly precedents to their facts and preserves robust space for juries to infer deliberate intent when pre-shooting actions and motive are well documented.

3. Prosecutorial Misconduct in Explaining First- vs Second-Degree Murder

The most legally intricate portion of the opinion addresses complaints about the prosecutor’s closing argument on the distinction between:

First-degree murder by deliberate killing (specific intent to kill), and
Second-degree murder (general intent to engage in dangerous conduct that creates a strong probability of death or great bodily harm).

Key aspects of the Court’s reasoning:

The jury received correct written instructions.
- The trial judge read UJI 14-201 (first-degree) and the applicable second-degree murder instructions.
- The jury was told that:
  - Instructions are the law of the case; and
  - Attorney argument is not evidence.
The prosecutor’s explanation was framed as a distinction between specific and general intent.
- The prosecutor initially summarized:
  - First-degree: Point the gun, shoot, intend to kill.
  - Second-degree: Point the gun, shoot, but do not intend to kill (while knowing there is a strong probability of death or great bodily harm).
- Defense counsel objected that this “turned first-degree murder into a catch-all for all intentional murders.”
- After bench conferences, the prosecutor reiterated that for second-degree, Defendant must have:
  - Intentionally pointed the gun;
  - Intentionally fired; and
  - Knew his actions created a strong probability of death or great bodily harm, but “did not intend death.”
The Court finds no clear misstatement of the law in context.
- It accepts the prosecutor’s proffered aim: to differentiate the “deliberate intention to take away a life” (first-degree) from mere intentional dangerous conduct (second-degree).
- The prosecutor repeatedly emphasized that even second-degree requires intentional acts, not accident.
- Viewed holistically and in the shadow of the superior written instructions, the Court treats any conceptual slippage as “somewhat imprecise” but not misleading.
Application of the Sosa factors.
- Constitutional invasion: Because the evidence of deliberate intent was sufficient, and the jury was properly instructed on intoxication and mens rea, the Court finds no invasion of the right to have each element proven beyond a reasonable doubt or to present a defense.
- Isolated vs pervasive: The challenged comments occupied only a small portion of the prosecutor’s argument and were not repeated at length.
- Invited error: The defense did not invite the statements, but the brief and bounded nature of the remarks mitigated their impact.
Defense counsel’s responsive argument matters.
- Defense counsel, in her own closing,:
  - Explained deliberate intent as she understood it;
  - Challenged the prosecutor’s characterization; and
  - Reinforced that second-degree still requires intentional conduct but without the deliberate decision to kill.
- The Court assumes jurors consider both sides’ competing explanations under the umbrella of the written instructions.

On this record, the Court concludes the trial court did not act arbitrarily or unreasonably in overruling the objections and that any imprecision in the prosecutor’s statements falls short of reversible error.

4. Unpreserved Misconduct: Diminished Capacity, COVID, and the “Drug Narrative”

Because defense counsel did not contemporaneously object to several other remarks, the Court reviewed them only for fundamental error, asking whether there was a reasonable probability that the comments were a significant factor in the jury’s decision.

The Court’s treatment of each category is instructive:

Disparagement of the diminished capacity defense.
- The prosecutor characterized the defense as effectively asking the jury to “feel sorry” for Defendant because of his drug addiction and to excuse him from accountability.
- Defendant argued this mischaracterized a legally recognized defense, analogizing to Diaz.
- The Court distinguishes Diaz:
  - There, the prosecutor misinformed the jury that intoxication required expert testimony—an explicit misstatement of law.
  - Here, the prosecutor did not deny the legal availability of diminished capacity; she attacked the persuasiveness and moral framing of the defense, which is generally permissible advocacy.
- The Court finds no argument that this comment:
  - Altered the burden of proof;
  - Misstated the law on intoxication; or
  - Prevented Defendant from presenting the defense (he testified extensively and the jury was properly instructed).
- Given these factors and Defendant’s failure to apply Sosa, no fundamental error is found.
Reference to Victim’s COVID hospitalization (outside the record).
- The prosecutor told the jury that Victim “was somebody who was just released from being hospitalized with COVID,” despite a prior ruling excluding such evidence.
- The Court agrees this was improper: lawyers may not refer to facts outside the record.
- However:
  - The comment was isolated and brief.
  - It did not relate to any element of murder (e.g., intent, causation, or circumstances of the shooting).
  - It served at most to underscore Victim’s vulnerability, a point already evident from his age and cane.
- Under Torres, such peripheral misconduct, in the context of overwhelming evidence of guilt, does not reach the level of fundamental error.
The “dramatized narrative” of a drug-driven extortion attempt.
- Defendant contended the prosecutor portrayed him as a “drug fiend” demanding money from a frightened elderly man, inviting jurors to speculate about his motives.
- The Court notes:
  - The record does not show a literal use of the term “drug fiend.”
  - Defendant himself testified to long-term drug addiction and active use on the day of the killing.
  - The surveillance video shows Defendant’s aggressive conduct, including pointing a rifle and firing at close range.
  - There is no corroboration on the video that he returned to his car for “insurance papers.”
- In that light, the inference that Defendant’s real aim was to extract money (including to fund his drug use) is treated as a reasonable inference from the evidence, not improper speculation.
- Relying on Duffy, the Court finds the prosecutor’s narrative within “the permissible range of argument” and not so inflammatory as to undermine the fairness of the trial.

5. Cumulative Error

Because the Court finds:

No abuse of discretion in the handling of preserved objections; and
No fundamental error in any unpreserved misconduct,

it concludes there is no error to aggregate. Under Salas and Samora, cumulative error analysis thus has no purchase.

V. Complex Concepts Simplified

1. “Deliberate Intention” vs. “Rash and Impulsive” Killings

New Mexico’s deliberate-intent standard is often misunderstood. In everyday language, “deliberate” suggests a long, reflective process. Legally, it is more flexible:

Deliberate intention means:
- The defendant formed a conscious decision to kill;
- After at least some “careful thought” and weighing of whether to kill or not; and
- Chose to follow through with that plan.
Rash and impulsive killings:
- May still involve an intent to kill (e.g., swinging a knife in anger);
- But occur with no meaningful opportunity or decision-making process about whether to kill.

The crucial distinction is qualitatively about decision-making, not quantitatively about elapsed time. In Gallegos, the 17 seconds and the choice to retrieve a rifle, plus the second, carefully aimed shot, give the jury something more than a “mere unconsidered and rash impulse.”

2. Specific Intent vs. General Intent

Specific intent crimes require not only that the defendant intended the act, but that he intended some further result:
- For first-degree murder by deliberate killing, the further result is the victim’s death.
General intent crimes require that the defendant intentionally engaged in the prohibited conduct, even if he did not specifically intend the ultimate harm:
- For second-degree murder in New Mexico, the defendant must:
  - Intentionally act in a way that creates a strong probability of death or great bodily harm; but
  - Need not specifically desire the victim’s death.

In Gallegos, the dispute centered on how to explain this distinction to a jury without collapsing all intentional shootings into first-degree murder. The Court approves a framework in which:

First-degree = intent to kill;
Second-degree = intent to do a dangerous act, knowing it is likely to cause death or great harm, without necessarily desiring death itself.

3. Substantial Evidence Review

“Substantial evidence” is not a high-precision mathematical standard. It means:

Evidence that a reasonable mind could accept as adequate to support a conclusion;
Viewed in the light most favorable to the verdict; and
Including reasonable inferences drawn from circumstantial evidence.

Crucially, appellate courts:

Do not reweigh evidence;
Do not reassess witness credibility; and
Ask only whether “any rational jury” could have reached this verdict.

In Gallegos, that standard makes the video evidence and Defendant’s own admissions decisive; his contrary testimony does not permit the Court to disturb the jury’s factual findings.

4. Prosecutorial Misconduct and Fundamental Error

Not every improper comment by a prosecutor leads to a new trial. The law recognizes:

Preserved error: If defense counsel objects, appellate courts review for abuse of discretion and ask whether the ruling was clearly unreasonable.
Unpreserved error (fundamental error): If there was no objection, reversal occurs only when:
- The misconduct is so egregious and prejudicial that it undermines the fairness of the entire trial; and
- There is a reasonable probability it significantly influenced the verdict.

The Sosa factors focus this inquiry on:

Whether the comment violated a specific constitutional right (e.g., presumption of innocence, right to silence, burden of proof);
How frequent or central the comment was; and
Whether defense counsel invited or opened the door to the remark.

In Gallegos, even the most problematic comment—the COVID hospitalization remark—was:

Improper but brief;
Peripheral to the elements of the offense; and
Overwhelmed by direct, highly incriminating evidence (video, confession, motive).

5. Nonprecedential Decisions

Under Rule 12-405 NMRA, certain appellate decisions are issued as “nonprecedential”:

They cannot be cited as binding authority in most future cases.
They are “written solely for the benefit of the parties,” who know the details of the case.

Nonetheless, such decisions often:

Apply and synthesize existing law in concrete fact patterns;
Signal how courts are likely to handle similar issues; and
Provide practical guidance for litigants and trial courts.

Gallegos fits this pattern: it does not formally change New Mexico law but illustrates how the Supreme Court currently evaluates deliberate intent, voluntary intoxication, and alleged misconduct in closing argument.

VI. Likely Impact and Practical Implications

1. Homicide Prosecutions: Deliberate Intent in Fast, Heated Encounters

Even as a nonprecedential decision, Gallegos reinforces several themes in New Mexico homicide jurisprudence:

Short time frames do not insulate defendants from first-degree charges.
- Where there is video or credible testimony of:
  - Verbal confrontation;
  - Intervening acts like retrieving a weapon; and
  - Focused targeting of a vulnerable area at close range;
- Juries may, and likely will, be permitted to infer deliberate intent.
Weapon retrieval is a powerful deliberation marker.
- Leaving a confrontation to obtain a firearm, then returning, is repeatedly highlighted as a key fact distinguishing deliberate killings from spontaneous ones.
- Defense strategies in similar cases may need to confront this head-on, rather than relying solely on the short duration of the entire incident.
Second shots and shot placement can be decisive.
- Multiple shots, especially after a miss, strongly support an inference of calculation rather than accident.
- Aiming at vital areas (abdomen, chest, head) at point-blank range is treated as compelling circumstantial evidence of an intent to kill, not just to scare.

2. Voluntary Intoxication and Diminished Capacity

The decision underscores the limits of intoxication-based defenses in the face of strong circumstantial evidence:

Even credible evidence of heavy drug use does not automatically negate deliberate intent.
Jurors are instructed to consider intoxication’s effect on the ability to form deliberate intent, but they may reject the defense if:
- Defendant’s actions appear purposeful and goal-directed (retrieving a gun, aiming, firing twice); and
- His narrative (e.g., no memory of firing) is contradicted by objective evidence.

Defense counsel may need to supplement intoxication testimony with:

Expert evidence on cognitive impairment from specific substances;
Careful linkage between intoxication and observable behavior; and
A more coherent explanation of why apparently deliberate acts are inconsistent with the ability to form specific intent.

3. Prosecutors’ Closing Arguments: Caution and Latitude

Gallegos provides both a warning and a measure of comfort to prosecutors:

Warning:
- Do not refer to excluded or unadmitted facts (e.g., medical history) in closing.
- Be careful not to collapse general and specific intent or suggest that any intentional shooting is automatically first-degree murder.
Comfort:
- Courts will read closing arguments as advocacy, not jury instructions.
- Minor imprecision, especially when corrected or contradicted by written instructions and opposing counsel, is unlikely to be reversible error absent a direct lowering of the burden of proof or misstatement of core legal principles.
- Strong evidence of guilt makes it hard to show that rhetorical overreach was outcome-determinative.

4. Defense Strategy: Objections and Framing

From the defense perspective, the case highlights:

Importance of specific, well-grounded objections.
- Generic complaints that an argument is “not a fair reading” of instructions may be insufficient to provoke curative measures or preserve detailed legal issues.
- Defense counsel should clearly articulate:
  - Exactly what element is being misstated; and
  - How the misstatement lowers the State’s burden or misdefines the offense.
Need to combat video-driven narratives.
- Where video allows jurors to “see for themselves,” defense themes must directly confront what is visible on screen—e.g., by contextualizing timing, body language, and perceived threats—rather than relying solely on defendant’s testimony.

VII. Conclusion

State v. Gallegos does not announce new law; it carefully applies and synthesizes existing New Mexico doctrines on deliberate intent, voluntary intoxication, and prosecutorial misconduct. Yet it is a particularly clear illustration of how those doctrines operate in a common but difficult category of cases: rapid, emotionally charged confrontations recorded on video.

On the deliberate-intent question, the Court reaffirms that:

Very short time frames do not preclude first-degree murder when other evidence—motive, weapon retrieval, shot sequence, and shot placement—supports a finding of careful, albeit brief, decision-making.
Weapon retrieval and a second, targeted shot at close range are powerful indicators of deliberation, even in drug-fueled contexts.

On prosecutorial misconduct, the Court emphasizes:

The centrality of correct jury instructions as the governing law of the case;
The high bar for converting rhetorical excess or isolated improprieties into reversible error or fundamental error; and
The presumption that jurors follow written instructions rather than seizing upon brief, contested snippets of argument.

In the broader legal landscape, Gallegos serves as a practical guide for trial lawyers and judges confronted with similar fact patterns. It demonstrates how appellate courts will parse the difference between deliberate and impulsive killings and how they will weigh alleged prosecutorial overreach in the context of the entire record. Even as a nonprecedential decision, it is a valuable roadmap for understanding the current trajectory of New Mexico homicide law and the stringent standards governing claims of prosecutorial misconduct on appeal.