State v. Goldman: Clarifying the Permissible Use of “And/Or” in Felony-Murder Jury Instructions

Introduction

State v. Goldman, No. S-1-SC-40100 (N.M. Sup. Ct. June 30 2025), is a non-precedential decision that nevertheless delivers an important clarification in New Mexico criminal jurisprudence: when all alternative theories listed in a jury instruction are legally sufficient, the conjunction “and/or” does not render the instruction fundamentally erroneous.

The defendant, Stephen Jay Goldman, Jr., was convicted of two counts of first-degree felony murder, kidnapping, armed robbery, and related conspiracies arising out of the brutal slayings of two teenagers, Collin Romero and Ahmed Lateef. On appeal, he mounted an array of jury-instruction challenges and claimed ineffective assistance of counsel. The Supreme Court of New Mexico, per Justice Briana H. Zamora, affirmed in full.

Parties

• Plaintiff-Appellee: State of New Mexico, represented by Attorney General Raúl Torrez.
• Defendant-Appellant: Stephen Jay Goldman, Jr., represented by Justine C. Fox-Young.

Key Issues on Appeal

• Whether the district court erred by failing to instruct the jury on second-degree murder as a lesser-included offense of felony murder.
• Whether the court’s “yes” answer to a jury question about dual convictions for felony murder and second-degree murder misstated the law.
• Whether the “and/or” phrasing and multi-victim structure in the felony-murder and aiding-and-abetting instructions were fundamentally confusing.
• Whether trial counsel’s performance was constitutionally deficient.

Summary of the Judgment

The Supreme Court held:

1. The trial judge’s simple “yes” answer to the jury’s mid-deliberation question accurately reflected New Mexico law allowing alternative theories of homicide to be submitted and, if necessary, merged by the court to avoid double jeopardy.
2. No jury-instruction error—fundamental or otherwise—occurred with respect to:
   • Omission of second-degree murder as a lesser-included offense of felony murder.
   • Use of “kidnapping and/or armed robbery” as predicate felonies.
   • Inclusion of both victims in a single aiding-and-abetting instruction.
3. The ineffective-assistance claim failed on direct appeal; the record was inadequate to establish deficient performance or prejudice.

Accordingly, Goldman’s life sentences for the felony-murder counts were affirmed.

Analysis

Precedents Cited and Their Influence

• State v. Taylor, 2024-NMSC-011
  Goldman argued that Taylor required reversal whenever “and/or” appears in a jury instruction. The Court distinguished Taylor because there, three of four alternatives were legally inadequate (mere regulatory violations). By contrast, both kidnapping and armed robbery are felonies that fully satisfy the statutory prerequisites of felony murder.
• State v. Benally, 2001-NMSC-033
  Supplied the standard that error exists when a reasonable juror would be confused by an instruction.
• State v. Sandoval, 2011-NMSC-022
  Reaffirmed the “reasonable juror” test for reversible error.
• State v. Mailman, 2010-NMSC-036
  Stated that reversal is necessary only when a general verdict rests on a legally inadequate theory, not a factually unsupported one.
• State v. Galindo, 2018-NMSC-021
  Explained the trial court’s duty to vacate duplicative convictions to satisfy double-jeopardy concerns.
• Strickland v. Washington, 466 U.S. 668 (1984) & New Mexico progeny
  Provided the ineffective-assistance framework applied to Goldman’s counsel.

Legal Reasoning

1. The “Yes” Answer to the Jury’s Question

Because felony murder was charged as an alternative theory rather than as a lesser-included offense, the jury was legally entitled to convict on both felony murder and second-degree murder, leaving it to the court to merge duplicative verdicts. The step-down instruction model (UJI 14-6002B) restricts jurors from moving to lesser offenses only within the deliberate-intent track, not across to felony murder. The Court therefore found no misstatement.

2. Omission of Second-Degree Murder as a Lesser-Included Offense of Felony Murder

Felony-murder instructions (UJI 14-202) already contain an explicit causation element. A separate second-degree murder instruction would not sharpen that element and is not mandatory. Presuming pattern instructions are correct (see Wilson), the Court found no instructional gap.

3. Use of “Kidnapping and/or Armed Robbery”

The Court applied the two-step Mailman inquiry:

1. Are all listed theories legally adequate? – Yes.
2. Is there any risk the jury relied solely on an inadequate theory? – No.

Consequently, unanimity was required only on the verdict, not on the specific predicate felony. “And/or” was therefore harmless and proper.

4. Multi-Victim Aiding-and-Abetting Instruction

Although the UJI is written in singular form, folding both victims into one instruction did not confuse jurors because the evidence showed both homicides occurred during the same criminal episode. The Court declined to second-guess an unobjected-to stylistic deviation that created no conceivable legal error.

5. Ineffective Assistance

Three of Goldman’s four complaints about counsel’s performance failed at the first (deficiency) step because the underlying legal positions lacked merit. The lone remaining allegation—failure to secure an alleged jailhouse confession by co-conspirator Aragon—could not be evaluated without an expanded record. Habeas corpus, not direct appeal, is the proper vehicle.

Impact of the Decision

While non-precedential under Rule 12-405 NMRA, Goldman is likely to influence:

• Trial Practice: Prosecutors and judges may feel more secure drafting conjunctive “and/or” instructions where each alternative is an independent felony.
• Appellate Strategy: Defense counsel will need to articulate why an alternative theory is legally inadequate; mere invocation of Taylor will not suffice.
• Instruction Drafting: The decision underscores the robustness of New Mexico’s pattern felony-murder instructions and tolerance for reasonable deviations when no prejudice arises.
• Habeas Litigation: Reinforces the Court’s preference for resolving ineffective-assistance claims via collateral review to develop factual records.

Complex Concepts Simplified

Felony Murder Doctrine

A defendant can be guilty of first-degree murder if a death occurs during the commission or attempted commission of certain felonies (kidnapping, armed robbery, etc.), even without proof of premeditated intent to kill.

“And/Or” in Jury Instructions

If an instruction says a defendant caused a death “during kidnapping and/or armed robbery,” jurors can convict based on kidnapping alone, armed robbery alone, or both. This is permissible only when each alternative is itself a valid legal basis for the crime charged.

Step-Down (Lesser-Included) Instruction

Jurors first consider the most serious charge (e.g., deliberate-intent murder). If they unanimously acquit, they may “step down” to lesser charges (e.g., second-degree). Alternative theories like felony murder exist outside this ladder.

Fundamental Error

An unpreserved instructional error warrants reversal only if it renders the conviction fundamentally unfair or unreliable—i.e., it “shocks the conscience” or undermines confidence in the verdict.

Ineffective Assistance of Counsel (Strickland Test)

1. Deficiency: Performance fell below an objective standard of reasonableness.
2. Prejudice: A reasonable probability exists that the result would have been different but for counsel’s errors.

Conclusion

State v. Goldman confirms that New Mexico courts may employ “and/or” in felony-murder jury instructions so long as each listed predicate felony independently supports the charge. The opinion distinguishes the recent, widely cited Taylor decision and clarifies that not every conjunctive instruction is suspect—only those containing legally inadequate alternatives. Coupled with its affirmation of the court’s responsive instruction to juror questions and its treatment of ineffective-assistance claims, Goldman provides a succinct yet valuable roadmap for trial courts navigating complex homicide prosecutions with multiple victims, multiple predicate felonies, and multiple theories of liability. Future litigants should heed the Court’s focus on legal adequacy, record development, and strategic clarity when framing instructional or Strickland challenges.