VIGIL, Justice.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jacqueline Flores, District Judge John A. McCall
Law Works, LLC
Albuquerque, NM for Appellant Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM for Appellee
OPINION
VIGIL, Justice. {1} This case stems from the tragic death of an innocent eight-year-old child as a result of a violent confrontation between two groups of men. Consequently, a jury convicted David Candelaria (Defendant) of first-degree depraved mind murder, two counts of shooting at or from a motor vehicle, and three counts of aggravated assault. One count of shooting at or from a motor vehicle was later vacated on double jeopardy grounds. The district court sentenced Defendant to life in prison plus nine years. Defendant now appeals his convictions for depraved mind murder and aggravated assault and asks this Court to vacate the convictions or order a new trial. For the reasons set forth below, we affirm Defendant's convictions and deny the relief requested.
I. BACKGROUND
{2} On the morning of May 31, 2013, Defendant and his son, David Candelaria, Jr. (David Jr.), went to the home of Richard Turrieta, Sr. (Richard Sr.) on the west side of Albuquerque. Defendant and Richard Sr. had been close friends since high school. Sometime later that afternoon, the group—Defendant, David Jr., Richard Sr., and Richard Turrieta, Jr. (Richard Jr.)—left Richard Sr.'s house and drove to Nine Mile Hill, west of Albuquerque, to take Defendant's truck "four-wheeling." Defendant's one of the occupants in Rudy's vehicle may have had a pistol and that one of the occupants was possibly shooting from the vehicle. An officer testified that police used those statements to obtain search warrants for locations where Rudy was believed to have gone after the incident. Officers found a rifle in Rudy's parents' home, but Rudy's parents testified that it did not work and Rudy's mother said their children did not even know about it. {7} Detectives found five shell casings in the road that matched the cartridges in Defendant's gun that was hidden under the school building. No other shell casings were found at the scene and no firearms or rifles were found in Rudy's vehicle.
II. DISCUSSION
A. Depraved Mind Murder in New Mexico
{8} We begin our examination of Defendant's convictions with an explanation of depraved mind murder in New Mexico. In New Mexico, depraved mind murder is classified as a first-degree offense. See NMSA 1978,§ 30-2-1(A)(3) (1994). As such, depraved mind murder is a capital felony, which carries a maximum penalty of life in prison. See NMSA 1978,§ 31-20A-2 (2009). Depraved mind murder is defined as "the killing of one human being by another without lawful justification or excuse . . . by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life." Section 30-2-1(A)(3). {9} Our courts, receiving little guidance from our Legislature, have struggled to distinguish first-degree depraved mind murder from second-degree murder. Although the parties do not address the fine distinction between depraved mind murder and second-degree murder in their briefing, we take this opportunity to define the distinction between the two types of murder in an effort to assist parties and lower courts in the future. Second-degree murder, which carries a basic penalty of fifteen years in prison, is defined as follows:
Unless [the person] is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death [the person] knows that such acts create a strong probability of death or great bodily harm to that individual or another.
Section 30-2-1(B).
See NMSA 1978,
§ 31-18-15(A)(4) (2016). The knowledge requirement of depraved mind murder—knowledge that an act is "greatly dangerous to the lives of others, indicating a depraved mind regardless of human life," as distinguished from the knowledge requirement of second-degree murder—knowledge that an act "create[s] a strong probability of death or great bodily harm to [an] individual or another [person]," "has vexed New Mexico courts since 1980, when
New Mexico's current statutory definitions of the mens reas for murder in the first-and second-degree were enacted."
Section 30-2-1(A)(3);
Section 30-2-1(B);
State v.
Suazo, 2017-NMSC-011, ¶ 18,
390 P.3d 674;
see UJI 14-203 NMRA; UJI 14-210 NMRA. Recently, in
Suazo, this Court clarified that first-degree depraved mind murder and second-degree murder share the same subjective knowledge requirement—that a defendant
know "the probable consequences" of the defendant's act, as opposed to
should have known of the probable consequences. 2017-NMSC-011, ¶ 16. These requirements being equal, we turn to the defining characteristic of depraved mind murder—that the defendant acted with a depraved mind—to better understand the difference between the two crimes.
See State v.
Reed, 2005-NMSC-031, ¶ 21,
138 N.M. 365,
120 P.3d 447.
{10} Prior to 2009, our depraved mind murder jury instruction provided the following:
The defendant is charged with first degree murder by an act greatly dangerous to the lives of others indicating a depraved mind without regard for human life. For you to find the defendant guilty [as charged in Count __________][ ], the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant __________ (describe act of defendant);
2. The defendant's act caused[ ] the death of __________ (name of victim);
3. The act of the defendant was greatly dangerous to the lives of others, indicating a depraved mind without regard for human life;
4. The defendant knew that his act was greatly dangerous to the lives of others;
5. This happened in New Mexico on or about the __________ day of __________, __________.
UJI 14-203 NMRA (2008). To assist jurors in understanding what constitutes a depraved mind, our jury instruction was amended in 2009 to add the following explanation:
A person acts with a depraved mind by intentionally engaging in outrageously reckless conduct with a depraved kind of wantonness or total indifference for the value of human life. Mere negligence or recklessness is not enough. In addition, the defendant must have a corrupt, perverted, or malicious state of mind, such as when a person acts with ill will, hatred, spite, or evil intent. Whether a person acted with a depraved mind may be inferred from all the facts and circumstances of the case.
UJI 14-203 NMRA (2009). No further modifications of the language of the instruction have been made. As may be gleaned from the amended instruction, this Court has established four primary indicators of a depraved mind that aid in distinguishing first-degree depraved mind murder from second-degree murder. The
defendant "intentionally engag[e] in outrageously reckless conduct with a depraved kind of wantonness or total indifference for the value of human life." UJI 14-203;
see Reed, 2005-NMSC-031, ¶ 24. "In addition, the defendant must have a corrupt, perverted, or malicious state of mind, such as when a person acts with ill will, hatred, spite, or evil intent." UJI 14-203. "Whether a person acted with a depraved mind may be inferred from all the facts and circumstances of the case."
Id. Today, as in the past, the four primary indicators guide our analysis of Defendant's conviction for depraved mind murder.
B. The Evidence is Sufficient to Support Defendant's Conviction for First-degree Depraved Mind Murder
{15} Defendant claims there was insufficient evidence to support his conviction for first-degree depraved mind murder. We exercise our jurisdiction to review Defendant's conviction under Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A) NMRA (providing that this Court shall have jurisdiction over appeals of district court judgments imposing a sentence of death or life imprisonment).
Under a sufficiency of evidence analysis, we must determine "whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." We must view the evidence in
the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict. It is this Court's duty on review to determine whether any rational jury could have found the essential facts to establish each element of the crime beyond a reasonable doubt.
Reed, 2005-NMSC-031, ¶ 14 (citations omitted).
{16} We have affirmed depraved mind murder convictions in many instances.
See State v.
Sena, 1983-NMSC-005, ¶¶ 2, 9, 11,
99 N.M. 272,
657 P.2d 128 (affirming depraved mind murder conviction where the defendant opened fire on the doorman of a bar, hitting the doorman, but also hitting and killing an innocent bystander);
State v.
McCrary, 1984-NMSC-005, ¶¶ 2-3, 5, 25,
100 N.M. 671,
675 P.2d 120 (affirming depraved mind murder conviction where the defendant discharged about twenty-five shots into tractor-trailers and cabs parked at a carnival site during the night);
State v.
Trujillo, 2002-NMSC-005, ¶¶ 22, 28,
131 N.M. 709,
42 P.3d 814 (concluding the evidence was sufficient to support a depraved mind murder conviction where the defendant opened fire from a second floor balcony into a group of people below, killing a rival gang member).
{17} We have also reversed convictions when it was appropriate to do so.
See Ibn Omar-Muhammad, 1985-NMSC-006, ¶¶ 15, 27 (reversing depraved mind murder conviction where depraved mind jury instruction set forth an objective standard of
knowledge rather than a subjective standard);
State v.
Hernandez, 1994-NMSC-045, ¶¶ 8-9,
117 N.M. 497,
873 P.2d 243 (reversing depraved mind murder conviction where the depraved mind act did not proximately cause the death of the victim);
Brown, 1996-NMSC-073, ¶¶ 34-35 (reversing depraved mind murder conviction where the defendant was improperly denied jury instruction on intoxication);
Reed, 2005-NMSC-031, ¶¶ 27, 44 (concluding the evidence was insufficient to support a depraved mind murder conviction where the defendant was playing with a gun, loaded it, and "absent-mindedly" fired in the direction of his friend);
Dowling, 2011-NMSC-016, ¶¶ 15, 17 (reversing depraved mind murder conviction where jury instruction for depraved mind murder misstated extent of "recklessness" required for conviction).
{18} We review the elements of depraved mind murder and determine whether the evidence here supports such a conviction. For the reasons that follow, we conclude that the facts of this case squarely fit within the contours of our clearly established precedent as set forth in this opinion. That being the case, we will not disturb the jury's verdict. To convict Defendant of depraved mind murder, the jury was required to find the following:
1. The defendant discharged a firearm at a car full of people;
2. The defendant's act caused the death of Sunni Reza;
3. The act of the defendant was greatly dangerous to the lives of others, indicating a depraved mind without regard for human life;
4. The defendant knew that his act was greatly dangerous to the lives of others;
5. The defendant did not act in self-defense or defense of another;
6. This happened in New Mexico on or about the 31[st] day of May, 2013.
A person acts with a depraved mind by intentionally engaging in outrageously reckless conduct with a depraved kind of wantonness or total indifference for the value of human life. Mere negligence or recklessness is not enough. In addition, the defendant must have a corrupt, perverted, or malicious state of mind, such as when a person acts with ill will, hatred, spite, or evil intent. Whether a person acted with a depraved mind may be inferred from all the facts and circumstances of the case.
See UJI 14-203.
{19} Defendant does not deny that he discharged his weapon. In fact, he admitted to police that he fired two shots in the air and two shots at Rudy's vehicle, knowing that there were multiple people in the vehicle. Also, Richard Sr. testified that Defendant told Richard Sr. he fired the gun. Defendant claims, however, that he did so in self-defense and the defense of others in his group. Defendant argues that due to Rudy's actions towards Defendant and those in his group in the first encounter he
When reviewing the sufficiency of the evidence to support Defendant's conviction, we must resolve all disputed facts in favor of the State.
Reed, 2005-NMSC-031, ¶ 14.
1. Defendant's act was greatly dangerous to the life of more than one person
{21} Rudy testified that he picked up three passengers at the community center—Troy, Logan, and Sunni—and that they were occupying the vehicle when Defendant began shooting at them. Clearly, Defendant's act of shooting at Rudy's vehicle was greatly dangerous to the life of more than one person.
2. Defendant's act was outrageously reckless
{22} The jury heard testimony from David Jr. that Defendant fired his handgun twice into the air and twice at Rudy's vehicle. One of the shots went through the windshield, killing Sunni. As we acknowledged in Reed, in the few cases "in which we have affirmed depraved mind murder convictions involving the discharge of firearms, the defendant either admitted, or witnesses testified, that the defendant intentionally fired a weapon under circumstances showing an extreme degree of recklessness." 2005-NMSC-031, ¶ 33. Such examples include "shooting several times from a balcony of an apartment building into a crowd, killing a rival gang member"; "moving slowly around tractor-trailers parked overnight at a fairground with multiple firearms, shooting twenty-five times into the cabs, and killing a woman in a sleeping compartment"; and "firing four or five times into a crowded bar, killing a bystander." Id. (citations omitted). "In each instance, there was no question that the defendant acted intentionally in firing the weapon." Id. From the evidence presented, the jury could have reasonably come to the same conclusion in the instant case. "[D]epraved mind murder involves an intentional act without regard for consequences." Id. ¶ 25. Shooting at a vehicle full of people qualifies as "outrageously reckless conduct with a depraved kind of wantonness or total indifference for the value of human life." UJI 14-203.
3. Defendant knew that his act was greatly dangerous to the lives of others
{23} Although Defendant may not have known a child was in Rudy's vehicle, the State presented evidence that Defendant knew there were multiple passengers. See Ibn Omar-Muhammad, 1985-NMSC-006, ¶ 21 ("A defendant does not have to actually know that his victim will be injured by his act."). Rudy testified that he told Defendant's group he was going to pick up friends and his vehicle was full. Richard Sr. and Richard Jr. said the group watched Rudy pick up more than one person at the community center. {24} Defendant's statements to the police provide additional bases for the jury to find Defendant had subjective knowledge of the risk he posed to the lives of those in Rudy's vehicle. Defendant told police that he saw Rudy pick up a "carload of dudes" at the community center, so he knew the vehicle contained multiple passengers. In explaining the second encounter, Defendant admitted that he gave Rudy's group a warning shot and then "tried to shoot the car in the front headlight to scare him." These statements arguably "confirm[] . . . [D]efendant's personal desire to undertake acts that gave rise to dangerous circumstances." Dowling, 2011-NMSC-016, ¶ 25. "In such situations, it is evident that the very design of . . . [D]efendant's conduct [was] to frighten or injure someone by exposing others to dangerous acts, thereby permitting a clear inference of subjective knowledge." Id.
4. Defendant acted with a depraved mind
{25} The circumstances of the depraved mind act alone, may, in some cases, be sufficient to support the inference that a defendant acted with a depraved mind. See Dowling, 2011-NMSC-016, ¶ 45. Although there may have been no "external indicia of . . . [D]efendant's depravity, such as personal animus, the absence of such factors does not preclude the finding of a depraved mind." Id. The jury did, however, hear testimony from Rudy that Defendant's group was "mad" that Rudy refused to give them a ride. Additionally, Defendant admitted to police that he "tried to shoot the car in the front headlight to scare [Rudy's group]." Jurors reasonably could have accepted affirm.
C. The Evidence is Sufficient to Support Defendant's Aggravated Assault Convictions
{27} We now turn to Defendant's three aggravated assault convictions. Defendant was convicted under NMSA 1978,Section 30-3-2(A) (1963) for "unlawfully assaulting or striking at another with a deadly weapon." To convict Defendant of aggravated assault, the jury was required to find the following:
1. The defendant discharged a firearm;
2. The defendant's conduct caused Rudy Chavez-Montoya [Logan Fontenelle] [Troy Fontenelle] to believe the defendant was about to intrude on Rudy Chavez-Montoya's [Logan Fontenelle's] [Troy Fontenelle's] bodily integrity or personal safety by touching or applying force to Rudy Chavez-Montoya [Logan Fontenelle] [Troy Fontenelle] in a rude, insolent or angry manner;
3. A reasonable person in the same circumstances as Rudy Chavez-Montoya [Logan Fontenelle] [Troy Fontenelle] would have had the same belief;
4. The defendant used a firearm;
5. The defendant did not act in self-defense or defense of another;
6. This happened in New Mexico on or about the 31[st] day of May, 2013.
See UJI 14-305 NMRA. Defendant admitted to police that he discharged his
firearm—twice in the air and twice at Rudy's vehicle. At trial, David Jr. testified that Defendant fired twice in the air and twice at Rudy's vehicle. Rudy testified that he, Logan, Troy, and Sunni were occupying the vehicle when Defendant began shooting at them. The evidence was such that the jury could have concluded that Defendant's act of shooting at Rudy's vehicle caused the occupants of the vehicle to believe Defendant was about to intrude on their "bodily integrity or personal safety." UJI 14-305. As with depraved mind murder, the jury was free to reject Defendant's self-defense theory.
See State v.
Fox, 2017-NMCA-029, ¶ 12,
390 P.3d 230. We conclude there was sufficient evidence to support the aggravated assault convictions.
D. The District Court's Failure to Give the Jury the No-Retreat Instruction Was Not Fundamental Error
{28} At trial, the district court determined that Defendant was entitled to jury instructions on self-defense and defense of another. See UJI 14-5171; UJI 14-5172 NMRA (containing elements of self-defense and defense of another as set forth in NMSA 1978,Section 30-2-7(A)-(B) (1963)); State v. Ellis, 2008-NMSC-032, ¶ 15, 144 N.M. 253, 186 P.3d 245 ("When asserting self-defense against a private citizen . . . a defendant has an unqualified right to a self-defense instruction in a criminal case when there is evidence which supports the instruction." (internal quotation marks and encounter, when the shooting occurred, Rudy or someone in Rudy's vehicle may have had a weapon and may have been shooting from the vehicle. Richard Sr. testified that it looked like the driver and passenger were hiding behind their vehicle doors at some point. Defendant told the police that the front passenger exited the vehicle with a machine gun and also said that the passenger pointed a rifle straight at him. David Jr. testified that the front passenger exited the vehicle and had something in his hands, possibly a handgun or rifle. The following instructions were given to the jury:
Evidence has been presented that the defendant killed Sunni Reza in self-defense.
The killing is in self-defense if:
1. There was an appearance of immediate danger of death or great bodily harm to the defendant as a result of Logan Fontenelle pointing and/or shooting a firearm at the defendant; and
2. The defendant was in fact put in fear by the apparent danger of immediate death or great bodily harm and shot at the vehicle which caused the death of Sunni Reza because of that fear;
3. A reasonable person in the same circumstances as the defendant would have acted as the defendant did.
The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense [sic]. If you have a reasonable doubt as to whether the defendant acted in self-defense you must find the defendant not guilty.
See UJI 14-5171.
Evidence has been presented that the defendant killed Sunni Reza while defending another.
The killing was in defense of another if:
1. There was an appearance of immediate danger of death or great bodily harm to Richard Turrieta Sr., Richard Turrieta Jr., and David Candelaria Jr. as a result of Logan Fontenelle pointing and/or shooting a firearm at Richard Turrieta Sr., Richard Turrieta Jr., and David Candelaria Jr.; and
2. The defendant believed Richard Turrieta Sr., Richard Turrieta Jr., and David Candelaria Jr. were in immediate danger of death or great bodily harm from Logan Fontenelle, and shot at the vehicle which caused the death of Sunni Reza to prevent the death or great bodily harm; and
3. The apparent danger to Richard Turrieta Sr., Richard Turrieta Jr., and David Candelaria Jr. would have caused a reasonable person in the same circumstances to act as the defendant did.
The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in defense of another. If you have a reasonable doubt as to whether the defendant acted in defense of another, you must find the defendant not guilty.
See UJI 14-5172.
{31} Defendant argues that in addition to the instructions given above, the district court should have also provided the jury with UJI 14-5190 NMRA— the "stand-your-ground" (no-retreat) instruction: "A person who is threatened with an attack need not
retreat. In the exercise of his right of self defense, he may stand his ground and defend himself." The propriety of the jury instructions given by the district court is a mixed question of law and fact requiring de novo review.
See State v.
Lucero, 2010-NMSC-011, ¶ 11,
147 N.M. 747,
228 P.3d 1167. Because this issue was not raised at trial, we review for fundamental error.
See Rule 12-321(B)(2)(c) NMRA (2016).
Error that is fundamental must be such error as goes to the foundation or basis of a defendant's rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive. Fundamental error only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand.
State v.
Johnson, 2010-NMSC-016, ¶ 25,
148 N.M. 50,
229 P.3d 523 (citation omitted).
In reviewing the self-defense and defense of another jury instructions for fundamental error, we first determine "whether a reasonable juror would have been confused or misdirected by the jury instructions." If we conclude that a reasonable juror would have been confused or misdirected, then we "review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the defendant's conviction was the result of a plain miscarriage of justice."
Sandoval, 2011-NMSC-022, ¶ 20 (alterations and citations omitted). "For fundamental error to exist, the instruction given must differ materially from the
it admitted Richard Sr.'s testimony.
F. Defendant's Claim of Ineffective Assistance of Counsel Was Not Adequately Developed and Will Not Be Considered on Direct Appeal
{46} Defendant claims his trial counsel was ineffective for not requesting a mistrial on multiple occasions during the proceedings. For example, Defendant cites to several instances of misconduct by the State's witnesses in his statement of issues to this Court, which he claims support a mistrial, but he does not address those in his briefs. Defendant also directs the Court to other instances where a mistrial may have been pursued, but does not clearly articulate these instances or make any arguments to support these claims. That being the case, we decline to consider them here. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 ("This Court requires that the parties adequately brief all appellate issues to include an argument, the standard of review, and citations to authorities for each issue presented. . . . We will not review unclear arguments, or guess at what a party's arguments might be. . . . To rule on an inadequately briefed issue, this Court would have to develop the arguments itself, effectively performing the parties' work for them. . . . This creates a strain on judicial resources and a substantial risk of error. It is of no benefit either to the parties or to future litigants for this Court to promulgate case law based on our own speculation rather than the parties' carefully considered arguments." (alteration, internal quotation marks, and citations omitted)).
III. CONCLUSION
{47} For the foregoing reasons, Defendant's convictions are affirmed.
{48} IT IS SO ORDERED.
/s/ _________
BARBARA J. VIGIL, Justice
WE CONCUR:
/s/ _________
JUDITH K. NAKAMURA, Chief Justice /s/ _________
PETRA JIMENEZ MAES, Justice /s/ _________
CHARLES W. DANIELS, Justice /s/ _________
GARY L. CLINGMAN, Justice