State v. Gonzales
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This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court. 1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Filing Date: February 11, 2016 3 STATE OF NEW MEXICO, 4 Plaintiff-Appellee, 5 v. NO. S-1-SC-35291 6 DEANDRE GONZALES, 7 Defendant-Appellant. 8 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 9 Gary L. Clingman, District Judge 10 Templeman & Crutchfield 11 C. Barry Crutchfield 12 Lovington, NM 13 for Appellant 14 Hector H. Balderas, Attorney General 15 Tonya Noonan Herring, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 DECISION 1 VIGIL, Chief Justice. 2 {1} Defendant appeals his conviction for first-degree murder, contrary to NMSA 3 1978, Section 30-2-1(A) (1994). Defendant challenges his conviction on three 4 grounds, arguing that: 1) there was insufficient evidence to support a verdict of first5 degree murder because his conduct was not willful, deliberate and premeditated, 2) 6 the trial court erred by refusing to give a jury instruction on self-defense, and 3) the 7 evidence presented by the State demands this Court enter a verdict of voluntary 8 manslaughter. 9 {2} We reject each of Defendant’s claims of error and affirm his conviction for 10 first-degree murder. We proceed to render this non-precedential decision because 11 settled New Mexico law controls each of the issues Defendant raises in his capital 12 appeal. See Rule 12-405(B)(1) NMRA. 13 I. BACKGROUND 14 Defendant Deandre Gonzales shot and killed sixteen-year-old Victim in Hobbs, {3} 15 New Mexico on May 29, 2014. Defendant was charged with first-degree murder, 16 found guilty by a jury of first-degree murder, and then sentenced to life imprisonment. 17 The killing occurred outside of a music video store and popular teen hangout called 18 “The Shop,” where a number of people had gathered to film a music video. Witnesses 2 1 testified at trial that Victim and his friends went to “The Shop” after being notified 2 about the filming over Facebook. When Defendant and his girlfriend, Santana 3 Serrano, showed up—after filming of the music video was completed, and thirty 4 minutes after Victim had arrived—an argument broke out between Defendant and 5 Victim. David Romero, the disc jockey that night, testified that Defendant walked into 6 “The Shop” “like for an argument,” and that he was looking “for a fight or 7 something.” As well, Romero found Defendant’s attendance odd because he had not 8 been invited. 9 {4} The verbal altercation between Defendant and Victim escalated, so they left 10 “The Shop” and walked down the street, followed by a group of people, to fight. The 11 fight was caught on two cell phone videos that were shown to the jury. At the 12 beginning of one of the videos, Defendant gives a handgun to Serrano. The fight lasts 13 a short period of time before Romero steps in to halt the altercation. The videos next 14 show Defendant walk over to Serrano and take the gun, at which point there is an 15 audible clicking sound as he loads a bullet into the chamber. That is, the gun was not 16 readied for discharge until Defendant came into possession of it after the fight. Then, 17 approximately six seconds after the fight ended, Defendant shoots Victim once in the 18 head. Defendant and his girlfriend fled the scene by car, and no gun was recovered. 3 1 Only one 9mm shot casing was retrieved from the scene. 2 {5} Victim’s friends transported him to the hospital in the car of a witness that 3 happened to be driving by the scene. Victim died from the gunshot wound to the head. 4 {6} At trial, some witnesses testified that they believed there may have been two 5 gunshots, although a second casing was never found. Conflicting witness testimony 6 indicated a high propensity for echo on that particular street, and that only one shot 7 was fired. A detective who interviewed Serrano testified that Serrano said she told 8 Defendant she had heard a gunshot, and that only this caused Defendant to grab the 9 gun. This is contradicted by the videos. The same detective testified that he believed 10 that if Defendant had initially intended to kill Victim, the fighting would have been 11 unnecessary. 12 {7} Another detective, who interviewed Defendant post-arrest, testified that 13 Defendant claimed Victim had used brass knuckles which knocked him out, leaving 14 him with no recollection of the events following the fight. No brass knuckles were 15 recovered, though, and other witnesses observed nothing in Victim’s hands, calling 16 it a fair fight. Defendant also said the altercation had something to do with a family 17 conflict, as Victim’s brother and Defendant’s cousin were involved in a prior 18 altercation. Defendant initially denied having the gun in that interview, but now 4 1 admits to the killing, and ultimately did tell the detective that he never intended to hurt 2 Victim. 3 {8} A third detective testified that he was informed about the problem between 4 Victim and Defendant’s families, and that following an investigation he did not 5 believe that this was a killing perpetrated because Defendant had simply become 6 angered with Victim after the fight. And, in the course of the investigation, none of 7 the persons he interviewed could figure out why Defendant had gone to “The Shop” 8 on that evening in the first place, and nobody had seen a second gun. 9 {9} The trial court found that the majority of witness statements that there may have 10 been two gunshots, and Serrano’s statements that Victim was shooting, were offered 11 only as evidence that police had notice of an alleged second shot in the course of their 12 investigation. As such, they were not offered for the truth of the matter asserted, and 13 were therefore not substantive evidence of the existence of a second shot. The trial 14 court then denied Defendant’s self-defense instruction because there was insufficient 15 evidence of self-defense. The jury returned a verdict finding Defendant guilty of first16 degree murder, and Defendant was sentenced to life imprisonment. 17 II. DISCUSSION 18 We now address each of Defendant’s claims of error. {10} 5 1 A. 2 There Was Sufficient Evidence of Deliberate Intent to Support the FirstDegree Murder Verdict 3 Defendant first argues that the evidence presented by the State at trial is {11} 4 insufficient to support a conviction of willful, deliberate and premeditated first-degree 5 murder. Instead, Defendant asserts that the evidence only supports a conviction for the 6 lesser-included offense of voluntary manslaughter, arising from a sudden quarrel—in 7 a heat of passion—pursuant to the fight in which Defendant and Victim were engaged 8 prior to the killing. We disagree, and find that the evidence presented by the State was 9 sufficient to support a verdict of first-degree murder with deliberate intent. 10 {12} “Murder in the first degree is the killing of one human being by another without 11 lawful justification or excuse . . . by any kind of willful, deliberate and premeditated 12 killing.” Section 30-2-1(A)(1). This jury was instructed on the elements of willful, 13 deliberate, and premeditated murder under UJI 14-201 NMRA: “1. The [D]efendant 14 killed Daniel Garcia; 2. The killing was with the deliberate intention to take away the 15 life of Daniel Garcia; 3. This happened in New Mexico on or about the 29th of May, 16 2014.” 17 {13} The element of willful, deliberate, and premeditated intent (deliberate intention) 18 distinguishes first and second-degree murder. State v. Tafoya, 2012-NMSC-030, ¶ 37, 19 285 P.3d 604. Second-degree murder is a killing with knowledge that the killer’s act 6 1 creates a strong probability of death or great bodily harm. NMSA 1978, Section 30-22 1(B). A first-degree murder occurs where the State proves that a killing was willful, 3 deliberate and premeditated. State v. Adonis, 2008-NMSC-059, ¶ 14, 145 N.M. 102, 4 194 P.3d 717. A second-degree murder can also be intentional, but lacks the deliberate 5 intention element—that is, “if the State merely proves that the accused acted rashly 6 or impulsively, rather than deliberately, and if the accused acted intentionally and 7 without justification or provocation, then the facts would only support second-degree 8 murder.” Id. ¶ 16. An intentional killing with justification or adequate provocation 9 constitutes voluntary manslaughter. NMSA 1978, § 30-2-3(A) (1994). 10 {14} Evidence is sufficient to sustain a conviction when there exists substantial 11 evidence of a direct or circumstantial nature to support a verdict of guilt beyond a 12 reasonable doubt with respect to every element essential to a conviction. State v. 13 Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641. “Substantial evidence is 14 relevant evidence that a reasonable mind might accept as adequate to support a 15 conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation 16 marks and citation omitted). “In reviewing whether there was sufficient evidence to 17 support a conviction, we resolve all disputed facts in favor of the State, indulge all 18 reasonable inferences in support of the verdict, and disregard all evidence and 7 1 inferences to the contrary.” Id. (internal quotation marks and citation omitted). 2 {15} Deliberate intention for first-degree murder requires that the conduct was 3 “arrived at or determined upon as a result of careful thought and the weighing of the 4 consideration for and against the proposed course of action.” State v. Cunningham, 5 2000-NMSC-009, ¶ 25, 128 N.M. 711, 998 P.2d 176 (quoting UJI 14-201 NMRA). 6 The deliberate intention needed to prove a first-degree murder may be inferred from 7 the facts and circumstances surrounding the killing. Cunningham, 2000-NMSC-009, 8 ¶ 14. A jury can infer such deliberative, calculated intent from a deliberative process 9 occurring over a short period of time. Tafoya, 2012-NMSC-030, ¶ 42. 10 {16} The juxtaposition of deliberation and a short time frame, Defendant argues, is 11 hard to reconcile. See Tafoya, 2012-NMSC-030, ¶ 41 (stating that “[t]he notion that 12 careful reasoning can occur in a short period of time seems somewhat counterintuitive, 13 and . . . impulsive killings are far more likely to be the product of an expedited 14 decision-making process than are carefully contemplated killings”). And that 15 juxtaposition has not been ignored; in fact, the problem has been analyzed in New 16 Mexico for over twenty years. See, e.g., State v. Slade, 2014-NMCA-088, ¶ 19, 331 17 P.3d 930; State v. Garcia, 1992-NMSC-048, ¶ 30, 114 N.M. 269, 837 P.2d 862 (“But 18 what is a ‘short period of time’? A second or two? If so, then it is hard to see any 8 1 principled distinction between an impulsive killing and one that is deliberate and 2 premeditated.”); Leo M. Romero, A Critique of the Willful, Deliberate, and 3 Premeditated Formula for Distinguishing Between First and Second Degree Murder 4 in New Mexico, 18 N.M. L. Rev. 73, 87 (1988) (“To engage in careful thought and to 5 weigh the considerations for and against the proposed course of action that might 6 result in a killing must involve the passage of time; otherwise, the formation of the 7 intent to kill would be impulsive and rash.” (footnote omitted)). Ultimately, Tafoya 8 resolved the problem by “recogniz[ing] that it is possible in certain cases for a jury to 9 reasonably infer from evidence presented that the deliberative process occurred within 10 a short period of time—the crucial element being the presentation of other evidence.” 11 2012-NMSC-030, ¶ 42 (emphasis omitted). That is, in those cases where a jury 12 discerns a deliberate intention formed over a short period of time, there should be 13 “evidence beyond the temporal aspect of the crime in order to find sufficient evidence 14 of deliberation.” Id. In this case, there exists sufficient evidence beyond the temporal 15 aspect of the crime to support a jury’s inference of deliberate intention. 16 {17} Such “other” evidence of deliberate intention varies according to the unique 17 circumstances of a given killing, but may include “the large number of wounds, the 18 evidence of a prolonged struggle, the evidence of the defendant’s attitude toward the 9 1 victim . . . the defendant’s own statements,” fleeing the scene, disposing of evidence, 2 and concocting false alibis. Flores, 2010-NMSC-002, ¶¶ 21-22. This Court also looks 3 for “evidence of earlier confrontation[s] . . . or other common areas of friction leading 4 to violence.” Tafoya, 2012-NMSC-030, ¶ 52. 5 {18} In Garcia, this Court found insufficient evidence to support a finding of 6 deliberate intention where the defendant stabbed a victim in the midst of a fight. 7 1992-NMSC-048, ¶¶ 7, 28. While the fight was the second between the combatants 8 that afternoon, and the defendant could conceivably have formed a deliberative intent 9 to kill in between the two fights, there was no evidence that such deliberative intent 10 had actually been formed. Id. ¶ 30. Importantly, in Garcia, the fight was inspired by 11 heavy drinking and prolonged, escalating animosity, with the killing happening during 12 the fight. Id. ¶¶ 3-9. There was no build-up of that sort in the instant case; the killing 13 unfolded in less than an hour. 14 {19} In arguing against the existence of deliberative intent, Defendant asserts that no 15 evidence exists to indicate 1) Defendant’s knowledge of the presence of Victim at 16 “The Shop” that night, 2) a history of conflict between Defendant and Victim, or 3) 17 statements and threats by Defendant to Victim prior to arriving at “The Shop.” 18 Defendant primarily relies on the New Mexico Court of Appeals’ opinion in State v. 10 1 Slade, 2014-NMCA-088, 331 P.3d 930, cert. quashed 2015-NMCERT-001 (N0. 2 34,764, Jan. 25, 2015). That case involved an attempted murder. Id. In Slade, the State 3 argued that evidence of a defendant’s deliberate intent to kill could be inferred from 4 “(1) [d]efendant’s alleged motive to kill [victim]; (2) [d]efendant’s ‘arrival at the 5 scene with a weapon’; (3) [d]efendant’s ‘demeanor and conduct after the killing’; and 6 (4) the number of shots fired.” Id. ¶ 22. The Court of Appeals disagreed. Defendant 7 references the four factors presented in Slade, and by analogy, attempts to distinguish 8 the instant facts from a first-degree murder. However, the four factors in Slade are not 9 exclusive in the deliberative intent inquiry—and, the facts of Slade differ starkly from 10 those of the instant case. 11 {20} In Slade, the defendant waited outside a crowded dance hall as a friend went 12 inside to fight the eventual victims (one would die, and one would survive). Id. ¶ 3. 13 The fight, and everyone in the dance hall, migrated outside, and in the confusion, 14 defendant allegedly fired one shot that hit the surviving victim, as all the while shots 15 were being fired by all parties involved. Id. ¶¶ 3-4, 6, 8. The State claimed motive to 16 kill existed because the defendant’s friend—who was actually confirmed to have fired 17 shots that hit both victims—had a prior conflict with one victim, or alternatively, 18 because of rival gang membership. Id. ¶ 23. From this evidence, the Court of Appeals 11 1 determined there could be no rational inference by a jury that the defendant himself 2 had a motive to kill victims, particularly where the State’s claims about prior conflict 3 and gang membership were unsubstantiated. Id. ¶ 24. Plus, that prior conflict was 4 actually only between the defendant’s friend and the victims, and not the defendant 5 himself. Id. (“Although the State cites to several cases in which the New Mexico 6 Supreme Court held that an inference of motive may be drawn from past conflict, each 7 of these cases is inapposite because, in those cases, there was evidence that the 8 defendant himself had a history of conflict with the victim.”). Regarding arrival at the 9 dance hall with a weapon, the evidence in Slade indicated the defendant always 10 carried a gun, causing the Court of Appeals to find mere possession inconsequential 11 on the issue of deliberation. Id. ¶ 27. 12 {21} In Slade, the State next unsuccessfully argued that an inference of deliberation 13 could be drawn from the defendant’s demeanor after the incident—the defendant fled 14 the scene of the shooting, hid one of the weapons, lied to police about the incident, 15 and urged the other parties to stay quiet. Id. ¶ 28. Yet, the Court of Appeals noted that 16 the defendant was being shot at as he fled, and while the lies may very well have been 17 indicative of involvement in the incident, in this context, it does not supply evidence 18 from which a jury could have made an inference about the defendant’s state of mind 12 1 prior to firing his weapon. Id. ¶¶ 29-30. There needed to be more evidence about why 2 the defendant was at the scene and chose to fire his weapon. Id. Essentially, in the 3 factual context of Slade, the Court of Appeals determined that the post-incident 4 conduct by the defendant alone failed to provide evidence from which a jury could 5 have rationally made an inference as to the defendant’s state of mind prior to the firing 6 of a weapon. These facts of Slade, though, are clearly distinguishable from the instant 7 case. 8 {22} Here, evidence was in fact presented at trial that Defendant entered “The Shop” 9 after the music video had been filmed, as if he was looking for a fight. As well, he 10 immediately engaged Victim—whose family had a history of conflict with one of 11 Defendant’s family members—in an argument that led to their relocation outside for 12 a fight. Also, Defendant had a weapon when he arrived at the scene. From this 13 evidence, the jury could have rationally inferred a motive for the killing. See Flores, 14 2010-NMSC-002, ¶¶ 21-22. 15 {23} Further, Defendant’s conduct following the break-up of the fight was not rash 16 and indeterminate—unlike the Slade defendant he was not running from another 17 shooter, shooting only as he went. Instead, he walked over to his girlfriend—who was 18 holding the gun—retrieved the gun, readied it for fire, turned, aimed, and shot. The 13 1 evidence also suggests that before the fight was stopped, Victim was winning. From 2 this evidence, the jury could have inferred an express purpose to get the weapon and 3 a deliberate intention to use it to kill Victim, who had just defeated him in a fight, and 4 whom he intended to kill all along. See Flores, 2010-NMSC-002, ¶¶ 21-22. 5 {24} Defendant’s conduct following the killing also supports the jury’s inference of 6 deliberate intention. Defendant fled the scene, and initially denied ever having 7 possession of a gun. As well, Defendant claims to have no memory of the events that 8 unfolded, and the gun has yet to be recovered. From this evidence, the jury could have 9 inferred a cover-up of guilt, and thereby—in the context of the other evidence 10 presented at trial—the requisite state-of-mind at the time of the killing for first-degree 11 murder. See Flores, 2010-NMSC-002, ¶¶ 21-22. 12 {25} As such, the evidence at trial, taken in a light most favorable to the verdict, was 13 sufficient to support the jury’s inference that Defendant’s conduct constituted willful, 14 deliberate and premeditated murder. There was sufficient evidence presented to 15 support an inference of Defendant’s formation of both pre-fight deliberate intention, 16 as well as post-fight deliberate intention. Rather than establishing that the murder 17 occurred during a crime of passion by rash and indeterminate actions, as in Garcia or 18 Slade, we hold that the overwhelming evidence in this case is consistent with what we 14 1 have previously considered in Tafoya and Flores to be sufficient to support a rational 2 jury’s determination that Defendant acted with deliberate intent to kill Victim. See 3 Tafoya, 2012-NMSC-030, ¶ 52; Flores, 2010-NMSC-002, ¶¶ 21-22. 4 B. Refusal to Submit Jury Instruction on Self-Defense Was Not Error 5 Defendant argues the trial court erred in refusing to give the jury an instruction {26} 6 on self-defense. As discussed, there was evidence that some witnesses believed there 7 was a second shot. But, there was no physical evidence of a second shot—on the 8 videos, or by a shell casing—and there was evidence that the area had a propensity for 9 echo. The trial court refused to give a self-defense instruction because it concluded 10 that there was no evidence of self-defense. The trial court considered the bulk of the 11 evidence regarding a second shot to be allowed only because it was offered to show 12 that the police had notice of the claims in the course of their investigation. 13 {27} “The propriety of jury instructions given or denied is a mixed question of law 14 and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar, 15 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. This Court reviews a 16 defendant’s requested instruction in a light most favorable to the giving of the 17 requested instruction. State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.2d 18 355. Yet, “[a] defendant is not entitled to a self-defense instruction unless it is justified 15 1 by sufficient evidence on every element of self-defense.” State v. Rudolfo, 20082 NMSC-036, ¶ 17, 144 N.M. 305, 187 P.3d 170. 3 {28} The instruction for self-defense requires evidence that 1) defendant was put in 4 fear by an apparent danger of immediate death or great bodily harm, 2) the killing 5 resulted from that fear, and 3) defendant acted reasonably when he or she killed. State 6 v. Gonzales, 2007-NMSC-059, ¶ 20, 143 N.M. 25, 172 P. 3d 162; UJI 14-5171 7 NMRA. As well, this Court has hesitated to find a self-defense instruction appropriate 8 when doing so would “license any participant in a physical combat . . . thinking 9 himself about to be the loser, to slay his opponent with whatever weapon he could lay 10 his hands on.” State v. Heisler, 1954-NMSC-032, ¶ 31, 58 N.M. 446, 272 P.2d 660. 11 One is generally not entitled to a self-defense instruction if the “evidence is so slight 12 as to be incapable of raising a reasonable doubt in the jury’s mind on whether a 13 defendant . . . did act in self-defense.” State v. Sutphin, 2007-NMSC-045, ¶ 22, 142 14 N.M. 191, 164 P.3d 72 (omission in original) (internal quotation marks and citation 15 omitted). If no evidence exists to support a defendant’s theory of the case, they are not 16 entitled to unsubstantiated jury instructions. State v. Gaines, 2001-NMSC-036, ¶ 5, 17 131 N.M. 347, 36 P.3d 438 (emphasis, internal quotation marks and citation omitted). 18 In this case, there was insufficient evidence to raise a reasonable belief in the juror’s 16 1 minds that Defendant acted in self-defense. Defendant was thereby not entitled to a 2 self-defense instruction, and the trial court did not err in refusing such an instruction. 3 {29} The trial court concluded that there was no evidence Defendant had been put 4 in fear of immediate death and thereby responded reasonably to that fear in killing 5 Victim. Rather, the evidence suggests that Defendant provoked the fight, the fight was 6 fair, and the threat Victim potentially posed to Defendant had been eliminated before 7 the shooting. Regarding an alleged second shot, video of the altercation indicates 8 immediate panic only after Defendant fired his weapon; that is, the physical evidence 9 indicates that no shots were fired prior to that which killed Victim, or else there would 10 likely have been different behavior on the part of the crowd. Thus, under Heisler, 11 Sutphin and Rudolfo the evidence that could support each element of a self-defense 12 claim in this case is so slight that it was incapable of raising a reasonable doubt in the 13 jury’s mind as to whether Defendant did act in self-defense—particularly since the 14 fight had ended, and the threat removed, six seconds prior to the killing. 15 {30} Before the trial court was evidence that Defendant was the aggressor, that he 16 did not win the fight, that the fight had been stopped and the combatants separated, 17 and that Defendant was not in fear of losing his life—this evidence, the trial court 18 concluded, was insufficient to support an instruction of self-defense. See Rudolfo, 17 1 2008-NMSC-036, ¶ 17; Gonzales, 2007-NMSC-059, ¶ 20; Gaines, 2001-NMSC-036, 2 ¶ 5; Heisler, 1954-NMSC-032, ¶ 31. We agree with the trial court that the evidence 3 in this case was insufficient to merit a self-defense instruction, and hold that the trial 4 court acted appropriately in refusing the instruction. 5 {31} Defendant, though, does not merely challenge refusal of the instruction on the 6 grounds that there was sufficient evidence demanding that it be given. He further 7 argues that, while the evidence might very well be insufficient to establish self8 defense, the existence of the second shot being fired is still relevant to the issue of 9 whether the killing was rash and impulsive. Defendant extends this argument to 10 suggest that had the jury been given a self-defense instruction, they would have been 11 more apt to decline to render a verdict of a willful, deliberate, and premeditated 12 murder in favor of a heat-of-passion voluntary manslaughter verdict. We disagree. 13 {32} There is no precedent for the proposition that the lack of an instruction on self- 14 defense may somehow prejudice a jury’s deliberation by lowering the probability that 15 they would convict of voluntary manslaughter, even when the facts and evidence 16 support a conviction of first-degree murder. In fact, cases cited by Defendant stand for 17 the inapposite proposition that “whenever the evidence is sufficient to raise a question 18 of self-defense, an instruction on voluntary manslaughter should also be submitted to 18 1 the jury where the evidence supports sufficient provocation of fear for one’s own 2 safety,” State v. Abeyta, 1995-NMSC-051, ¶ 20, 120 N.M. 233, 901 P.2d 164, 3 abrogated on other grounds by State v. Campos, 1996-NMSC-043, ¶ 32, 122 N.M. 4 148, 921 P.2d 1266; and for the proposition that often a jury will need to choose 5 between a conviction of voluntary manslaughter or acquittal based on self-defense, see 6 State v. Harrison, 1970-NMCA-071, ¶¶ 41-47, 81 N.M. 623, 471 P.2d 193. We hold 7 that on the facts of this case the jury would not have considered entering the lesser8 included offense of voluntary manslaughter simply because it was given an instruction 9 on self-defense. The evidence presented does not establish a valid claim of self10 defense, as Defendant was not reasonably responding to a stimulus placing him in fear 11 of his own life. Rather, he was the aggressor—who had just got the worst-end of a 12 fight. The facts remain valid regardless of the instruction. The trial court did not err 13 in failing to give the instruction, with respect to the merits of the self-defense claim, 14 as well as the relevance of such an instruction to the jury’s consideration of voluntary 15 manslaughter. 16 {33} Defendant lastly submits that the evidence in this case reflects and supports 17 only the lesser offense of voluntary manslaughter as the killing was substantially 18 provoked by a sudden quarrel with Victim using brass knuckles. Coupled with the fear 19 1 of being shot, which as discussed was unsubstantiated, Defendant argues this is a 2 classic example of voluntary manslaughter. Because we hold that the evidence in this 3 case was sufficient to support a jury’s conviction of first-degree murder based on 4 Defendant’s deliberate intention to kill Victim, we need not consider Defendant’s 5 request that we enter a verdict of voluntary manslaughter. 6 III. CONCLUSION 7 For the foregoing reasons, we affirm Defendant’s conviction for first-degree {34} 8 murder. 9 {35} IT IS SO ORDERED. 10 11 ___________________________________ BARBARA J. VIGIL, Chief Justice 12 WE CONCUR: 13 ________________________________ 14 PETRA JIMENEZ MAES, Justice 15 ________________________________ 16 EDWARD L. CHÁVEZ, Justice 17 ________________________________ 18 CHARLES W. DANIELS, Justice 20 1 ________________________________ 2 JUDITH K. NAKAMURA, Justice 21
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