                                                               I attest to the accuracy and
                                                                integrity of this document
                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'05- 11:25:43 2017.11.08

           IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMSC-030

Filing Date: October 5, 2017

Docket No. S-1-SC-34839

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

BENJAMIN DAVID BAROZ III,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Jerry H. Ritter, Jr., District Judge

Bennett J. Baur, Chief Public Defender
J. K. Theodosia Johnson, Assistant Appellant Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
Tonya Noonan Herring, Assistant Attorney General
Santa Fe, NM

for Appellee

                                      OPINION

VIGIL, Justice.

I.     INTRODUCTION

{1}    A jury convicted Benjamin David Baroz III (Defendant)1 of felony murder based on


       1
       While Defendant’s full name is Benjamin David Baroz III, he was referred to as
“David” during trial.

                                          1
the predicate felony of shooting at or from a motor vehicle, two counts of aggravated assault
with a deadly weapon, and possession of drug paraphernalia. The conviction of shooting at
or from a motor vehicle was vacated on double jeopardy grounds. See State v. Frazier,
2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1 (holding that the predicate felony is always
subsumed into a felony murder conviction). Defendant appeals his convictions, arguing that
he is entitled to a new trial because: (1) shooting at or from a motor vehicle cannot serve as
a predicate felony for felony murder; (2) the evidence was insufficient to support a
conviction of second-degree murder; (3) the district court erred in denying his request for
a jury instruction on self-defense; (4) the one-year firearm enhancements on his sentences
for aggravated assault with a deadly weapon violate double jeopardy; and (5) the State
should not have been allowed to impeach his trial testimony with a statement obtained in
violation of his Miranda rights.

{2}     We vacate Defendant’s felony murder conviction and order that a conviction of
second-degree murder be entered instead. We affirm the district court’s holdings that (1)
Defendant was not entitled to a self-defense instruction; (2) the imposition of a one-year
firearm enhancement on an aggravated assault with a deadly weapon conviction does not
violate double jeopardy; and (3) the statements Defendant made after invoking his right to
remain silent were voluntary and could be used for impeachment.

II.    BACKGROUND

{3}     On August 30, 2011, in Alamogordo, New Mexico, Defendant’s father drove his
truck past Vangie Cordova’s house, where she lived with her grandsons, Matthew Cordova
and Daniel Cordova, with Defendant in the passenger seat. The truck passed the house at
least once, went around the block, and came back again, very slowly, with the windows
partially rolled down. Matthew Cordova, Daniel Cordova, and a friend were in the backyard.
At that point, multiple shots were fired from the passenger side window of the truck into the
yard, hitting and ultimately killing Matthew Cordova (Victim).

{4}     The State presented the theory that Defendant fired the gun that killed Victim.
Defendant claimed that his father was responsible, and that Defendant did not know that or
intend for the shooting to occur. Additional facts are provided below as necessary for the
analysis.

III.   DISCUSSION

A.     Felony Murder Conviction

{5}    Defendant contends that shooting at or from a motor vehicle cannot serve as the
underlying felony sustaining a felony murder conviction. See NMSA 1978, § 30-2-1(A)(2)
(1994); NMSA 1978, § 30-3-8(B) (1993). We agree.

{6}    We clarified in State v. Marquez that “shooting at or from a motor vehicle is an

                                              2
elevated form of aggravated battery, and thus cannot be used as a predicate for felony
murder.” 2016-NMSC-025, ¶ 23, 376 P.3d 815 (internal quotation marks and citations
omitted). In Marquez, the defendant was convicted of first-degree felony murder predicated
on the underlying felony of shooting at or from a motor vehicle. Id. ¶ 1. Like the defendant
in Marquez, the underlying felony supporting Defendant’s felony murder conviction was the
felony of shooting at or from a motor vehicle. Thus, Defendant’s use of a motor vehicle to
commit the killing does not automatically elevate his crime of second-degree murder to first-
degree murder. Because shooting at or from a motor vehicle cannot serve as the predicate
to felony murder, we vacate Defendant’s conviction of felony murder and order that a
conviction of second-degree murder should be entered instead.

B.     Sufficiency of the Evidence for a Second-Degree Murder Conviction

{7}     Next, we address whether there was sufficient evidence presented at trial to support
a conviction of second-degree murder. See State v. Meadors, 1995-NMSC-073, ¶¶ 1, 45, 121
N.M. 38, 908 P.2d 731 (upholding a defendant’s conviction of a lesser included offense); see
also § 30-2-1(B) (defining second-degree murder as a lesser included offense of first-degree
murder). Defendant contends that the evidence presented at trial was insufficient to support
a conviction of second-degree murder. Defendant argues that his father was the actual
perpetrator of the killing and Defendant did not know that or intend for anyone to be killed
that day.

{8}     Although Defendant was not indicted for second-degree murder, he was on notice
to defend against it because it is a lesser included offense of first-degree murder. See State
v. Hernandez, 1999-NMCA-105, ¶¶ 25-28, 127 N.M. 769, 987 P.2d 1156 (determining
whether an offense was a lesser included offense when a court considers a charge sua
sponte). Second-degree murder is a lesser included offense of felony murder from a strict
elements standpoint because a defendant cannot commit the greater charge without also
committing the lesser: all of the elements necessary to prove second-degree murder are also
necessary to prove felony murder. See Hernandez, 1999-NMCA-105, ¶ 25. Because
Defendant was on notice to defend against second-degree murder based on the elements of
the crime charged, we need not consider the pleadings or the evidence presented at trial. Id.
¶ 26 (“The test aims to avoid the inflexibility of the strict elements test while providing
notice to the defendant of the crime against which he must defend.” (citation omitted)); see
also Meadors, 1995-NMSC-073, ¶ 12 (listing additional factors for determining whether a
crime is a lesser included offense). In this case, by convicting Defendant of felony murder,
the jury convicted Defendant of each of the elements necessary to prove second-degree
murder.

{9}     “The test for sufficiency of the evidence is 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.” State v. Flores, 2010-NMSC-002,
¶ 2, 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation omitted).
“Substantial evidence is relevant evidence that a reasonable mind might accept as adequate

                                              3
to support a conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal
quotation marks and citation omitted). “In reviewing whether there was sufficient evidence
to support a conviction, we resolve all disputed facts in favor of the State, indulge all
reasonable inferences in support of the verdict, and disregard all evidence and inferences to
the contrary.” Id. (internal quotation marks and citation omitted). “The jury is free to reject
[the d]efendant’s version of the facts.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94,
140 P.3d 515 (internal quotation marks and citations omitted).

{10} To support a conviction of second-degree murder, the State had to prove beyond a
reasonable doubt that Defendant killed Victim and knew that his acts created a strong
probability of death or great bodily harm to Victim or any other human being. See Section
30-3-8(B). At trial, the jury heard evidence that Defendant was in the passenger seat when
his father drove past the Cordova residence. Daniel Cordova testified that he saw the
“muzzle flash” from shots fired from the passenger side window of the truck. He also
testified that, after the shots were fired, he saw his cousin, Victim, lying on the ground. Dr.
Michelle Aurelius testified at trial that Victim died from the gunshot wound. Because
Defendant was in the passenger seat and the shots were fired out of the passenger side
window, a jury could reasonably conclude that Defendant was the shooter. Based on the
testimony that the shots fired resulted in Victim’s death, we conclude there was sufficient
evidence for a jury to find beyond a reasonable doubt that Defendant killed Victim.

{11} We now turn to Defendant’s mens rea. To be guilty of second-degree murder,
Defendant must have had knowledge that his acts created a strong probability of death or
great bodily harm. State v. Ortega, 1991-NMSC-084, ¶ 25, 112 N.M. 554, 817 P.2d 1196,
abrogated on other grounds as recognized by State v. Suazo, 2017-NMSC-011, ¶ 23, 390
P.3d 674. Defendant testified that there were five or six people in the yard when he passed
by in the truck. On cross-examination, Defendant admitted that he knew that shooting in the
direction of a group of people in a residential area presented a danger to human life. If the
jury determined that Defendant was the shooter, it would be reasonable to conclude that he
“knew that his acts created a strong probability of death or great bodily harm to [Victim] or
any other human being.” Accordingly, the evidence was sufficient to support a conviction
of second-degree murder or felony murder. See State v. Campos, 1996-NMSC-043, ¶ 29, 122
N.M. 148, 921 P.2d 1266 (“[I]n order for the felony murder doctrine to apply to a defendant,
the State must prove that the defendant acted with the mens rea for at least second-degree
murder.”).

C.     Self-Defense Instruction

{12} We next address whether the district court erred by refusing Defendant’s requested
self-defense instruction for murder, felony murder, and the aggravated assaults. The district
court denied the self-defense instruction, reasoning that “seeing someone approaching, even
in an angry manner, with an arm behind the back is insufficient as a matter of law to justify
deadly force.” Defendant preserved this issue by requesting the self-defense instruction and
presenting his argument concerning that instruction in the district court.

                                              4
{13} “The propriety of denying a jury instruction is a mixed question of law and fact that
we review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438.
“When, as in this case, a challenge to the jury instructions has been preserved, we review for
reversible error.” State v. Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 245.
“Failure to instruct on self-defense when there is a sufficient quantum of proof to warrant
it is reversible error.” Gaines, 2001-NMSC-036, ¶ 4. “We do not weigh the evidence but
rather determine whether there is sufficient evidence to raise a reasonable doubt about
self-defense.” Id.

{14} A defendant is only entitled to jury instructions on a self-defense theory if there is
evidence presented to support every element of that theory. State v. Gonzales,
2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. “An instruction on self-defense requires
evidence that (1) the defendant was put in fear by an apparent danger of immediate death or
great bodily harm, (2) the killing resulted from that fear, and (3) the defendant acted
reasonably when he or she killed.” Id. ¶ 20 (internal quotation marks and citation omitted).
We have described the first two requirements as “subjective in that they focus on the
perception of the defendant at the time of the incident.” State v. Coffin, 1999-NMSC-038,
¶ 15, 128 N.M. 192, 991 P.2d 477. In contrast, “the third requirement is objective in that it
focuses on the hypothetical behavior of a reasonable person acting under the same
circumstances as the defendant.” Id.

{15} Where there is “enough evidence to raise a reasonable doubt in the mind of a juror
about whether the defendant lawfully acted in self-defense [such that] . . . reasonable minds
could differ, the instruction should be given.” State v. Rudolfo, 2008-NMSC-036, ¶ 27, 144
N.M. 305, 187 P.3d 170 (citation omitted). “When considering a defendant’s requested
instructions, we view the evidence in the light most favorable to the giving of the requested
instruction[s].” State v. Swick, 2012-NMSC-018, ¶ 60, 279 P.3d 747 (alteration in original)
(internal quotation marks and citation omitted). For the reasons that follow, we conclude that
Defendant did not act reasonably when he killed Victim and the district court did not err in
refusing a self-defense instruction.

{16} Defendant argues that he was entitled to the self-defense instruction based on his
testimony that when he and his father approached the Cordova residence in their truck, some
people moved toward the truck with their hands behind their backs, leading Defendant to
believe that they were armed and going to attack. Additionally, Defendant highlights Daniel
Cordova’s testimony that the friend in Cordova’s yard always carried a gun and that Victim
was behaving in a threatening manner.

{17} The circumstances of this case do not meet the standard of objective reasonableness
necessary for a self-defense instruction. First, “the law of self-defense does not imply the
right to attack, nor will it permit acts done in retaliation for revenge . . . .” State v. Pruett,
1918-NMSC-062, ¶ 9, 24 N.M. 68, 172 P. 1044. Daniel Cordova testified that Defendant
provoked the situation when Defendant and his father drove to the Cordova residence and
shouted, “Southside!” Victim and others in the backyard then approached the truck. Because

                                                5
Defendant voluntarily entered into the situation, he cannot avail himself of the law of
self-defense.

{18} Additionally, it was not reasonable for Defendant to have used deadly force. See
State v. Sutphin, 2007-NMSC-045, ¶¶ 23-24, 142 N.M. 191, 164 P.3d 72 (holding that a
self-defense instruction is not appropriate where the victim threatened the defendant with a
pipe and the defendant responded by repeatedly striking the victim with the pipe even after
the victim lost consciousness); Gaines, 2001-NMSC-036, ¶ 10 (concluding that a
self-defense instruction was not warranted where the victim allegedly had a knife but
dropped it “well before the altercation” with the defendant); State v. Lopez,
2000-NMSC-003, ¶¶ 24-26, 128 N.M. 410, 993 P.2d 727 (holding that a self-defense
instruction was not warranted where the victim pulled a knife on the defendant during a fight
and the defendant responded by stabbing the victim fifty-four times and crushing his skull);
but see State v. Parish, 1994-NMSC-073, ¶¶ 2, 5, 118 N.M. 39, 878 P.2d 988 (concluding
that a self-defense instruction was appropriate when the defendant was tackled and beaten
by multiple assailants and ultimately ended the fight by pulling a gun and shooting and
killing one of them). While there was some violent history between Defendant and Victim,
their fight occurred approximately a year before this shooting. Defendant did not claim that
he saw any weapons, nor did he claim to know that anyone at the Cordova residence carried
guns. Although Defendant claimed he saw Victim reach behind his back as if he were going
to pull out a gun, Defendant did not testify to anything that would support an inference that
anyone else had a gun. Defendant and his father had the additional benefit of being inside
the truck, which would have offered protection if Victim had a gun, and provided the means
for a swift escape if the situation had escalated.

{19} Where “the evidence is so slight as to be incapable of raising a reasonable doubt in
the jury’s mind on whether a defendant . . . did act in self-defense,” the instruction should
not be given. Sutphin, 2007-NMSC-045, ¶ 22 (omission in original) (internal quotation
marks and citation omitted). Because we do not find evidence on which reasonable minds
could differ as to the objective element of self-defense in Defendant’s case, we conclude that
the district court did not err in rejecting his self-defense instruction. We affirm on this issue.

D.      Double Jeopardy and the Imposition of a One-Year Firearm Enhancement

{20} Defendant was sentenced to a term of eighteen months, followed by one year of
parole, for each of his convictions of aggravated assault with a deadly weapon. See NMSA
1978, § 30-3-2(A) (1963). Pursuant to NMSA 1978, Section 31-18-16(A) (1993), the firearm
enhancement statute, Defendant’s sentences on these counts were each enhanced by one
year. Defendant contends that the firearm enhancement violates double jeopardy because use
of a firearm is an element of the underlying crime, aggravated assault with a deadly weapon.
We disagree.

{21} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution protects against multiple punishments for the same offense. Witte v. United

                                                6
States, 515 U.S. 389, 395-96 (1995). There are two variations of multiple-punishments cases:
(1) unit of prosecution cases, in which an individual is convicted of multiple violations of
the same criminal statute; and (2) double description cases, in which the same criminal act
is punished under two distinct statutes. Swafford v. State, 1991-NMSC-043, ¶¶ 25, 30, 112
N.M. 3, 810 P.2d 1223. Defendant’s arguments, involving separate statutes, raise only
double description concerns. The protection against multiple punishments is designed to
ensure that sentencing discretion is confined to the limits established by the legislature. See
Garrett v. United States, 471 U.S. 773, 793 (1985); Ohio v. Johnson, 467 U.S. 493, 499
(1984); Brown v. Ohio, 432 U.S. 161, 165 (1977).

{22} We employ a two-step inquiry to review double description claims. We first
determine “whether the conduct underlying the offense is unitary, i.e., whether the same
conduct violates both statutes.” Swafford, 1991-NMSC-043, ¶ 25 (emphasis omitted). Only
if the conduct is unitary do we proceed to the second step—to determine whether the
legislature intended to create separately punishable offenses. State v. Carrasco,
1997-NMSC-047, ¶¶ 22-23, 124 N.M. 64, 946 P.2d 1075. If the statutes do not expressly
provide for multiple punishments, we determine whether the legislature intended to authorize
multiple punishments for the same offense by applying the rule of statutory construction
commonly referred to as the “same elements test.” See Blockburger v. United States, 284
U.S. 299, 304 (1932) (articulating the test, which asks whether either provision requires
proof of a fact which the other does not, to determine whether crimes are indeed separate and
whether cumulative punishment may be imposed); see also State v. Gonzales, 1997-NMCA-
039, ¶ 17, 123 N.M. 337, 940 P.2d 185 (using the term “same elements test”).

{23} This case involves a unitary act because the act underlying the aggravated assault and
the firearm enhancements, Defendant’s firing a gun, was one and the same. Defendant was
convicted of aggravated assault, which made him eligible for a sentencing enhancement. As
such, we must determine whether the Legislature intended to create separately punishable
offenses.

{24} Legislative intent is an issue of law that is reviewed de novo. State v. Montoya,
2013-NMSC-020, ¶ 29, 306 P.3d 426. The ultimate goal is to facilitate and promote the
Legislature’s purpose. Id.

{25} Section 31-18-16(A) provides that a sentence shall be increased by one year when
a court or jury makes a separate finding of fact that a firearm was used in the commission
of a noncapital felony. Section 31-18-16(A) thereby authorizes multiple punishments for the
commission of a noncapital felony with a firearm.

{26} The United States Supreme Court held that where “a legislature specifically
authorizes cumulative punishment under two statutes, regardless of whether those two
statutes proscribe the ‘same’ conduct under Blockburger, a court[] . . . may impose
cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, 459 U.S.
359, 368-69 (1983). In Swafford, this Court noted that “[s]tatutes directed toward protecting

                                              7
different social norms and achieving different policies can be viewed as separate and
amenable to multiple punishments.” 1991-NMSC-043, ¶ 32. “[U]nless unconstitutional, it
is not the role of this Court to question the wisdom, policy or justness of legislation enacted
by our [L]egislature.” State v. Maestas, 2007-NMSC-001, ¶ 25, 140 N.M. 836, 149 P.3d 933.

{27} The legislative policy behind the firearm sentence enhancement is that a noncapital
felony, committed with a firearm, should be subject to greater punishment than a noncapital
felony committed without a firearm because it is more reprehensible.2 The very nature of a
firearm enhancement is to require the sentencing judge to increase or enhance the basic
sentence that applies to the crime. By enacting the enhancement, the Legislature intended
to authorize greater punishment for noncapital felonies committed with a firearm. We
conclude the Legislature intended to authorize an enhanced punishment when a firearm is
used in the commission of aggravated assault. The sentence enhancement does not run afoul
of double jeopardy and thus, we affirm the district court’s application of the sentence
enhancement.

E.      Statements Following Invocation of the Right to Remain Silent

{28} Finally, we turn our attention to whether Defendant’s statements to the detectives,
which followed his invocation of the right to remain silent, were involuntary so as to render
improper their admission as impeachment evidence.

{29}    Prior to trial, the parties agreed in a stipulated order that some of Defendant’s
statements provided to the police during an interview violated his right to remain silent, and
were inadmissible. The detectives had continued to question Defendant after he invoked his
Miranda rights. In its stipulated order, the district court also found that the statements taken
before Defendant exercised his right to remain silent were voluntary.

{30} At trial, Defendant requested that the district court determine whether his suppressed
statements could be used by the State to impeach him if he testified at trial. Defendant
objected to the use of the suppressed statements for impeachment purposes on the basis that
they were involuntary. The district court found that the statements were voluntary and
allowed the State to use them to impeach Defendant’s testimony. The district court instructed
the jury that the statements were to be used for the limited purpose of impeaching the
witness’s testimony at trial.



       2
         State v. Gabaldon, 1978-NMCA-101, ¶¶ 25, 28, 92 N.M. 230, 585 P.2d 1352,
abrogation recognized on other grounds by State v. Branch, 2016-NMCA-071, ¶¶ 36-37,
387 P.3d 250, cert. granted, 2016-NMCERT-___ (No. S-1-SC-35951, July 28, 2016); see
also State v. Charlton, 1992-NMCA-124, ¶ 26, 115 N.M. 35, 846 P.2d 341, abrogation
recognized on other grounds by State v. Branch, 2016-NMCA-071, ¶¶ 36-37, 387 P.3d 250,
cert. granted, 2016-NMCERT-___ (No. S-1-SC-35951, July 28, 2016).

                                               8
{31} On appeal, Defendant argues that the persistent questioning and alleged promises of
leniency render his statements involuntary and inadmissible at trial for any purpose,
including impeachment.

{32} In Miranda v. Arizona, the United States Supreme Court held that “the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444 (1966). Those
procedural safeguards include warning a suspect of certain rights, and also require that “if
the individual is alone and indicates in any manner that he does not wish to be interrogated,
the police may not question him.” Id. at 445.

{33} Five years later, in Harris v. New York, the United States Supreme Court clarified
that while statements obtained in violation of Miranda would be inadmissible in the
prosecution’s case in chief, such statements could still be used to impeach a defendant’s
testimony at trial if their “trustworthiness . . . satisfie[d] legal standards.” 401 U.S. 222, 224
(1971). “[T]o meet the standard of trustworthiness, the statements must have been given
voluntarily.” State v. Omar-Muhammad, 1987-NMSC-043, ¶ 26, 105 N.M. 788, 737 P.2d
1165.

{34} We review the voluntariness of confessions de novo. State v. Evans,
2009-NMSC-027, ¶ 32, 146 N.M. 319, 210 P.3d 216. “Voluntariness means freedom from
official coercion.” State v. Sanders, 2000-NMSC-032, ¶ 6, 129 N.M. 728, 13 P.3d 460
(internal quotation marks and citations omitted). Promises of leniency on the part of police
can be coercive and may render a subsequent statement involuntary. See Evans,
2009-NMSC-027, ¶ 42 (noting that threats and promises by the police may rise to the level
of coercion).

{35} Express promises of leniency “render[] a confession involuntary as a matter of law.”
State v. Tindle, 1986-NMCA-035, ¶ 25, 104 N.M. 195, 718 P.2d 705. “However, unlike an
express promise of leniency, which can render a confession inadmissible as a matter of law,
evidence of an implied promise is only [one] factor in the totality of the circumstances that
courts consider in determining whether a confession is voluntary.” State v. Gutierrez,
2011-NMSC-024, ¶ 25, 150 N.M. 232, 258 P.3d 1024 (emphasis added). Where the evidence
does not clearly establish a promise of leniency, the question becomes one of an indirect or
implied promise.

{36} In this case, we consider “whether the accused could reasonably have inferred a
promise going to the punishment for the crime to be confessed.” State v. Munoz,
1998-NMSC-048, ¶ 34, 126 N.M. 535, 972 P.2d 847 (internal quotation marks and citation
omitted). The determination of the voluntariness of a statement “requires careful evaluation
of all the circumstances of the interrogation.” Mincey v. Arizona, 437 U.S. 385, 401 (1978);
see also Munoz, 1998-NMSC-048, ¶ 24 (“Voluntariness is determined by the totality of the
circumstances, not by a number of independent tests of voluntariness.”). Importantly,

                                                9
“threats that merely highlight potential real consequences, or are ‘adjurations to tell the
truth,’ are not characterized as impermissibly coercive.” Evans, 2009-NMSC-027, ¶ 43
(citation omitted).

{37} “On a claim that police coerced a statement, the prosecution bears the burden of
proving by a preponderance of the evidence that a defendant’s statement was voluntary.” Id.
¶ 34. “[W]e review the entire record and the circumstances under which the statement or
confession was made in order to make an independent determination of whether a
defendant’s confession was voluntary.” State v. Fekete, 1995-NMSC-049, ¶ 34, 120 N.M.
290, 901 P.2d 708. “[T]he preponderance of the evidence must establish that the confession
was not ‘extracted from an accused through fear, coercion, hope of reward[,] or other
improper inducements.’ ” State v. Cooper, 1997-NMSC-058, ¶ 30, 124 N.M. 277, 949 P.2d
660 (quoting State v. Turnbow, 1960-NMSC-081, ¶ 41, 67 N.M. 241, 354 P.2d 533).

{38} The district court found that Defendant clearly invoked his right to remain silent and
repeatedly made clear that he did not want to speak with the detectives. The district court
also found that the detectives continued to question Defendant; at times he did not respond,
although at other times he provided factual responses.

{39} Defendant expressed his concern to the detectives that “no matter what I’m going to
jail. It’s over for me. . . . It’s over for me no matter what.” In response, one of the detectives
told Defendant that the:

        investigation is not just gonna disappear. . . . [I]f [we] don’t get your side of
        the story, . . . it’s gonna continue on and it’s gonna go forward and we’re
        going to do what we have to do. But if [we] get your side of the story the end
        result could be different. The end result could be a lot different.

After more discussion, the detective told Defendant:

        I’m not the judge. I’m not the prosecutor. But I do know that we work hand
        in hand; okay, the courts, the judges, the prosecutors, us, we all work hand
        in hand and 95 percent of the time we’re sitting there at the table when it
        goes to court. . . . And, like I said, David, about my report and my
        relationship with the judge and the prosecutor and everyone else, it will
        speak volumes for you; okay?

{40} When Defendant asked the detectives if they were “gonna help me out,” one
detective responded, “what I can do is I’ll do my investigation and when I do my report, my
report is gonna reflect . . . what they call your demeanor, how you’re acting, how you portray
yourself[,] . . . and the truthfulness that you come forward with.” One of the detectives
informed Defendant that he would report that Defendant lied, but was remorseful.

{41}    Later in the interview, one of the detectives stated, “we need to give this young man

                                               10
as much help as we can, get him into the programs . . . . [W]e need to get you into drug
rehab, anger management for sure . . . . [W]e need to get [a] psychological evaluation; we
need to get this young man some [help.]” Defendant told the detectives, “I just don’t want
to be locked up.” One detective replied, “I understand that. But, you know, there’s some
things I can’t stop[.]”

{42} Our review of these statements supports the district court’s finding that the detectives
made implied promises of leniency to Defendant throughout the interview in exchange for
his cooperation, but we conclude that under the totality of the circumstances, the statements
were voluntary. The detectives’ statements were not express promises because they did not
provide an unequivocal guarantee that Defendant would receive leniency if he gave a
statement. And contrary to the State’s assertion, the detectives’ statements were not mere
suggestions that Defendant could help himself by being cooperative. Rather, the detectives
implied that they would act on Defendant’s behalf and help get his charges reduced.

{43} The detectives’ statements to Defendant gave rise to the understanding that, if he
made a statement, the detectives had the ability to influence the individuals who would make
the decision on a possible reduction in charges. Though courts have found acceptable mere
offers to bring a defendant’s cooperation to the attention of the district attorney, see Sanders,
2000-NMSC-032, ¶ 10 (stating that “merely promising to bring a defendant’s cooperation
to the attention of the prosecutor is not objectionable”), the detectives made more than a
mere offer by stating, “the courts, the judges, the prosecutors, [and the detectives] all work
hand in hand[,] and 95 percent of the time . . . sit[] . . . at the table when it goes to court.”
These statements constituted a promise of leniency because they implied that, if Defendant
confessed, the detectives were not only willing—based on their supposed desire to help
Defendant—but also able to help, due to their “relationship” with the court, the judge, and
the prosecutor. See Munoz, 1998-NMSC-048, ¶ 34; cf. State v. Lobato, 2006-NMCA-051,
¶ 18, 139 N.M. 431, 134 P.3d 122 (concluding that there is no implied promise of leniency
where the officer told the defendant he would get treatment if he confessed, but did not tell
the defendant he would receive treatment instead of prison time).

{44} We have noted, “[w]here the suggestion is that ‘it will be better,’ or that ‘it will be
to your best interests’ to tell the truth, . . . the accused may have inferred some promise going
to the punishment for the crime[.]” State v. Wickman, 1935-NMSC-035, ¶ 31, 39 N.M. 198,
43 P.2d 933. The detectives made statements to that effect. Based on these statements,
Defendant could have inferred that the detectives were making a promise of leniency. See
Munoz, 1998-NMSC-048, ¶ 34.

{45} However, an implied promise does not by itself render Defendant’s statements
involuntary. Rather, it is but one factor in the voluntariness analysis. We next consider the
other factors of voluntariness in this case to determine if Defendant’s statements were
involuntary. See Gutierrez, 2011-NMSC-024, ¶ 25 (stating that “evidence of an implied
promise is only a factor in the totality of the circumstances that courts consider in
determining whether a confession is voluntary”).

                                               11
{46} The State correctly distinguishes Defendant’s case from a case involving a similar
issue with more extreme facts. Mincey, 437 U.S. at 398-401. In Mincey, the interrogating
officers persisted in questioning a defendant who was injured, hospitalized, in pain, and
coming in and out of consciousness. Id. In that case, the United States Supreme Court held
that “Mincey’s statements were not the product of his free and rational choice. To the
contrary, the undisputed evidence makes clear that Mincey wanted not to answer[.]” Id. at
401 (emphasis in original) (internal quotation marks and citation omitted). Unlike the
defendant in Mincey, Defendant appeared to be in good health and was not suffering, aside
from his complaints about being tired. Therefore, the conduct of the detectives cannot
accurately be characterized as overcoming Defendant’s free will.

{47} While Defendant repeatedly expressed his desire to end the conversation, speak to
an attorney, and stated that he was too tired to talk, the detectives were not otherwise abusive
or threatening so as to render their conduct coercive. Further, the detectives qualified the
implied promises with clear statements to the effect that they could not prevent Defendant
from getting “locked up.”

{48} While the detectives’ implied promises of leniency and the Defendant’s sleepiness
weigh in favor of an involuntary confession, we agree with the district court that based on
the totality of the circumstances they were insufficient to render Defendant’s will overborne.
See State v. Barr, 2009-NMSC-024, ¶ 24, 146 N.M. 301, 210 P.3d 198 (stating that “[a]
confession is coerced when the [d]efendant’s will [is] overborne and his capacity for
self-determination [is] critically impaired” (internal quotation marks and citation omitted)),
overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37, 275 P.3d 110. We
conclude that any implied promises did not overwhelm Defendant’s will or impair his
capacity for self-determination such that his statements were involuntary.

{49} We therefore affirm the district court’s order that the State met its burden of showing
by a preponderance of the evidence that Defendant’s statements were voluntary, and the
statements were admissible for impeachment purposes.

IV.    CONCLUSION

{50} We vacate Defendant’s conviction of felony murder and order that a conviction of
second-degree murder be entered instead. We reject Defendant’s remaining claims of error
and affirm the district court with respect to Defendant’s remaining claims.

{51}   IT IS SO ORDERED.

                                               ____________________________________
                                               BARBARA J. VIGIL, Justice

WE CONCUR:


                                              12
___________________________________
PETRA JIMENEZ MAES, Justice

___________________________________
EDWARD L. CHÁVEZ, Justice

___________________________________
CHARLES W. DANIELS, Justice

JUDITH K. NAKAMURA, Chief Justice, specially concurring

NAKAMURA, J. (specially concurring).

{52} The majority concludes that Defendant’s felony-murder conviction must be vacated
because “shooting at or from a motor vehicle cannot serve as the predicate to felony murder
. . . .” Maj. Op. ¶ 6 (citing Marquez, 2016-NMSC-025). I accept that the majority is applying
the law as stated in Marquez. Yet I continue to believe that the predicate felony issue in
Marquez should have been decided differently and that shooting at or from a motor vehicle
may serve as a predicate felony for felony murder. The reasoning underlying this conclusion
is set out in my dissenting opinion in Marquez and need not be restated here. 2016-NMSC-
025, ¶¶ 62-81. I note only that the majority in the present case illuminates additional support
for my dissenting opinion in Marquez.

{53} According to the majority, the fact that Defendant shot at Victim from a motor
vehicle is significant. The motor vehicle provided Defendant protection from a counterattack
and served as the means for escape. Maj. Op. ¶ 18. I agree with this assessment and the
conclusion that flows inevitably from it: When a defendant uses a vehicle to perpetrate a
shooting, that act is different in kind and degree from a shooting perpetrated by a defendant
who is stationary or walking rather than traveling by car or using other transport.
Accordingly, we may infer that our Legislature did not intend to prohibit shooting at or from
a motor vehicle from being used as a predicate offense for felony murder but intended to
authorize separate application of each criminal statute. See Marquez, 2016-NMSC-025, ¶ 19
(“Our case law requires us to ‘look, not to the nature of the act, but rather to whether the
legislature intended that a particular felony should be able to serve as a predicate to felony
murder.’ ” (emphasis omitted) (quoting Campos v. Bravo, 2007-NMSC-021, ¶ 14, 141 N.M.
801, 161 P.3d 846)).

{54} I agree with the majority’s conclusion that the evidence was sufficient to support
second-degree murder, even though this conclusion operates from the premise that
Defendant’s felony-murder conviction cannot stand. I concur with the remaining sections
of the majority’s opinion and the conclusions there reached.

                                               ____________________________________
                                               JUDITH K. NAKAMURA, Chief Justice

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