Certiorari Granted, October 28, 2010, No. 32,510

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-098

Filing Date: July 1, 2010

Docket No. 28,316

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

MICHAEL SWICK,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge

Gary K. King, Attorney General
Farhan Khan, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

WECHSLER, Judge.

{1}    Defendant Michael Swick was convicted of second degree murder, attempted murder
(two counts), aggravated battery (deadly weapon, two counts), aggravated burglary (battery,
two counts, and deadly weapon, one count), armed robbery (two counts), conspiracy (two
counts), and unlawful taking of a motor vehicle. On appeal, Defendant raises four issues,
contending that: (1) the second degree murder instruction was improper, (2) an instruction

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on self-defense should have been given, (3) several of his convictions violate double
jeopardy protections, and (4) the district court erred in denying his motion for a mistrial. For
the reasons that follow, we affirm.

BACKGROUND

{2}     On the morning of January 21, 2006, Defendant and a group of others began
consuming alcohol and driving around. Defendant, his cousin Benito Lopez, and a friend
named Alex Ogle then borrowed a Jeep, which they used to “wreak[] havoc” before getting
stuck in a ditch. The three consumed more alcohol, started “walking somewhere,” and then
Lopez briefly left on foot to return to the Jeep to retrieve some warmer clothes. When he
returned, he saw Defendant standing above Ogle holding a large rock. Ogle was lying on
the ground, bleeding, not moving, and apparently with no pulse. It was later determined that
Ogle had sustained numerous stab wounds and blunt trauma injuries that ultimately caused
his death.

{3}    After moving Ogle’s body to some bushes, Defendant and Lopez left in search of a
vehicle that they could steal. They came upon the home of Rita and Carlos Atencio,
knocked on the door, and asked to use the telephone. After entering the house, they
repeatedly stabbed, beat, and slashed both of the Atencios before taking fourteen dollars in
cash and the keys to a van, in which they fled.

{4}    Defendant subsequently went to a friend’s apartment to seek treatment for a wound
to his hand. The police arrived in response to a 911 call. Defendant was ultimately
convicted on the thirteen counts listed above. This appeal followed.

JURY INSTRUCTION ON SECOND DEGREE MURDER

{5}     The jury was instructed on both second degree murder and, as a lesser-included
offense, voluntary manslaughter. However, the second degree murder instruction was not
in conformity with UJI 14-210 NMRA, insofar as the instruction did not contain language
stating that Defendant “did not act as a result of sufficient provocation.” Instead, the jury
was instructed pursuant to UJI 14-211 NMRA, which applies when voluntary manslaughter
is not a lesser-included offense. Defendant contends that this instruction resulted in the
omission of an essential element, such that reversal is in order. Because Defendant neither
tendered an appropriate instruction nor raised the issue in any other fashion below, we
review for fundamental error. See State v. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M.
711, 998 P.2d 176 (observing that jury instructions are reviewed for fundamental error when
no objection was raised below). Fundamental error in connection with a jury instruction
occurs if “a reasonable juror would have been confused or misdirected by the jury
instruction.” Id. ¶ 14 (internal quotation marks and citation omitted).

{6}     In Cunningham, our Supreme Court elaborated on the capacity of other instructions
to cure an instruction that improperly omits an element of the charged offense. Specifically,

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the Court held that “in a fundamental error analysis jury instructions should be considered
as a whole and a failure to include an essential element in the elements section may be
corrected by subsequent proper instructions that adequately addresses the omitted element.”
Id. ¶ 21. Accordingly, applying the fundamental error analysis set forth in Cunningham, we
must determine whether the erroneous jury instruction on second degree murder was
“corrected by subsequent proper instructions that adequately addresse[d] the omitted
element.” Id. For the reasons that follow, we answer this question in the affirmative.

{7}    As previously indicated, the second degree murder instruction omitted the element
negating sufficient provocation. However, the subsequent instruction on the lesser-included
offense of voluntary manslaughter adequately addressed the omission. In conformity with
UJI 14-220 NMRA, that instruction specifically explained:

                The difference between second degree murder and voluntary
       manslaughter is sufficient provocation. In second degree murder the
       defendant kills without having been sufficiently provoked, that is, without
       sufficient provocation. In the case of voluntary manslaughter the defendant
       kills after having been sufficiently provoked, that is, as a result of sufficient
       provocation. Sufficient provocation reduces second degree murder to
       voluntary manslaughter.

Additionally, the jury was separately instructed on the definition of “sufficient provocation.”

{8}     The foregoing instructions clearly and explicitly informed the jury about the
distinction between second degree murder and voluntary manslaughter. We therefore
conclude that the deficiency in the second degree murder instruction, concerning the absence
of sufficient provocation, was “corrected by subsequent proper instructions that adequately
addresse[d] the omitted element,” Cunningham, 2000-NMSC-009, ¶ 21, such that
fundamental error did not occur.

{9}     Defendant urges this Court to depart from the principles articulated in Cunningham,
on grounds that the “step-down” instruction conforming to UJI 14-250 NMRA required the
jury to first address first and second degree murder before considering whether Defendant
had committed voluntary manslaughter. Accordingly, Defendant contends that the
instructions setting forth the elements of voluntary manslaughter and defining sufficient
provocation cannot be said to have corrected the deficiency in the second degree murder
instruction.

{10} Defendant’s argument runs afoul of the clear precedent established by Cunningham.
Furthermore, the very first instruction to the jury indicated that all of the instructions must
be considered as a whole. Finally, we note that the voluntary manslaughter instruction
preceded the step-down instruction. As a result, insofar as the jury is presumed to have read
and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230, 824 P.2d 1023,
1032 (1992), we conclude that the jury was adequately informed.

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{11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025, 147 N.M.
465, 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-__, __ N.M. __, __ P.3d __
(No. 32,149, Mar. 1, 2010), addressed a similar issue in which an error in jury instructions
prevented the defendant from presenting self-defense with regard to one of the assailants.
Id. ¶¶ 16-18. However, Sandoval is distinguished from the case before us because, in
Sandoval, there was no curing instruction that permitted the jury to consider all of the
assailants—rather than just the two that were included in the instructions—when deciding
whether the defendant acted in self-defense. Id. ¶¶ 22, 26. In our case, as discussed above,
the instructions, when read as a whole, were sufficient to cure the deficient second degree
murder instruction.

REQUESTED JURY INSTRUCTION ON SELF-DEFENSE

{12} Defendant unsuccessfully sought an instruction on self-defense. He contends that
the district court’s failure to give his requested instruction was erroneous. “The propriety
of denying a jury instruction is a mixed question of law and fact that we review de novo.”
State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (internal quotation
marks and citation omitted).

{13} Defendant was required to present evidence supporting every element of self-defense
in order to warrant a jury instruction on this issue. State v. Gonzales, 2007-NMSC-059, ¶
19, 143 N.M. 25, 172 P.3d 162. The requirements of self-defense are:

       (1) an appearance of immediate danger of death or great bodily harm to the
       defendant, (2) the defendant was in fact put in fear by the apparent danger,
       and (3) a reasonable person in the same circumstances would have reacted
       similarly. The first two requirements, the appearance of immediate danger
       and actual fear, are subjective in that they focus on the perception of the
       defendant at the time of the incident. By 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.

State v. Coffin, 1999-NMSC-038, ¶ 15, 128 N.M. 192, 991 P.2d 477 (internal quotation
marks and citation omitted).

{14} There is no direct testimony regarding the pertinent events because Defendant did
not testify and no one else except Ogle, the deceased victim, witnessed the events. However,
several witnesses testified that Defendant’s hand was injured. In this regard, Lopez testified
that he observed a wound to the back of Defendant’s hand and that Defendant had told him
Ogle had stabbed him. Officer John Wiese and Detective Michael Traxler of the Sandoval
County Sheriff’s Department similarly indicated that they had observed the wound and
testified that Defendant had separately told them that Ogle had stabbed him.

{15}   Although the foregoing testimony indicates that Ogle may have stabbed Defendant

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in the back of the hand, it provides no information about the surrounding circumstances. The
evidence therefore supplies no basis for inferring that Defendant’s brutal attack on Ogle was
objectively reasonable, particularly in light of countervailing considerations discussed
below.

{16} Defendant asserts that Detective Traxler’s testimony provides adequate support for
his requested instruction because Detective Traxler characterized Defendant’s injury as
defensive in nature. However, the transcript indicates otherwise. Although Detective
Traxler explained that it was possible that Defendant’s wound was defensive, he further
explained that, in his experience, most defensive wounds are to the palm rather than to the
back of the hand. We are unpersuaded by Defendant’s argument that his arguably defensive
wound indicates that his actions were necessarily in self-defense.

{17} Nevertheless, we also consider the reasonableness of Defendant’s conduct, of which
the State’s uncontroverted forensic evidence is a crucial consideration. The doctor who
performed the autopsy testified extensively about the wounds that Ogle received. These
included at least seven distinct stab wounds to his chest, one stab wound to his right cheek,
and one stab wound to his back. Additionally, Ogle suffered numerous, severe blunt-force
injuries in the area of his face and cranium. The doctor explained that either the stab wounds
or the blunt-force injuries could have caused Ogle’s death.

{18} In light of the foregoing, specifically the large number and varying types of severe
injuries inflicted on Ogle, in contrast to the relative superficiality of Defendant’s injury, we
conclude that even if Ogle stabbed Defendant’s hand, Defendant’s response cannot be
regarded as objectively reasonable. Cf. State v. Sutphin, 2007-NMSC-045, ¶ 24, 142 N.M.
191, 164 P.3d 72 (concluding that the defendant’s actions were not reasonable and did not
support a self-defense instruction when he beat an initial attacker to death after rendering
him unconscious); State v. Lopez, 2000-NMSC-003, ¶¶ 25-26, 128 N.M. 410, 993 P.2d 727
(filed 1999) (upholding refusal to instruct on self-defense when the defendant inflicted
multiple stab wounds and crushed the victim’s skull). See generally State v. Rudolfo,
2008-NMSC-036, ¶ 20, 144 N.M. 305, 187 P.3d 170 (“The law simply does not recognize
any right to an acquittal based on a wholly unreasonable claim of a self-defense justification
for taking the life of another.”). Because a jury could not have found Defendant’s use of
deadly force to be objectively reasonable under the circumstances, a self-defense instruction
was not warranted.

DOUBLE JEOPARDY

{19} Defendant advances two double jeopardy arguments, contending that: (1) his
convictions for attempted murder (two counts) and for aggravated battery (deadly weapon,
two counts) violate the constitutional protections of double jeopardy, such that the latter
should be vacated; and (2) his convictions for aggravated burglary (battery, two counts) and
for aggravated burglary (deadly weapon, one count) violate double jeopardy protections,
such that the latter should be vacated. We apply a de novo standard of review. See State v.

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Lopez, 2008-NMCA-111, ¶ 8, 144 N.M. 705, 191 P.3d 563 (indicating that both double-
description and unit-of-prosecution issues are reviewed de novo).

{20} Controlling precedent exists with respect to Defendant’s challenge to his convictions
for attempted murder and for aggravated battery with a deadly weapon. In the case of State
v. Armendariz, 2006-NMSC-036, ¶¶ 24-25, 140 N.M. 182, 141 P.3d 526, our Supreme Court
held that convictions for both attempted murder and for aggravated battery with a deadly
weapon do not present a double jeopardy problem because the elements of the offenses are
not subsumed within each other and because other factors indicate legislative intent to
separately punish.

{21} Despite the clear holding of the majority in Armendariz, Defendant urges this Court
to adopt the position of the dissenting justices. This we cannot do. See State v. Glascock,
2008-NMCA-006, ¶ 26, 143 N.M. 328, 176 P.3d 317 (filed 2007) (noting that the Court of
Appeals is bound by Supreme Court precedent), cert. quashed, 2009-NMCERT-006, 146
N.M. 734, 215 P.3d 43. Accordingly, we conclude that Defendant’s convictions for
attempted murder and for aggravated battery with a deadly weapon do not violate double
jeopardy principles.

{22} With respect to Defendant’s challenge to his convictions for aggravated burglary
(battery, two counts, and deadly weapon, one count), we are not confronted with similarly
controlling case law. We must therefore engage in an independent analysis.

{23} The first step in any double jeopardy case is to determine whether the conduct
underlying the offenses is unitary. State v. Bernal, 2006-NMSC-050, ¶ 9, 140 N.M. 644, 146
P.3d 289; State v. Dominguez, 2005-NMSC-001, ¶ 22, 137 N.M. 1, 106 P.3d 563. “Conduct
is unitary if it is not sufficiently separated by time or place, and the object and result or
quality and nature of the acts cannot be distinguished.” State v. LeFebre, 2001-NMCA-009,
¶ 17, 130 N.M. 130, 19 P.3d 825.

{24} As previously indicated, two of Defendant’s convictions for aggravated burglary are
premised on battery, and the third conviction is premised on possession of a deadly weapon.
With respect to the first two convictions, the underlying conduct consisted of Defendant’s
unauthorized entry into the Atencios’ home with the intent to commit theft therein and his
committing battery upon Mr. and Mrs. Atencio after entering. With respect to the third
conviction, the underlying conduct consisted of Defendant’s unauthorized entry into the
Atencios’ home with the intent to commit theft therein and his act of arming himself with
a knife once inside.

{25} In the briefs, the parties devote no argument to the question of whether the foregoing
acts should be characterized as unitary conduct. Therefore, as a matter of expediency, we
will assume without deciding that the underlying conduct was unitary.

{26}   Next, we must determine what type of double jeopardy issue is presented with

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respect to each of the challenged convictions. See State v. Frazier, 2007-NMSC-032, ¶ 13,
142 N.M. 120, 164 P.3d 1 (describing the distinction between unit-of-prosecution and
double-description issues). The offense of aggravated burglary may be committed in several
ways. See NMSA 1978, § 30-16-4 (1963). Defendant was convicted of aggravated burglary
based on two different statutory provisions: Subsection (B) (involving a deadly weapon) and
Subsection (C) (involving battery).

{27} When convictions under separate subsections of a single statute are at issue, we apply
the double-description analysis. See State v. Franco, 2005-NMSC-013, ¶ 14, 137 N.M. 447,
112 P.3d 1104 (observing that the courts “treat statutes written in the alternative as separate
statutes” for double jeopardy purposes); State v. Rodriguez, 113 N.M. 767, 771, 833 P.2d
244, 248 (Ct. App. 1992) (“[A] criminal statute written in the alternative creates a separate
offense for each alternative and should therefore be treated for double jeopardy purposes as
separate statutes would.” (internal quotation marks and citation omitted)). Accordingly, with
respect to the permissibility of the separate convictions under Subsections (B) and (C), we
must examine legislative intent, focusing on a comparison of the elements of the offenses.
See generally Armendariz, 2006-NMSC-036, ¶ 23 (“[D]etermining legislative intent in this
context has nothing to do with the facts and evidence presented at trial. It is based upon the
statutory elements of the offenses.”).

{28} The elements of aggravated burglary as defined in Subsection (B) clearly differ from
the elements of the offense as defined in Subsection (C). Very briefly, the former requires
proof that the defendant armed himself with a deadly weapon after entry, whereas the latter
requires proof that the defendant committed battery during a burglary. Because each
statutory alternative requires an element of proof not required by the other, we presume that
the Legislature intended to punish the offenses separately. Id. ¶ 22.

{29} Finally, we must consider “other indicia of legislative intent, including the language,
history, and subject of the [statutory subsections], the social evils sought to be addressed by
each [subsection], and the quantum of punishment prescribed by each [subsection].” Id. We
have been made aware of nothing in relation to language or history that would undermine
the presumption. The quantum of punishment under either subsection is the same, which
might suggest that separate punishments are inappropriate. However, we deem the subject
of the subsections, as well as the social evils sought to be addressed by each, to be distinct.
Cf. Franco, 2005-NMSC-013, ¶ 14 (recognizing that a statute that has been written in the
alternative may serve several purposes, have many meanings, and incorporate a wide range
of deterrent possibilities). Although we acknowledge that there is some overlap insofar as
Section 30-16-4 is generally addressed to burglary and, therefore, the prevention of intrusion
into protected spaces, see State v. Foulenfont, 119 N.M. 788, 790, 895 P.2d 1329, 1331 (Ct.
App. 1995) (explaining that the general purpose of the burglary statute is to protect
possessory rights with respect to prohibited spaces), the particular subsections at issue in this
case are directed toward supplemental considerations. Specifically, Subsection (B) is
designed to address the heightened threat associated with possession of deadly weapons and
to deter their possession in the course of burglaries even if no use is intended. State v.

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Anderson, 2001-NMCA-027, ¶ 21, 130 N.M. 295, 24 P.3d 327. By contrast, Subsection (C)
is designed to address actual physical injury to persons during a burglary. See State v.
Roper, 2001-NMCA-093, ¶ 12, 131 N.M. 189, 34 P.3d 133 (stating that “the harm protected
by the battery statutes [is] physical harm, i.e., physical injury to persons”). Because these
factors reinforce the presumption of distinct, punishable offenses, we conclude that
Defendant’s convictions pursuant to these two separate statutory subsections do not offend
double jeopardy principles.

MOTION FOR MISTRIAL

{30} On the second day of trial, during the testimony of one of the State’s witnesses,
Defendant spontaneously rose from his seat at the defense table and made a statement to the
effect that he had to “go somewhere” because he could not “handle” the proceedings. The
security officers then intervened, and Defendant was restrained. The court recessed. When
it reconvened roughly thirty minutes later, the judge stated for the record that there had been
“an incident in the courtroom where [Defendant] had to be taken down, and at least some of
the jurors, I think, saw what happened.”

{31} The judge subsequently conducted individual voir dire in order to inquire about what
the jurors had seen or heard and to determine whether they could remain fair and impartial.
Eight jurors indicated that they had observed either an altercation between the officers and
Defendant, or Defendant being restrained by the officers; the remaining seven jurors stated
that they had not observed anything—although several stated that they had heard a
“disturbance” or a “racket” while exiting the courtroom. All fifteen stated that they would
remain fair and impartial and that they could base their decision solely on the evidence
presented at trial. The judge also indicated to the jurors that the incident was the product of
stress associated with the trial and that Defendant’s subsequent restraint did not reflect on
his guilt or innocence.

{32} Defendant moved for a mistrial, asserting that the jurors’ awareness of the incident
between Defendant and the security officers would add “another layer of prejudicial
information . . . in terms of [Defendant’s] propensity to act out in a particular fashion that
could be perceived as being threatening.” Observing further that Defendant would attend
the remainder of the proceedings in restraints, counsel argued that his right to a fair trial had
been compromised. The district court denied the motion.

{33} Defendant contends that his motion should have been granted. We review the district
court’s ruling for abuse of discretion. State v. Gallegos, 2009-NMSC-017, ¶ 21, 146 N.M
88, 206 P.3d 993. “An abuse of discretion exists when the trial court acted in an obviously
erroneous, arbitrary, or unwarranted manner.” Id. (alteration, internal quotation marks, and
citation omitted).

{34} The district court handled the situation in an appropriate manner. In light of every
juror’s clear indication that he or she could remain fair and impartial, as well as the court’s

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admonition, we conclude that the denial of the motion did not constitute an abuse of
discretion. Cf. State v. Martinez, 99 N.M. 353, 355, 658 P.2d 428, 430 (1983) (holding that
a motion for mistrial was properly denied when the judge admonished the jury to disregard
the defendant’s outbursts); State v. Guy, 82 N.M. 483, 483-85, 483 P.2d 1323, 1323-25 (Ct.
App. 1971) (holding that, despite numerous outbursts in the course of which the defendant
was repeatedly restrained, a motion for mistrial was properly denied when the trial court
instructed the jury that the outbursts were not to have any bearing on their deliberations and
the trial otherwise “proceeded carefully and calmly to insure the defendant received a fair
and impartial trial”); see also State v. Paul, 83 N.M. 527, 529, 494 P.2d 189, 191 (Ct. App.
1972) (upholding the denial of a motion for mistrial and observing that a defendant should
“not . . . be permitted to gain from his outbursts”).

CONCLUSION

{35}    For the foregoing reasons, we affirm.

{36}    IT IS SO ORDERED.


                                                ____________________________________
                                                JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
TIMOTHY L. GARCIA, Judge


Topic Index for State v. Swick, Docket No. 28,316

CT                             CONSTITUTIONAL LAW
CT-DJ                          Double Jeopardy

CL                             CRIMINAL LAW
CL-AG                          Aggravating or Mitigating Circumstances
CL-BA                          Battery
CL-EL                          Elements of Offense
CL-HO                          Homicide
CL-MU                          Murder
CL-SD                          Self-defense
CL-VM                          Voluntary Manslaughter

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CL-WO   Weapons Offences

CA      CRIMINAL PROCEDURE
CA-CD   Conduct of Defendant
CA-DJ   Double Jeopardy
CA-JI   Jury Instructions
CA-MT   Mistrial
CA-SD   Self-defense

JI      JURY INSTRUCTIONS
JI-CJ   Criminal Jury Instructions
JI-FG   Failure to Give or Request
JI-IJ   Improper Jury Instructions




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