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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date:


 4 NO. 33,200

 5 STATE OF NEW MEXICO,

 6          Plaintiff-Appellee,
 7 v.

 8 FERNANDO LOPEZ,

 9          Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
11 Thomas A. Rutledge, District Judge


12 Bennett J. Baur, Acting Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16 Gary K. King, Attorney General
17 Olga Serafimova, Assistant Attorney General
18 Santa Fe, NM
 1 for Appellee


 2                                      DECISION

 3 BOSSON, Justice.

 4   {1}   On June 24, 2011, a jury convicted Defendant Fernando Lopez of first-degree

 5 murder for the fatal shooting of Rudolfo Murillo. Sentenced to life imprisonment,

 6 Defendant appeals his conviction directly to this Court pursuant to Article VI, Section

 7 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA.

 8   {2}   We decide this case by unpublished decision pursuant to Rule 12-405(B)(1)

 9 NMRA because New Mexico case law sufficiently addresses the issues raised in this

10 appeal. For the following reasons, we affirm Defendant’s first-degree murder

11 conviction; however, because Defendant’s conviction was improperly enhanced by

12 one year for the use of a firearm, we remand for an amended judgment and sentence.

13 BACKGROUND

14   {3}   On July 4, 2009, Defendant, a former police officer from Mexico, shot and

15 killed Rudolfo Murillo. Defendant and his wife, Ashley Lopez, were attending a

16 wedding the evening the shooting occurred. Ashley’s family, including her cousin

17 Murillo, were also at the wedding. At some point during the evening, Defendant and

18 Murillo left the wedding to obtain more beer. It was during the excursion to obtain

19 beer when the shooting occurred. The details of what transpired next are taken from

20 the evidence or reasonable inferences from the evidence that the jury was entitled to
 1 draw.

 2   {4}   During a police interrogation, Defendant recounted two different versions of

 3 events as to what happened prior to the shooting. At trial, however, Defendant

 4 testified that only one of the stories he told during the police interview was true.

 5 Defendant testified that he and Murillo were returning to the party when Murillo put

 6 a knife to his throat and asked for money to buy drugs. At this point, Defendant

 7 pulled the car over to the side of the road, as he could not drive while Murillo had the

 8 knife to his throat.

 9   {5}   Defendant told Murillo he only had $25, but he would be willing to use his

10 bank card to obtain money from an ATM. In response, Murillo said that he would

11 make Defendant’s wife have sexual relations with a drug dealer to obtain drugs if

12 Defendant did not give him more money. This made Defendant both angry and

13 scared.

14   {6}   While parked on the side of the road, Defendant remembered having a gun in

15 the center console of his car. After removing the gun from the center console and

16 from its holster, he told Murillo not to get involved with his family and walked to the

17 passenger side of the car. Defendant told Murillo to get out of the car. Murillo

18 refused, so Defendant pulled him out of the car by his shirt. When Defendant pulled

19 Murillo out of the car, Murillo called Defendant a “motherf ----- ” and lunged at him

20 with a knife. Murillo had the knife in his right hand and came at Defendant.


                                              2
 1 Defendant then backed up when Murillo came towards him, yet Murillo continued to

 2 attack him. Defendant stated he was afraid Murillo was going to kill him, so he shot

 3 him.

 4   {7}    Defendant shot Murillo twice—the first shot was to Murillo’s chest and the

 5 second shot was in Murillo’s head.          According to testimony of the medical

 6 investigator, either shot was fatal. After shooting Murillo, Defendant picked up the

 7 knife, placed it in the glove compartment and drove back to the party, leaving

 8 Murillo’s body by the side of the road. Soon thereafter, Defendant and his wife left

 9 the party. On the drive home, Defendant told his wife that he may have shot Murillo,

10 but he did not indicate that he had shot and killed him.

11   {8}    Defendant’s wife then called her father, Fernando Carrillo, and told him about

12 the shooting. Carrillo took Defendant’s gun and the clothes he was wearing during

13 the shooting and threw them away. Defendant fled to Mexico the next day.

14 Defendant turned himself in to United States authorities fifteen days later.

15   {9}    A jury convicted Defendant of first-degree murder on June 24, 2011. The judge

16 sentenced Defendant to life in prison, enhanced by one year for use of a firearm. This

17 appeal followed.

18 DISCUSSION

19   {10}   Defendant raises four issues on appeal. First, Defendant argues that his first-

20 degree murder conviction was not supported by sufficient evidence, specifically the


                                               3
 1 aggravated mental state required of that crime. Second, Defendant argues that the

 2 district court erred in refusing to order the State to generate and disclose National

 3 Criminal Information Center (NCIC) reports on its witnesses as well as the victim who

 4 allegedly had a violent criminal past. Third, Defendant argues that one of the law

 5 enforcement witnesses at trial improperly opined that Defendant had committed the

 6 crime. Fourth, Defendant argues that the district court erred by enhancing his life

 7 sentence by one year for use of a firearm, contrary to the language of NMSA 1978,

 8 Section 31-18-16(A) (1993) (providing that a sentence for a noncapital felony shall

 9 be increased by one year if the jury or court determines that a firearm was used during

10 the commission of the crime). We will address each of Defendant’s arguments in turn.



11 Sufficient Evidence Supports Defendant’s First Degree Murder Conviction

12   {11}   Although he does not deny killing Murillo, Defendant claims there was

13 insufficient evidence to prove he killed Murillo with premeditation and deliberation.

14 In New Mexico, first-degree murder includes “the killing of one human being by

15 another without lawful justification or excuse . . . by any kind of willful, deliberate

16 and premeditated killing.”     NMSA 1978, § 30-2-1(A)(1) (1994).           “The word

17 deliberate means arrived at or determined upon as a result of careful thought and the

18 weighing of the consideration for and against the proposed course of action.” UJI 14-

19 201 NMRA. “Although deliberate intent requires a ‘calculated judgment’ to kill, the


                                              4
 1 weighing required for deliberate intent ‘may be arrived at in a short period of time.’”

 2 State v. Largo, 2012-NMSC-015, ¶ 31, 278 P.3d 532 (quoting UJI 14-201). The jury

 3 in this case was given the first-degree murder instruction with the definition of

 4 deliberate intent, as well as the step-down instructions for second-degree murder and

 5 voluntary manslaughter.

 6   {12}   When evaluating the evidence to support a conviction, we determine “whether

 7 substantial evidence of either a direct or circumstantial nature exists to support a

 8 verdict of guilt beyond a reasonable doubt with respect to every element essential to

 9 a conviction.” State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198

10 (internal quotation marks and citation omitted). We view the evidence “in the light

11 most favorable to the State, resolving all conflicts and making all permissible

12 inferences in favor of the jury’s verdict.” State v. Dowling, 2011-NMSC-016, ¶ 20,

13 150 N.M. 110, 257 P.3d 930. “It is our duty to determine whether any rational jury

14 could have found the essential facts to establish each element of the crime beyond a

15 reasonable doubt.” Id.

16   {13}   Sufficient evidence supported Defendant’s first-degree murder conviction. The

17 jury reasonably could have concluded that the following sequence of events occurred.

18 Defendant pulled his car to the side of the road. He opened the center console to

19 retrieve his gun. Once he had the gun in hand, he removed it from the holster and got

20 out of the car, walked around the car to the passenger side, and forced Murillo out of


                                              5
 1 the car. Defendant then shot Murillo on the side of the road, two times, both shots

 2 fatally wounding Murillo.

 3   {14}   We have previously stated that “[w]hile the retrieval of a weapon before killing

 4 a victim could potentially give a killer an opportunity to deliberate, the burden

 5 remains on the State to produce evidence that tends to show that the killer actually did

 6 so.” State v. Adonis, 2008-NMSC-059, ¶ 22, 145 N.M. 102, 194 P.3d 717 (internal

 7 quotation marks and citation omitted). Here, Defendant’s calculated actions as

 8 described above, considered in total, could reasonably lead a jury to conclude that

 9 Defendant had both the opportunity to deliberate, and did in fact deliberate before

10 shooting Murillo.

11   {15}   Defendant claims that while on the side of the road Murillo lunged at him with

12 a knife, and that he shot Murillo in an act of self-defense, or at very worst out of

13 provocation. The State presented evidence questioning this self-defense theory,

14 suggesting that Murillo was not holding a knife when Defendant pulled him out of the

15 car. Evidence demonstrated that neither Defendant nor Murillo had defensive

16 wounds, suggesting that no fight occurred prior to the shooting.

17   {16}   Further, the jury saw a picture of the crime scene showing Murillo lying on the

18 ground with a knife in the pocket of his pants and a paper towel clutched in his left

19 hand. There was also evidence that a beer can—the same type that Murillo and

20 Defendant had purchased—lay near Murillo’s body. Defendant could not explain why


                                                6
 1 Murillo had a paper towel in his hand or where the beer can came from. According

 2 to the State’s theory, Murillo could not have been holding a knife when Defendant

 3 removed him from the car, because Murillo’s hands were full with a beer can in his

 4 right hand and a paper towel in his left.

 5   {17}   Significantly, during his in-station interview Defendant stated that the knife had

 6 fallen out of Murillo’s hands when Defendant removed him from the car. Lieutenant

 7 Burns, the officer who conducted Defendant’s in-station interview, confirmed this

 8 during his testimony. Lieutenant Burns testified that at the conclusion of Defendant’s

 9 interview, Defendant admitted that Murillo was not holding a knife when Defendant

10 removed him from the car. Additionally, when law enforcement searched Defendant’s

11 car the next day, the officer who conducted the search did not find any knives in the

12 glove compartment or elsewhere in the car. After this search, the car was turned over

13 to the family. It was not until a later search, after the car had been in the custody of

14 Defendant’s family, that Defendant’s wife directed deputies to look in the glove

15 compartment. Only then did they discover two knives.

16   {18}   Based on the evidence, the jury reasonably could have concluded that Murillo

17 was not holding a knife when Defendant pulled him out of the car. This, in turn,

18 suggests that Defendant was not acting in self-defense or under sufficient provocation

19 when he shot Murillo, and he may have killed with premeditation and deliberation.

20 This evidence also undermines Defendant’s credibility when he testified that he did


                                                7
 1 not kill Murillo in a deliberate or premeditated way. Defendant even conceded that,

 2 “I don’t have sufficient evidence to prove it was self-defense, or how things

 3 happened.” See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829

 4 (recognizing that a “jury is free to reject Defendant’s version of the facts”).

 5   {19}   It is undisputed that Defendant shot Murillo not once but twice, which further

 6 supports a conclusion that Defendant acted deliberately. Lieutenant Burns testified

 7 that the first shot was likely the shot to the heart, and the second shot was to the head.

 8 The Lieutenant opined that the shot to the head likely occurred with Defendant

 9 standing over Murillo, who was already lying on the ground as a result of the first

10 shot. The Lieutenant based his conclusions on the placement of the bullet casings and

11 the bullet wounds. The Lieutenant also testified about the lack of defensive wounds

12 on either Murillo or Defendant, indicating that this was not a fight or an altercation,

13 but rather this appeared to be “just a shooting.” We have previously discussed how

14 evidence of an execution-style killing can reasonably demonstrate premeditation and

15 deliberation to a jury. See State v. Cunningham, 2000-NMSC-009, ¶ 28, 128 N.M.

16 711, 998 P.2d 176 (describing how a defendant fired the fatal shot to a victim who

17 was already “incapacitated and defenseless ”); see also State v. Sosa, 2000-NMSC-

18 036, ¶ 13, 129 N.M. 767, 14 P.3d 32 (finding sufficient evidence of premeditation and

19 deliberation when defendant continued to fire at unarmed and defenseless victim

20 fleeing from defendant).


                                               8
 1   {20}   Defendant’s actions after Murillo’s shooting reasonably support a similar

 2 conclusion. Evidence of flight can demonstrate “consciousness of guilt.” State v.

 3 Martinez, 1999-NMSC-018, ¶¶ 29-30, 127 N.M. 207, 979 P.2d 718 (recognizing

 4 evidence of flight is admissible and relevant as it “may constitute evidence of

 5 consciousness of guilt”). After shooting Murillo and leaving him dead on the side of

 6 the road, Defendant returned to the party where, in a particularly cold-blooded

 7 fashion, he told partygoers that Murillo had stayed at the store with some friends.

 8 Defendant did not appear upset at the party, eventually leaving with his wife and

 9 children. Finally, Defendant fled to Mexico the day following the shooting.

10   {21}   Defendant also lied during his in-station interview. Defendant initially told the

11 police that two other men, including Murillo, had threatened him with a knife in his

12 car. Defendant claimed that once he pulled his car over, he shot his gun into the air

13 to scare the men, but because Murillo continued to attack him, he shot Murillo. This

14 story was a complete fabrication. See State v. Flores, 2010-NMSC-002, ¶¶ 22-23, 147

15 N.M. 542, 226 P.3d 641 (finding sufficient evidence to support a first-degree willful

16 and deliberate murder conviction when a defendant did many things, including

17 immediately and calmly walking away from the dead body, and attempting to deceive

18 and evade authorities).        Therefore, there was sufficient evidence supporting

19 Defendant’s first-degree murder conviction.

20 The District Court Did Not Err in Refusing to Order the State to Generate and
21 Disclose NCIC Reports of the Victim and the State’s Witnesses

                                                9
 1   {22}   Defendant argues that the district court erred by refusing to issue a court order

 2 directing the State to generate and disclose alleged NCIC reports of the victim and its

 3 witnesses. [BIC 28, AB 8] Defendant contends that the State’s failure to disclose this

 4 material violated Rule 5-501 NMRA (regarding information that is subject to

 5 disclosure by the State) and Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that

 6 “the suppression by the prosecution of evidence favorable to an accused upon request

 7 violates due process where the evidence is material either to guilt or to punishment,

 8 irrespective of the good faith or bad faith of the prosecution.”).

 9   {23}   We review a district court’s decisions concerning discovery for an abuse of

10 discretion. State v. Dominguez, 2007-NMSC-060, ¶ 25, 142 N.M. 811, 171 P.3d 750.

11 In order to establish a Brady violation, the defendant “must show that: (1) the

12 prosecution suppressed evidence; (2) the evidence was favorable to the accused; and

13 (3) the evidence was material to the defense.” Case v. Hatch, 2008-NMSC-024, ¶ 44,

14 144 N.M. 20, 183 P.3d 905 (internal quotation marks and citation omitted).

15   {24}   Defendant cannot demonstrate any of the elements necessary to establish a

16 Brady violation. The prosecution had no such evidence within its custody or even

17 knowledge. See Rule 5-501(A)(5) (“[T]he state shall disclose or make available to the

18 defendant . . . any record of prior convictions of any such witness which is within the

19 knowledge of the prosecutor.”) (emphasis added); see also Rule 5-501(A)(3)

20 (directing the state to disclose various items “which are within the possession, custody


                                               10
 1 or control of the state . . . .”). At the pretrial hearing, the State informed the court that

 2 it did not have the NCIC reports Defendant requested. The judge took judicial notice

 3 that prosecutors can only use the NCIC system to obtain records relevant to the

 4 accused, and allegedly no one else. The State claimed that prosecutors were “subject

 5 . . . to civil liability” if they obtained NCIC reports on anyone other than the accused.1

 6 We are not asked to confirm or deny that assertion. Further, the State asserted that it

 7 uses www.nmcourts.gov to obtain information regarding prior criminal convictions

 8 of witnesses other than the accused.

 9   {25}   Based on this information, the district court denied Defendant’s motion,

10 reasoning that everyone has access to www.nmcourts.gov and that Defendant could

11 conduct a search on that website to obtain information regarding the victim and

12 witnesses. Significant to this appeal, at the conclusion of the hearing the court stated

13 to defense counsel that “if you are unsuccessful in obtaining information, then you can

14 bring this matter back before the court.” Defense counsel never returned to the court

15 to request its assistance or otherwise pursue the matter.

16   {26}   In State v. Boergadine, 2005-NMCA-028, ¶¶ 34, 36, 137 N.M. 92, 107 P.3d

17 532, our Court of Appeals denied a defendant’s ineffective-assistance-of-counsel



           1
18           We recognize that defense counsel claimed that courts around the state treat the
19 disclosure of NCIC reports differently. There is not enough information in this record
20 for us to decide whether prosecutors routinely obtain NCIC reports on defendants and
21 witnesses or whether the State could have done so in this case.

                                                11
 1 claim where defense counsel failed to obtain an NCIC report on a witness. In that

 2 case, the accused sought an NCIC report of a state witness, “just for credibility

 3 purposes.” Id. ¶ 7 (internal quotation marks omitted). The district court ordered the

 4 State to disclose the report if it already had one in its possession, but relieved the State

 5 of any obligation to obtain additional reports. Id. In holding that counsel was not

 6 ineffective for “acquiescing to the [district] court’s refusal to order disclosure of the

 7 N.C.I.C. report,” the Court of Appeals stated that “[a] mere desire to have a report is

 8 insufficient to show materiality.” Id. ¶ 36. The same is true here. Defendant’s mere

 9 desire to have the NCIC reports pertaining to the victim and certain witnesses is

10 insufficient to show why the reports were material to his defense, that the information

11 revealed from those reports would have changed the result of the trial, or even would

12 have been useful to the defense.

13 The District Court Did Not Err in Admitting Testimony of Lieutenant Burns

14   {27}   Defendant argues that the district court impermissibly allowed Lieutenant Burns

15 to give an opinion that Defendant committed the crime. Lieutenant Burns conducted

16 portions of a three-hour video interview with Defendant; the video was played for the

17 jury in full. During this interview, Defendant recounted two different versions of the

18 events that night.

19   {28}   In the interview, on at least twelve occasions Lieutenant Burns told Defendant

20 that he believed Defendant was lying. Lieutenant Burns pressed Defendant for


                                                12
 1 information about the knives allegedly involved in the incident. The Lieutenant told

 2 Defendant that he thought Defendant was lying about whether Murillo was holding

 3 a knife when Defendant removed him from the car. Defendant stated that Murillo had

 4 a knife while they were in the car, but he could not recall whether Murillo had a knife

 5 when he removed him from the car. The Lieutenant countered this statement, saying

 6 “we know he didn’t have a knife.” According to Lieutenant Burns, at the end of the

 7 interview, Defendant agreed with him, conceding that Murillo did not have a knife.

 8   {29}   During Lieutenant Burns’ testimony at trial, the State asked him about the two

 9 different stories Defendant told during the interview. Specifically, the State asked

10 Lieutenant Burns about why he continued to press Defendant about his story that

11 Murillo had a knife. Lieutenant Burns testified that he brought the knives up because

12 he knew Murillo had a paper towel in one hand and may have had a beer can in the

13 other, and he wanted to rule out the story that Murillo had a knife. The State followed

14 up, confirming with Lieutenant Burns that Defendant had changed his story at the

15 conclusion of the interview. The State then asked him, “did the story at the end [of

16 the interview] fit the evidence at the scene?” Lieutenant Burns responded, “I thought

17 it did; I thought it was very plausible.”

18   {30}   Defense counsel objected immediately. Counsel asserted that this testimony

19 invaded the province of the jury because it called for Lieutenant Burns to offer his

20 opinion as to whether Defendant committed the crime and therefore did not act in self-


                                               13
 1 defense. The State responded that it had only asked Lieutenant Burns whether

 2 Defendant’s second story matched the evidence at the scene. Defense counsel then

 3 moved for a mistrial, arguing that Lieutenant Burns was commenting on Defendant’s

 4 veracity.

 5   {31}   The district court denied the motion for mistrial. The court reasoned that the

 6 jury had already watched the three-hour interview which showed Defendant changing

 7 his story, and had already heard Lieutenant Burns tell Defendant that he thought he

 8 was lying. Without Defense counsel’s request, the court offered to provide the jury

 9 with a general curative instruction, informing the jury that they should give each of

10 the witnesses’ testimony such weight as it merits, or that they could simply ignore the

11 testimony. The court did give a general curative instruction at the end of trial.

12   {32}   The court did not abuse its discretion in denying the motion for mistrial based

13 on Lieutenant Burns’ testimony. State v. Gallegos, 2009-NMSC-017, ¶ 21, 146 N.M.

14 88, 206 P.3d 993 (stating that we review a trial court’s denial of a motion for mistrial

15 for an abuse of discretion). A jury’s role is to determine guilt or innocence. State v.

16 Brown, 1997-NMSC-029, ¶ 14, 123 N.M. 413, 941 P.2d 494. Because determining

17 guilt or innocence is within the province of the jury, “it is improper for a law

18 enforcement officer to give his opinion as to the ultimate issue in the case.” State v.

19 Ashley, 1997-NMSC-049, ¶ 19, 124 N.M. 1, 946 P.2d 205 (emphasis added).

20   {33}   Lieutenant Burns did not testify as to the ultimate issue in the


                                              14
 1 case—Defendant’s guilt or innocence. Rather, Lieutenant Burns testified that he

 2 found “it very plausible” that Defendant’s second story regarding the lack of a knife

 3 and the series of events leading up to the shooting comported with the evidence at the

 4 scene. The court was within its discretion to allow Lieutenant Burns to testify as to

 5 which story was consistent with the evidence.

 6 The District Court Improperly Enhanced Defendant’s Sentence By One Year

 7   {34}   Both Defendant and the State agree that the district court improperly enhanced

 8 Defendant’s first-degree murder sentence for the use of a firearm during the

 9 commission of the crime. The jury convicted Defendant of first-degree murder and

10 also made a finding that Defendant used a firearm “in the commission of Murder in

11 the First Degree.” The court sentenced Defendant to life imprisonment, “plus one

12 additional year for the firearms enhancement as determined by the jury in the special

13 finding required by law.”

14   {35}   Although Defendant did not preserve this issue below, “[a] trial court does not

15 have jurisdiction to impose an illegal sentence on a defendant and, therefore, any party

16 may challenge an illegal sentence for the first time on appeal.” State v. Paiz, 2011-

17 NMSC-008, ¶ 33, 149 N.M. 412, 249 P.3d 1235. Section 31-18-16(A) provides that

18 when the jury makes a separate finding of fact “that a firearm was used in the

19 commission of a noncapital felony the basic sentence of imprisonment prescribed for

20 the offense in Section 31-18-15 NMSA 1978 shall be increased by one year . . . .”


                                              15
 1 (emphasis added).

 2   {36}   First-degree murder is a capital felony. NMSA 1978, § 30-2-1(A) (“Whoever

 3 commits murder in the first degree is guilty of a capital felony.”) (emphasis added).

 4 The firearm enhancement does not apply to capital felonies, only noncapital felonies.

 5 State v. King, 90 N.M. 377, 379, 563 P.2d 1170, 1172 (Ct. App. 1977) (“[F]irst degree

 6 murder is defined as a capital felony and the firearm enhancement provision does not

 7 apply to capital felonies”), overruled on other grounds by State v. Reynolds, 98 N.M.

 8 527, 529, 650 P.2d 811, 813 (1982). We therefore agree with both Defendant and the

 9 State that the one-year enhancement to Defendant’s life-sentence should be reversed.



10 CONCLUSION

11   {37}   For the reasons stated herein, we affirm Defendant’s first-degree murder

12 conviction, but also remand for the district court to enter an amended judgment and

13 sentence removing the one-year firearm enhancement from Defendant’s sentence.

14   {38}   IT IS SO ORDERED.




15                                               _________________________________
16                                               RICHARD C. BOSSON, Justice



17 WE CONCUR:

                                            16
1 ___________________________________
2 PETRA JIMENEZ MAES, Chief Justice


3 ___________________________________
4 EDWARD L. CHÁVEZ, Justice


5 ___________________________________
6 CHARLES W. DANIELS, Justice


7 ___________________________________
8 BARBARA J. VIGIL




                                  17
