A-1-CA-34743 | Omnilex

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Court of Appeals of New Mexico
Filed 4/4/2019 8:36 AM
Mark Reynolds

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 4/4/2019 8:36 AM
Plaintiff-A ppellee, MJ aa
Mark baa
v. NO. A-1-CA-34743
ELOY MAES,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

James Lawrence Sanchez, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Walter M. Hart III, Assistant Attorney General
Albuquerque, NM
for Appellee
L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
VANZI, Judge.
{1}. Defendant Eloy Maes appeals his conviction for voluntary manslaughter on
the ground that his constitutional right to notice of the charges against him was

violated when the district court permitted the State to amend the indictment on the

fourth day of trial. He also argues that the mid-trial amendment of the indictment

was contrary to Rule 5-204(C) NMRA. We conclude that neither Defendant’s
constitutional right to notice nor Rule 5-204(C) was violated, and thus affirm.

BACKGROUND

23 A grand jury indictment charged Defendant with murder in the first degree in
violation of NMSA 1978, Section 30-2-1 (1994), upon allegations that Defendant
“did kill, with the deliberate intention to take away the life of [the victim].” He was
also charged with aggravated battery resulting in great bodily harm and tampering
with evidence. See NMSA 1978, § 30-3-5 (1969); NMSA 1978, § 30-22-5 (2003).

{3} At the opening of the fourth day of trial, the State notified the district court
that it intended to amend the indictment to charge second-degree, rather than first-
degree, murder. After discussing with counsel the lesser included charges of first-
degree murder, the district court reserved decision on the amendment issue, stating
that it would resolve the issue after additional argument and in the context of the jury
instructions. The next day, the district court noted that the State had included “step
down instructions” in its proposed jury instructions. While Defendant conceded that
second-degree murder is a lesser included offense of first-degree murder, he argued
that voluntary manslaughter is not. Following a lengthy colloquy between the district
court and counsel, the court again deferred decision on the amendment issue until it
determined the appropriate jury instructions after the close of evidence. The State

rested its case later that day, and the district court took up the State’s motion to

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amend the indictment. Defendant again objected to the addition of voluntary
manslaughter to the indictment, renewing his argument that it is not a lesser included
offense of the original charge of first-degree murder. The district court disagreed and
granted the State’s amendment motion, stating that it “d[id not] see the prejudice in
terms of [Defendant] being blind-sided” because Defendant would be “preparing for
the same thing, it’s the same argument [by the State].” It then granted Defendant’s
motion for a directed verdict dismissing the first-degree murder charge but denied
the motion as to second-degree murder and voluntary manslaughter. After
Defendant, the only defense witness, testified, the district court instructed the jury
on both second-degree murder and, over Defendant’s objection, voluntary
manslaughter. Defendant appeals his conviction of voluntary manslaughter. !

DISCUSSION

{4 On appeal, Defendant frames his argument in the following general terms:
“The [d]istrict [c]ourt erred in allowing the State to amend the indictment mid-trial,
allowing the State to abandon its first-degree murder charges and instead instruct the
jury on second-degree murder and voluntary manslaughter.” Defendant’s broadly-
stated assignment of error requires us to pursue two related, but distinct, avenues of
inquiry, the first related to the amendment of the indictment, and the second bearing

upon the jury instructions. As to the amendment of the indictment, “[a] defendant in

'Defendant does not appeal his convictions for aggravated battery or
tampering with evidence.

a criminal case is entitled to know what he is being charged with and to be tried
solely on those charges.” State v. Johnson, 1985-NMCA-074, § 26, 103 N.M. 364,
707 P.2d 1174; U.S. Const. amend. VI (“In all criminal prosecutions, the accused
shall enjoy the right to... be informed of the nature and cause of the accusation[.]”).
A defendant is provided with constitutionally-adequate notice of any lesser included
offenses of the crime or crimes charged in an indictment. State v. Collier, 2013-
NMSC-015, § 35, 301 P.3d 370 (“This Court has long recognized that notice of a
criminal charge necessarily includes notice of any lesser included offenses.”).
Consistent with this principle, Rule 5-204(A) provides that “[t]he court may at any
time prior to a verdict cause the complaint, indictment or information to be amended
in respect to any such defect, error, omission or repugnancy if no additional or
different offense is charged and if substantial rights of the defendant are not
prejudiced.” (Emphasis added.) Similarly, Rule 5-204(C) provides that “[n]o
variance between those allegations of a[n] . . . indictment . . . which state the
particulars of the offense, whether amended or not, and the evidence offered in
support thereof shall be grounds for the acquittal of the defendant unless such
variance prejudices substantial rights of the defendant” and that “[t]he court may at
any time allow the indictment or information to be amended in respect to any
variance to conform to the evidence.” (Emphasis added.) An amendment—even a

mid-trial amendment—to the indictment “is not fatal unless the accused cannot

reasonably anticipate from the indictment what the nature of the proof against him
will be.” State v. Marquez, 1998-NMCA-010, § 20, 124 N.M. 409, 951 P.2d 1070.
In addition, “[t]he mere assertion of prejudice, without more, is insufficient to
establish prejudicial error warranting reversal of a conviction.” Jd. (internal
quotation marks and citation omitted).

{5} Similar principles obtain with respect to jury instructions. In this regard, it is
settled law that the district court may instruct the jury on, and the defendant may be
convicted of, uncharged crimes as long as those crimes are lesser included offenses
of the charged crime. Johnson, 1985-NMCA-074, { 26 (stating that “[i]t is improper
to instruct the jury as to a crime not formally charged [unless] that crime is... a
lesser included offense of the crime formally charged”). Indeed, Rule 5-611(D)
NMRA expressly provides that “[i]f so instructed, the jury may find the defendant
guilty of an offense necessarily included? in the offense charged[.]” Hence, no
formal amendment of the indictment is necessary in order to instruct the jury on or
convict the defendant of a crime that is included within the charged crime. See State
v. Gallegos, 1989-NMCA-066, 4 50, 109 N.M. 55, 781 P.2d 783 (“The trial court

could have instructed on all lesser included offenses supported by the evidence, even

? In State v. Meadors, the New Mexico Supreme Court stated that it “use[d]

the terms ‘lesser[Jincluded’ and ‘necessarily[]included’ interchangeably.” 1995-
NMSC-073, 45, n.2, 121 N.M. 38, 908 P.2d 731.

though defendant objected to the instruction[,]” even though the lesser included
offenses were not named in the indictment).

{6} Defendant contends that the amendment of the indictment on the fourth day
of trial was improper because Rule 5-204 did not permit the addition of the new
charges of second-degree murder and voluntary manslaughter. He also argues that
the amendment deprived him of notice of and the ability to defend against the two
new charges, contrary to the dictates of the Sixth Amendment. Since Defendant does
not assert that the New Mexico Constitution provides greater protections than those
afforded by the federal Constitution, we assume without deciding that the New
Mexico Constitution provides the same protection. Meadors, 1995-NMSC-073, § 4
n.1 (stating that “the Sixth Amendment’s Notice Clause is applicable to the states
through the Fourteenth Amendment’s Due Process Clause” and that, where the
defendant relied only on the Sixth Amendment on appeal, it would “assume without
deciding that the New Mexico Constitution provides the same
protection”); see N.M. Const. art. II, § 14. We review de novo a district court’s
application of Rule 5-204(A) and its determination of whether an offense is a lesser
included offense of that which is charged. See State v. Roman, 1998-NMCA-132,
47 8, 125 N.M. 688, 964 P.2d 852; State v. Hernandez, 1999-NMCA-105, 4 24, 127

N.M. 769, 987 P.2d 1156.

{7} We first define the scope of our review. Because second-degree murder is
statutorily defined as a lesser included offense of the first-degree murder charge set
out in the indictment, see § 30-2-1(B), amendment insofar as it related to second-
degree murder was proper under Rule 5-204(A) since “no additional or different
offense [was] charged[.]” /d. Indeed, Defendant conceded as much at trial.
Consequently, although Defendant does not distinguish between second-degree
murder and voluntary manslaughter on appeal, we understand his arguments to be
limited solely to voluntary manslaughter.

{833 | We discern no error in amending the indictment or in instructing the jury on
voluntary manslaughter because it was necessarily included within the charges in
the original indictment and Defendant had adequate notice of the need to defend
against it. New Mexico courts have concluded multiple times that voluntary
manslaughter is necessarily included within a murder charge. Nearly ninety years
ago, our Supreme Court held as a matter of first impression that “a conviction for
voluntary manslaughter, where there is evidence to sustain it, can be had under an
information or indictment charging [first-degree] murder” because “[v]oluntary
manslaughter is necessarily included within a charge of murder.” State v. Parker,
1930-NMSC-004, 9 1, 3, 6, 34 N.M. 486, 285 P. 490 (emphasis omitted). In State
v. Burrus, our Supreme Court again held that “murder as defined in law necessarily

includes manslaughter as defined in law” in spite of the differences in the mens rea

elements of the two crimes. 1934-NMSC-036, ¥ 31, 38 N.M. 462, 35 P.2d 285. In
both Parker and Burrus, the defendants were, like Defendant herein, charged with
first-degree murder but convicted of voluntary manslaughter. Parker, 1930-NMSC-
004, { 1; Burrus, 1934-NMSC-036, $f 1, 3. Since Burrus, our courts have repeatedly
recognized that a charge of murder generally encompasses various degrees of the
crime. See, e.g., State v. Omar-Muhammad, 1987-NMSC-043, 4 23, 105 N.M. 788,
737 P.2d 1165 (stating that the New Mexico Supreme Court has “analyzed felonious
homicide, the unlawful taking of human life, as a ‘generic offense’ encompassing
several degrees or forms”); State v. La Boon, 1960-NMSC-118, J 10, 67 N.M. 466,
357 P.2d 54 (“Manslaughter is included in the charge of murder.”); State v. McFall,
1960-NMSC-084, J 12, 67 N.M. 260, 354 P.2d 547 (stating that “manslaughter is
one of the four kinds of homicide, and . . . it is included within a charge of murder’).
In Smith v. State, our Supreme Court clarified the law by noting that manslaughter
may “properly be said to be ‘included’ in a charge of murder” only “[uJnder
appropriate circumstances, i.e. under a charge of murder where there is evidence that
the defendant acted as a result of sufficient provocation[.]” 1976-NMSC-085, ¥ 16,
89 N.M. 770, 558 P.2d 39 (internal quotation marks and citation omitted). Although
the Smith Court reversed the defendant’s conviction for voluntary manslaughter, it
did so on the ground that the evidence did not support the conviction. Jd. | 30. The

Smith holding therefore did not negate the general proposition expressed in Burrus,

Omar-Muhammad, La Boon, or McFail. Instead, it “simply h{eld] there must be
evidence of the crime to sustain the conviction.” State v. Edwards, 1981-NMCA-
119, 99] 25, 27, 97 N.M. 141, 637 P.2d 572 (relying on Burrus, La Boon, and McFall
in holding that involuntary manslaughter was a necessarily included offense of
second degree murder and rejecting the defendant’s argument that the second-degree
murder charge did not provide notice that he could be convicted of involuntary
manslaughter). More recent cases refer to voluntary manslaughter as a lesser
included offense of first-degree or second-degree murder, albeit without analysis.
See, e.g., State v. Jernigan, 2006-NMSC-003, J 22, 139 N.M. 1, 127 P.3d 537
(“[VJoluntary manslaughter is alesserincluded offense of second-degree
murder[.]”); Sel/s v. State, 1982-NMSC-125, 7, 98 N.M. 786, 653 P.2d 162 (“The
defendant is entitled to an instruction on voluntary manslaughter as a lesser included
offense of murder in the first degree if there is evidence to support, or tending to
support, such an instruction.”). This body of case law, viewed as a whole, provides
notice that lesser degrees of homicide may be included within a first-degree murder
charge.

{9} The State suggests that Burrus and its progeny are no longer valid in light of
Meadors, 1995-NMSC-073, ¥ 12, which set forth the test for determining whether
an uncharged offense is included within a charged crime when the State requests a

jury instruction on the uncharged crime. See State v. Munoz, 2004-NMCA-103, 18,

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136 N.M. 235, 96 P.3d 796 (noting that a case applying a strict elements test to
determine whether a crime was included within another had “been overtaken by the
Supreme Court’s subsequent adoption of the cognate test [in Meadors]”). We need
not determine as a matter of law whether the analysis in Meadors supplants the
general statements of law in cases following Burrus because, even under the
Meadors test, the district court did not err in instructing the jury on voluntary
manslaughter in this case.
{10} Under Meadors, an offense is included within a charged offense “when the
statutory elements of the lesser crime are a subset of the statutory elements of the
charged crime.” 1995-NMSC-073, § 12. An offense is also included in a greater
offense when the following conditions are met:

(1) the defendant could not have committed the greater offense in the

manner described in the charging document without also committing

the lesser offense, and therefore notice of the greater offense necessarily

incorporates notice of the lesser offense; (2) the evidence adduced at

trial is sufficient to sustain a conviction on the lesser offense; and (3)the

elements that distinguish the lesser and greater offenses are sufficiently

in dispute such that a jury rationally could acquit on the greater offense

and convict on the lesser.
Id. The first factor of the Meadors test “protect[s] the defendant’s right to notice of
the charges against which he must defend.” Munoz, 2004-NMCA-103, 4 12. In
evaluating this factor, courts examine the “accusatory instrument” to determine if

“the defendant cannot commit the greater offense in the manner described in the

charging document without also committing the lesser offense.” Meadors, 1995-

NMSC-073, { 17. If so, “the defendant should be fully aware of the possible offenses
for which he or she may face prosecution and should have ample opportunity to
prepare a defense.” Jd. The second and third factors reflect the principle that an
instruction is proper only if warranted by the evidence. See Munoz, 2004-NMCA-
103, fj 16-17 (applying the second and third factors); see also Smith, 1976-NMSC-
085, 4 16 (evidence of provocation is required for a voluntary manslaughter
conviction).

411; In Meadors, after both parties had rested, the State requested a jury instruction
on aggravated battery as a lesser included offense of attempted first-degree murder.
1995-NMSC-073, ] 4. Similar to Defendant herein, the Meadors defendant objected
on the ground that “aggravated battery is not a lesser[]included offense of attempted
murder and that such an instruction would violate his [Sixth Amendment]
constitutional right to receive notice of the crime charged.” /d. The district court
disagreed and gave the State’s instruction to the jury, which convicted the defendant
of aggravated battery. Jd. § 1, 4. On appeal, the Meadors Court held that, although
the statutory elements of aggravated battery differed from the elements of attempted
murder, id. 4, the district court properly instructed the jury on aggravated battery
because “the [s]tate’s theory of the case differed from the defendant’s theory only
on the issue of his mental state.” /d. § 13. The defendant “testified that he had thrown

[a] cup of gasoline down in disgust, inadvertently splashing [the victim] and that he

had then struck [a] match to protect himself from [the victim].” Jd. J 13. “Based
upon the allegations in the indictment and the evidence adduced at trial, a jury could
reasonably conclude that [the defendant] had intended to throw gasoline on [the
victim] and ignite him, but that he had lacked the intent to take [the victim]’s life.”
Id. Thus, the jury could conclude that the evidence “support[ed] a conviction of
aggravated battery, but not of attempted murder.” Jd.

{12} Here, Defendant does not argue that the instructions were unsupported by the
evidence. Indeed, Defendant states on appeal that he “went to great lengths to draw
out evidence of provocation by [the victim]” at trial, thereby acknowledging that
provocation was indeed put in issue. Moreover, Defendant also requested a self-
defense instruction based on testimony that the victim “came at” him, and the district
court agreed that the instruction was supported by the evidence. “When facts are
present which give rise to a plea of self-defense, it is not unreasonable that if the plea
fails, the accused should be found guilty of voluntary manslaughter.” State v.
Melendez, 1982-NMSC-039, 7 9, 97 N.M. 738, 643 P.2d 607 (alteration, internal
quotation marks, and citation omitted). This is so because “provocation supporting
a conviction for voluntary manslaughter[,]...is an act committed under the
influence of an uncontrollable fear of death or great bodily harm, caused by the
circumstances, but without the presence of all the ingredients necessary to excuse

the act on the ground of self-defense.” /d. (internal quotation marks and citation

omitted). Therefore, “[w]here a defendant presents sufficient evidence to support a
theory of self-defense, it raises a question of fact for the jury to resolve. If the jury
believes the argument, the defendant is acquitted.” State v. Abeyta, 1995-NMSC-
051, § 17, 120 N.M. 233, 901 P.2d 164, abrogated on other grounds by State v.
Campos, 1996-NMSC-043, 4 32 n.4, 122 N.M. 148, 921 P.2d 1266. However, “[i]f
the jury rejects the theory of self-defense, it may still find the defendant acted under
provocation of fear and may mitigate the charge of murder to the lesser charge of
voluntary manslaughter.” /d. Based on the evidence at trial and because Defendant
does not argue otherwise, we conclude that provocation—the element distinguishing
voluntary manslaughter from second-degree murder—was “sufficiently in dispute
such that a jury rationally could acquit on [second-degree murder] and convict on
[voluntary manslaughter].” Meadors, 1995-NMSC-073, § 12; see Jernigan, 2006-
NMSC-003, § 20 (“When provocation is at issue, an instruction on voluntary
manslaughter must be given.”); UJI 14-210 NMRA, use note 4.

{13} More germane to Defendant’s argument, the Meadors Court also examined
the indictment to determine whether the defendant “received meaningful notice that
he faced liability for the crime of aggravated battery.” 1995-NMSC-073, { 19. In
addition to the first-degree murder count, the indictment in Meadors alleged that the
defendant “did maliciously or willfully start a fire or cause an explosion with the

intent to destroy or damage the residence which belonged to [the victim], which

caused great bodily harm to [the victim]” and that the defendant “did maliciously
explode or attempt to explode or place an explosive with the intent to injure or
intimidate or terrify another or to damage another[’]s . . . property.” Jd. J 19
(omission, internal quotation marks, and citation omitted). The Court stated, “All
three counts alleged that the conduct occurred on [the same date], and there [w]as
never .. . any doubt that the three counts referred to the same conduct and that this
conduct—dousing [the victim] with gasoline and igniting him—was the act. . . to
which [the first-degree murder count] referred.” Jd. The Court concluded that,
viewed together, “the three counts of the indictment put [the defendant] on notice
that he would need to defend against the essential elements of an unlawful touching
and serious bodily injury to the victim.” Jd.

{14} By a parity of reasoning, the indictment originally filed in this case gave
Defendant adequate notice that he might face a voluntary manslaughter charge. The
first count of the indictment alleged that Defendant “did kill, with the deliberate
intention to take away the life of [the victim].” The second count alleged that
Defendant committed aggravated battery on the same date by “touch[ing] or
apply[ing] force to [the victim], intending to injure that person or another, and caused
great bodily harm to or acted in a way that would /ikely result in death or great bodily
harm to [the victim].” (Emphasis added.) As in Meadors, these allegations put

Defendant on notice that he would need to defend against “unlawful killing of a

human being,” the actus reus of voluntary manslaughter. Moreover, the first-degree
murder charge alleged an intent to kill, whereas the aggravated battery charge
alleged an intent to injure. Compare § 30-2-1(A)(1) (“Murder in the first degree is
the killing of one human being by another . . . by any kind of willful, deliberate and
premeditated killing[.]”), with § 30-3-5(A) (“Aggravated battery consists of the
unlawful touching or application of force to the person of another with intent to
injure that person or another.”). To commit voluntary manslaughter “a defendant
[must have] intended to cause the harmful act,” Abeyta, 1995-NMSC-051, 24, with
knowledge that his “acts create[d] a strong probability of death or great bodily
harm.” UJI 14-220 NMRA; State v. Dominguez, 2005-NMSC-001, 9 14, 137 N.M.
1, 106 P.3d 563, overruled on other grounds by State v. Montoya, 2013-NMSC-020,
4 2, 306 P.3d 426. Thus, the state of mind required for voluntary manslaughter falls
between those of the crimes alleged in the indictment. We conclude that the charges
in the original indictment sufficed to alert Defendant that he could face a charge of
voluntary manslaughter.

{15} Finally, Defendant asserts that he was prejudiced by the amendment of the
indictment because “[d]efense counsel would have added an evidentiary dimension
to his defense designed to meet the second degree murder and voluntary
manslaughter theory had [his c]ounsel known at the outset what [Defendant] was up

against.” In light of our conclusion that Defendant had sufficient notice of the

potential lesser included charges, “Defendant’s mere speculation of how he would
have conducted his defense differently does not rise to the level of prejudice that is
required for an acquittal.” State v. Branch, 2010-NMSC-042, § 21, 148 N.M. 601,
241 P.3d 602, overruled on other grounds by State v. Tollardo, 2012-NMSC-008,
437 n.6, 275 P.3d 110. To the extent Defendant argues that the amendment here is
reversible per se, we disagree. Defendant points to Hunter v. New Mexico, 916 F.2d
595 (10th Cir. 1990), in which the Tenth Circuit stated that when an amendment
“actually modifies an essential element of the offense charged . . . . it is reversible
per se.” Hunter is inapposite for at least two reasons. First, it did not involve or
address lesser included charges. Second, the trial court’s error in that case was in
instructing the jury that it could find the defendant guilty for acts not alleged in the
indictment, thereby depriving the defendant of the ability to defend against those
allegations. /d. at 599 (“The specific inquiry is whether the jury was permitted to
convict the defendant upon a set of facts distinctly different from that set forth in the
indictment.” (internal quotation marks and citation omitted)). In contrast, here the
instruction on voluntary manslaughter was based on the same conduct alleged in the
indictment and, as discussed above, the indictment gave Defendant sufficient notice

of the lesser included charges he faced.

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CONCLUSION

{16} For the foregoing reasons, we conclude that the district court did not err in
permitting amendment of the indictment under Rule 5-204(C) and that Defendant’s
right to notice of the charges against him was not violated when the district court
instructed the jury on voluntary manslaughter as a lesser included offense of second-

degree murder. We affirm Defendant’s conviction for voluntary manslaughter.

73} ITISSO ORDERED.
“Tayial Oa,
LINDA)M. yANZt , Judge
WE CONCUR:
Q. yi4A
J. MILES HANISEE, Judge

ACQUELINE R. MEDINA, Judge

April 4, 2019- State of New Mexico v. Eloy Maes, No. A-1-CA-34743

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