October 1, 2021- State of New Mexico v. Matthew Chavez, No. A-1-CA-37888

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: OCTOBER 1, 2021	3
No. A-1-CA-37888	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
MATTHEW CHAVEZ,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	10
Cristina T. Jaramillo, District Judge	11
Hector H. Balderas, Attorney General	12
Santa Fe, NM	13
Lauren J. Wolongevicz, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Santa Fe, NM	18
Steven J. Forsberg, Assistant Appellate Defender	19
Albuquerque, NM	20
for Appellant	21
Court of Appeals of New Mexico
Filed 10/1/2021 11:51 AM

OPINION	1
IVES, Judge.	2
{1} 	This case involves an attempted robbery gone horribly awry. The State	3
accused Defendant Matthew Chavez of, among other things, attempting to rob Tyler	4
Lackey and then, in the fracas that ensued, murdering him. At trial, Defendant did	5
not dispute that he shot and killed Mr. Lackey, and the State did not dispute that Mr.	6
Lackey was pointing his own gun at Defendant immediately before Defendant shot	7
Mr. Lackey. Defendant claimed he acted in self-defense and defense of another, but	8
the jury rejected those claims and found him guilty of second degree murder.	9
{2} 	On appeal, Defendant argues that the district court erred by denying his	10
request for a jury instruction on voluntary manslaughter. This error, Defendant	11
claims, prevented the jury from deciding whether the killing was voluntary	12
manslaughter—an act of imperfect self-defense—rather than murder. See generally	13
State 	v. 	Abeyta, 	1995-NMSC-051, 	¶¶ 	13-20, 	120 	N.M. 	233, 	901 	P.2d 	164	14
(explaining 	that 	a 	“claim 	of 	imperfect 	self-defense . . . presents 	an 	issue 	of	15
mitigating circumstances that may reduce murder to manslaughter”), abrogated on	16
other grounds by State v. Campos, 1996-NMSC-043, ¶ 32 n.4, 122 N.M. 148, 921	17
P.2d 1266.	18
{3} 	We agree. New Mexico law required the district court to instruct the jury on	19
voluntary manslaughter, and the court’s failure to do so deprived Defendant of a fair	20

2
trial. Whether Defendant committed voluntary manslaughter rather than murder was	1
a question for the jury, and the district court erred by deciding, as a matter of law,	2
that the killing was not voluntary manslaughter. This error requires us to reverse	3
Defendant’s second degree murder conviction, as well as his convictions for	4
tampering with evidence of second degree murder and conspiracy to tamper with	5
evidence, and to remand for a new trial for second degree murder, voluntary	6
manslaughter, tampering with evidence, and conspiracy to tamper with evidence.	7
{4} 	We also agree with Defendant that the district court erred by allowing a law	8
enforcement officer to testify as to her opinion about whether a video recording	9
showed that Defendant was carrying a firearm while trying to rob Mr. Lackey.	10
Because this opinion testimony was not helpful to the trier of fact, it should not have	11
been admitted.	12
{5} 	Finally, we reject Defendant’s argument that all of the charges against him	13
should have been dismissed with prejudice because his trial was untimely under the	14
Interstate Agreement on Detainers (IAD).	15
BACKGROUND	16
{6} 	At trial, the State introduced video recordings of the encounter between	17
Defendant and Mr. Lackey, which occurred in February 2016. The recordings do not	18
include any audio, and the video is of limited use because of the camera perspectives	19

3
and video quality. However, the videos collectively provide a general overview of	1
what transpired.	2
{7} 	Defendant’s girlfriend, Veronica Trimble, emerged from the front passenger	3
door of an orange and white sedan that was backed into a parking space.	4
Approximately two minutes later, Ms. Trimble returned to the car and got back into	5
the passenger’s seat, and a white pickup truck pulled into the parking lot and parked	6
in a space parallel to an ATM at the end of the lot. As the truck’s driver, Mr. Lackey,	7
exited the vehicle and walked toward the ATM, the white and orange sedan pulled	8
out of its parking space, drove across the lot toward the exit, and stopped	9
perpendicular to the truck and the ATM, approximately two car lengths away.	10
Defendant exited the car through the driver’s door and walked toward the ATM,	11
approaching Mr. Lackey from behind. Mr. Lackey looked over his left shoulder and	12
then inserted his card into the ATM. He again turned to his left and looked behind	13
him, where Defendant, wearing a mask, was standing. Defendant’s left hand was in	14
his pocket. Mr. Lackey turned toward Defendant and drew a handgun. Defendant	15
returned to the car he had been driving and got back into the driver’s seat, and Mr.	16
Lackey pursued him with his gun drawn. The door on the driver’s side of the car	17
closed, then opened again, as Mr. Lackey and his companion, Justin Overton, stood	18
near the driver’s side door, with Mr. Lackey pointing his gun at Defendant all the	19

4
while. Approximately one minute and twenty seconds later, Defendant drove away	1
as Mr. Lackey fell to the ground.	2
{8} 	Although the police never found the gun that Defendant used to shoot Mr.	3
Lackey, they did find a .380 semiautomatic pistol on the right side of Mr. Lackey’s	4
body, near his head. The pistol contained five R-P brand .380 bullets—one in the	5
chamber and four in the magazine. A single R-P .380 bullet casing was found near	6
Mr. Lackey’s left foot.	7
{9} 	Mr. Lackey’s autopsy confirmed that gunshot wounds caused his death. The	8
medical examiner observed two bullet holes, one in Mr. Lackey’s chest and another	9
in his upper abdomen, and found two bullets lodged in his back. The examiner	10
determined that the manner of death was homicide.	11
{10} 	Because Defendant conceded that he fired the fatal shots, the key questions at	12
trial as to the killing were whether it was a crime at all and, if so, whether it was first	13
degree murder or a less serious offense. The answers to those questions turned on	14
exactly what happened during the encounter. To help the jury fill in the gaps left by	15
the video recordings and physical evidence, the parties relied on the testimony of	16
several witnesses. The most significant eyewitnesses for the purposes of this appeal	17
were Mr. Overton, Ms. Trimble, and Randy Ulibarri, a construction supervisor who	18
was spending the night at a nearby construction site. We summarize the testimony	19
of each eyewitness in turn.	20

5
{11} 	Mr. Overton, who was Mr. Lackey’s best friend, testified that shortly before	1
the encounter with Defendant, the two men were eating dinner at a restaurant in	2
Albuquerque and then drove to a nearby ATM to get money to tip the waitperson.	3
When they arrived, Mr. Lackey parked the truck, got out, and approached the ATM	4
to withdraw money. Mr. Overton testified that he did not see Defendant holding a	5
gun at the ATM but that Defendant had his hands in his pockets and might have had	6
a weapon in his pocket. Mr. Overton believed that Defendant was trying to rob Mr.	7
Lackey and that Mr. Lackey was in danger. Mr. Lackey drew his .380 pistol, and	8
Defendant ran back to his car, got inside, and closed the door, as Mr. Lackey	9
followed him. From Mr. Overton’s perspective, it did not appear that Defendant	10
“was trying to get away” when he ran to his car. Mr. Overton believed that Mr.	11
Lackey “was trying to stop” Defendant, not “trying to hurt” him.	12
{12} 	Mr. Overton testified that he exited the truck, approached the car, and, when	13
Mr. Lackey was “fairly close to” the car with his gun pointed at Defendant, Mr.	14
Overton brandished a pocketknife. Holding the knife at his side in order to protect	15
his friend, Mr. Overton came within approximately three feet of Defendant. Mr.	16
Lackey repeatedly yelled at Defendant, “Get out of the vehicle[!]” Mr. Lackey was	17
in “the shooter stance[,]” pointing his gun at Defendant. Defendant repeatedly	18
responded, “We’re just kidding. We’re just playing[,]” and Ms. Trimble made	19
similar statements. Defendant removed a gun from the car’s center console and,	20

6
within seconds, fired it two or three times and quickly drove away. Before Defendant	1
removed the gun from the console, Mr. Overton had a clear view of Defendant’s	2
hands and had not seen a gun. Mr. Overton testified that he was certain that Mr.	3
Lackey did not fire his gun.	4
{13} 	Mr. Overton described Defendant’s behavior during the interaction at the car	5
as “very nonchalant” and insincere. Mr. Overton believed that Defendant and Ms.	6
Trimble had kept the conversation going to distract Mr. Overton and Mr. Lackey so	7
that Defendant could get the gun, fire it, and speed off. Although Mr. Overton did	8
not think Mr. Lackey intended to hurt Defendant, and Mr. Overton did not intend to	9
do so, Mr. Overton did not know whether Defendant believed that. Mr. Overton’s	10
direct testimony was that Defendant feigned fear; he “tr[ied] to get out of the	11
situation by acting scared.” But on cross-examination, Mr. Overton acknowledged	12
that, during a pretrial interview, he had said that Defendant “appeared nervous and	13
scared.”	14
{14} 	Ms. Trimble testified about a slightly longer time period, beginning with what	15
occurred before the encounter at the ATM—an explanation of what was happening	16
in the video recording before Mr. Lackey approached the ATM. Ms. Trimble	17
testified that Defendant had initially parked his car in the parking lot where the ATM	18
was because he wanted to rob a nearby restaurant. While Defendant sat in the car,	19
Ms. Trimble entered the restaurant and, upon returning to the car, told Defendant	20

7
that there were customers, including children in the restaurant, and that she was	1
concerned that someone might be harmed in a robbery. As Defendant began to pull	2
out of the parking lot, Ms. Trimble noticed a truck parked at the ATM, and	3
Defendant stopped the car near the ATM, got out of the car, and walked up behind	4
Mr. Lackey, who was using the ATM.	5
{15} 	Ms. Trimble heard yelling and then saw Defendant return to the car and get	6
inside. She did not see a gun in Defendant’s hand at that time. Mr. Lackey pursued	7
Defendant and pointed his gun at Defendant while Mr. Lackey and Mr. Overton,	8
who was armed with a knife, repeatedly demanded that Defendant get out of the car.	9
Both Mr. Lackey and Mr. Overton were angry; they were yelling and using profane	10
language. Defendant did not get out of the car. He appeared to be scared.	11
{16} 	Ms. Trimble feared for Defendant’s well-being. She told him not to get out of	12
the car and, to stop him from doing so, she leaned over the middle console from the	13
passenger seat and put part of her body on Defendant’s right leg. She also told Mr.	14
Lackey that she was pregnant. Mr. Lackey said, “So you think you’re going to rob	15
me[?]” Defendant said, “No, I was just playing. Just let us leave. Just let us leave[,]”	16
and “[w]e just want to leave[.]” Ms. Trimble believed that Defendant intended to	17
leave. But, by standing in the car’s doorway with his gun pointed at Defendant, Mr.	18
Lackey prevented them from leaving.	19

8
{17} 	Ms. Trimble saw a handgun on Defendant’s lap, and, as Mr. Lackey held the	1
car door open, Defendant drove away and fired his gun. Ms. Trimble testified on	2
direct examination that she was not sure whether Mr. Lackey also fired, but that, if	3
he did, she believed that he fired after Defendant did. On cross-examination, she	4
testified that she was not sure who fired first.	5
{18} 	Mr. Ulibarri also testified about the sequencing of the shots. He stated that	6
there were three shots, that the first shot came from the man outside of the car, and	7
that the second and third shots came from inside the car. He testified to these facts	8
during direct examination, cross-examination, and redirect examination, although he	9
acknowledged that on the night of the shooting, he had written that he saw a flash	10
inside the car and that one of the men outside the car returned fire.	11
{19} 	Detective Leah Acata also testified about the fatal encounter. Because	12
Detective Acata was not present for any part of the encounter, her testimony about	13
what occurred was based exclusively on her interpretation of the video recordings	14
that were admitted into evidence. The first part of Detective Acata’s testimony about	15
the recordings drew no objections and remains uncontroversial on appeal; she	16
described undisputed facts. The dispute on appeal pertains to Detective Acata’s	17
testimony that, based on her review of the videos, Defendant had a gun throughout	18
the encounter and that he brandished it while standing near Mr. Lackey at the ATM.	19

9
{20} 	The district court instructed the jury on the essential elements of first degree	1
murder and one lesser included offense, second degree murder. Although the district	2
court granted Defendant’s request for jury instructions on self-defense and defense	3
of another, the court refused to instruct the jury on whether the shooting was an act	4
of “imperfect self-defense.” Such an instruction would have allowed the jury to	5
determine whether the killing, even if it was not legally justified as an act of self-	6
defense or defense of another, was a crime less serious than either first or second	7
degree murder—namely, voluntary manslaughter. See Abeyta, 1995-NMSC-051,	8
¶¶ 13-20. Without Defendant’s requested instruction, the jury had the following	9
options as to the murder charge: find Defendant not guilty of any homicide offense	10
because the killing was an act of self-defense or defense of another, find him guilty	11
of first degree murder, or find him guilty of second degree murder.	12
{21} 	The jury found Defendant guilty of second degree murder in violation of	13
NMSA 1978, Section 30-2-1(B) (1994), rejecting his claimed self-defense and	14
defense-of-another justifications. And the jury specifically found that he used a	15
firearm in the commission of the crime, enhancing the basic sentence for second	16
degree murder. See NMSA 1978, § 31-18-16(A) (1993, amended 2020). The jury	17
also found Defendant guilty of attempted robbery in violation of NMSA 1978,	18
Sections 30-28-1(C) (1963) and 30-16-2 (1973); 	tampering with evidence in	19
violation of NMSA 1978, Section 30-22-5(A), (B)(1) (2003); conspiracy to commit	20

10
tampering with evidence in violation of Sections 30-28-2(A), (B)(3) (1979) and 30-	1
22-5(A), (B)(1); and receiving or transferring a stolen vehicle in violation of NMSA	2
1978, Section 30-16D-4(A), (B)(1) (2009). The district court entered judgment and	3
sentenced Defendant to twenty-three-and-a-half years of imprisonment, including	4
sixteen years for the second degree murder conviction and firearm enhancement.	5
DISCUSSION	6
{22} 	Defendant argues that (1) the district court erred by denying his request for a	7
voluntary manslaughter instruction; (2) the evidence does not suffice to support his	8
convictions for tampering with evidence and conspiracy to commit tampering with	9
evidence; (3) the district court erred by admitting into evidence Officer Acata’s	10
testimony about whether a firearm was visible in a video recording that was an	11
exhibit at trial; and (4) the district court erred by denying his motion to dismiss all	12
of the charges against him with prejudice because his trial was not timely under the	13
IAD. We accept his first and third claims of error and reverse his convictions for	14
second 	degree 	murder, 	tampering 	with 	evidence, 	and 	conspiracy 	to 	commit	15
tampering with evidence. We otherwise reject Defendant’s claims of error. We	16
therefore remand for a new trial for second degree murder, voluntary manslaughter,	17

11
tampering with evidence, and conspiracy to tamper with evidence but affirm his	1
remaining convictions.1
2
I. 	The District Court Erred by Denying Defendant’s Request for a Jury	3
Instruction on Voluntary Manslaughter	4
{23} 	Whether the district court erred by denying Defendant’s requested jury	5
instruction on voluntary manslaughter is an issue of both law and fact that we review	6
de novo, and in doing so we look at the evidence in the light most favorable to giving	7
the requested instruction. State v. Skippings, 2011-NMSC-021, ¶ 10, 150 N.M. 216,	8
258 P.3d 1008. Because voluntary manslaughter is a lesser included offense of	9
murder, Abeyta, 1995-NMSC-051, ¶ 17, our task is to determine whether there is	10
any reasonable view of the evidence under which voluntary manslaughter was the	11
highest degree of homicide committed. Skippings, 2011-NMSC-021, ¶ 10. In other	12
words, if “a jury rationally could [have] acquit[ted]” Defendant of second degree	13
murder but convicted him of voluntary manslaughter, then the district court erred by	14
refusing to give Defendant’s requested manslaughter instruction. 	Id. 	(internal	15
quotation marks and citation omitted).	16
1 Principles of double jeopardy bar retrial on the first degree murder charge.
See State v. Sosa, 1997-NMSC-032, ¶ 33, 123 N.M. 564, 943 P.2d 1017 (recognizing
that “[t]he jury’s failure to convict” the defendant of two homicide charges,
including first degree murder, “amount[ed] to an implicit acquittal of those charges”
and concluding that double jeopardy barred retrial on those charges), abrogated on
other grounds by State v. Porter, 2020-NMSC-020, ¶ 7, 476 P.3d 1201.

12
{24} 	Applying this standard of review entails two steps here. We begin by briefly	1
describing the doctrine of imperfect self-defense under New Mexico law and the	2
relationship between that doctrine and the offense of voluntary manslaughter. Then,	3
using this legal lens to examine the evidence presented during Defendant trial, we	4
explain why it was error to deny Defendant’s request for a jury instruction on	5
voluntary manslaughter.	6
{25} 	Unlike self-defense, which justifies a homicide so that it is no crime at all,	7
imperfect 	self-defense 	mitigates 	a 	homicide 	so 	that 	the 	crime 	is 	voluntary	8
manslaughter rather than murder. Abeyta, 1995-NMSC-051, ¶¶ 14-17; see also § 30-	9
2-1 (defining first and second degree murder); NMSA 1978, § 30-2-3(A) (1994)	10
(classifying voluntary manslaughter as a third degree felony). In other words, the	11
defense is imperfect from the accused’s perspective because, even if it is pursued	12
successfully, the outcome is not an acquittal. And, not surprisingly, this imperfect	13
outcome occurs when a claim of self-defense suffers from an imperfection—a	14
missing element. Self-defense’s three elements are: “(1) an appearance of immediate	15
danger of death or great bodily harm to the defendant, (2) the defendant was in fact	16
put in fear by the apparent danger, and (3) a reasonable person in the same	17
circumstances would have reacted similarly.” Abeyta, 1995-NMSC-051, ¶ 14. The	18
absence of the third element renders the defense imperfect. If the accused reacts	19
unreasonably to fear caused by an appearance of danger of death or great bodily	20

13
harm, a claim of self-defense will fail, but a claim of imperfect self-defense might	1
still succeed. Id. ¶ 17. To prevail on a claim of imperfect self-defense and reduce the	2
gravity of the offense from second degree murder to voluntary manslaughter, the	3
accused’s reaction to the fear of death or great bodily harm, though unreasonable,	4
must be “a result of sufficient provocation[.]” UJI 14-220 NMRA; State v. Jernigan,	5
2006-NMSC-003, ¶ 18, 139 N.M. 1, 127 P.3d 537 (“[V]oluntary manslaughter is	6
second[]degree murder committed with sufficient provocation.”); see also Abeyta,	7
1995-NMSC-051, ¶ 17 n.4 (explaining that a manslaughter instruction is the means	8
of submitting a claim of imperfect self-defense to the jury).	9
{26} 	This brings us to the ultimate question: Would the evidence in Defendant’s	10
case, viewed in the light most favorable to giving his requested instruction, allow a	11
jury to find him not guilty of second degree murder but find him guilty of voluntary	12
manslaughter because he killed Mr. Lackey based on sufficient provocation? Cf.	13
Jernigan, 2006-NMSC-003, ¶¶ 23-25. Our answer is yes. The district court erred by	14
determining, as a matter of law, that the evidence could not support a finding of	15
sufficient provocation. The evidence raised a question of fact for the jury about	16
whether Mr. Lackey sufficiently provoked Defendant by holding him at gunpoint	17
while preventing him from fleeing. And, contrary to the State’s argument on appeal,	18
the evidence that Defendant initiated the encounter did not preclude Defendant from	19
presenting the provocation theory to the jury. We explain each point in turn.	20

14
{27} 	Viewing the evidence in the light most favorable to instructing the jury on	1
sufficient provocation, we conclude that a rational jury could have found that	2
Defendant 	acted 	based 	on 	sufficient 	provocation. 	New 	Mexico 	law 	defines	3
provocation to include “any action, conduct or circumstances which arouse anger,	4
rage, fear, sudden resentment, terror or other extreme emotions.” UJI 14-222	5
NMRA (emphases added). However, not all provocation that causes the accused to	6
have such emotional reactions will do. To suffice, “[t]he provocation must be such	7
as would affect the ability to reason and to cause a temporary loss of self[-]control	8
in an ordinary person of average disposition.” Id. “Whether a particular set of	9
circumstances is sufficient provocation is generally a question for the jury to	10
decide.” State v. Munoz, 1992-NMCA-004, ¶ 6, 113 N.M. 489, 827 P.2d 1303. This	11
generalization holds true in Defendant’s case; the jury, rather than the judge, should	12
have determined whether sufficient provocation existed. Key facts were undisputed:	13
Mr. Lackey drew a gun, pointed it at Defendant, pursued Defendant to his car, and	14
held him at gunpoint while demanding that he get out of the car. Although the parties	15
disputed how to interpret the conduct of Mr. Lackey and Defendant and disputed	16
other circumstances surrounding the shooting, we must view the evidence in the light	17
most favorable to Defendant. See Skippings, 2011-NMSC-021, ¶ 10. Viewed in that	18
light, the evidence could have allowed the jury to find that, when Defendant returned	19
to the car and got into the driver’s seat, he intended to retreat from Mr. Lackey; that	20

15
Mr. Lackey held the car door open while angrily yelling commands and using	1
profanity; and that Defendant retrieved a gun from the car and ultimately fired it at	2
Mr. Lackey because Defendant was afraid that Mr. Lackey would shoot him. If the	3
jury accepted this version of events, the jury could have determined that Mr.	4
Lackey’s conduct placed Defendant in fear, or even terror, that Mr. Lackey would	5
seriously injure or kill Defendant and that Mr. Lackey’s conduct would adversely	6
impact the ability of an ordinary person of average disposition to reason and exercise	7
self-control. 	This 	would 	amount 	to 	sufficient 	provocation, 	even 	if 	the 	jury	8
determined that the force that Defendant used was unreasonable. See Abeyta, 1995-	9
NMSC-051, ¶ 17.	10
{28} 	Precedent confirms that the evidence of provocation warranted a voluntary	11
manslaughter instruction in Defendant’s case. Our Supreme Court has concluded	12
that 	less 	compelling 	evidence 	sufficed. 	In 	Jernigan, 	the 	Court 	reached 	that	13
conclusion based on evidence that the person the defendant shot was reaching for	14
his crotch area—conduct the defendant interpreted as an effort to get a gun with	15
which to shoot the accused. 2006-NMSC-003, ¶¶ 5, 25 (reversing an attempted	16
second degree murder conviction and concluding that the district court erred by	17
denying the defendant’s request for a jury instruction on attempted voluntary	18
manslaughter); cf. State v. Wright, 1934-NMSC-056, ¶¶ 4-8, 38 N.M. 427, 34 P.2d	19
870 (concluding that testimony that the defendant was afraid that the person he shot	20

16
would get a gun sufficed to support the defendant’s conviction for voluntary	1
manslaughter). Because precedent establishes that the accused’s belief that a gun	2
might be drawn and then used in a confrontation raises a jury question about whether	3
the accused was sufficiently provoked, we conclude that a jury question also existed	4
in Defendant’s case based on evidence that Mr. Lackey actually drew a gun and	5
pointed it at Defendant, that Defendant returned to his vehicle with Mr. Lackey in	6
pursuit, that Mr. Lackey then held Defendant at gunpoint while angrily yelling, and	7
that Defendant appeared to be scared shortly before he fired his gun at Mr. Lackey.	8
{29} 	Having concluded that the evidence presented a jury question as to whether	9
Mr. Lackey’s conduct amounted to sufficient provocation, we turn next to the State’s	10
argument that New Mexico law barred Defendant from presenting his provocation	11
theory to the jury. Specifically, the State argues that the evidence that Defendant	12
initiated the conflict with Mr. Lackey at the ATM barred Defendant from pursuing	13
his theory that Mr. Lackey’s subsequent actions amounted to provocation. The	14
parties correctly focus their arguments on appeal, as they did at trial, on State v.	15
Gaitan, 2002-NMSC-007, 131 N.M. 758, 42 P.3d 1207, in which our Supreme Court	16
stated the governing rule: “the law does not permit one who intentionally instigates	17
an assault on another to then rely on the victim’s reasonable response to that assault	18
as evidence of provocation sufficient to mitigate the subsequent killing of the victim	19
from murder to manslaughter.” Id. ¶ 13 (emphasis added).	20

17
{30} 	Even if we assume there was no jury question as to whether Defendant	1
“intentionally instigate[d] an assault” through his actions at the ATM, id., we	2
conclude that the evidence raised a question for the jury about whether Mr. Lackey	3
responded reasonably. Based on the conflicting testimony about exactly how Mr.	4
Lackey and Defendant behaved during the encounter and the different ways of	5
interpreting the behavior of the two men, the jury could have rationally accepted a	6
variety of narratives. And depending on which narrative the jury accepted, the jury	7
could have concluded that Mr. Lackey’s response was reasonable or unreasonable.	8
{31} 	Some narratives suggest that Mr. Lackey responded reasonably, including by	9
using a reasonable amount of force, in exercising his right to defend himself or his	10
right to make a citizen’s arrest. See id. (recognizing that no problem of provocation	11
exists if the accused attacks the victim and the victim reacts “with no more force	12
than he is privileged by law to use for his own protection” (internal quotation marks	13
and citation omitted)); cf. State v. Johnson, 1996-NMSC-075, ¶¶ 1, 18, 122 N.M.	14
696, 930 P.2d 1148 (holding that when a defendant who is charged with assault seeks	15
a jury instruction based on a theory of citizen’s arrest, the defendant must present	16
evidence that, among other things, “the defendant acted with reasonable force under	17
the circumstances”); Downs v. Garay, 1987-NMCA-108, ¶ 18, 106 N.M. 321, 742	18
P.2d 533 (recognizing, in the context of a tort claim, that “the privilege[s] of citizen’s	19
arrest[ and] self-defense[ are] limited to the use of reasonable force” (emphasis	20

18
added)). The State offers an example of a self-defense narrative in its answer brief,	1
asserting that Defendant accosted Mr. Lackey at the ATM with a gun; that Mr.	2
Lackey reasonably believed that he was in danger and responded by drawing his	3
gun; and that Defendant returned to his car but remained armed throughout and	4
continued to pose a deadly threat to Mr. Lackey until he fired his gun at Mr. Lackey	5
and sped away. Although this is a rational way of resolving the factual disputes and	6
interpreting the undisputed facts, what matters for our purposes is that it is not the	7
only rational way of doing so. The question we must answer is not whether there is	8
a rational view of the evidence that would have allowed the jury to find that Mr.	9
Lackey acted reasonably and therefore reject the imperfect self-defense theory.	10
Instead, we must determine whether there is a rational view of the evidence under	11
which the jury could have found that Mr. Lackey acted unreasonably. See Skippings,	12
2011-NMSC-021, ¶ 10 (requiring the appellate court to ask whether a jury	13
“rationally could [have] acquit[ted]” the defendant of the more serious offense and	14
found the defendant guilty of the less serious offense for which the defendant sought	15
a jury instruction (internal quotation marks and citation omitted)).	16
{32} 	We conclude that there is. Specifically, a jury could have found that Mr.	17
Lackey’s conduct went beyond the bounds of legally justified self-defense or	18
citizen’s arrest, either because Mr. Lackey used unreasonable force, see Gaitan,	19
2002-NMSC-007, ¶ 13; cf. Downs, 1987-NMCA-108, ¶ 18, by pursuing Defendant	20

19
with gun drawn and holding him at gunpoint or because his purpose was not to hold	1
Defendant for the authorities but instead to engage in the kind of unreasonable self-	2
help that amounts to vigilantism. Cf. Johnson, 1996-NMSC-075, ¶ 18; State v.	3
Emmons, 2007-NMCA-082, ¶ 19, 141 N.M. 875, 161 P.3d 920. For example, a	4
rational jury could have found that Defendant was not armed at the ATM; that, after	5
Mr. Lackey drew his gun at the ATM, Defendant retreated to the car; that	6
Defendant’s actions indicated that he intended to withdraw from the encounter	7
peacefully; but that Mr. Lackey nevertheless kept his gun drawn and pursued	8
Defendant to the car and held Defendant, who was still unarmed, at gunpoint while	9
Mr. Lackey loudly and profanely demanded that Defendant get out of the car. If a	10
jury accepted this narrative, it could have determined that (1) Mr. Lackey acted	11
unreasonably because the force he used was excessive or because his purpose was	12
not to detain Defendant until police arrived but instead to exact justice himself, and	13
(2) it was reasonable for Defendant to have had an extreme emotional response to	14
Mr. Lackey’s conduct that, in turn, caused Defendant to lose self-control and act	15
unreasonably in shooting Mr. Lackey. See generally State v. Johnson, 1998-NMCA-	16
019, ¶ 16, 124 N.M. 647, 954 P.2d 79 (recognizing that “reasonableness in the use	17
of force is generally a matter for the jury”); cf. State v. Wasson, 1998-NMCA-087,	18
¶ 12, 125 N.M. 656, 964 P.2d 820 (explaining that intent is “generally . . . a question	19
of fact for a jury to decide”). We therefore conclude that the evidence that Defendant	20

20
initiated the encounter did not preclude him from presenting to the jury his theory	1
that Mr. Lackey’s unreasonable response amounted to provocation sufficient to	2
mitigate the killing to voluntary manslaughter.	3
{33} 	Because the evidence, viewed favorably to Defendant, could have allowed a	4
rational jury to conclude that Defendant shot Mr. Lackey as a result of sufficient	5
provocation, the district court erred by prohibiting him from presenting his imperfect	6
self-defense theory to the jury by way of a voluntary manslaughter instruction. We	7
therefore reverse Defendant’s second degree murder conviction and remand for a	8
new trial on that charge. See State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724,	9
931 P.2d 69 (“When evidence at trial supports the giving of an instruction on a	10
defendant’s theory of the case, failure to so instruct is reversible error.”).	11
II. 	The Jury Instruction Error Also Requires a New Trial on the Tampering	12
and Conspiracy Charges	13
A. 	Tampering with Evidence	14
{34} 	Our reversal of Defendant’s second degree murder conviction requires us to	15
reverse his conviction for third degree tampering with evidence because of the	16
relationship between the two charges. The jury found Defendant guilty of tampering	17
with evidence and returned a special verdict form finding that he committed that	18
crime in relation to first or second degree murder. Pursuant to Section 30-22-5(B)(1),	19
under which tampering with evidence is a third degree felony when it relates to a	20
first or second degree felony, the district court entered a judgment of conviction for	21

21
third degree tampering with evidence and imposed the basic sentence for a third	1
degree felony, three years of imprisonment. NMSA 1978, § 31-18-15(A)(11) (2007,	2
amended 2019). Defendant’s conviction and sentence for third degree tampering	3
were predicated on the jury’s determination that the killing of Mr. Lackey was a	4
second degree felony, but, as we have explained, that determination was made based	5
on incomplete instructions that did not give the jury the alternative of determining	6
that the killing was instead voluntary manslaughter. Had the jury been instructed on	7
voluntary manslaughter and returned a guilty verdict on that charge, which is a third	8
degree felony, § 30-2-3(A), and acquitted Defendant of first and second degree	9
murder, the jury’s verdict would have amounted to a determination that Defendant	10
tampered with evidence of a third degree felony, see generally State v. Alvarado,	11
2012-NMCA-089, ¶ 14, ___ P.3d ___ (explaining that it is the province of the jury	12
to determine the crime to which its tampering verdict relates and, in so doing, the	13
degree of tampering that the defendant committed), overruled on other grounds by	14
State v. Radosevich, 2018-NMSC-028, ¶ 2, 419 P.3d 176, and any conviction for	15
tampering would have been a fourth degree felony, rather than a third degree felony.	16
Compare § 30-22-5(B)(2), with § 30-22-5(B)(1). Accordingly, Defendant’s third	17
degree felony conviction for tampering with evidence cannot stand.	18
{35} 	The reversal of Defendant’s tampering conviction raises the question of	19
whether he may be retried on that charge consistent with principles of double	20

22
jeopardy. The answer depends on whether the tampering conviction is based on	1
sufficient evidence; if the evidence suffices, there is no bar to retrial. State v.	2
Mascarenas, 2000-NMSC-017, ¶ 31, 129 N.M. 230, 4 P.3d 1221. The question we	3
must answer is “whether substantial evidence of either a direct or circumstantial	4
nature exists to support a verdict of guilt beyond a reasonable doubt with respect to	5
every element essential to a conviction.” State v. Cabezuela, 2015-NMSC-016, ¶ 14,	6
350 P.3d 1145 (internal quotation marks and citation omitted). “Substantial evidence	7
is relevant evidence that a reasonable mind might accept as adequate to support a	8
conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation	9
marks and citation omitted). Our review entails two steps. We first “view the	10
evidence in the light most favorable to the guilty verdict, indulging all reasonable	11
inferences and resolving all conflicts in the evidence in favor of the verdict.” State	12
v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Next we	13
consider “whether the evidence, so viewed, supports the verdict beyond a reasonable	14
doubt.” 	State v. 	Garcia, 2016-NMSC-034, ¶ 	24, 384 	P.3d 	1076. “The 	jury	15
instructions become the law of the case against which the sufficiency of the evidence	16
is to be measured.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (alterations,	17
internal quotation marks, and citation omitted).	18
{36} 	The jury instruction for tampering described the essential elements at issue as	19
(1) “[D]efendant placed and/or hid a Pontiac G6[,]” and (2) Defendant “intended to	20

23
prevent the apprehension, prosecution or conviction of himself[.]” Defendant	1
contends that if we were to conclude that the evidence that Defendant left the scene	2
of the shooting in the Pontiac suffices here, we would effectively be holding that	3
“every crime involving a motor vehicle (or any other object) that is moved after a	4
crime” involves tampering with evidence. But the State’s evidence of tampering was	5
not limited to testimony that Defendant moved the Pontiac. Ms. Trimble testified	6
that after Defendant drove the Pontiac away from the parking lot, he left it parked in	7
an alley and contacted an unidentified person; that Defendant, the unidentified	8
person, and Ms. Trimble went to a gas station and then returned to the alley where	9
the Pontiac was parked; and that Defendant and the unidentified person walked	10
toward the car and then returned running. A person who lived near the alley testified	11
that, on the night of the shooting, she witnessed a car on fire in the alley and saw	12
two people standing near the car and then running from it. Finally, a police officer	13
testified that he responded to a call about a car fire that same evening and that the	14
burned Pontiac was towed to the crime lab because of its link to the shooting of Mr.	15
Lackey. Based on this evidence, the jury rationally could have inferred that	16
Defendant parked the car in the alley and returned to set it aflame and that his intent	17
in doing so was to prevent his apprehension, prosecution, or conviction for the	18
killing of Mr. Lackey. See State v. Duran, 2006-NMSC-035, ¶ 7, 140 N.M. 94, 140	19
P.3d 515 (explaining that intent is often established by circumstantial evidence).	20

24
Because the evidence of tampering sufficed, principles of double jeopardy do not	1
bar retrial on that charge.	2
B. 	Conspiracy to Commit Tampering with Evidence	3
{37} 	The instructional error also requires us to reverse Defendant’s conviction for	4
conspiracy to tamper with evidence. Defendant was convicted of conspiracy to	5
tamper with evidence in violation of Section 30-28-2(B)(3), which makes conspiracy	6
a fourth degree felony when the “the highest crime conspired to be committed is a	7
third degree felony or a fourth degree felony.” In concluding that Defendant	8
tampered with evidence of second degree murder, the jury determined that the	9
tampering at issue was third degree tampering with evidence. See § 30-22-5(B)(1).	10
However, the need to reverse Defendant’s murder conviction renders the degree of	11
tampering 	“conspired 	to 	be 	committed” 	indeterminate. 	Section 	30-28-2(B).	12
“[W]here a jury cannot or does not find the level of the underlying offense,” its	13
determination that the defendant tampered with evidence can only support a	14
conviction for misdemeanor tampering with evidence. Radosevich, 2018-NMSC-	15
028, ¶¶ 27-29 (invalidating Section 30-22-5(B)(4) as unconstitutional to the extent	16
that it imposes greater punishment than does Section 30-22-5(B)(3)). Therefore,	17
because of the reversal of Defendant’s murder conviction, the highest degree of	18
tampering he could have conspired to commit was misdemeanor tampering. But	19
conspiring to commit a misdemeanor is not a crime in New Mexico; our conspiracy	20

25
statute prohibits only conspiracy to commit felonies. See § 30-28-2. We therefore	1
must reverse Defendant’s conspiracy conviction.	2
{38} 	However, as with the tampering charge, principles of double jeopardy do not	3
bar the State from retrying Defendant for conspiracy to commit tampering with a	4
felony because the evidence of conspiracy suffices. The jury instruction for	5
conspiracy described the elements at issue here as (1) “[D]efendant and another	6
person by words or conduct agreed together to commit tampering with evidence[,]”	7
and (2) “[D]efendant and the other person intended to commit tampering with	8
evidence by destroying the Pontiac G6[.]” The evidence we summarized above in	9
relation to the tampering charge amounts to substantial evidence of both elements.	10
Based on that evidence, the jury rationally could have concluded that Defendant and	11
the unidentified person who accompanied him to the gas station and the alley where	12
the Pontiac was parked agreed by words or conduct to set the car on fire with the	13
intent to tamper with evidence. Retrial is permitted.	14
III. 	The District Court Erred by Admitting Officer Acata’s Testimony that	15
a Video Exhibit Depicted Defendant in Possession of a Firearm	16
{39} 	Defendant also argues that this Court should reverse his murder conviction	17
because the district court erred by allowing Officer Acata to testify to her	18
interpretation of the surveillance footage and opine, based on that interpretation,	19
about an important and disputed fact: whether Defendant was armed at the ATM.	20

26
Because we have ordered a new trial on the murder charge, we need not determine	1
whether the admission of the testimony at issue rises to the level of reversible or	2
plain error and therefore warrants a new trial. However, we discuss whether the	3
district court abused its discretion by admitting that testimony, see State v. Garnenez,	4
2015-NMCA-022, ¶ 29, 344 P.3d 1054, because the issue is likely to arise on	5
remand. “An abuse of discretion occurs when [a] ruling is clearly against the logic	6
and effect of the facts and circumstances of the case[,]” State v. Rojo, 1999-NMSC-	7
001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation	8
omitted), or when a ruling “indicate[s] a misapprehension of the law.” State v.	9
Vargas, 2016-NMCA-038, ¶ 10, 368 P.3d 1232.	10
{40} 	The testimony Defendant challenges here was elicited when the State asked	11
Officer Acata to describe what she saw as it played a black-and-white video captured	12
by one of the two ATM cameras—a video that had been admitted into evidence as	13
an exhibit. Officer Acata testified that the surveillance footage showed Defendant	14
“draw a gun” while standing behind Victim at the ATM. Although she expressed her	15
opinion as a matter of fact, Officer Acata came to it by inferring from her “training	16
and experience” that “a dark object” in Defendant’s hand could only have been “one	17
thing.” We agree with Defendant that the district court should not have allowed	18
Officer Acata to testify to her own interpretation of the video evidence because the	19

27
jury was just as capable as the officer of determining what the video depicted and	1
the officer’s testimony was therefore unhelpful to the jury.	2
{41} 	Our rules of evidence restrict admissible opinion testimony—from lay	3
witnesses and experts alike—to opinions that benefit the fact-finder’s understanding	4
or help the fact-finder determine a fact in issue. Rules 11-701(B), -702 NMRA. This	5
restriction applies to a witness’s identification of a person or item in a video	6
recording. It may be helpful to a jury, and thus permissible, for a witness to identify	7
a person appearing in a surveillance video if the court is satisfied that the witness is	8
more likely than the jury to make an accurate identification. See generally 6 Clifford	9
S. Fishman & Anne T. McKenna, Jones on Evidence § 40:12 (7th ed. 2020). This	10
Court accepted this general rule in State v. Sweat, 2017-NMCA-069, 404 P.3d 20,	11
adopting the reasoning of the Illinois Supreme Court in People v. Thompson, 2016	12
IL 118667, 49 N.E.3d 393, and holding that a lay witness may identify a person	13
appearing in a video recording when “there is some basis for concluding that the	14
witness is more likely to correctly identify the [person] . . . than is the jury,” where	15
any one of five factors can demonstrate that the witness is more likely than the jury	16
to make a correct identification. 	Sweat, 2017-NMCA-069, ¶¶ 21-24 (quoting	17
Thompson, 2016 IL 118667, ¶ 41). Illinois’s appellate courts have extended the	18
general rule in 	Thompson 	to the identification of objects appearing in video	19
evidence. See People v. Gharrett, 2016 IL App (4th) 140315, ¶ 76, 53 N.E.3d 332	20

28
(“[L]ay-opinion identification testimony is helpful when some basis exists to	1
conclude that the witness is more likely to correctly identify the object from the	2
surveillance recording than the jury.”). We find Gharrett, like Thompson, persuasive	3
and conclude that a witness may identify an object appearing in a video when the	4
witness is more likely than the jury to correctly identify the object—i.e., when the	5
witness has a special familiarity with the object. See, e.g., id. ¶¶ 69, 78 (concluding	6
that, because the witness had bundled “$303 cash on top of some checks” and thus	7
had familiarity with the “particular size and shape” of that bundle, it was helpful to	8
the jury for her to identify a bundle of cash that appeared vaguely in a video as the	9
same bundle she had made); United States v. Houston, 813 F.3d 282, 287, 291-92	10
(6th Cir. 2016) (holding that the district court did not abuse its discretion in	11
permitting a police officer to identify as a “Ruger Mini 14” a firearm that appeared	12
in a video when there was foundation for the officer’s special ability to identify the	13
firearm in his testimony that his relative owned a Ruger Mini 14).	14
{42} 	Applying these principles, we hold that Officer Acata’s testimony was	15
unhelpful to the fact-finder because there is no basis for concluding that Officer	16
Acata was more likely than the jury to correctly determine whether the video shows	17
Defendant holding a handgun. Because a handgun is an ordinary object, and Officer	18
Acata had no special familiarity with the visual appearance of the handgun in	19
question, she was no more likely than the jury to be able to accurately determine	20

29
whether a handgun was visible in the video, which had been admitted into evidence.	1
Officer Acata’s belief that Defendant was armed has no bearing on what the video	2
shows, and it was improper for her to testify that the video shows Defendant holding	3
a gun; what the video does or does not depict was for the jurors to determine for	4
themselves. Cf. State v. Finan, 881 A.2d 187, 193-94 (Conn. 2005) (stating that it	5
had been improper to admit the testimony of several police officers purporting to	6
identify the defendant in a surveillance video based on the officers’ “suspicion” that	7
a man appearing in the video was the defendant). “A witness, lay or expert, may not	8
form conclusions for jurors that they are competent to reach on their own.” People	9
v. McFee, 2016 COA 97, ¶ 76, 412 P.3d 848. Here, the jury was competent to draw	10
its own conclusion about whether the video depicts Defendant armed with a gun at	11
the ATM, and Officer Acata was in no better position than the jury to draw those	12
conclusions because she was not present on the night of the incident and therefore	13
had no opportunity to observe whether Defendant was armed and because the record	14
does not establish that she had knowledge of anything idiosyncratic about Defendant	15
or his belongings. See Mitchell v. State, 641 S.E.2d 674, 677 (Ga. Ct. App. 2007)	16
(explaining that it is “improper to allow a witness to testify as to the identity of a	17
person in a video or photograph when such opinion evidence tends only to establish	18
a fact which average jurors could decide thinking for themselves and drawing their	19
own conclusions” (internal quotation marks and citation omitted)); McFee, 2016	20

30
COA 97, ¶¶ 75-76 (reasoning that the jury “was in precisely the same position” as a	1
detective in its ability to interpret the audio of a video recording where the detective	2
did not witness the statements on the recording firsthand and had no special	3
familiarity with the speaker’s voice that made him more able to discern the recorded	4
statements); 	Gordon v. Commonwealth, 916 S.W.2d 176, 179-80 (Ky. 1995)	5
(holding that it was error to allow a witness to interpret a mostly inaudible audio	6
recording rather than testify from personal recollection because it was “for the jury	7
to determine as best it [could] what [was] revealed in the . . . recording without	8
embellishment or interpretation by a witness”); see also 1 Kenneth S. Broun et al.,	9
McCormick on Evidence § 11 (8th ed. 2020) (“[B]efore admitting a lay witness’s	10
inference, the judge must not only be convinced that the witness possesses firsthand	11
knowledge about the topic of the opinion; the judge must also conclude that it is	12
impractical for the witness to verbalize the underlying facts to the extent that the lay	13
jurors themselves would just as readily decide whether to draw the inference.”).	14
{43} 	To the extent the State argues that Officer Acata’s testimony was helpful to	15
the jury because her “law enforcement experience” made her more able to detect a	16
concealed firearm, we disagree. Officer Acata did not testify to any specific	17
experience that makes her particularly adept at detecting concealed firearms, and we	18
have no basis to conclude that general experience in law enforcement gives one that	19
skill. We thus conclude that, under the circumstances here, it was not helpful to the	20

31
jury for Officer Acata to provide her interpretation of the video and that the	1
admission of her interpretation was therefore an abuse of discretion.	2
IV. 	The Timing of Defendant’s Trial Did Not Violate the IAD	3
{44} 	Defendant argues that the district court erred by denying his motion to dismiss	4
all of the charges with prejudice because his trial occurred outside of the 180-day	5
time period generally prescribed by the IAD and because there was not good cause	6
for a continuance. We hold that the district court acted within its discretion by	7
granting the continuance and that the IAD therefore did not require the district court	8
to grant Defendant’s motion to dismiss.	9
{45} 	Under the IAD’s speedy trial provisions, “if a prisoner demands disposition	10
he must be brought to trial within 180 days of the delivery of the demand unless	11
there is a continuance or tolling as determined by the court having jurisdiction of the	12
matter. If he is not, his charges are to be dismissed with prejudice.” State v. Aaron,	13
1984-NMCA-124, ¶ 8, 102 N.M. 187, 692 P.2d 1336; see NMSA 1978, § 31-5-12,	14
art. 3(A) (1971) (requiring that trial be held within 180 days unless a continuance is	15
granted); § 31-5-12, art. 5(C) (providing that the remedy for a speedy trial violation	16
is 	dismissal 	with 	prejudice). 	The 	IAD 	permits 	“necessary 	or 	reasonable	17
continuance[s]” if they are based on “good cause shown in open court” in the	18
presence of “the prisoner or his counsel[.]” Section 31-5-12, art. 3(A).	19

32
{46} 	When reviewing a trial court’s determination that good cause justified a	1
continuance, we consider the totality of the circumstances. State v. Livernois, 1997-	2
NMSC-019, ¶ 26, 123 N.M. 128, 934 P.2d 1057. Reversal is only warranted if the	3
trial court abused its discretion. See State v. Hill, 760 S.E.2d 802, 807 (S.C. 2014)	4
(“[W]e will reverse a circuit court’s decision to grant a continuance under the IAD	5
only when it amounts to an abuse of discretion.”); accord Harper v. State, 472 A.2d	6
473, 475 (Md. 1984); Johnson v. Commonwealth, 450 S.W.3d 696, 701 (Ky. 2014),	7
abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015).	8
{47} 	We assume for argument’s sake,2 as Defendant requests, that the 180-day	9
period began on June 22, 2017, when the State filed an Agreement on Detainers,	10
Form 7 in the metropolitan court. Under that assumption, the IAD deadline for trial	11
was in December 2017, but the trial in the murder case did not occur until September	12
2018. The question before us then is whether the district court abused its discretion	13
by concluding that there was good cause to conduct the trial approximately nine	14
months after the 180-day period expired. We hold that it did not. Because of the	15
2 We make two additional assumptions in favor of Defendant: (1) that he
properly activated the IAD’s 180-day deadline; and (2) that his acquiescence, during
the scheduling conference, to the district court setting his trial for September 2018
did not constitute a waiver of his speedy trial right under the IAD and did not toll
the 180 days for any period of time.

33
complexity of the case and the volume of discovery, the district court acted within	1
its discretion by setting the trial when it did.	2
{48} 	Under the IAD, the complexity of a case is an appropriate factor for courts to	3
consider in setting a trial date. See United States v. Whiting, 28 F.3d 1296, 1307-08	4
(1st Cir. 1994) (recognizing that the complexity of a case is a valid consideration in	5
determining whether to grant a continuance under the IAD); Hill, 760 S.E.2d at 807-	6
08 (holding that the trial court did not abuse its discretion in concluding that there	7
was good cause for a continuance under the IAD based in part on the complexity and	8
magnitude of the case, which involved a double murder and a first degree burglary).	9
And in Defendant’s case, a local rule of the Second Judicial District Court, Rule	10
LR2-308(G)(3) 	NMRA 	(2017), 	required 	the 	district 	court 	to 	consider 	“the	11
complexity of the case” and “the number of witnesses” as well as “the time needed	12
reasonably to address any eviden[tiary] issues[.]” The court did just that during a	13
scheduling conference on September 28, 2017, finding that the case involved	14
“voluminous discovery” and “numerous witnesses,” including experts.3 Based on	15
3 Defendant does not challenge these findings on appeal. The State points out
that it identified over 100 witnesses, including an expert from the Office of the
Medical Investigator. Defendant contends that prosecutors often identify far more
witnesses than they actually intend to call, and that this results in an excessive
number of pretrial interviews and unnecessary delay. To the extent that Defendant
is inviting us to conclude that the prosecution listed an excessive number of
witnesses in his case, his argument is unpreserved. See Rule 12-321(A) NMRA.

34
these findings, the court set trial for September 24, 2018, and ordered, among other	1
things, that the parties complete witness interviews by July 20, 2018. In a series of	2
subsequent motions, the State asked the district court to enter orders concluding,	3
under the IAD, that good cause justified holding trial beyond the 180-day mark and	4
asked the court to extend pretrial deadlines. The State’s reasons included the	5
complexity of the case, consistent with the court’s findings at the outset, plus two	6
changes of defense counsel, one in February 2018 and the second in June 2018. The	7
State contended (and Defendant did not dispute) that each time Defendant changed	8
counsel, the State was required to cancel pretrial interviews that had been scheduled	9
and then reschedule those interviews with substitute counsel, which delayed the	10
interviews and made it impossible to complete them by the July 2018 deadline the	11
district court originally set. The court extended the pretrial motion deadlines and	12
allowed the State until October 23, 2018, to bring the case to trial. The court held	13
Defendant’s trial in September 2018, and we see no basis for concluding that this	14
violated the IAD. We hold that the district court acted within its discretion by	15
concluding that the complexity of the case and the need to complete pretrial	16
Because Defendant does not argue that we should address the issue under any
exception to the preservation requirement, we decline to do so.

35
interviews of the State’s witnesses amounted to good cause for a continuance and	1
that the court therefore did not err by denying Defendant’s motion to dismiss.4
2
CONCLUSION	3
{49} 	We reverse Defendant’s convictions for second degree murder, tampering	4
with evidence, and conspiracy to commit tampering with evidence, and we remand	5
for a new trial. We affirm in all other respects.	6
{50} 	IT IS SO ORDERED.	7
______________________________	8
ZACHARY A. IVES, Judge	9
WE CONCUR:	10
______________________________________________
J. MILES HANISEE, Chief Judge (concurring, writing separately)	11
____________________________________	12
SHAMMARA H. HENDERSON, Judge	13
4 In his brief in chief, Defendant argues that the district court erred in granting
the continuance because its good cause determination was not based on evidence. It
is not clear from Defendant’s reply brief whether he has withdrawn this argument,
but, in any event, it is contrary to our precedent. In Aaron, this Court explained that
“there is no requirement for evidence in order to make a showing of good cause” and
that “[i]n established practice such a showing is often made by statement of counsel.”
1984-NMCA-124, ¶ 17. Although Defendant cites out-of-jurisdiction authority that
requires evidence, Defendant has not asked us to overrule Aaron, and we therefore
decline to reconsider its holding.

36
HANISEE, Chief Judge (concurring, writing separately).	1
{51} 	I write separately5 to address the aptly named doctrine of “imperfect” self-	2
defense. The defense is factually imperfect in that a defendant who unreasonably	3
fears or acts in fear of death or great bodily harm may nonetheless receive a step-	4
down instruction from murder to which he would not otherwise be entitled. It is	5
legally imperfect, in my view, because the defense’s generic factual applicability is	6
not curtailed under New Mexico law to eliminate its usage when felony murder is at	7
issue, or more to the point as demonstrated by the facts of this case, where an initial	8
aggressor begins a dangerous felony which culminates in the death of his chosen	9
victim or of someone that acts to prevent the occurrence of the planned crime. It is	10
the role of either our New Mexico Supreme Court or the New Mexico Legislature to	11
repair imperfections in law, and I urge either or both to do so.	12
{52} 	A brief examination of sensible limitations placed on the availability of	13
general—that is to say, reasonable, or “perfect”—self-defense in New Mexico, and	14
then of other jurisdictions’ similar such restriction to the availability of imperfect	15
self-defense, reveals an approach that makes vastly more sense, and is more	16
5 To be clear, I assign no fault to today’s Opinion which, following limited but
established precedent, holds that entitlement to the defense of imperfect self-defense
arises in New Mexico in all circumstances where a defendant “reacts unreasonably
to fear caused by an appearance of danger of death or great bodily harm.” Op. ¶ 25.
Nor do I disagree that the facts of this case meet that threshold.

37
consistent 	with our Legislature’s 	differing 	treatment 	of murders paired 	with	1
underlying felonies, than does the outcome in this case. First, our Supreme Court	2
has held that a “claim of self-defense may fail if the defendant was the aggressor or	3
instigator of the conflict.” State v. Lucero, 1998-NMSC-044, ¶ 7, 126 N.M. 552, 972	4
P.2d 1143 (internal quotation marks and citation omitted). In Lucero, the defendant	5
followed rival gang members to a vacant lot, discharged a gun into the air, and the	6
rival gang members returned fire. Id. ¶¶ 8-9. The Court held that the defendant was	7
the first aggressor, and as the instigator of conflict, was precluded from claiming	8
self-defense as a justification or excuse for the shootings which occurred during the	9
ensuing gun battle. Id. ¶ 9; State v. Emmons, 2007-NMCA-082, ¶¶ 12-13, 141 N.M.	10
875, 161 P.3d 920, (holding that a defendant who threatened repo men at gun point	11
was not entitled to a self-defense instruction where the evidence reflected that the	12
defendant was the initial aggressor and that there was no appearance of immediate	13
danger or death before the defendant drew his gun).	14
{53} 	New 	Mexico 	courts 	have 	also 	found 	that 	defendants 	who 	are 	initial	15
aggressors, particularly those whose aggressive acts are carried out during the	16
commission of a felony inherently or foreseeably dangerous to human life, are not	17
entitled to self-defense instructions. In State v. Chavez, 1983-NMSC-037, ¶ 6, 99	18
N.M. 609, 661 P.2d 887, our Supreme Court held that a defendant first aggressor	19
who entered a convenience store with a knife intending to rob the store, and	20

38
subsequently stabbed and killed a patron who tried to stop the robbery, could not	1
claim self-defense. The court noted that it is “well established in this jurisdiction that	2
a defendant who provokes an encounter, as a result of which he finds it necessary to	3
use deadly force to defend himself, is guilty of an unlawful homicide and cannot	4
avail himself of the claim that he was acting in self-defense.” Id. The court upheld	5
the defendant’s convictions for armed robbery and felony murder, noting that the	6
defendant killed the victim during the commission of a felony “inherently or	7
foreseeably dangerous to human life.” Id. (internal quotation marks and citation	8
omitted).	9
{54} 	It is logical to conclude that a defendant who produces the conditions which	10
make it seem necessary for them to kill or inflict serious bodily harm should be	11
imputed 	the 	natural 	consequences 	of 	their 	own 	dangerous 	conduct. 	This 	is	12
particularly true where the would-be victim responds to a defendant’s aggressive	13
behavior with a lawful use of force. This Court in State v. Lara held that a defendant	14
was not entitled to a self-defense instruction where he pulled a knife on two store	15
clerks after they chased the defendant to recover items that were stolen from the	16
store. 1989-NMCA-098, ¶¶ 8-9, 109 N.M. 294, 784 P.2d 1037, overruled on other	17
grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. In Lara, we stated	18
that a juror “could infer that [the] defendant reasonably believed that [the clerks]	19
were intending to seize him[,]” but that no reasonable juror could have viewed the	20

39
clerks’ actions as unlawful, and accordingly held that a self-defense instruction was	1
not supported by the evidence. Id. ¶ 9.	2
{55} 	Here, similar to the dangerous circumstances initiated or crimes begun by the	3
defendants in Lucero, Emmons, Chavez, and Lara, Defendant tried to rob Mr.	4
Lackey at an ATM at night. He did so with immediate or nearby access to the gun	5
he soon used to kill Mr. Lackey once Mr. Lackey turned out to be less helpless or	6
compliant than Defendant foresaw. My view is that under these cases, Defendant	7
was not entitled to the self-defense instruction he received and which the jury	8
rejected. That is because in my view no reasonable juror could have concluded that	9
Mr. Lackey’s actions in defending himself were unlawful.	10
{56} 	Which necessarily brings up my second point, because the above-cited cases	11
do not alone resolve Defendant’s entitlement to a step-down instruction from the	12
homicide with which he was charged, given that imperfect self-defense, rather than	13
general self-defense, is at issue in this appeal. Imperfect self-defense is itself akin to	14
a lesser included instruction insofar as an element of ordinary self-defense—that	15
being the requirement that a defendant act reasonably in employing self-defense—	16
is missing.6 But in my view, prohibitions limiting the availability of general self-	17
6 In contrast to perfect self-defense, which operates as a justification or excuse
which entirely negates the criminal consequences of a killing, imperfect self-defense
is neither a true defense nor an absolute one. See generally Abeyta, 1995-NMSC-
051, ¶¶ 13-20 (explaining that a “claim of imperfect self-defense . . . presents an
issue of mitigating circumstances that may reduce murder to manslaughter”); see

40
defense well illuminate why imperfect self-defense has no place in a case such as	1
this, where felonious aggressors who ultimately, if not initially, take lives having	2
first committed inherently dangerous felonies should not be provided a tool of law	3
to escape full fault for the natural consequences of those acts.7
4
{57} 	I am not alone in this belief. Pennsylvania requires a claim of imperfect self-	5
defense to satisfy all the requisites of justifiable self-defense (including that the	6
defendant was not the aggressor and did not violate a duty to retreat safety), with the	7
exception that imperfect self-defense involves an unreasonable, rather than a	8
reasonable, belief that deadly force was required to save the actor’s life. See Com. v.	9
Rivera, 983 A.2d 1211, 1224-25 (Pa. 2009). The result is that a defendant is	10
prohibited from claiming imperfect self-defense if the defendant was the aggressor,	11
or if the defendant violated a duty to retreat or avoid danger. See Com. v. Tilley, 595	12
also People v. Rodarte, 168 Cal. Rptr. 3d 12, 1168 (Ct. App. 2014) (describing
imperfect self-defense as “a shorthand description of . . . voluntary manslaughter”
and “a lesser offense included in the crime of murder” (internal quotation marks and
citation omitted)).
7 Indeed, this notion is manifest within the felony murder statute in New
Mexico, NMSA 1978, § 30-2-1(A)(2), which holds perpetrators liable for deaths
occurring “in the commission of or attempt to commit any felony” at the level of
first-degree murder. See Campos v. Bravo, 2007-NMSC-021, ¶ 10, 141 N.M. 801,
161 P.3d 846 “([T]he doctrine’s purpose is to further the legislative intent of holding
certain second-degree murders to be more culpable when effected during the
commission of a felony.” (emphases added) (internal quotation marks and citation
omitted)). While Defendant was here acquitted of felony murder, the propriety of
jury instructions, such as that at issue in this appeal, are resolved before deliberations
and verdicts.

41
A.2d 575, 582 (Pa. 1991) (holding that the defendant was not entitled to a voluntary	1
manslaughter instruction because he forcibly entered the home of the victim with the	2
intention of committing a burglary, and when he believed he would be discovered,	3
sprang from a hiding place and shot the victim three times).	4
{58} 	California has held that imperfect self-defense may not “be invoked by a	5
defendant who, through his own wrongful conduct (e.g., the initiation of a physical	6
assault or the commission of a felony), has created circumstances under which his	7
adversary’s attack or pursuit is legally justified[.]” People v. Rangel, 200 Cal. Rptr.	8
3d 265, 296 (2016) (internal quotation marks and citation omitted). This approach	9
seems particularly instructive to the facts at hand in this case, given its application	10
to circumstances where a victim successfully repels a felony crime and acts lawfully	11
to prevent the defendant’s escape or to otherwise seek police assistance or effectuate	12
a citizen’s arrest. See State v. Arroyos, 2005-NMCA-086, ¶ 5, 137 N.M. 769, 115	13
P.3d 232 (“Any person . . . may arrest another upon good-faith, reasonable grounds	14
that a felony has or was being committed[.]”).	15
{59} 	Another compelling approach is that taken by North Carolina, which has held	16
that imperfect self-defense is available in felony murder cases only to the extent that	17
self-defense relates to the applicable underlying felonies which give rise to the	18
charge of felony murder. See State v. Richardson, 462 S.E.2d 492, 499 (N.C. 1995)	19
(“[T]he purpose of the felony murder rule is to deter even accidental killings from	20

42
occurring during the commission of a dangerous felony. To allow self-defense,	1
perfect or imperfect, to apply to felony murder would defeat that purpose[.]”). In that	2
case, where the underlying felonies were discharging a firearm into occupied	3
property and assault with a deadly weapon, the court held that because only perfect	4
self-defense was applicable to the underlying felonies, the defendant could not argue	5
imperfect self-defense to avoid the felony murder charge. Id.	6
{60} 	I conclude by noting that our New Mexico Supreme Court has stated that	7
“[i]mperfect self-defense occurs when an individual uses excessive force while	8
otherwise lawfully engaging in self-defense.” State v. Henley, 2010-NMSC-039,	9
¶ 20, 148 N.M. 359, 237 P.3d 103 (emphasis added). I urge that the Court accept	10
certiorari in this case and to clarify that acting lawfully in the context of imperfect	11
self-defense 	excludes 	circumstances 	where 	an 	initial 	aggressor 	commits 	an	12
underlying felony. In my view, New Mexico Supreme Court Justices or lawmakers	13
should determine whether imperfect self-defense may be employed to mitigate the	14
criminal liability of defendants who kill citizens who exercise lawful force to repel	15
violent and felonious criminal acts. My answer would be no.	16
______________________________	17
J. MILES HANISEE, Chief Judge	18