July 01, 2010 – State of New Mexico v. Michael Swick, No. 28,316

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _July 1, 2010

NO. 28,316

STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
MICHAEL SWICK,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge
Gary K. King, Attomey General
Farhan Khan, Assistant Attomey General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Michael Swick was convicted of second degree murder, attempted
murder (two counts), aggravated battery (deadly weapon, two counts), aggravated
burglary (battery, two counts, and deadly weapon, one count), armed robbery (two
counts), conspiracy (two counts), and unlawful taking of a motor vehicle. On appeal,
Defendant raises four issues, contending that: 	(1) the second degree murder
instruction was improper, (2) an instruction on self-defense should have been given,
(3) several of his convictions violate double jeopardy protections, and (4) the district
court erred in denying his motion for a mistrial. 	For the reasons that follow, we
affirm.
BACKGROUND
{2} 	On the morning of January 21, 2006, Defendant and a group of others began
consuming alcohol and driving around. Defendant, his cousin Benito Lopez, and a
friend named Alex Ogle then borrowed a Jeep, which they used to “wreak[] havoc”
[BIC 2-3] before getting stuck in a ditch. The three consumed more alcohol, started
“walking somewhere,” and then Lopez briefly left on foot to return to the Jeep to
retrieve some warmer clothes. When he returned, he saw Defendant standing above
Ogle holding a large rock. Ogle was lying on the ground, bleeding, not moving, and

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apparently with no pulse. It was later determined that Ogle had sustained numerous
stab wounds and blunt trauma injuries that ultimately caused his death.
{3} 	After moving Ogle’s body to some bushes, Defendant and Lopez left in search
of a vehicle that they could steal. 	They came upon the home of Rita and Carlos
Atencio, knocked on the door, and asked to use the telephone. 	After entering the
house, they repeatedly stabbed, beat, and slashed both of the Atencios before taking
fourteen dollars in cash and the keys to a van, in which they fled.
{4} 	Defendant subsequently went to a friend’s apartment to seek treatment for a
wound to his hand. 	The police arrived in response to a 911 call. 	Defendant was
ultimately convicted on the thirteen counts listed above. This appeal followed.
JURY INSTRUCTION ON SECOND DEGREE MURDER
{5} 	The jury was instructed on both second degree murder and, as a lesser-included
offense, voluntary manslaughter. However, the second degree murder instruction was
not in conformity with UJI 14-210 NMRA, insofar as the instruction did not contain
language stating that Defendant “did not act as a result of sufficient provocation.”
Instead, the jury was instructed pursuant to UJI 14-211 NMRA, which applies when
voluntary manslaughter is not a lesser-included offense. Defendant contends that this
instruction resulted in the omission of an essential element, such that reversal is in
order. Because Defendant neither tendered an appropriate instruction nor raised the

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issue in any other fashion below, we review for fundamental error. 	See State v.
Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176 (observing that jury
instructions are reviewed for fundamental error when no objection was raised below).
Fundamental error in connection with a jury instruction occurs if “a reasonable juror
would have been confused or misdirected by the jury instruction.” Id. ¶ 14 (internal
quotation marks and citation omitted).
{6} 	In Cunningham, our Supreme Court elaborated on the capacity of other
instructions to cure an instruction that improperly omits an element of the charged
offense. 	Specifically, the Court held that “in a fundamental error analysis jury
instructions should be considered as a whole and a failure to include an essential
element in the elements section may be corrected by subsequent proper instructions
that adequately addresses the omitted element.” Id. ¶ 21. Accordingly, applying the
fundamental error analysis set forth in Cunningham, we must determine whether the
erroneous jury instruction on second degree murder was “corrected by subsequent
proper instructions that adequately addresse[d] the omitted element.” 	Id. 	For the
reasons that follow, we answer this question in the affirmative.
{7} 	As previously indicated, the second degree murder instruction omitted the
element negating sufficient provocation. However, the subsequent instruction on the
lesser-included offense of voluntary manslaughter adequately addressed the omission.

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In conformity with UJI 14-220 NMRA, that instruction specifically explained:
The difference between second degree murder and voluntary
manslaughter is sufficient provocation. 	In second degree murder the
defendant kills without having been sufficiently provoked, that is,
without sufficient provocation. In the case of voluntary manslaughter
the defendant kills after having been sufficiently provoked, that is, as a
result of sufficient provocation. Sufficient provocation reduces second
degree murder to voluntary manslaughter.
Additionally, the jury was separately instructed on the definition of “sufficient
provocation.”
{8} 	The foregoing instructions clearly and explicitly informed the jury about the
distinction between second degree murder and voluntary manslaughter. We therefore
conclude that the deficiency in the second degree murder instruction, concerning the
absence of sufficient provocation, was “corrected by subsequent proper instructions
that adequately addresse[d] the omitted element,” Cunningham, 2000-NMSC-009,
¶ 21, such that fundamental error did not occur.
{9} 	Defendant urges this Court to depart from the principles articulated in
Cunningham, on grounds that the “step-down” instruction conforming to UJI 14-250
NMRA required the jury to first address first and second degree murder before
considering whether Defendant had committed voluntary manslaughter. Accordingly,
Defendant contends that the instructions setting forth the elements of voluntary
manslaughter and defining sufficient provocation cannot be said to have corrected the

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deficiency in the second degree murder instruction.
{10} 	Defendant’s argument runs afoul of the clear precedent established by
Cunningham. Furthermore, the very first instruction to the jury indicated that all of
the instructions must be considered as a whole. Finally, we note that the voluntary
manslaughter instruction preceded the step-down instruction. As a result, insofar as
the jury is presumed to have read and followed the instructions, see State v. Gonzales,
113 N.M. 221, 230, 824 P.2d 1023, 1032 (1992), we conclude that the jury was
adequately informed.
{11} 	We also note that our recent opinion State v. Sandoval, 2010-NMCA-025, 147
N.M. 465, 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-__, __ N.M. __,
__ P.3d __ (No. 32,149, Mar. 1, 2010), addressed a similar issue in which an error in
jury instructions prevented the defendant from presenting self-defense with regard to
one of the assailants. Id. ¶¶ 16-18. However, Sandoval is distinguished from the case
before us because, in Sandoval, there was no curing instruction that permitted the jury
to consider all of the assailants—rather than just the two that were included in the
instructions—when deciding whether the defendant acted in self-defense. Id. ¶¶ 22,
26. 	In our case, as discussed above, the instructions, when read as a whole, were
sufficient to cure the deficient second degree murder instruction.

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REQUESTED JURY INSTRUCTION ON SELF-DEFENSE
{12} 	Defendant unsuccessfully sought an instruction on self-defense. He contends
that the district court’s failure to give his requested instruction was erroneous. “The
propriety of denying a jury instruction is a mixed question of law and fact that we
review de novo.” State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355
(internal quotation marks and citation omitted).
{13} 	Defendant was required to present evidence supporting every element of self-
defense in order to warrant a jury instruction on this issue. 	State v. Gonzales,
2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. The requirements of self-defense
are:
(1) an appearance of immediate danger of death or great bodily harm to
the defendant, (2) the defendant was in fact put in fear by the apparent
danger, and (3) a reasonable person in the same circumstances would
have reacted similarly. 	The first two requirements, the appearance of
immediate danger and actual fear, are subjective in that they focus on the
perception of the defendant at the time of the incident. By contrast, the
third requirement is objective in that it focuses on the hypothetical
behavior of a reasonable person acting under the same circumstances as
the defendant.
State v. Coffin, 1999-NMSC-038, ¶ 15, 128 N.M. 192, 991 P.2d 477 (internal
quotation marks and citation omitted).
{14} 	There is no direct testimony regarding the pertinent events because Defendant
did not testify and no one else except Ogle, the deceased victim, witnessed the events.

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However, several witnesses testified that Defendant’s hand was injured. 	In this
regard, Lopez testified that he observed a wound to the back of Defendant’s hand and
that Defendant had told him Ogle had stabbed him. Officer John Wiese and Detective
Michael Traxler of the Sandoval County Sheriff’s Department similarly indicated that
they had observed the wound and testified that Defendant had separately told them
that Ogle had stabbed him.
{15} 	Although the foregoing testimony indicates that Ogle may have stabbed
Defendant in the back of the hand, it provides no information about the surrounding
circumstances. The evidence therefore supplies no basis for inferring that Defendant’s
brutal 	attack 	on 	Ogle 	was 	objectively 	reasonable, 	particularly 	in 	light 	of
countervailing considerations discussed below.
{16} 	Defendant asserts that Detective Traxler’s testimony provides adequate support
for his requested instruction because Detective Traxler characterized Defendant’s
injury as defensive in nature. However, the transcript indicates otherwise. Although
Detective Traxler explained that it was possible that Defendant’s wound was
defensive, he further explained that, in his experience, most defensive wounds are to
the palm rather than to the back of the hand. We are unpersuaded by Defendant’s
argument that his arguably defensive wound indicates that his actions were necessarily
in self-defense.

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{17} 	Nevertheless, we also consider the reasonableness of Defendant’s conduct, of
which the State’s uncontroverted forensic evidence is a crucial consideration. The
doctor who performed the autopsy testified extensively about the wounds that Ogle
received. These included at least seven distinct stab wounds to his chest, one stab
wound to his right cheek, and one stab wound to his back. Additionally, Ogle suffered
numerous, severe blunt-force injuries in the area of his face and cranium. The doctor
explained that either the stab wounds or the blunt-force injuries could have caused
Ogle’s death.
{18} 	In light of the foregoing, specifically the large number and varying types of
severe injuries inflicted on Ogle, in contrast to the relative superficiality of
Defendant’s injury, we conclude that even if Ogle stabbed Defendant’s hand,
Defendant’s response cannot be regarded as objectively reasonable. 	Cf. State v.
Sutphin, 2007-NMSC-045, ¶ 24, 142 N.M. 191, 164 P.3d 72 (concluding that the
defendant’s actions were not reasonable and did not support a self-defense instruction
when he beat an initial attacker to death after rendering him unconscious); State v.
Lopez, 2000-NMSC-003, ¶¶ 25-26, 128 N.M. 410, 993 P.2d 727 (filed 1999)
(upholding refusal to instruct on self-defense when the defendant inflicted multiple
stab wounds and crushed the victim’s skull). 	See generally State v. Rudolfo,
2008-NMSC-036, ¶ 20, 144 N.M. 305, 187 P.3d 170 (“The law simply does not

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recognize any right to an acquittal based on a wholly unreasonable claim of a
self-defense justification for taking the life of another.”). Because a jury could not
have found Defendant’s use of deadly force to be objectively reasonable under the
circumstances, a self-defense instruction was not warranted.
DOUBLE JEOPARDY
{19} 	Defendant advances two double jeopardy arguments, contending that: (1) his
convictions for attempted murder (two counts) and for aggravated battery (deadly
weapon, two counts) violate the constitutional protections of double jeopardy, such
that the latter should be vacated; and (2) his convictions for aggravated burglary
(battery, two counts) and for aggravated burglary (deadly weapon, one count) violate
double jeopardy protections, such that the latter should be vacated. We apply a de
novo standard of review. See State v. Lopez, 2008-NMCA-111, ¶ 8, 144 N.M. 705,
191 P.3d 563 (indicating that both double-description and unit-of-prosecution issues
are reviewed de novo).
{20} 	Controlling precedent exists with respect to Defendant’s challenge to his
convictions for attempted murder and for aggravated battery with a deadly weapon.
In the case of State v. Armendariz, 2006-NMSC-036, ¶¶ 24-25, 140 N.M. 182, 141
P.3d 526, our Supreme Court held that convictions for both attempted murder and for
aggravated battery with a deadly weapon do not present a double jeopardy problem

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because the elements of the offenses are not subsumed within each other and because
other factors indicate legislative intent to separately punish.
{21} 	Despite the clear holding of the majority in Armendariz, Defendant urges this
Court to adopt the position of the dissenting justices. This we cannot do. See State
v. Glascock, 2008-NMCA-006, ¶ 26, 143 N.M. 328, 176 P.3d 317 (filed 2007) (noting
that the Court of Appeals is bound by Supreme Court precedent), cert. quashed, 2009-
NMCERT-006, 146 N.M. 734, 215 P.3d 43. 	Accordingly, we conclude that
Defendant’s convictions for attempted murder and for aggravated battery with a
deadly weapon do not violate double jeopardy principles.
{22} 	With respect to Defendant’s challenge to his convictions for aggravated
burglary (battery, two counts, and deadly weapon, one count), we are not confronted
with similarly controlling case law. 	We must therefore engage in an independent
analysis.
{23} 	The first step in any double jeopardy case is to determine whether the conduct
underlying the offenses is unitary. State v. Bernal, 2006-NMSC-050, ¶ 9, 140 N.M.
644, 146 P.3d 289; State v. Dominguez, 2005-NMSC-001, ¶ 22, 137 N.M. 1, 106 P.3d
563. “Conduct is unitary if it is not sufficiently separated by time or place, and the
object and result or quality and nature of the acts cannot be distinguished.” State v.
LeFebre, 2001-NMCA-009, ¶ 17, 130 N.M. 130, 19 P.3d 825.

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{24} 	As previously indicated, two of Defendant’s convictions for aggravated
burglary are premised on battery, and the third conviction is premised on possession
of a deadly weapon. With respect to the first two convictions, the underlying conduct
consisted of Defendant’s unauthorized entry into the Atencios’ home with the intent
to commit theft therein and his committing battery upon Mr. and Mrs. Atencio after
entering. With respect to the third conviction, the underlying conduct consisted of
Defendant’s unauthorized entry into the Atencios’ home with the intent to commit
theft therein and his act of arming himself with a knife once inside.
{25} 	In the briefs, the parties devote no argument to the question of whether the
foregoing acts should be characterized as unitary conduct. Therefore, as a matter of
expediency, we will assume without deciding that the underlying conduct was unitary.
{26} 	Next, we must determine what type of double jeopardy issue is presented with
respect to each of the challenged convictions. See State v. Frazier, 2007-NMSC-032,
¶ 13, 142 N.M. 120, 164 P.3d 1 (describing the distinction between unit-of-
prosecution and double-description issues). The offense of aggravated burglary may
be committed in several ways. See NMSA 1978, § 30-16-4 (1963). Defendant was
convicted of aggravated burglary based on two different statutory provisions:
Subsection (B) (involving a deadly weapon) and Subsection (C) (involving battery).
{27} 	When convictions under separate subsections of a single statute are at issue, we

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apply the double-description analysis. See State v. Franco, 2005-NMSC-013, ¶ 14,
137 N.M. 447, 112 P.3d 1104 (observing that the courts “treat statutes written in the
alternative as separate statutes” for double jeopardy purposes); State v. Rodriguez, 113
N.M. 767, 771, 833 P.2d 244, 248 (Ct. App. 1992) (“[A] criminal statute written in
the alternative creates a separate offense for each alternative and should therefore be
treated for double jeopardy purposes as separate statutes would.” (internal quotation
marks and citation omitted)). Accordingly, with respect to the permissibility of the
separate convictions under Subsections (B) and (C), we must examine legislative
intent, focusing on a comparison of the elements of the offenses. 	See generally
Armendariz, 2006-NMSC-036, ¶ 23 (“[D]etermining legislative intent in this context
has nothing to do with the facts and evidence presented at trial. It is based upon the
statutory elements of the offenses.”).
{28} 	The elements of aggravated burglary as defined in Subsection (B) clearly differ
from the elements of the offense as defined in Subsection (C). 	Very briefly, the
former requires proof that the defendant armed himself with a deadly weapon after
entry, whereas the latter requires proof that the defendant committed battery during
a burglary. 	Because each statutory alternative requires an element of proof not
required by the other, we presume that the Legislature intended to punish the offenses
separately. Id. ¶ 22.

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{29} 	Finally, we must consider “other indicia of legislative intent, including the
language, history, and subject of the [statutory subsections], the social evils sought to
be addressed by each [subsection], and the quantum of punishment prescribed by each
[subsection].” 	Id. 	We have been made aware of nothing in relation to language or
history that would undermine the presumption. The quantum of punishment under
either subsection is the same, which might suggest that separate punishments are
inappropriate. However, we deem the subject of the subsections, as well as the social
evils sought to be addressed by each, to be distinct. 	Cf. Franco, 2005-NMSC-013,
¶ 14 (recognizing that a statute that has been written in the alternative may serve
several purposes, have many meanings, and incorporate a wide range of deterrent
possibilities). Although we acknowledge that there is some overlap insofar as Section
30-16-4 is generally addressed to burglary and, therefore, the prevention of intrusion
into protected spaces, see State v. Foulenfont, 119 N.M. 788, 790, 895 P.2d 1329,
1331 (Ct. App. 1995) (explaining that the general purpose of the burglary statute is
to protect possessory rights with respect to prohibited spaces), the particular
subsections at issue in this case are directed toward supplemental considerations.
Specifically, Subsection (B) is designed to address the heightened threat associated
with possession of deadly weapons and to deter their possession in the course of
burglaries even if no use is intended. State v. Anderson, 2001-NMCA-027, ¶ 21, 130

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N.M. 295, 24 P.3d 327. 	By contrast, Subsection (C) is designed to address actual
physical injury to persons during a burglary. See State v. Roper, 2001-NMCA-093,
¶ 12, 131 N.M. 189, 34 P.3d 133 (stating that “the harm protected by the battery
statutes [is] physical harm, i.e., physical injury to persons”). Because these factors
reinforce the presumption of distinct, punishable offenses, we conclude that
Defendant’s convictions pursuant to these two separate statutory subsections do not
offend double jeopardy principles.
MOTION FOR MISTRIAL
{30} 	On the second day of trial, during the testimony of one of the State’s witnesses,
Defendant spontaneously rose from his seat at the defense table and made a statement
to the effect that he had to “go somewhere” because he could not “handle” the
proceedings. 	The security officers then intervened, and Defendant was restrained.
The court recessed. When it reconvened roughly thirty minutes later, the judge stated
for the record that there had been “an incident in the courtroom where [Defendant] had
to be taken down, and at least some of the jurors, I think, saw what happened.”
{31} 	The judge subsequently conducted individual voir dire in order to inquire about
what the jurors had seen or heard and to determine whether they could remain fair and
impartial. Eight jurors indicated that they had observed either an altercation between
the officers and Defendant, or Defendant being restrained by the officers; the

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remaining seven jurors stated that they had not observed anything—although several
stated that they had heard a “disturbance” or a “racket” while exiting the courtroom.
All fifteen stated that they would remain fair and impartial and that they could base
their decision solely on the evidence presented at trial. The judge also indicated to the
jurors that the incident was the product of stress associated with the trial and that
Defendant’s subsequent restraint did not reflect on his guilt or innocence.
{32} 	Defendant moved for a mistrial, asserting that the jurors’ awareness of the
incident between Defendant and the security officers would add “another layer of
prejudicial information . . . in terms of [Defendant’s] propensity to act out in a
particular fashion that could be perceived as being threatening.” Observing further
that Defendant would attend the remainder of the proceedings in restraints, counsel
argued that his right to a fair trial had been compromised. The district court denied
the motion.
{33} 	Defendant contends that his motion should have been granted. We review the
district court’s ruling for abuse of discretion. State v. Gallegos, 2009-NMSC-017, ¶
21, 146 N.M 88, 206 P.3d 993. “An abuse of discretion exists when the trial court
acted in an obviously erroneous, arbitrary, or unwarranted manner.” Id. (alteration,
internal quotation marks, and citation omitted).
{34} 	The district court handled the situation in an appropriate manner. In light of

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

WE CONCUR:

JONATHANB. SUTIN, Judge

TIMOTHY L. GARCIA, Judge

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JAMES J. WECHSLER, Judge