State v. Herrera

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: February 24, 2025

NO. S-1-SC-40214

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DAMIAN JACOB HERRERA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Jeffrey A. Shannon, District Judge

Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Appellate Defender
Thomas J. Lewis, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Raúl Torrez, Attorney General
Meryl E. Francolini, Assistant Solicitor General
Santa Fe, NM

for Appellee

DECISION

VIGIL, Justice.

{1} A jury found Defendant Damian Jacob Herrera guilty of first-degree felony
murder and the predicate felony of unlawful taking of a motor vehicle. NMSA 1978, §
30-2-1(A)(2) (1994); NMSA 1978, § 30-16D-1 (2009). The district court sentenced
Defendant to life imprisonment for first-degree felony murder and eighteen months for
unlawful taking of a motor vehicle and ordered the sentences to be served concurrently.
Defendant appeals to this Court. See N.M. Const. art. VI, § 2 (requiring appeals from a
sentence of life imprisonment to be taken directly to the Supreme Court); Rule 12-
102(A)(1) NMRA (same).

{2} We exercise our discretion to decide the case by a nonprecedential decision, as
the issues raised are disposed of by settled precedent and judicial rules. Rule 12-
405(B)(1), (3) NMRA. We affirm the conviction for first-degree felony murder, vacate the
conviction for unlawful taking of a motor vehicle on double jeopardy grounds, and
remand for resentencing.

I. SUFFICIENCY OF THE EVIDENCE FOR FELONY MURDER

{3} Defendant contends that the district court erred in denying his motion for a
directed verdict because the evidence was insufficient to prove him guilty of first-degree
felony murder. Specifically, Defendant argues that the evidence fails to support a finding
that he shot the victim, Michael Alan Kyte (Mr. Kyte), while he was in the course of
taking Mr. Kyte’s pickup truck without Mr. Kyte’s consent. Defendant’s argument arises
from the fact that there was no witness to the shooting, and the only account was in his
own Mirandized statement that he shot Mr. Kyte for making a sexual advance and not in
the course of taking the pickup truck.

{4} We briefly recount the facts. See State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M.
821, 192 P.3d 1198 (“Our review of the denial of a directed verdict motion asks whether
sufficient evidence was adduced to support the underlying charge.”). Defendant ran out
of gasoline, and Mr. Kyte came upon Defendant. Mr. Kyte agreed to help Defendant and
offered to take Defendant back to Mr. Kyte’s house, where he had some gasoline stored
in a gasoline can. Before getting into Mr. Kyte’s truck to get gasoline, Defendant armed
himself with a loaded .38 Special revolver, together with two boxes of ammunition.
While arriving at Mr. Kyte’s house, Defendant claimed Mr. Kyte started acting like “a
f**king weirdo or something,” tried pushing him out of the truck, and attempted to “touch
[him] and shit.” In response, Defendant shot Mr. Kyte, who was unarmed, twice in the
chest, then took his pickup truck and wallet. The gasoline can, later found by police in
Mr. Kyte’s truck, held only a few gallons. Since the nearest gas stations to Defendant’s
vehicle were about a half-hour drive away, it was more advantageous for Defendant to
take Mr. Kyte’s truck than to take only those few gallons. After shooting Mr. Kyte,
Defendant took his truck and wallet, reloaded his .38 revolver, fled from police at high
speeds, ultimately crashed, and then resisted arrest by brandishing a knife and
struggling with the officers. Defendant concedes on appeal that the evidence
establishes that he “caused the death of [Mr.] Kyte and . . . took [Mr.] Kyte’s truck”
without permission.

{5} “The test for sufficiency of the evidence is whether substantial evidence of either
a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable
doubt with respect to every element essential to a conviction.” State v. Duran, 2006-
NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation
omitted). “When considering the sufficiency of the evidence, this Court does not
evaluate the evidence to determine whether some hypothesis could be designed which
is consistent with a finding of innocence.” Sena, 2008-NMSC-053, ¶ 10 (internal
quotation marks and citation omitted). Instead, the Court views “the evidence as a
whole and indulge[s] all reasonable inferences in favor of the jury’s verdict while at the
same time asking whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks and
citation omitted).

{6} The evidence supports the jury’s verdict that Defendant intended to shoot Mr.
Kyte and take his truck. It is true that Defendant said he shot Mr. Kyte for making a
sexual advance, but the jury was free to reject that assertion. And based on the
evidence presented and viewing it as a whole, while indulging all reasonable inferences
in favor of the jury’s verdict, we hold that substantial evidence supports the jury’s finding
that he shot Mr. Kyte to take his pickup truck, thereby committing first-degree felony
murder. A rational jury could have found all the essential elements of the crimes proven
beyond a reasonable doubt. See UJI 14-202 NMRA (felony murder); UJI 14-1660
NMRA (unlawful taking of a motor vehicle).

II. PEREMPTORY CHALLENGES OF ALTERNATE JURORS

{7} Defendant argues that because he did not know in advance which members of
the jury venire would be possible alternate jurors, the district court violated Rule 5-
606(D)(3) NMRA and impaired his ability to meaningfully exercise his peremptory
strikes. We reject this argument.

{8} We begin with how the jurors were selected. The district court called prospective
jurors from the numbered jury list in a numerically nonsequential order. For instance, the
first juror called was juror #27, and there were no objections from the State or
Defendant. Next, juror #24 was called, who the State accepted, but Defendant struck.
Then, juror #8 was called, and there were no objections from the State or Defendant.
This selection process continued until twelve jurors were selected. While selecting the
twelve jurors, Defendant utilized seven of his twelve available peremptory strikes.

{9} Before selecting alternate jurors, the district court allowed each side two
peremptory strikes for selecting alternates, as four alternate jurors were going to be
empaneled. See Rule 5-606(D)(3) (stating that the state and defendant are each
entitled to two peremptory challenges if four alternate jurors are to be empaneled).
Defendant objected because the district court randomized the designation of alternate
jurors instead of stating at the outset which sequence of the venire included the possible
alternates. The district court conducted jury selection for alternates as it did for primary
jurors: calling prospective jurors from the numbered jury list in a numerically
nonsequential order.

{10} The State stuck the first proposed alternate juror, Defendant and the State
accepted the second, Defendant struck the third and fourth, and the State accepted the
fifth and struck the sixth with its final peremptory strike. The next two called were the
remaining alternate jurors. None of the alternate jurors participated in deliberations.
{11} “The trial court is necessarily invested with a wide discretion in the
superintendence of the process of impaneling the jury . . . .” State v. Martinez, 1948-
NMSC-051, ¶ 4, 52 N.M. 343, 198 P.2d 256 (internal quotation marks and citation
omitted). Thus, “[w]e will reverse only if a clear abuse of discretion by the district court in
the conduct of voir dire resulted in prejudice to [the] defendant.” State v. Johnson, 2010-
NMSC-016, ¶ 34, 148 N.M. 50, 229 P.3d 523.

{12} Defendant’s argument that the district court abused its discretion and that the
selection of the alternate jurors violated Rule 5-606(D)(3) is unavailing. Rule 5-
606(D)(3) states:

The state and the defense are each entitled to one (1) peremptory
challenge in addition to those otherwise allowed by this rule if one (1) or
two (2) alternate jurors are to be empaneled, two (2) peremptory
challenges if three (3) or four (4) alternate jurors are to be empaneled, and
three (3) peremptory challenges if five (5) or six (6) alternate jurors are to
be empaneled. The additional peremptory challenges provided by the
paragraph may be used against an alternate juror only, and the other
peremptory challenges allowed by law shall not be used against an
alternate juror. The procedure for the exercise of peremptory challenges
for alternate jurors shall be the same as that for regular jurors.

There is nothing in the rule which entitles a party to know which prospective jurors are
being singled out as prospective alternate jurors in advance. Moreover, Defendant did
not use all the peremptory strikes available to him in selecting the primary jurors, and
none of the alternate jurors participated in deliberations. Under the circumstances, we
conclude that there was no abuse of discretion and no prejudice. See Johnson, 2010-
NMSC-016, ¶ 31 (“An abuse of discretion exists when the trial court acted in an
obviously erroneous, arbitrary, or unwarranted manner.” (internal quotation marks and
citation omitted)).

III. SELF-DEFENSE INSTRUCTION

{13} Defendant argues that the district court erred in denying his request for a self-
defense instruction. He asserts that Mr. Kyte’s alleged attempt to touch him posed a
threat of great bodily harm, making it reasonable for him to use deadly force to prevent
being touched.

{14} Jury instructions on self-defense are warranted when there is even the slightest
evidence supporting each element of the defense, provided that the evidence is
sufficient for reasonable minds to differ on all elements of the offense. See State v.
Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. “An instruction on self-
defense requires evidence that (1) the defendant was put in fear by an apparent danger
of immediate death or great bodily harm, (2) the killing resulted from that fear, and (3)
the defendant acted reasonably when he or she killed,” with the first two requirements
being subjective, focusing on the defendant’s perception at the time of the incident, and
the third being objective, focusing “on the hypothetical behavior of a reasonable person
acting under the same circumstances.” State v. Baroz, 2017-NMSC-030, ¶ 14, 404 P.3d
769 (internal quotation marks and citations omitted).

{15} We hold that Defendant was not entitled to a self-defense instruction.
Defendant’s perception of Mr. Kyte as a “weirdo or something” and Mr. Kyte’s alleged
attempt to push Defendant out of his truck and “touch [Defendant] and shit” did not
amount to a reasonable fear of immediate harm or danger that would justify shooting
Mr. Kyte, who was unarmed, twice in the chest. See State v. Rudolfo, 2008-NMSC-036,
¶ 20, 144 N.M. 305, 187 P.3d 170 (stating that self-defense is recognized as a
justification for homicide based on “the reasonable belief in the necessity for the use of
deadly force to repel an attack in order to save oneself or another from death or great
bodily harm.” (internal quotation marks and citation omitted)); see also State v. Sutphin,
2007-NMSC-045, ¶ 22, 142 N.M. 191, 164 P.3d 72 (“[I]f the defendant’s reaction is
unreasonable, a self-defense instruction is not appropriate.”).

IV. DOUBLE JEOPARDY UNDER THE FIFTH AMENDMENT OF THE UNITED
STATES CONSTITUTION

{16} Defendant argues that his convictions for both fourth-degree-felony unlawful
taking of a motor vehicle and first-degree felony murder violate the United States
Constitution’s Fifth Amendment prohibition against double jeopardy, and he asserts that
the unlawful taking of a motor vehicle conviction must be vacated because the felony
murder conviction subsumes it. See State v. Porter, 2020-NMSC-020, ¶ 5, 476 P.3d
1201 (highlighting that the “United States Constitution and the New Mexico Constitution”
prohibit “imposing multiple punishments for the same offense” (internal quotation marks
and citations omitted)); State v. Frazier, 2007-NMSC-032, ¶¶ 1, 26, 142 N.M. 120, 164
P.3d 1 (explaining that double jeopardy principles protect against multiple punishments
for the same offense and therefore that “the predicate felony is always subsumed into a
felony murder conviction, and no defendant can be convicted of both [crimes]” where
“the underlying conduct is unitary”); State v. Montoya, 2013-NMSC-020, ¶ 11, 306 P.3d
426 (confirming Frazier’s holding that “cumulative punishment may not be imposed for
felony murder and its lesser included predicate offense”). The State concedes that
granting the requested relief is required by Frazier, 2007-NMSC-032, and Montoya,
2013-NMSC-020.

{17} We accept the State’s concession and hold that Defendant may not be convicted
and sentenced for the unlawful taking of a motor vehicle and first-degree felony murder
per double-jeopardy principles, regardless of the sentences running concurrently. See
State v. Santillanes, 2001-NMSC-018, ¶ 28, 130 N.M. 464, 27 P.3d 456 (“[C]oncurrent
sentencing does not adequately remedy the imposition of impermissible multiple
punishments for a single offense; double jeopardy requires that the lesser offense
merge into the greater offense such that the conviction of the lesser offense, not merely
the sentence, is vacated.”).
V. CONCLUSION

{18} We affirm the conviction for first-degree felony murder, vacate the conviction for
unlawful taking of a motor vehicle on double jeopardy grounds, and remand for
resentencing.

{19} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

C. SHANNON BACON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice