(dissenting).
{31} The fundamental flaw in the reasoning of the majority is its premise that two separate theories of second-degree murder were presented to the jury. This is not correct. While the first-degree murder charge was in the alternative, the lesser included offense to each alternative was the same second-degree murder. Because the jury instructions were structurally flawed, it superficially appears the jury was allowed to consider two separate theories of second-degree murder. The jury found Defendant not guilty of second-degree murder. In my view, the constitutional prohibition against double jeopardy precluded the jury from subsequently finding Defendant guilty of the same second-degree murder. Since the majority concludes otherwise, I dissent.
{32} Defendant encountered Lorenzo Martinez and Victor Gonzales, and got into a fist fight with them following an argument. Defendant and codefendant then went to the home of Defendant’s uncle and retrieved a rifle. When they could not figure out how to load it, they picked up a third individual, who loaded the rifle. The three then proceeded to the home of Cecilia Gonzales, who was the mother of Lorenzo Martinez and Victor Gonzales. Upon arriving, Defendant went to the house unarmed and knocked on the door while codefendant and the third person remained in the car with the rifle. As Defendant and Mrs. Gonzales were talking on the porch, codefendant went running into the house with the loaded rifle, looking for Lorenzo Martinez and Victor Gonzales. Mrs. Gonzales and her sister, Maria Martinez, who lived with her, got hysterical and started screaming. When Mrs. Gonzales started going towards the kitchen, codefendant shot her, killing her. He also shot and wounded Mrs. Martinez when she started running to the rear of the home. Defendant and codefendant then ran to the car outside and drove away.
{33} The indictment in pertinent part charged Defendant with first-degree murder by a deliberate killing or, in the alternative, first-degree murder in the commission or attempt to commit a felony. The jury was instructed to consider whether Defendant was guilty of first-degree murder by a deliberate killing. The jury was then told it could consider whether Defendant was guilty of second-degree murder “as an included offense of first-degree murder by a deliberate killing.” A separate instruction then told the jury it could consider whether Defendant was guilty of felony murder “which is first degree murder, as charged in the alternative” to deliberate first-degree murder. In a fourth separate instruction, the jury was told to consider whether Defendant was guilty of second-degree murder “as an included offense of felony murder.” Prior to its deliberations, the trial court orally instructed the jury that it was first to consider first-degree murder by a deliberate killing, then second-degree murder as an included offense of first-degree murder by a deliberate killing. After considering these offenses, the jury was told it could then consider whether Defendant was guilty of felony murder as the alternative to murder by a deliberate killing and then second-degree murder as an included offense of felony murder. These oral instructions on the sequence in which the jury was to consider the offenses mirrored the written instructions.
{34} The jury found Defendant not guilty of first-degree murder by a deliberate killing “as charged in Count 1,” not guilty of second-degree murder “as an included offense of first[-]degree murder by a deliberate killing as charged in Count 1,” not guilty of felony murder “as charged in the alternative to Count 1,” and guilty of second-degree murder “as charged as an included offense of felony murder which is first degree murder as charged in the alternative to Count 1.”
{35} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states, “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” and it applies to the states through the Fourteenth Amendment. U.S. Const, amend. V; Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Our own constitution provides, “[N]or shall any person be twice put in jeopardy for the same offense[.]” N.M. Const. art. II, § 15. At its most basic level, the constitutional prohibition against double jeopardy means that once a defendant has received an acquittal for an offense, the defendant is no longer subject to being placed in jeopardy for that same offense. In Vaughn, we recently reiterated:
Under the doctrine of double jeopardy, a verdict of acquittal is given absolute protection to guarantee finality of that verdict because the defendant’s interest in such finality is at its zenith. Also, once an accused is actually, and in express terms, acquitted by a court, the finality of that judgment will not yield to any attempts to dilute it.
2005-NMCA-076, ¶ 9, 137 N.M. 674, 114 P.3d 354 (internal quotation marks, citation, and brackets omitted). We also recognized in Vaughn that the United States Supreme Court has said that it is “ ‘the most fundamental rule’ that a defendant cannot be retried after a verdict of acquittal, even if that verdict is egregiously erroneous,” id. (citing Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. 1349), and that “[ajfter an acquittal, any type of fact-finding proceeding going to elements of the charged offense violates the federal double jeopardy clause.” Id. (citing Smalis v. Pennsylvania, 476 U.S. 140, 142, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986)); see also Sanabria, 437 U.S. at 75, 98 S.Ct. 2170 (holding that no exceptions permit a retrial once the defendant is acquitted); State v. Cooper, 1997-NMSC-058, ¶ 52, 124 N.M. 277, 949 P.2d 660 (stating that the New Mexico Constitution also protects against a second prosecution for the same offense after an acquittal).
{36} Defendant was found not guilty of second-degree murder. Once that occurred, he was no longer subject to being convicted or punished for that same second-degree murder. Stated another way, once Defendant received an acquittal on second-degree murder, the double jeopardy clause prohibited him from being placed in jeopardy for that “same offense.” There is no question that there was only one first-degree murder charge and one second-degree murder charge as a lesser included offense to first-degree murder in this case. Although NMSA 1978, Section 30-2-1(A) (1994), sets forth alternative theories of first-degree murder (willful, deliberate, and premeditated killing; felony murder; and depraved mind murder), our Supreme Court has specifically held that these are not separate offenses, but alternative ways of committing the same offense. State v. Lucero, 1998-NMSC-044, ¶¶ 24-25, 126 N.M. 552, 972 P.2d 1143. Under Section 30-2-l(B), “[mjurder in the second degree is a lesser included offense of the crime of murder in the first degree.” Aside from the foregoing, the facts in this case demonstrate that there was only a single second-degree murder and that the elements set forth in each separate second-degree murder instruction are identical. Specifically, the jury was told in both instructions that in order to find second-degree murder it had to find the following elements were proven beyond a reasonable doubt: (1) that Defendant killed Mrs. Gonzales; (2) that Defendant knew that his acts created a strong probability of death or great bodily harm to Mrs. Gonzales; and (3) that it happened on or about October 28, 1998. The State concedes this point when it acknowledges in its brief in chief and reply brief that if the jury had returned two convictions for second-degree murder, the trial court would have been required to vacate one as violative of double jeopardy.
{37} The jury determined that Defendant was not guilty of second-degree murder. The only reason the jury was then allowed to find Defendant guilty of the same degree murder was because of the structural flaw in the jury instructions. Cf. Rule 5-611(D) (setting forth the structure for giving instructions on lesser included offenses and polling of the jury when it cannot agree. “If upon a poll of the jury it is determined that the jury has unanimously voted not guilty as to any degree of an offense, a verdict of not guilty shall be entered for that degree and for each greater degree of the offense.”). This does not change the fact that the jury acquitted Defendant of second-degree murder because it had already resolved some or all of the factual elements of second-degree murder in Defendant’s favor. See Tapia, 109 N.M. at 740, 790 P.2d at 1021 (stating that a defendant is acquitted when there is a “resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense,” (quoting United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (alteration in original))). Moreover, the structural flaw may not accrue to Defendant’s detriment and the State’s benefit. Settled jurisprudence teaches otherwise. In Tapia, our Supreme Court quoted Sanabria, 437 U.S. at 64, 98 S.Ct. 2170: “[W]hen a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.” Tapia, 109 N.M. at 741, 790 P.2d at 1022 (alteration in original) (internal quotation marks omitted).
{38} In an unpublished opinion, our Supreme Court was presented with similar instructions. For one victim, the jury was presented with two theories of first-degree murder, followed in each instance by the lesser included offenses of second-degree murder and voluntary manslaughter. Montoya, No. 28,404, slip op. ¶23. Unlike this ease, the defendant was found guilty of both theories of first-degree murder, so the Supreme Court did not have to address his argument that only one “step-down” instruction, rather than two, should have been given. Id. ¶24. Nevertheless, the Supreme Court acknowledged there was possible error in the instructions in giving the jury the two “step-down” instructions “because of the theoretical possibility of inconsistent verdicts.” Id. In this case, the verdicts are not merely “inconsistent.” The jury was allowed to find Defendant guilty of second-degree murder after it found him not guilty of that identical second-degree murder. This violated double jeopardy.
{39} An acquittal is entitled to “ ‘special weight’” under double jeopardy analysis. See Vaughn, 2005-NMCA-076, ¶ 9, 137 N.M. 674, 114 P.3d 354 (quoting Tibbs, 457 U.S. at 41, 102 S.Ct. 2211). Further, our courts have a heightened responsibility to insure that an accused is not placed in jeopardy twice for the same offense. New Mexico’s first Bill of Rights was promulgated in 1846 by Brigadier General Kearney, and it expressly prohibited double jeopardy, stating: “That no person after having once been acquitted by a jury can be tried a second time for the same offense.” Kearney Bill of Rights, cl. 8 (1846). Proposed constitutions were subsequently drafted in anticipation of statehood in 1850, 1872, 1889, and 1910, and all of them had provisions prohibiting double jeopardy protection. See Lynch, 2003-NMSC-020, ¶¶ 31-33, 134 N.M. 139, 74 P.3d 73 (Maes, J., dissenting) (describing the constitutional history of New Mexico’s constitutional prohibition against double jeopardy). The present provision came from the 1910 draft. Id. In addition, our legislature has expressed itself in directing that this constitutional right is so valuable, it cannot be waived, even by a defendant, and the courts must determine whether jeopardy was violated anytime the issue is presented: “No person shall be twice put in jeopardy for the same crime. The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment.” Section 30-1-10.
{40} For the foregoing reasons, I respectfully dissent.