IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMSC-011
Filing Date: March 2, 2010
Docket No. 31,365
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
LLOYD LUCERO,
Defendant-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI
Eugenio S. Mathis, District Judge
Gary K. King, Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM
for Petitioner
Hugh W. Dangler, Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Respondent
OPINION
MAES, Justice.
{1} Following a jury trial, Lloyd Lucero (Defendant) was convicted of involuntary
manslaughter, contrary to NMSA 1978, Section 30-2-3(B) (1994), in connection with the
shooting death of Pablo Martinez (Victim). The Court of Appeals reversed Defendant’s
conviction, concluding that Defendant was entitled to receive UJI 14-5181 NMRA, self-
defense by means of nondeadly force, because “Defendant offered sufficient evidence to
support a self-defense theory and an accidental shooting theory.” State v. Lucero, 2008-
NMCA-158, ¶ 10, 145 N.M. 273, 196 P.3d 974. On appeal, the State claims that the Court
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of Appeals improperly concluded that Defendant was entitled to UJI 14-5181 because (1)
Defendant only offered evidence in support of an accidental shooting theory; (2) Defendant
used deadly force, rather than nondeadly force, when he shot and killed Victim; (3)
Defendant was the first aggressor in the conflict; and (4) Defendant failed to request UJI 14-
5181 in writing as required by Rule 5-608 NMRA.
{2} We conclude that Defendant was not entitled to a self-defense instruction because
the evidence adduced at trial established that the shooting was accidental, rather than
intentional, and that the amount of force used by Defendant was excessive and unjustified
under the circumstances. Accordingly, we reverse the judgment of the Court of Appeals and
affirm Defendant’s conviction.
I. FACTS AND PROCEDURAL HISTORY
{3} On July 23, 2005, at approximately 2:30 a.m., Defendant and his girlfriend, Stacy
Leonard, were watching a movie at Defendant’s home when a car pulled into the driveway
blaring loud music, revving its engine, and “peeling out.” Neither Defendant nor Stacy
recognized the car, which narrowly missed hitting a propane tank as it maneuvered back and
forth in the driveway. Defendant went outside and loudly questioned the car’s occupants,
but he received no response.
{4} Defendant went back inside the house, put on a pair of blue jeans and a pair of shoes,
and retrieved a .25 caliber pistol from his dresser drawer. Defendant put the pistol in his
right front pocket, went back outside, and walked toward the car with his hand resting on the
handle of the pistol. The car was in the same spot where Defendant last had seen it, but the
music was quieter and Defendant could now discern two individuals, one male and one
female, sitting in the front seats. The car began to drive away, but stopped at the end of the
driveway. Victim exited the car, walked rapidly toward Defendant, and punched him in the
face. Defendant shot Victim once in the chest. Victim returned to the car and sped off, but
subsequently died from the gunshot wound inflicted by Defendant.
{5} Defendant was arrested and charged by criminal information with second-degree
murder, contrary to NMSA 1978, Section 30-2-1(B) (1994) and NMSA 1978, Section 31-18-
16(A) (1993). In addition to second-degree murder, the jury was instructed on the lesser
included offenses of voluntary manslaughter and involuntary manslaughter, as well as the
defense of self-defense. The jury was unable to reach a verdict, however, and the trial court
declared a mistrial.
{6} The State subsequently filed an amended criminal information charging Defendant
with voluntary manslaughter, contrary to Section 30-2-3(A), and involuntary manslaughter,
contrary to Section 30-2-3(B). During his second trial, Defendant testified that he had
retrieved the pistol from his bedroom, where he unlocked the trigger lock and cocked the
hammer, because
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I felt threatened. I didn’t know who was out there, and I didn’t know what
they were going to do or what they were planning on because they were not
answering me at all, so that’s why I went inside and grabbed my gun because
I was concerned on who they were and I didn’t know what they had[.]
Defendant stated that when Victim punched him in the face, “I stumbled just like out of a
reaction, I put my hands up and the gun was still in my hand at that time, and I shot off one
round.” Defendant testified that he had not intended to shoot Victim, “[i]t was just the
reflex of getting hit, you put your hands up. I pulled my hand out of my pocket and
[inaudible] fired. I didn’t even know how high I was aiming or how low or anything.”
{7} At the close of evidence, Defendant requested a self-defense jury instruction in
accordance with UJI 14-5171 NMRA (justifiable homicide; self-defense). The trial court
denied the instruction in light of Defendant’s testimony that the shooting was an accident,
rather than an intentional act of self-defense. The jury found Defendant not guilty of the
crime of voluntary manslaughter, but guilty of the crime of involuntary manslaughter. The
trial court rendered judgment in accordance with the jury’s verdicts, and Defendant appealed
his conviction.
{8} The Court of Appeals reversed Defendant’s conviction, noting that “‘a defendant is
entitled to a self-defense instruction if he or she introduces evidence from which the jury
could reasonably find that the killing resulted from the threats or provocation that preceded
it, even if the ultimate injury occurred accidentally.’” Lucero, 2008-NMCA-158, ¶ 6
(quoting State v. Gallegos, 2001-NMCA-021, ¶ 13, 130 N.M. 221, 22 P.3d 689). The Court
determined that “[i]n the present case, the events of the entire evening, together with
Defendant’s testimony, could raise a reasonable doubt about whether Victim’s actions put
Defendant in fear of great bodily harm resulting in Defendant’s arming himself,” id. ¶ 8, and,
therefore, the trial court improperly denied Defendant’s request for a self-defense instruction.
Although “there was also testimony to support the theory that the gun went off by accident,”
the Court explained that “it is for the jury to weigh and resolve conflicting evidence and
testimony.” Id. ¶ 9.
{9} The Court noted that “[w]hen evidence supports a defendant’s theory that he was
acting in self-defense, but that the resulting death was an accident, the trial court should
instruct the jury using UJI 14-5181 NMRA, the nondeadly force self-defense instruction.”
Id. ¶ 7 (citing State v. Romero, 2005-NMCA-060, ¶ 12, 137 N.M. 456, 112 P.3d 1113).
Although Defendant had tendered an improper jury instruction, the Court determined that
“‘Defendant’s tender of a proper, written instruction . . . would not have alerted the trial
court to its error . . . and would not have resulted in avoidance of the error because the error
was based on incorrect rationales having nothing to do with the tender of written
instructions.’” Id. ¶ 11 (quoting State v. Diaz, 121 N.M. 28, 34, 908 P.2d 258, 264 (Ct. App.
1995)). Because the record reflected that “the trial court understood [Defendant’s self-
defense] theory but misapplied the law to deny the jury instruction,” the Court held that “the
trial court had an independent duty to instruct the jury on Defendant’s theory of self-
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defense.” Id. ¶ 12.
{10} We granted the State’s petition for writ of certiorari pursuant to NMSA 1978, Section
34-5-14(B) (1966) and Rule 12-502 NMRA to determine whether the Court of Appeals
properly concluded that Defendant was entitled to UJI 14-5181, self-defense by means of
nondeadly force. State v. Lucero, 2008-NMCERT-011, 145 N.M. 532, 202 P.3d 125.
II. DISCUSSION
{11} “The propriety of jury instructions given or denied is a mixed question of law and
fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar,
1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. “For a defendant to be entitled to a
self-defense instruction . . . there need be only enough evidence to raise a reasonable doubt
in the mind of a juror about whether the defendant lawfully acted in self-defense. If any
reasonable minds could differ, the instruction should be given.” State v. Rudolfo, 2008-
NMSC-036, ¶ 27, 144 N.M. 305, 187 P.3d 170 (citation omitted). “When evidence at trial
supports the giving of an instruction on a defendant’s theory of the case, failure to so instruct
is reversible error.” State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69.
{12} The State claims that the trial court properly denied Defendant’s request for a self-
defense instruction because Defendant testified that the shooting was an accident, rather than
an intentional act of self-defense. Defendant does not dispute that the shooting was an
accident, but nonetheless claims that he was entitled to a self-defense instruction pursuant
to Gallegos and Romero.
{13} “Every killing of a person by another is presumed to be unlawful, and only when it
can be shown to be excusable or justifiable will it be held otherwise.” State v. Noble, 90
N.M. 360, 364, 563 P.2d 1153, 1157 (1977). A killing in self-defense is justifiable because
“an otherwise criminal action becomes permissible under the circumstances. Self-defense
is thus a complete defense; if established, a defendant is not guilty of the crime.” 22 C.J.S.
Criminal Law § 60 (2006) (footnote omitted); see also UJI 14-5171(justifiable homicide);
2 Charles E. Torcia, Wharton’s Criminal Law § 138 (15th ed. 1994) (noting that a killing in
self-defense is justifiable because “the killing of the assailant was ‘authorized’ by the law”).
By contrast, an accidental killing is excusable because it is “an unintended homicide which
occurs in the course of performing a lawful act, without criminal negligence.” 2 Torcia,
supra, § 138; see also UJI 14-5140 NMRA (excusable homicide). “As in other cases of
excusable homicide, the slayer is not criminally responsible therefor, as an act that is
committed accidentally does not involve a mental state cognizable to the criminal offenses
of murder and involuntary manslaughter.” 40 C.J.S. Homicide § 168 (2006) (footnote
omitted).
{14} As the foregoing analysis reflects, the fundamental distinction between self-defense
and accident is the defendant’s mental state. A killing in self-defense is intentional in nature,
but justified by the imminent threat to the defendant’s life or limb, whereas an accidental
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killing is unintentional and non-negligent in nature. This distinction is reflected in our
uniform jury instructions. UJI 14-5171 (justifiable homicide; self defense), provides, in
relevant part, that a killing is in self-defense if “[t]he defendant was in fact put in fear by the
apparent danger of immediate death or great bodily harm and killed [the victim] because of
that fear.” UJI 14-5171 (emphasis added). By contrast, UJI 14-5140 (excusable homicide),
provides, in relevant part, that a killing is accidental if it is committed “with usual and
ordinary caution and without any unlawful intent.” UJI 14-5140 (emphasis added); see also
NMSA 1978, § 30-2-5(A) (1963) (“Homicide is excusable . . . when committed by accident
or misfortune in doing any lawful act, by lawful means, with usual and ordinary caution and
without any unlawful intent.”). Indeed, juries are not given an instruction on the defense of
accident because, in the absence of criminal negligence, the defendant cannot be found guilty
of involuntary manslaughter. UJI 14-5140, Committee commentary; see generally State v.
Yarborough, 1996-NMSC-068, ¶ 20, 122 N.M. 596, 930 P.2d 131 (holding that “the State
must show at least criminal negligence to convict a criminal defendant of involuntary
manslaughter”).
{15} To receive a self-defense instruction regarding justifiable homicide, Defendant was
required to produce evidence supporting a reasonable inference that he intentionally and
purposefully fired his pistol out of fear of immediate death or great bodily harm. However,
Defendant failed to produce any evidence indicating that he fired the pistol intentionally.
Indeed, Defendant testified that the pistol discharged accidentally or reflexively as a result
of the physical assault initiated by Victim. Moreover, the evidence was insufficient for the
jury reasonably to find that Victim threatened Defendant with death or great bodily harm.
Although a punch to the face is the type of force that may cause bodily injury, it is not the
type of force that creates a high probability of death, results in serious disfigurement, results
in loss of any member or organ of the body, or results in permanent prolonged impairment
of the use of any member or organ of the body. See UJI 14-131 NMRA (defining “great
bodily harm”); see also State v. Heisler, 58 N.M. 446, 457, 272 P.2d 660, 667 (1954)
(holding that a defendant who shoots an individual during a fist fight is not entitled to a jury
instruction on justifiable homicide); State v. Duarte, 1996-NMCA-038, ¶ 4, 121 N.M. 553,
915 P.2d 309 (“[D]eadly force may not be used in a situation involving simple battery or in
a struggle in which there has been no indication that death or great bodily harm could
result.”); 2 Wayne R. LaFave, Substantive Criminal Law § 10.4(b) (2d ed. 2003) (noting that
“deadly force may only be used against what is reasonably believed to be deadly force”).
Accordingly, we conclude that the trial court properly denied Defendant’s request for UJI
14-5171.
{16} Defendant claims, however, that he was entitled to a justifiable homicide self-defense
instruction pursuant to Gallegos. We disagree. In Gallegos, the defendant was charged and
convicted of involuntary manslaughter after she shot and killed an individual who was
involved in a physical altercation with her husband, during which her husband sustained two
stab wounds. 2001-NMCA-021, ¶¶ 2-3. The State claimed that the defendant was precluded
from raising the defense of self-defense because “self-defense requires an intent to do
something in order to prevent injury or death,” whereas involuntary manslaughter requires
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the State to prove “an accidental killing.” Id. ¶ 8. The Court of Appeals rejected the State’s
claim, reasoning that “[i]t is entirely plausible that a person could act intentionally in self-
defense and at the same time achieve an unintended result.” Id. ¶ 12 (emphasis added).
Accordingly, Gallegos held that a defendant is entitled to a self-defense instruction if the
evidence supports a reasonable inference that the defendant’s use of force was intentional,
even if the consequences of that force were accidental. Id. ¶ 13.
{17} In Gallegos, the evidence regarding the defendant’s intentional use of force was
conflicting. The defendant testified that “she never took aim and did not realize the gun had
fired until someone shouted that she had shot Victim. She said she did not intend for the gun
to go off when it did.” Id. ¶ 4. However, an eyewitness to the shooting testified that the
defendant intentionally had “aimed the gun at a fleeing combatant.” Id. In light of the
conflicting evidence regarding the defendant’s intent, the Court of Appeals held that the
issue of self-defense should have been submitted to the jury, reasoning that “[a] jury given
a self-defense instruction can resolve any anomalies in the circumstances surrounding the
homicide, including the question of whether the defendant accidentally killed the victim
while defending himself or another.” Id. ¶ 14.
For example, if the jury found that the gun discharged accidentally due to
some negligence on Defendant’s part, it could also find that a reasonable
person in the same circumstances would have taken care that the gun did not
discharge. Therefore, Defendant’s self-defense theory would fail, and the
jury could convict her of the crime charged-involuntary manslaughter. The
jury could also reject the self-defense theory if it found that Defendant knew
that someone other than Victim stabbed Husband. Thus, the anomalies in the
evidence that troubled the district court will be resolved by the jury when it
is properly instructed.
Id. ¶ 15.
{18} We conclude that Gallegos is distinguishable from the present case. First, in
Gallegos, the evidence regarding the defendant’s intentional use of force was conflicting
and, therefore, the issue properly was submitted to the jury for resolution. Second, in
Gallegos, the jury reasonably could have found that the defendant’s use of deadly force was
“reasonable under the circumstances,” id. ¶ 20, because the defendant’s husband suffered
two stab wounds, from which the jury reasonably could have inferred that (1) the defendant
believed her husband was in immediate danger of death or great bodily harm, (2) she killed
the victim to prevent the death or great bodily harm, and (3) a reasonable person in the same
circumstances as the defendant would have acted as the defendant did. Id. ¶¶ 19-20; see UJI
14-5172 NMRA (justifiable homicide; defense of another). By contrast, the evidence in the
present case was insufficient to establish that Defendant’s use of force was either intentional
or reasonable under the circumstances. Accordingly, we conclude that Defendant’s reliance
on Gallegos is misplaced.
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{19} Alternatively, Defendant claims that he was entitled to a non-deadly force self-
defense instruction pursuant to Romero. We disagree. In Romero, the defendant was
convicted of second degree murder for the death of his wife. 2005-NMCA-060, ¶ 2. At trial,
the evidence revealed “that the marriage involved domestic violence” and that the defendant
and his wife had engaged in a physical altercation the night of her death. Id. ¶ 4. The
defendant requested an instruction regarding nondeadly force self-defense, which the trial
court denied, reasoning that an “instruction on nondeadly force self-defense is inapplicable
as a matter of law when the victim dies.” Id. ¶ 9. The Court of Appeals reversed the
defendant’s conviction, holding that UJI 14-5181 “is contemplated to be used in certain
homicide cases” when the evidence reveals that “[t]he force used by defendant ordinarily
would not create a substantial risk of death or great bodily harm.” Romero, 2005-NMCA-
060, ¶ 13 (internal quotation marks omitted). The Court concluded that Romero was one of
those cases because
the evidence was that [the defendant] was both humiliated and attacked by
the victim. The attack, consisting of hitting, scratching, pinning down, and
grabbing, allowed Defendant to respond with the like force of hitting,
punching, grabbing, and biting. The victim’s injuries, in the light most
favorable to Defendant, were a broken nose, and various cuts and bruises.
The cause of death was disputed, and in the light most favorable to
Defendant, the cause of death did not exclude an accidental death caused by
the exercise of nondeadly force.
Id. ¶ 15 (emphasis added).
{20} We conclude that Romero is distinguishable from the present case. In Romero, the
defendant intentionally used nondeadly force in self-defense (i.e., hitting, punching,
grabbing, and biting), but that force unintentionally and unforeseeably resulted in the
victim’s death. See Gallegos, 2001-NMCA-021, ¶ 12 (holding that a defendant who
intentionally uses force in self-defense, but achieves an unintended result, may be entitled
to a self-defense instruction). By contrast, in the present case, Defendant unintentionally
used deadly force (i.e., shooting Victim in the chest), which had the foreseeable, albeit
unintentional, consequence of killing Victim. Because Defendant’s use of force was
unintentional and ordinarily would (and in fact did) result in death or great bodily harm,
Defendant was not entitled to UJI 14-5181.
{21} For the foregoing reasons, we conclude that Defendant was not entitled to a jury
instruction regarding the intentional use of force in self-defense. Accordingly, we need not
address whether Defendant was the first aggressor in the conflict with Victim or whether
Defendant had tendered a proper self-defense instruction in accordance with Rule 5-608.
III. CONCLUSION
{22} We hold that Defendant was not entitled to a jury instruction regarding justifiable
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homicide, UJI 14-5171, or nondeadly force self-defense, UJI 14-5181, because the evidence
established that the shooting was accidental, rather than intentional, and that the force used
by Defendant was excessive and unjustified under the circumstances. Accordingly, we
reverse the judgment of the Court of Appeals and affirm Defendant’s conviction.
{23} IT IS SO ORDERED.
____________________________________
PETRA JIMENEZ MAES, Justice
WE CONCUR:
____________________________________
EDWARD L. CHÁVEZ, Chief Justice
____________________________________
PATRICIO M. SERNA, Justice
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
CHARLES W. DANIELS, Justice
Topic Index for State v. Lucero, No. 31,365
CL CRIMINAL LAW
CL-IV Involuntary Manslaughter
CA CRIMINAL PROCEDURE
CA-JI Jury Instructions
CA-SD Self Defense
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