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State v. Dominguez1/27/2005
Following a jury trial, Defendant Rodrigo Dominguez was convicted of voluntary manslaughter, contrary to NMSA 1978, § 30-2-3(A) (1994), aggravated battery, contrary to NMSA 1978, § 30-3-5 (1969), two counts of shooting at or from a motor vehicle, contrary to NMSA 1978, § 30-3-8(B) (1993), and conspiracy to commit tampering with evidence, contrary to NMSA 1978, §§ 30-22-5 (1963, prior to 2003 amendment), -28-2 (1979).
The Court of Appeals affirmed Defendant's convictions in a unanimous memorandum opinion. This Court granted Defendant's petition for writ of certiorari to the Court of Appeals on four issues: (1) whether his convictions of voluntary manslaughter and shooting at or from a motor vehicle violate double jeopardy; (2) whether his convictions of aggravated battery and shooting at or from a motor vehicle violate double jeopardy; (3) whether, in the alternative to the first two arguments, the two convictions of shooting at or from a motor vehicle violate double jeopardy; and (4) whether the Court of Appeals erred in refusing to consider Defendant's argument of an erroneous jury instruction. Defendant has waived the fourth issue raised in his petition. In his brief in chief, Defendant raises a new issue not presented in his petition to this Court or in his arguments to the Court of Appeals: whether giving jury instructions on two of the three theories of first degree murder contained in NMSA 1978, § 30-2-1(A) (1994), without phrasing them in the alternative, constitutes overcharging. See State v. Reyes, 2002-NMSC-024, 10-17, 132 N.M. 576, 52 P.3d 948 (rejecting a claim that "convictions under theories of first degree murder resulted from ambiguous jury instructions because the jury was not told that it could not convict [the defendant] for both deliberate murder and felony murder"); see also State v. Salazar, 1997-NMSC-044, 41-42, 123 N.M. 778, 945 P.2d 996 (stating that first degree murder is a single crime, whether supported by a single theory or by multiple theories, and upholding a general verdict of first degree murder under two alternative theories on the basis that there is "no requirement that the jurors . . . unanimously agree on one of the alternative theories presented" and " nanimity was only required with regard to the overall charge of first degree murder").
We reject Defendant's first two arguments because, as this Court has squarely held, the Legislature intended to provide for multiple punishments for these crimes. We also reject Defendant's third point of error because the conduct supporting the two convictions of shooting at or from a vehicle is not unitary. We do not consider the issue raised for the first time in Defendant's brief in chief. See Rule 12-502(C)(2) NMRA 2005 (" nly the questions set forth in the petition will be considered by the [Supreme] Court."). We affirm Defendant's convictions.
I. Facts
Defendant's convictions stemmed from an incident in which Defendant and several of his friends went to a convenience store late one night to fight another group of individuals. Each member of Defendant's group was armed with a gun that was supplied by Defendant, while none of the members of the other group had a gun. Both groups arrived in cars, and Defendant was the driver in his group's car. After one member of the other group exited their vehicle with a baseball bat,Defendant's group opened fire. Charles McClaugherty was in Defendant's group. See generally State v. McClaugherty, 2003-NMSC-006, 133 N.M. 459, 64 P.3d 486. There was evidence at Defendant's trial that McClaugherty exited the vehicle Defendant was driving, fired numerous times into the other car, and killed the driver, Ricky Solisz. Another shooter hit
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