Background
In the early morning hours of July 15, 2023, Alamogordo Police Officer Eric Cisneros attempted a routine traffic stop on a car with no functioning tail lights. Two passengers exited voluntarily, but the driver — Dominic De La O — fled at high speed through a residential neighborhood before crashing into a light pole. De La O fled on foot down an alleyway carrying a sawed-off shotgun while multiple officers gave chase. He fired the shotgun at Officer Anthony Ferguson, killing him. De La O continued to flee, discarding the shotgun and the blue t-shirt he had been wearing before police shot him in the leg and apprehended him. After his capture, he feigned an inability to speak English.
De La O was tried in the District Court of Otero County. He did not dispute the underlying facts; his sole defense was that the killing was a rash, impulsive act — second-degree murder — rather than a willful and deliberate one. The jury rejected that theory and convicted him of first-degree willful and deliberate murder, tampering with evidence, and other crimes. Finding the aggravating circumstance of murder of a peace officer in the discharge of his duties under NMSA 1978, § 31-20A-5(A), the court sentenced De La O to life without the possibility of release or parole (LWOP). He appealed, raising four issues.
The Court’s Holding
The New Mexico Supreme Court unanimously affirmed all convictions and the LWOP sentence. On the jury-instruction challenge, the court acknowledged that placing the LWOP aggravator instruction (which referenced a lesser mens rea of reckless disregard for human life) between the first- and second-degree murder instructions could have momentarily confused a juror. However, applying fundamental-error review, the court held that the preliminary language of the aggravator instruction — directing the jury to reach the aggravating-circumstance question only after finding first-degree murder — cured any ambiguity, and juries are presumed to follow instructions as written. On sufficiency of the evidence, the court held that De La O’s sequential, deliberate choices — abandoning passengers, keeping his shotgun, crashing without surrendering, and ultimately shooting a pursuing officer — amply supported a finding of deliberate intent under the standard set in State v. Astorga. The discarding of the shotgun and t-shirt out of officers’ view while fleeing equally supported the tampering conviction.
On the mistrial motion, the court held that a single, unemphatic reference to De La O’s outstanding arrest warrant — promptly struck and the subject of a curative instruction — was harmless non-constitutional error in the face of overwhelming evidence of guilt. On the sentencing challenges, the court declined to overrule State v. Segotta, which upheld the open-ended aggravation statute, NMSA 1978, § 31-18-15.1, against a vagueness challenge, finding De La O offered no workable basis to depart from stare decisis. The court further held that the district court properly relied on De La O’s use of an inherently dangerous sawed-off shotgun and his commission of the crimes while on conditions of release as aggravating circumstances for the fleeing and tampering convictions.
Key Takeaways
- A LWOP aggravator instruction interposed between first- and second-degree murder elements instructions does not constitute fundamental error where its conditional prefatory language makes clear the jury must first find first-degree murder before considering the aggravating circumstance.
- A defendant’s sequential, deliberate choices during a police pursuit — including retaining a weapon, crashing without surrendering, and shooting a pursuing officer — are sufficient to support an inference of deliberate intent to commit first-degree murder, following the reasoning of State v. Astorga.
- Discarding a murder weapon and identifying clothing out of officers’ view while fleeing constitutes tampering with evidence even if the items are later recovered quickly, distinguishing cases where evidence is abandoned in plain sight of officers.
- New Mexico’s open-ended sentencing aggravation statute, § 31-18-15.1, remains constitutional under State v. Segotta; use of an inherently dangerous weapon and commission of offenses while on conditions of release are proper aggravating factors.
Why It Matters
This decision reinforces the breadth of New Mexico’s deliberate-murder doctrine in police-shooting cases, confirming that a defendant’s course of conduct in the moments leading up to a killing — not just the act of pulling the trigger — can establish the deliberation element. Defense efforts to characterize a single-shot killing during a chase as a rash impulse face a high bar when the defendant made multiple purposeful choices to evade and arm himself beforehand.
The court’s refusal to disturb State v. Segotta also preserves substantial judicial discretion at sentencing. By reaffirming that conditions-of-release status and weapon type may aggravate sentences for collateral offenses like fleeing and tampering, the decision signals that New Mexico courts may look broadly at a defendant’s overall conduct and circumstances — not merely the elements of the offense of conviction — when imposing enhanced sentences. Note that this decision is unpublished and may not be cited as precedent under Rule 12-405 NMRA.