Brief Fact Summary.
Ochoa, Avitia, and Velarde (Defendants) were all convicted of second-degree murder after being part of a group that fired upon a sheriff and his deputies resulting in the death of the sheriff.
Synopsis of Rule of Law.
When an individual involved in a group altercation learns that deadly force is being used, he becomes liable as an accessory to that use of deadly force.
These cases cannot all be harmonized, but we think the line of demarcation between what a court may say to the jury in a criminal case in expressing his opinion on the facts, and what he may not say, is to be drawn between mere expression of opinion not partaking of such argumentative nature as to amount to advocacy, leaving to the jury absolute freedom to determine the facts, and such discussion as amounts to an argument and makes the court in fact an advocate against the defendant.View Full Point of Law
Defendant was part of a group gathered outside of a courthouse to support a criminal defendant. When the sheriff tried to take the prisoner out the rear entrance of the building, a fight broke out and shots were fired. The sheriff was killed and several deputies wounded. Although the shooter was never identified, Ochoa and Avitia were seen in the group even after the shooting, beating one of the deputies. Ochoa, Avitia, and Velarde, who had not been seen in the group, were all convicted of second-degree murder and appealed.
Is an individual involved in a group altercation, who knows that deadly force is being used, liable as an accessory to that use of deadly force?
(Sadler, J.) Yes. When an individual involved in a group altercation learns that deadly force is being used, he becomes liable as an accessory to that use of deadly force. When the state proves a common purpose between the individual defendant and the group using deadly force, the individual is liable for aiding and abetting. Here, Ochoa and Avitia became aware that shots were being fired at the sheriff and deputies and continued to beat the deputy. The common purpose was proven and their convictions stand. There is no such evidence of a common purpose in Velarde’s case. Reversed as to Velarde, affirmed as to Ochoa and Avitia.
In common law, aidors and abettors did not carry the same culpability as the principals to a crime. However, many jurisdictions, including New Mexico, have modified or abolished the distinctions between the two and Ochoa and Avitia were sentenced as a principal would have been.