The New Mexico Supreme Court on Monday upheld Damian Herrera’s fifth murder conviction out of Taos County, during his 2017 shooting rampage, but vacated his conviction for unlawful taking of a motor vehicle.
In a unanimous opinion filed on Monday, Justice Michael Vigil wrote that Herrera’s conviction of felony first-degree murder will stand for the killing of Michael Kyte in Taos County, but the charge to make the case, stealing Kyte’s truck, needed to be struck down on double jeopardy grounds.
Evidence in the case supports the jury’s verdict that Herrera, 29, shot Kyte to take his truck, satisfying the requirements for a felony murder conviction. Herrera said, during an interrogation, that Kyte made a sexual advance on him and that’s why he killed him, Vigil wrote.
Herrera’s attorney, Assistant Appellate Defender Thomas Lewis, argued that the conviction for unlawful taking of a motor vehicle was subsumed by the felony murder conviction (killing someone during the commission of another crime) and therefore, it violated the Fifth Amendment’s guarantees against double jeopardy.
A jury found him guilty in October 2023 of first-degree murder and unlawful taking of a vehicle.
Prosecutors agreed with this assertion, as did the justices.
Herrera’s case has been remanded to the Taos District Court so he can be re-sentenced. He initially received an 18-month sentence for stealing the truck.
No court date has been set for his re-sentencing. He was initially sentenced to life on the murder charge and 18 months for the theft charge.
Other challenges
Lewis argued that they should have known which jurors would be picked as alternates to better choose whether to use one of their limited “strikes” to get them off the jury. None of the alternative jurors deliberated on the case, Vigil wrote.
“There is nothing in the rule which entitles a party to know which prospective jurors are being singled out as prospective alternate jurors in advance,” Vigil wrote.
Lewis also argued that the judge made an error when not allowing for a self-defense instruction to go to the jury, based on Herrera’s statements during his interrogation that Kyte made a sexual advance on him.
“Defendant’s perception of Mr. Kyte as a ‘weirdo or something’ and Mr. Kyte’s alleged attempt to push Defendant out of his truck and ‘touch [Defendant] and (expletive)’ did not amount to a reasonable fear of immediate harm or danger that would justify shooting Mr. Kyte, who was unarmed, twice in the chest,” Vigil wrote.
Appeal denied in 2023
In June 2023, the New Mexico Supreme Court upheld Herrera’s four first-degree murder convictions in Rio Arriba County for killing his mother, Maria Gallegos, 49; his stepfather Max Trujillo Sr., 55; his brother Brandon Herrera, 20; and Manuel Serrano, 55.
In that case, he was convicted in August 2021.