Perry JACKSON, Petitioner, v. STATE of New Mexico, Respondent.
No. 14779.
Supreme Court of New Mexico.
Nov. 30, 1983.
672 P.2d 660
Our research has uncovered several cases with similar fact patterns in which sister states have invoked the retroactive date of June 25, 1981, for the Act. These cases involve dissolution of marriage decrees entered post McCarty but prior to February 1, 1983. See In re Marriage of Ankenman, 142 Cal.App.3d 833, 191 Cal.Rptr. 292 (1983); Madrid v. Madrid, 643 S.W.2d 186 (Tex.App.1983). See also, In re Marriage of Sarles, 143 Cal.App.3d 24, 191 Cal.Rptr. 514 (1983) (retaining jurisdiction during interim).
In response, Petitioner husband directs us to Psomas v. Psomas, 99 N.M. 606, 661 P.2d 884, (1982) where the issue before the Court was asserted abuse of discretion in an alimony award. There we noted a statute is not given rectroactive effect unless there exists a clear intention on the part of the legislature for rectroactivity. At the time of Psomas we stated in dictum that there was “[n]o such legislative intent expressed in Pub.L. No. 97-252.” Id. at 609, 661 P.2d at 887. After reviewing the express legislative intent and the law of our sister states, we alter this statement in Psomas and conclude that there is sufficient legislative intent shown to hold the Act retroactively applies beginning June 25, 1981. This Court is in agreement with our sister states and recognizes the need to give protection to those former spouses who fell between the cracks of time that ran from McCarty to the enactment of the Act. Following the reasoning in Hopkins we agree that
Not to apply the Act retroactive to June 25, 1981, would yield far more problems than would any mechanical application of a calendar-determining set of laws. To allow cases decided, but not yet final, either before or during the relatively short interval of McCarty to be subject *** to the McCarty rule would carve out of the many persons entitled to military pensions a fortunate or unfortunate few who had substantial rights determined by the vagaries of the calendar. Most importantly, it would allow the happenstance of the calendar to thwart the meaning of Congress when the Congress did quickly and affirmatively act to clearly and fully make these pension rights subject to the state‘s control. Indeed, not to apply the Act retroactively would be to thwart the very title of the Act, the “Uniform Services Former Spouses’ Protection Act.”
Id. at 360, 191 Cal.Rptr. at 77.
As to the issue of the court‘s abuse of discretion for failure to grant alimony, this determination should be made by the trial court in light of the decision made today regarding division of military retirement benefits.
The trial court is reversed as to the determination that military retirement benefits are separate property. The request for attorney‘s fees for this appeal is granted for the sum of $1200.00 pursuant to
This cause is reversed and remanded to the district court for further proceedings consistent with this opinion.
IT IS SO ORDERED.
PAYNE, C.J., and STOWERS, J., concur.
Paul Bardacke, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for respondent.
OPINION
SOSA, Senior Justice.
Defendant, Perry Jackson, was convicted of second degree murder for the death of Johnny Wayne Hawkins. The Court of Appeals, 99 N.M. 478, 660 P.2d 120, affirmed the defendant‘s conviction. We granted certiorari and now reverse and remand for a new trial.
The issues before this Court on certiorari are as follows:
- Whether the Court of Appeals erred in refusing to reverse defendant‘s convic
tion as argued on motion for rehearing for the failure of the trial court to properly charge the jury on the elements of second degree murder despite defendant‘s failure to raise the issue in his initial appeal. - Whether the Court of Appeals erred in holding that tender of an incorrect instruction on voluntary manslaughter resulted in a waiver of the defendant‘s claim of error.
On December 20, 1981, Jackson and Hawkins were both present in a restaurant in Hobbs. They began arguing and Hawkins attempted to leave the restaurant. A fight ensued and Jackson fatally stabbed Hawkins with a knife. Jackson testified that Hawkins had previously shown him a .38 caliber pistol that he owned. Another witness testified that he had seen Hawkins with a gun earlier on that same day. Jackson testified that while he was talking to another person in the restaurant Hawkins had approached them, cursed the defendant, and threatened to “blow me away“. He further testified that Hawkins appeared to have been drinking and was “glassy-eyed“. Hawkins then gave a friend, Conway Royal, the keys to his car. Jackson believed Royal had gone for a gun. Upon his return to the restaurant, Royal handed the decedent the car keys and something else which Jackson believed to be a gun. Shortly after that, Jackson stabbed the decedent.
Jackson was charged with first degree murder. Defendant‘s counsel tendered jury instructions on the lesser included offenses of voluntary manslaughter and involuntary manslaughter. The trial court refused the two requested instructions, but did instruct the jury on the lesser included offense of second degree murder.
The instruction given by the court was the version originally adopted in 1975 that has been superseded by
The responsibility for correct instruction rests upon counsel for both the State and the defendant. Neither the State nor the defendant tendered the correct instructions to the court. The jury instruction on second degree murder used in this case substantively differed from either of the current instructions set forth at
Because our resolution of the first issue is dispositive of this case, we do not reach the question of whether the Court of Appeals erred in holding that tender of an incorrect instruction on voluntary manslaughter resulted in a waiver of the defendant‘s claim of error. However, we do note that a defendant is entitled to an instruction on voluntary manslaughter as a lesser included offense of first degree murder if there is evidence to support, or tending to support, such an instruction. Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982). Evidence of provocation sufficient to reduce a charge of second degree murder to voluntary manslaughter “must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition.”
Because the trial court failed to instruct the jury properly on the charge of second degree murder, defendant‘s conviction is hereby reversed and the cause remanded for a new trial.
IT IS SO ORDERED.
PAYNE, C.J., and FEDERICI and RIORDAN, JJ., concur.
STOWERS, J., respectfully dissents.
STOWERS, Justice, dissenting.
I respectfully dissent.
The majority opinion holds that because the trial court failed in its duty to properly instruct the jury on the charge of second degree murder, defendant‘s conviction should be reversed and the cause remanded for a new trial. However, the sole issue raised on appeal by the defendant was whether the trial court erred in refusing to submit to the jury defendant‘s requested instruction on the lesser included offense of voluntary manslaughter.
The Court of Appeals affirmed the trial court. In a dissent, one appellate judge voluntarily or sua sponte raised the issue that the trial court had not given the correct instruction on second degree murder,
The majority opinion takes this one step further and finds a failure on the part of the trial court to instruct the jury on second degree murder pursuant to either
In order for a matter to be before this Court for appellate review it must be properly preserved on the record. This requires a proper objection or tendering of a proper instruction. See State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App.1975); State v. Urban, 86 N.M. 351, 524 P.2d 523 (Ct.App.1974); State v. Romero, 86 N.M. 99, 519 P.2d 1180 (Ct.App.1974).
The trial court has a duty to correctly instruct the jury on the law. However, this is not such an absolute duty that trial counsel can completely abdicate the responsibility and duty to alert the trial court to any mistake found in a proposed jury instruction, and then later complain and receive the benefit of this total abdication of responsibility. This responsibility is set forth in
[F]or the preservation of error in the charge, objection to any instruction given must be sufficient to alert the mind of the court to the claimed vice therein, or, in case of failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed. Before the jury is instructed, reasonable opportunity shall be afforded counsel so as to object or tender instructions, on the record and in the presence of the court.
A failure to comply with this rule constitutes a waiver provided there was no prejudice to the defendant. In the present case, trial counsel failed not only to tender correct written jury instructions but also failed to object to the instruction given by the trial court. As such, defendant‘s objection to jury instructions cannot be raised for the first time on appeal. See State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973); State v. Jones, 88 N.M. 110, 537 P.2d 1006 (Ct.App.), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975); State v. Herrera, 82 N.M. 432, 483 P.2d 313 (Ct.App.), cert. denied, 404 U.S. 880, 92 S.Ct. 217, 30 L.Ed.2d 161 (1971); State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969). Even though this concept has been stated many times, the majority opinion fails to recognize this concept or apply it. The majority opinion only serves to undermine this concept of waiver as it applies to Rule 41(d).
Without attempting to address which was the correct instruction, the majority opinion states that “[t]he jury instruction on second degree murder used in this case substantively differed from either of the current instructions set forth at UJI Crim. 2.10 and UJI Crim. 2.11.“.
The instruction given,
Noncompliance with the uniform jury instructions in a criminal case is reversible error if the slightest evidence of prejudice to the defendant appears. State v. Gallegos, 96 N.M. 54, 627 P.2d 1253 (Ct.App.1981). However, in the present case, there was no prejudice to the defendant because the jury instruction given without objection required a stricter burden of proof. The crucial question is, did the defendant receive a fair trial. In this case, he did.
The majority opinion only serves to elevate form over substance and is therefore improper.
STOWERS, Justice