State v. Benally

2001-NMSC-033

34 P.3d 1134 Mexico, New Plaintiff-

STATE of

Respondent, BENALLY, Defendant-Petitioner.

Lathan 26,245.

No. Mexico.

Supreme Court New 17, 2001.

Oct. Subin, Defender,

Phyllis H. Chief Public Roth, Defender, Appellant Assistant Susan Fe, NM, Santa for Petitioner. Madrid, General, Attorney

Patricia A. Wil- McEuen, General, Attorney liam Assistant Fe, NM, Respondent. Santa OPINION FRANCHINI, Justice. Defendant was convicted second- tampering murder and with evidence

for his involvement in the death of Marco following fight party LaPlant at an outdoor Farmington, appeal, near New Mexico. On argues Defendant that his conviction must be because errors in the reversed prevented appreciating tions disproving that the State had burden Appeals self-defense. The Court of deter- third, mined that a correct cured the error two instructions that had explain failed to burden. We that, Appeals reverse the and hold Court because of its distance from the erroneous elements instruction and the unlikelihood returned, would, sponte, graft punching lan- Mr. sua LaPlant. When he proper improp- Mr. Johnson found Mr. LaPlant covered in guage from a instruction onto irregularly. single proper breathing blood and Mr. er John- got improper in- son testified that he and Defendant then did not correct the car, leave, they erroneous instruction there- in a but before could Defen- struction. The approached error. We re- dant exited the car and Mr. La- fore constituted fundamental Johnson, second-degree According verse Plant. to Mr. Defendant Defendant’s kicked Mr. LaPlant in the side and then conviction and remand for a new trial. dropped large a rock onto the victim. Mr. I. Johnson did not see where the rock landed. night party At a late outdoor at “the {2} produced The State also evidence levels,” Mexico, Farmington, near New a garding allegedly statements uttered De- fight broke out between Defendant and Or- fray. Eyewitness during fendant Dan- Defendant, Delagrito. A lando friend of ielle Enos and her sister Dacia both testified Johnson, Christopher intervened and chased they heard Defendant tell Mr. LaPlant Delagrito green Mr. to a Chevrolet Nova. “croak, motherfucker, Jacquez croak.” Titus Nova, Delagrito Mr. entered the When testified that Defendant declared that he Christopher Johnson and a third friend would have kill Mr. LaPlant so he would challenged at the car and Mr. threw rocks “worry,” not have and then said “later” as off, Delagrito fight. The Nova drove but he kicked Mr. LaPlant in the face. Mr. not before a rock shattered a rear window of Johnson did not remember or could not hear the vehicle. what, anything, if Defendant said to Mr. LaPlant. victim, belonged The Nova to the Mar- LaPlant, Delagrito. Mr. Mr. co a friend of Although many witnesses saw Mr. rock, LaPlant had witnessed the vandalism of his Johnson strike Mr. LaPlant with a Johnson, ease, on foot vehicle and followed Nova as Mr. Mr. a co-defendant Delagrito safety. approxi- testimony drove it to After struck offered that Defendant minutes, mately angered fifteen Mr. La- victim with a rock. Defendant attacked Mr. levels, testimony by raising Plant his Nova back to the inconsisten- drove Johnson’s rejoined testimony pre-trial had cies his where Mr. Johnson Defendant between people. attempted and some fourteen other The Nova statements. Defendant also testimony by sug- up kicked a cloud of dust as Mr. LaPlant discredit Mr. Johnson’s Johnson, gesting pleaded on the next to a truck that Mr. who had slammed brakes where guilty group gathered. Mr. LaPlant to first received (ten maximum) emerged brandishing lighter years from the vehicle a car sentence and a jack exchange gun. postponement of that sentence that most witnesses believed was a yelled everyone testimony. “gun” while scram- for his Someone approached, to hide. As Mr. LaPlant bled Defendant, According to after Mr. La- Defendant, hiding who had been behind the speeding toward the Plant’s Nova came truck, struck Mr. LaPlant on either the head group gathered, with whom he had he heard empty whiskey. or shoulder with an bottle of yell “gun.” people Defendant admitted that Defendant and Mr. LaPlant then continued whiskey he hit Mr. LaPlant with a bottle but fighting. claimed he made contact his shoul- with dispute than He said that while parties the events that der rather his head. Johnson, According pinned ground Mr. LaPlant had him followed. to Mr. a wit- back,” say “get prosecution, for the Mr. he heard someone then heard ness when LaPlant Defendant, gained position top cracks him before someone re- Mr. three above top picked up large, heavy Mr. LaPlant from on of him. Johnson rock and moved got up kicking Mr. used it to strike Mr. LaPlant on the back. Defendant and started of the helped Mr. testified that he then LaPlant but could not recall some Johnson temporarily on Mr. LaPlant’s head. Ac- Defendant to his feet and left blows landed Defendant, fight go cording he entered a friend’s the scene of the vandalize Mr. left, car, people, in order to smash LaPlant’s Nova. As he numerous but exited the vehicle Defendant, headlights He including kicking were the Nova’s and windshield. pp. conviction. Id. at 3-10. left levels. Defendant’s to the car and then returned dissenting Judge ar- opinion, never Bustamante testified that he revisited Defendant fight, jury instructions did body gued the initial that the erroneous after Mr. LaPlant’s rock, pp. Id. at LaPlant amount to fundamental error. 8-9. hit with that he never Mr. granted certiorari to review voiced nor entertained We and that he neither tions. kill Mr. LaPlant. desire to McFeeley, According Patricia to Dr. {8} II. examiner, the pathologist/medical the State’s The trial court determined swelling of as a result brain victim died' was at issue in this case and that self-defense by combination of blows to caused gave instruc a series of self-defense McFeeley that the fatal head. Dr. testified alleges Defendant that three errors tions. by a injuries could have been dealt head require the resulting from those instructions bottle, rock, regard- to the head or a kick First, conviction. instruction reversal his by kind of footwear worn less of the 12, the elements instruction for second-de Griest, kicking. a forensic Dr. Karen murder, gree failed to include element Defendant, by identified the pathologist hired is an essential unlawfulness.1 Unlawfulness “rigid, as trauma from a cause death cases, in element of the offense like the object.” testified heavy Dr. Griest that one, in or defense which self-defense by unlikely that a kick leveled someone Parish, is at issue. State v. of another wearing of the sort tennis shoes worn (1994) night question in could Defendant on the (“[W]hen or the defense of oth self-defense Dr. caused Mr. LaPlant’s death. Griest issue, justifica at the absence of such ers is glass frag- that there were no also observed offense.”) (internal element of the tion is an scalp or ments in the victim’s clothes. omitted). prove In order to citations unlaw jury acquitted Defendant of first- The fulness, disprove the State must the defen him degree murder and convicted of second- beyond self-defense claim a reasonable dant’s tampering degree murder and with evidence. Defendant, According doubt. id. See a sentence of fifteen Defendant received among the failure to include unlawfulness years eighteen months for the murder and second-degree prevented elements of tampering appeal, with evidence. On understanding the bur from issues, among other Defendant asserted that den. trial committed fundamental error court In addition to the omission of unlaw- ade- giving instructions that did not fulness from instruction Defendant com- claim. quately treat his self-defense (NMCA 19,897, 21, plains that instruction which followed the p.

Benally, at Feb. No offenses, 2000). instructions for homicide described Appeals A held that divided Court non-deadly force cases rather instructions did not the errors Finally, in homicide cases.2 Defendant to fundamental error and affirmed than amount voluntary manslaughter, we do not 12 read as follows: murder or 1.Instruction these errors. address guilty For to find the defendant of second your degree prove the state must 2.Instruction 15 informed the that: beyond a reasonable doubt each of satisfaction following the Defen- the crime: Evidence has been elements of ]; defending dant acted while himself. LaPlant[ 1. The defendant killed Marco if: The Defendant acted in self-defense 2. The defendant knew his acts created a bodily appearance strong probability great was an of immediate dan- of death or 1. There LaPlant; great bodily ger harm to the Defen- Marco of death or harm to being deadly attacked with a did not act as a dant as a result of 3. The defendant result ]; weapon by provocation; LaPlant[ Marco sufficient fear, put happened The Defendant was in fact 4. This in New Mexico on or about 2. great danger day July, apparent of immediate death or 7th bodily listing LaPlant[ ] Marco be- 10 and the elements for harm and struck Instructions fear; voluntary manslaughter, degree cause of that first murder and erroneously apparent danger respectively, would have caused also omitted the ele- 3. The However, person in the same circumstances because Defen- ment of unlawfulness. to act as the Defendant did. dant was not convicted of either first 1999-NMCA-087, Armijo, In State v. explain 15 failed to that instruction observes ¶¶ 11-27, the burden of shouldered the State act in self-de- Defendant did not a set of proving Appeals evaluated Court the omis- we determine that Because slightly fense. different from that were con- unlawfulness from sion of the trial court those Parish. As error, we do not review stituted jury on self-defense but had instructed the independently. these claims as an element to include unlawfulness failed for the relevant offense. in the instructions apply of review we The standard 1999-NMCA-087, ¶11, Armijo, depends on whether Armijo Court distin- 985 P.2d 764. If has preserved. the error has been issue Parish, however, be- guished its case the instructions preserved we review Parish, apart from the error in the cause Parish error. See for reversible section, in- general self-defense elements not, fundamen If we review for P.2d at 991. failed to state the Cunningham, 2000- struction had also tal error. ¶ 711, disproving NMSC-009, 8, of self-defense. 998 P.2d 176. State’s burden ¶¶ 1999-NMCA-087, 15-17, 127 Armijo, seek to determine both standards we Under “ 44, juror Parish at 594, (citing a reasonable would “whether 764 N.M. 993). Armijo, confused or misdirected’ on the other In 878 P.2d at Cunningham, 2000-NMSC- instruction.” hand, did general instruction ¶ 14, 711, (quot 009, 176 128 Id. proof. of proper burden state 991). Parish, 42, 878 P.2d at ing 118 N.M. at Armijo determining in held that Court misdi juror may from confusion or A suffer sufficiency “it is suffi- of juror despite consid rection the fact disprove if burden to self- [the cient “per straightforward ers the instruction instruction, if even defense] is the defense Parish, fectly comprehensible” on its face. instruction, provided that not the elements Thus, juror at 878 P.2d at 993. in- the defense no other instruction causes not misdirection stem confusion or meaningless.” confusing or to be struction facially contradic instructions that are ¶ Id. at 26. Because the self-defense tory ambiguous, from instructions but Armijo accurately jury in de- given to misstatement, which, fail through omission or burden, the Court affirmed scribed this juror an accurate rendi provide with battery conviction. aggravated defendant’s tion of the relevant law. ¶ Id. at 28. standing In a defendant trial Cunningham, we elaborated voluntary manslaughter presented evi- for to cure an capacity other instructions possibility a reasonable dence that raised improperly omits that instruction elements Parish, acted in self-defense. that he Cunningham involved a first- unlawfulness. Parish tendered 878 P.2d at 991. N.M. at on an ele- degree murder conviction based the absence of self- instruction that listed that, like the instructions instruction ments voluntary man- as an element defense Armijo, failed to in Parish at issue rejected court that slaughter, but trial Cunningham, 2000- unlawfulness. include Id. at P.2d at 993. Al- instruction. ¶ NMSC-009, 998 P.2d 176. Jury though required the Uniform Parish, Cunningham Unlike the time, at the we held revers- Instructions object instruction. to the erroneous failed to from the tri- nevertheless resulted ible error ¶ 8, 128 Cunningham, include the element court’s failure to al therefore re- P.2d 176. We among the other elements unlawfulness error, not for fundamental viewed his claim 43-44, Id. at manslaughter. voluntary Id. Under the fundamental error. reversible voluntary The erroneous P.2d at 992-93. analysis Cunningham, sought to we not be cor- manslaughter instruction could jury in- the erroneous determine whether Id. at by other instructions. rected subsequent prop- was “corrected struction P.2d at 993. guilt, defense, to the Defendant’s doubt as considering and after consid- case, guilty. you must find him not have a ering all the evidence in adequately address[ ] er instructions that sion that stemmed from the in in- omission ¶ omitted element.” Id. at 21. After exam- struction 12. whole, ining the record as we affirmed begin our We evaluation of the cor- Cunningham’s separate conviction because a capacity rective of instruction 25 with the correctly instruction stated the element at proposition common sense un-

issue, thereby erasing possibility juror derstands the inclusion and of lan- omission confusion on the matter. guage in a instruction to reflect jury expects intent of its author. Just as a Mexico, then, unpre In New an element included an instruction to re- served error instructions is “funda flect the intent to include element within uncorrected, mental” when it remains law, naturally the relevant thereby allowing juror persist. confusion to assume that the omission of an element parties Because both ease flects the intent to exclude that element from erroneous, agree governing posed the law the issue. When object and that Defendant failed to to that with instruction 25 that included the State’s error, employ Cunningham we now and re proof, burden and instructions 12 and view the case fundamental error. Ex burden, which omitted the we believe that a record, amining the whole we seek to de juror would be inclined to believe that the termine whether erroneous omission of author of instructions 12 and 15 intended the proof burden from instruction 12 was omission, and that the State’s burden of juror corrected so as to eliminate confusion. proof part was therefore not of those instruc- Thus, tions. in order to correct the error in III. instruction instruction 25 must have con- incomplete The in elements jury vinced the that its correct statement of by struction case was followed proof applied the burden of to the two self-defense instructions: instruction addressed, offenses it but also to the offense burden, which also omitted the State’s and second-degree murder, which instruction instruction which included the correct 12 addressed. that, argues The burden.3 notwith Nothing on the face of the instruc- standing instruction instruction 25 cor tions, placement, nor in their suggested to possible stemming rected all confusion from jury proof that the burden of from in- State, agree instruction 12. We with the and applied struction 25 second-degree mur- Appeals, with the Court of that instruction 25 der. Instruction aggravated 25 addressed proper: represented was precise adapta it battery voluntary manslaughter and rather 15-5183, and, tion of UJI importantly, most second-degree than span and a explained jury to the “[t]he that burden is on thirteen separated instructions it from in- prove beyond the state to a reasonable doubt struction 12. comparative The nearness the defendant did not act in self de erroneous instruction 15 to instruction 12 19,897, Benally, p. fense.” 3. It is there it, suggests jury apply would before jury fore clear that understood the the more remote instruction to second- regal’d State’s burden with to the set of degree murder. offenses to which pertained. instruction 25 We now address whether instruction 25 inapplicability was The of instruction 25 to capable rescuing second-degree from the confu- probably murder would have provided: 3. Instruction 25 apparent danger 3.The would have caused a Evidence has been in the same circumstances that the defen- dant acted in self-defense. The defendant act- to act as the defendant did. ed in self-defense if: prove beyond The burden is on the state to appearance 1. There was an of immediate reasonable doubt that the did not act defendant danger great bodily of death or harm to the have a reasonable doubt self-defense. If being by defendant as a result of attacked as to whether the acted in defendant self-de- deadly weapon; Marco LaPIant[ ] with a fense, you guilty. must noft] find put 2. The defendant was in fact in fear of added). (Emphasis great bodily immediate death or harm and ]; struck Marco LaPlant[ case, ignoring the instruc jury by governing law of the reinforced minds court.”); ad- Instruction other State Armen instructions. tions charged 1245, 1248 darez, “[e]ach crime monished the separately,” have would (“We should be considered (1992) presume that the followed logical inclination to consid- buttressed their rely and did not the written instructions man- accompanying er instructions part of very on one its verdict brief battery slaughter separately and offenses remarks.”). closing For these rea accompanying second- from sons, prosecutor’s closing argument degree murder. UJI 14-6004 NMRA incapable correcting the fundamental error jury not to Instruction which ordered the from the defective instruc that resulted in- “pick parts instruction or of an out one Neither found other tions. have we others,” disregard struction and would indication, either the instructions or within prevented interposing from lan- whole, as a overcame the record guage instruction onto instructions in instruction 12 and reached an the error 12 and 14-6001 NMRA 2001. We 15. UJI understanding of the State’s burden accurate likely jurors that at some believe it is least proof. perceived the inconsistent would have two in a manner consistent with V. Judge Bustamante his dis- theorized juror confusion and misdirection sent: resulting from instruction remained un- very I would be confused believe and resulted in fundamental error corrected that, two self defense and Cunningham Cunning- under the standard. them, to make sense of I would effort ham, ¶20, self apply the erroneous defense P.2d 176. We therefore reverse Defen- degree first and second follows, new charges which conviction remand for a trial. dant’s apply the correct IT IS SO ORDERED. manslaughter voluntary aggravat- battery ed instruction which it follows. B. PETRA PAMELA MINZNER and 19,897 p. 10. do not Benally, Because we MAES, JJ„ concur. JIMENEZ juror, following the believe that a reasonable BACA, J., F. and PATRICIO M. JOSEPH instructions, given graft would the correct SERNA, C.J., dissented. proof burden from instruction 25 to the of second-degree hold offense of we Justice, BACA, dissenting. 25 could corrected that instruction not have I find no respectfully I fun- dissent. omitted element instruction in affirm error this case and would damental second Defendant’s convictions for de- IV. tampering with evidence. gree murder argues prose- also The State that the My disagreement holding is with the Court’s during closing her state- cutor’s remarks finding majority’s of funda- predicated on the ment, read 25 and she entirely upon a error based focused mental jury of of the burden reminded analysis of the instructions. doc- proof, supports the conclusion that a reason- “is bottomed trine of juror or able would not been confused corruption or a innocence of the accused appropriate proof. of misled burden as to Sanchez, justice.” 58 v. N.M. of actual State attorney commentary agree that We do not (1954). Hence, 84, 77, 684, P.2d 265 688 capable correcting of an erroneous resolving obligation not rest on does Court’s presume jury fol- instruction. We issue whether there exists the narrow given by the trial lowed Rather, instructions. court, arguments presented by coun- must focus the broader issue court ¶45, Baca, 1997-NMSC-045, v. sel. State (“[W]e the Defendant’s conviction sec- whether 55, 124 946 P.2d are not “ degree murder ‘is so doubtful that ond took the willing assume judicial closing shock the conscience allow during applied it as comment ” Cunningham, may the conviction to stand.’ turn my so that better illuminate 2000-NMSC-009, ¶13, 128 N.M. 998 disagreement majority’s opinion. with the Baca, (quoting P.2d v. State 1997- NMSC-045, 946 P.2d A. 1066). issue, To resolve this question any The threshold case on record, obliged Court is to review the entire appeal is whether the claimed errors were placing the context of properly 12-216, preserved below. Rule the individual facts and circumstances of the review, scope appellate which defines the case, to determine whether the Defendant’s preserve question states: “To for review it plain conviction was the of a result miscar- appear ruling by must that a or decision Osborne, riage justice. v. See State fairly district court was invoked.” With re (1991) (reaf- spect instructions, ruling or decision firming that the doctrine of fundamental er- may fairly the district court be invoked applies only exceptional ror under circum- objection either a formal to the instruction prevent miscarriage stances order to court, jury by that is to be to the justice). Upon complete thorough See, tendering a e.g., correct instruction. us, view of the record before it is clear that Compton, the evidence to the in this (“[W]here (1953) the court has not dispute case leaves little that the Defendant subject instructed on the it is sufficient to any killed the legal justifica- victim without preserve the error if a correct instruction is Therefore, any deficiency tion. that can be tendered.”). primary purpose “The found in the self-defense when objection is, course, to an instruction analyzed in the context of the facts of this alert judge the mind of the to the claimed case, does not constitute fundamental error. it, error contained in the end that he Accordingly, the Defendant’s convictions Hence, correct it.” “[t]imely objections should be affirmed. improper error, instructions must be made or any, regarded every will be waived I. Garcia, 302, 307, 128 case.” There exist two distinct but interre- aspects lated to a true fundamental error Although general New Mexico courts analysis. aspect, The first which could be ly preservation requirement, adhere to the procedural prong characterized as the of fun- 12-216(B) provides exceptions Rule al error, provides exception damental appellate despite low party’s review failure preservation requirement. See Rule 12- 12-216(B)(2) preserve error. pro Rule 216(B)(2) (“This [preservation] NMRA 2001 vides: preclude ap “This rule shall not the preclude rule shall not appellate the court pellate considering court from questions ... considering questions from involving: ... involving: ... fundamental error or funda ... rights fundamental error or fundamental rights party.” mental aof This doctrine of second, party.”). of a The or substantive every fundamental error is founded on aspect error, provides of fundamental the power court’s “inherent to see that a man’s standard of review under which the issues rights protected fundamental every are claimed analyzed the defendant are on Garcia, 414, 421, 143 case.” State v. essence, appeal. In it through is the lens 1012, 1014(1914). P. unpreserved which the Court reviews error. See, e.g., Cunningham, 2000-NMSC-009, rights Where man’s fundamental have ¶ 21, (“Parties violated, precluded while he be alleging fundamental the error must terms of statute or the demonstrate rules the appellate procedure existence of insisting circumstances that ‘shock from in this implicate upon same, the conscience’ or court relief from fundamental the this court system discretion, unfairness within the power, that would un- has the in its to relieve judicial unchecked.”). integrity dermine injustice left him and to see is not done. provide foundation, To I will discuss apply these The restrictions the statute to the aspects two analysis parties, of fundamental error not court. Court, significantly 421,143 focuses and arise howev- different at P. at 1015.

Id. er, First, very guard- procedural “will this discretion in different circumstances. exercise right edly, fundamental and where some procedural between distinction these two invaded, strictly never aid of has been and apparent is since review standards for technical, Id. legal, or unsubstantial claims.” pre- versible arises when Defendant only ap- will Accordingly, fundamental error procedural This serves below. distinc- Cunning- ply exceptional circumstances. significant shapes is it because ham, appeal and Court’s review on defines the Thus, the doctrine of funda- 176. scope analysis. of the Court’s substantive exception than a mere mental error is more instance, For where the defendant preservation requirement. pro- It also court, preserves in the trial an issue vides the under which the issues standard appellate where to court is aware of focus its Defendant for the first time claimed contrast, appeal. on review where there Therefore, appeal are reviewed. review fact, specific no of error —in preservation proce- for fundamental error contains both has waived all where defendant error— significance. and dural substantive appeal is less the court’s focus on articulate. result, scope of the As a substantive B. review, preserved, when error is not is some- majori- The fundamental flaw the illustrate what broader. will these con- analysis ty’s depicts in this case is cepts below. merely exception error as an preservation requirement utterly ig- 1. nores the substantive force. The doctrine’s majority, concluding that the Defendant did First, example of review for re- properly preserve the claimed errors be- Parish, provided error is versible low, holds that “the omission unlawfulness 878 P.2d 988 12 constituted fundamental defendant, was convicted volun- who ¶ Moreover, Majority Opinion at error.” appealed his tary manslaughter, conviction majority that “because its dis- finds basis on the of errors instructions. tance from the erroneous elements instruc- at.41, 990. The 878 P.2d at would, tion and the unlikelihood trial court failed “instruct claimed sponte, graft language proper from a sua they decide must whether the improper instruction onto a claim was unlawful when of self- single proper instruction did not correct the that “the instructions defense-is raised” and Majority improper instruction.” explicitly place the burden failed ¶ Hence, majority Opinion at 1. reverses prove did not act in that Defendant the Defendant’s conviction second self-defense.” Id. The Court reviewed the by extricating stan- claimed errors under a reversible error from the of the individual facts and context objected the defendant dard review since case and circumstances of the reviews trial to offered at facial errors. Such a techni- instructions for were refused. See id. other instructions that approach does not consti- cal formalistic 991; Cunningham, see also P.2d at error. tute for fundamental See Cun- review N.M; ¶ 12, 2000-NMSC-009, ¶16, 2000-NMSC-009, ningham, 128 N.M. (recognizing “Parish (recognizing that the doc- 998 P.2d 176 error is never used to under analyzed trine fundamental instructions technical, “strictly legal, aid unsubstantial the defen- versible error standard because claims”). Instead, by limiting analysis its to' objected only prof- not dant Parish instructions, review of the isolated offered own he also his fered majority reviews case for in effect this instructions”). the defendant correct Since for rather than reversible error attention errors alerted court’s error. trial, by objecting analysis its entire this Court focused er- Fundamental error reversible jury instructions. claimed errors in the ror are standards review that two distinct Therefore, Orosco, injustice. under a reversible error for See standard, appellate it is clear that the court’s 780, 784, “The analysis substantive is focused on the error rule of applies only fundamental error if preserved namely, in the trial court — there miscarriage justice, has been a if the claimed error instructions. question guilt is so doubtful that it would determining whether the error claimed rises permit shock the conscience to the conviction error, appellate the level of reversible stand, justice or if substantial has not been accept slightest court “will evidence of Thus, done.” Id. provides the doctrine this prejudice, and all doubt will be resolved flexibility Court with the to review un- even claiming prejudice.” party favor of the preserved error to ensure that the interests Traxler, justice are served. The Court’s focus (Ct.App.1977). To determine whether review, therefore, such a is not whether there any prejudice, appel- there is evidence se, is error in the per but late court will look to the instructions as wrongly whether the defendant was convict- a whole and assess whether “a reasonable injustice ed or suffered such an juror would have been confused or misdirect- court should not allow the conviction to ed” the instructions. 118 N.M. at error, stand. “To establish fundamental Accordingly, 878 P.2d at 991. the focus there showing must be a that error was of analysis in a placed reversible error is entire- magnitude such that it affected the trial out- ly on the instructions. Jacobs, come.” State v. ¶ 58, According- P.3d 127. ly, we need to consider the individual facts analysis The under a fundamental fulfill circumstances of the ease to our standard, however, decidedly differ- role justice as the final arbiter of analysis ent than the under a reversible er- justice system. criminal This is not a limited ror Cunningham, standard. See 2000- inquiry majority’s analysis suggests, as the ¶ NMSC-009, 21,128 998 P.2d 176. exceedingly but an inquiry. broad analytical The main distinction between a analysis fundamental error and a revers- II. analysis scrutiny ible error is the level of alleg- afforded claims of error. Parties following analyze section I ing fundamental error must demonstrate pursuant case Iwhat understand the existence of circumstances that “shock to be a analysis. true fundamental error implicate the conscience” or a fundamental system unfairness within the that would A. judicial integrity undermine un- left primary question respect with properly pre- checked. Parties who have any appeal case on is whether the issues and alleged appeal served an are properly preserved. errors were afforded a much less onerous level of scru- record, Upon review of the I find that the tiny under a reversible error standard as properly preserve any Defendant failed to provided in Parish. the claimed errors appel- on which he seeks (citations omitted). To claim that First, during late review. at no time trial did analysis under fundamental error and revers- object the Defendant to the omission of un- except ible error is the same the Court lawfulness from of the essential elements invokes a fundamental error review when the instructions or alert the court’s attention to preserved error is not “would eliminate the ambiguous preservation regarding statement requirement ap- of error of our pellate jurisprudence” proof “compromise burden of Instruction 15. In fact, intent embodied in object Rule 12-216.” Id. at 18. did the Defendant fail to Therefore, review under fundamental error is errors, to these now claimed but he also substantively different. tendered essential elements which omitted the In element of unlawfulness as analysis, a fundamental error proposed by where the defendant has all well as several waived error self-defense instruc- failing object, goal to the Court’s is to search tions ambiguous which included the burden subject to instruct on the of self- court failed of which the Defendant proof statement complains. “Ordinarily court, defendant defense; a through now rather the inadver- on instructions he a claim of error tence, not base gave the two self-defense requested to which he or she made she or or pursuant tions to 14-5183 NMRA 2001. UJI Varela, objection.” 1999-NMSC- no mistakenly Thereby, court the omitted UJI ¶ 045, 11, 128 P.2d 1280. “The N.M. 14-5171. comply to having failed with the apparent The court’s mistake was position not in a [preservation] Rule is now judge verbally when the instructed the complain in that the court erred the in to judge the the read close of evidence. The Sena, given.” struction[s] appeared 15 as it in the Instruction There P.2d packet. the final instruction fore, properly pre these errors were presented has that the Evidence been served. defending acted himself. Defendant while Further, I also do not find the that The Defendant acted in if: regarding error the Defendant’s claimed trial 14-5171 NMRA 2001 court’s omission of UJI appearance 1. There was an of immedi- the final instructions was danger great bodily ate harm of death or course, acknowledge preserved. Of being at- the Defendant as a result of an Defendant tendered instruction based deadly weapon by Marco tacked with 14-5171, on UJI which read: LaPlante; and has been Evidence put 2. The Defendant was fact Defendant killed Marco LaPlante while de- fear, by apparent danger immediate fending himself. great bodily struck death or harm The in self-defense if: is fear; Marco LaPlante because appearance 1. an of immedi- There was apparent danger have 3. The bodily danger or great ate of death harm person in the same caused reasonable the defendant as a result of victim did. circumstances act as Defendant coming deadly weapon; his direction with a defense, considering this and after put in fact 2. Defendant was case, considering if all the evidence in the apparent danger of immediate fear doubt as to have reasonable great bodily or harm and killed Mar- death guilt, you must find him not Defendant’s fear; LaPlante of that co because guilty. A the same as the Defendant would circumstances added.). (Emphasis Despite the court’s obvi- have acted as the Defendant did. alert oversight, ous the Defendant failed to defense, considering and after judge of this mistake: case, considering if all the evidence errone- the court has instructed [W]here you have a reasonable doubt as to Defen- subject, although correct ously on the guilt, guilty. you must find him not dant’s point, has tendered instruction on added.). (Emphasis The district court whether the trial it leaves doubtftd justifiable agreed instruct actually thereby judge’s mind was alerted pursuant to the Defendant’s ten homicide sought be to the defect corrected place dered instruction and instruction, pre- requested is not error after first and second unless, addition, specific vice served reason, the instructions. For this Defendant pointed out to in the instruction argues this Court should review this objection. proper the trial court pursuant to a reversible error standard Henderson, State v. See, e.g., Cunningham, review. 2000- Therefore, (Ct.App.1970). al- NMSC-009, 21, 128 998 P.2d 176 14-5171, tendered though the Defendant UJI (“Parties properly preserved who accepted, cannot trial court he which the alleged appeal error for are afforded much knowing that “properly remain silent scrutiny under a less onerous level of revers court, covering has Parish”). ... its provided in ible standard Here, however, inadvertently an es- omitted it is not that district overlooked 268 justification being

sential element.” Id. Under these circum- human lawful without or stances, the court was alerted to its excuse commits murder the second de- inadvertence and therefore the claimed error gree performing if in the acts which cause was not preserved. Accordingly, the death he that such knows acts create a preserve because the Defendant failed to strong probability great bodily of death or regarded “will errors now claimed he be as harm to that individual another. objection, having waived the and cannot Accordingly, present case, complain [now] of the court’s failure or refus- was 12 Instruction that advised: instruction, give al proper to or of an For guilty find defendant improper or inaccurate instruction which it degree second the state must Garcia, given.” 308,128 has 46 N.M. at prove your beyond satisfaction a reason- at 462. following able doubt each of elements B. of the crime. above, As even if Plante; discussed the De- defendant killed Marco La fendant preserve, may fails to the Court The defendant knew that his acts creat- exercise its to review for discretion funda- strong probability ed a great of death or question mental error. The initial this Court bodily Plant; harm to La Marco analy- must ask itself in fundamental The defendant did not act as a result of sis is whether wrongly the Defendant was provocation; sufficient injustice convicted or such suffered that this happened This in New Mexico on or Court should not allow conviction to day July, about 7th 1997. stand. To determine whether the Defen- See UJI 14-210 2001. NMRA The Defen- judicial dant’s conviction shocks the con- science, primary dant’s is preliminarily the focus must contention that this instruc- be di- because, rected at the conviction and the elements of erroneous as indicated in upon 30-2-l(B), crime found the Section unlawfulness is an essen- guilty. “If there is substantial degree murder, tial yet element of second support evidence ... the verdict of the was omitted from 12. Instruction jury, we will not resort fundamental er- course, Of defined Section 30-2- 503, 505, ror.” State v. Rodriguez, 81 N.M. 1(B), an element unlawfulness is of second 148, (1970); 469 P.2d see v. State Sisne- degree However, presumed murder. “it is ros, 606, 600, 875, 79 N.M. 446 P.2d any killing of is another unlawful unless (1968) (holding ample that because there was killing justified is or excused.” Cun- conviction, support evidence to whatever ningham, 2000-NMSC-009, ¶9, 128 N.M. errors committed failed to 176; Noble, 998 P.2d finding constitute a basis for 360, 364, 563 P.2d It is error). Because find substantial evidence pre- Defendant’s burden rebut in the record to show that the Defendant sumption producing unlawfulness some legal justification, killed the victim without evidence, evidence, slight even support and since the Defendant failed to demon- justified. claim State v. strate circumstances that would “shock ¶ Duarte, 1996-NMSC-038, 8, the conscience” or show fundamental un- 915 P.2d 309. fairness, I would hold fundamental error did not occur in this case. “It is that ‘[s]elf-defense well-settled justification [or defense of is a another] all acquittal results rather than homicides ” mitigation.’ Here, Gallegos, 2001- the Defendant was convicted of ¶ NMCA-021, 9, degree second Second murder. mur- P.3d 689 30-2-l(B) 1978, § (quoting der is defined in Abeyta, NMSA State v. (1994): (1995), abrogated on other grounds by upon Campos, acting provo- Unless he is State v. sufficient 1996-NMSC- cation, 1266). quarrel 32 n. sudden or in the passion, heat of support self-defense, who kills To another

269 Um, yeah. A: evi have some Defendant must “ (1) put the] defendant was ‘[ dence that: Q: you anyone helping you? Do recall danger of immediate apparent an fear No, I don’t. A: (2) harm[;] bodily the great [ ] or death you hap- Q: did what Ok. Now see had [(3)] fear[;] killing from that and resulted got you to pened Marco LaPlante before as a reasonable the defendant acted up? those act under circum person would ” A: No. Lopez, v. stances.’ State So, Q: you did do then Lathan? so what ¶ 23, (quoting P.2d 727 993 Branchal, A: I kicked him. Therefore, (Ct.App.1984)). P.2d Ok, Q: ... describe how describe instruction on self-defense should be you got up ... “ produces evidence ‘suffi if the Defendant using got up my getting I hands and A: to reasonable minds to differ as cient to allow up running, kicking him. and ” (emphasis Id. of the defense.’ all elements you him? Q: you Do know kicked where added). presents the Defendant such Once No, really say I kicked A: I can’t where self-defense, it as each element of evidence “ him. fully duty ‘to the the court’s instruct Why? Q: clearly phases [that] all of the law on and on Heisler, (quoting I kicked issue.’” A: know I him. (1954)). 455, 272 P.2d Why you Q: you say where kicked can’t him, you ... can’t remember or what case, the In the Defendant to al- failed to introduce sufficient evidence him, can’t, I I but I I A: know kicked all the minds to differ low reasonable actual, points the the actual don’t know During trial the elements of self-defense. just I kick. was planning where I was placed in fear Defendant testified that he was kicking him. him approached the what when victim with Ok, you just Q: it because were real was gun. appeared As a result of this to be mad. fear, the in the the Defendant struck victim A: Yes. bottle, whiskey or with a head shoulder Ok, Q: you, you kicked could did weapon point dropped victim the him in the head? ground fell to the and he and the Defendant I have. A: could began fighting. ground, on and While top victim the Defendant and Defendant, therefore, was According after kicking began to seven other individuals six threat, longer victim no after was victim in the head and back. Defendant ground being kicked victim was on got up ground he from the stated that when individuals, the five to other Defendant seven victim, along and five he with stood above and, up as stated Defendant’s stood individuals, kick to seven other continued Chief, kicking La- “angrily Brief in started examination, the him. Defendant On direct added.). (Emphasis Plant.” testified: theory of Even under the defense’s happened? Q: Then what case, not entitled to a Defendant was me feet they pull him off a few A: Then The Defendant instruction. get up. I when that’s present any evidence show failed you feeling Q: point? at that were What the victim resulted from you feeling? How were fear that the Defendant Defendant’s initial I was mad. A: act under acted as reasonable Q: Why you were mad? Instead, Defen same circumstances. just A: mad ... was right to use ended when dant’s force So, Lathan, point you Q: at that were danger victim was disabled ceased and the get up? able kicked ground being repeatedly on the Garcia, See, A: Excuse me? e.g., State v. the Defendant. (Ct.App.- 51, 54, 487 up? Q: get able to Were 1971). Therefore, fifty-four there insufficient evi- inflicted stab wounds dence to allow minds to differ on the victim crushed his head with second rock). and third elements self-de- such, although fense. As Defendant Consequently, “the facts evidence have been entitled to a self-defense instruc- submitting did not warrant the issue self- of justification aggravated as a the initial tion to Heisler, defense.” State v. battery the Defendant struck the vic- —when “Hence, far so whiskey tim with the bottle —the Defendant jury as the instructed at all on any failed introduce evidence that showed subject, got the defendant more he was than the of the victim resulted error, any, entitled on evidence the and the Defendant’s exercise of self-defense. Therefore, given may the so not be made evidence at trial was not suffi- Id.; require cient to of the basis of submission instructions to a reversal.” see also State any Livernois, as to 1997-NMSC-019, of the charges. homicide (holding P.2d that where there is sufficient evidence for the Moreover, the extent of the victim’s conclude that the defendant killed the victim injuries is of not indicative the Defendant intent, requisite any deficiency with the fearing acting for his life and out of self- inconsequential). instructions is McFeely, pa- defense. Patricia a forensic thologist for the Office of Medical Inves- Mexico,

tigator per- for the State of New III. autopsy an body. formed on the victim’s Dr. McFeely testified that the victim died four Despite the broad nature funda- of days after the from a incident Combinationof review, majority mental error reverses injuries. fatal head There was subdural the Defendant’s conviction for second bleeding on the left side the brain and by taking instructions out of bruising areas or contusions on the brain analyzing context and claimed error right result, on both and left side. As a isolation. The notion that in a fundamental swelling a lot there was to the victim’s analysis solely should look we brain. doctor testified that the areas of ignores the entire founda- bruising on the brain were indicators of a which the doctrine of fundamental substantial amount of force. error is built and confuses a reversible significant injuries In addition to the standard for a fundamental error standard. brain, to his the victim also sustained simply It is inconsistent assert that under smaller, injuries arms, significant less on his doctrine, go this broad where we in search of head, right eye, right eyelid, around his and injustice, looking that we should be limited to extending right down the side of his face. deciding at the instructions. Also, there were abrasions over his collar case, it, as as well others like it is bone, shoulder, right back and on his left necessary beyond far to look in- arm, arm, upper back of his left lower and on issue; we structions need to consider stomach, Internally, his knuckle. inside his individual facts and circumstances of case there were areas of about four three contemplate role our as the final arbiter hemorrhage, inches of soft tissue which justice system. in the criminal not a This is would indicate substantial blows to the abdo inquiry. otherwise, limited To assert as injuries men. The sustained the victim does, majority opinion ignores pre- the basic “extremely unnecessary were brutal and cepts of the doctrine fundamental error. blows the defendant not consistent with Upon my review of the individual facts Martinez, self-defense.” State v. case, circumstances of this I find substantial 1041, 1043(1981); see, e.g., ¶¶ evidence the record show that De- 25-26, Lopez, legal victim any fendant killed the without (holding although 993 P.2d 727 justification. Since Defendant failed to aggressor, victim was the initial the defen dant was not demonstrate circumstances entitled to self-defense in that would struction when the evidence showed that the shock the or show a conscience ability unfairness, to reason and no For such would affect I find fundamental error. reasons, respectfully I dissent. temporary these loss control in to cause of self ordinary person average disposition.” SERNA, (dissenting). Chief Justice By contrast, 14-222 UJI NMRA self- I respectfully concur objective component dissent. has defense agree with his Justice Baca’s dissent act as a thorough review of the doctrine fundamen- However, under act the circumstances. self- one separately express I write tal error. defense, provocation, like sufficient also con- why reason I believe the instruc- additional subjective component requires tains a tional error in this case does amount put that the defendant be in fear immedi- the ele- fundamental error. I believe that fact, great bodily death or harm. ate necessarily estab- ment of unlawfulness was long recognized “New Mexico has that ‘heat given by the the lished under [, passion’ provocation,] or sufficient in- of “Clearly, finding jury’s a trial court. when safety may cludes fear for one’s own that act, alleged committed the that defendant in an in the result unreasonable belief need case, necessarily under the evidence Abeyta, v. 120 to defend oneself.” State finding an ele- or amounts to a includes 233, 164, P.2d 171 “If N.M. 901 jury’s from ment omitted the rejects self-defense, jury theory the the of it reliability any to the of convic- doubt as the may acted still find under is be tion eliminated and the cannot mitigate provocation and the of fear Orosco, said to fundamental.” be charge charge of lesser of murder the at P.2d at 1150. 833 voluntary manslaughter.” “[T]he Id. critical “It is the of unlawfulness element difference between self-defense and volun- Parish, negated that is 118 self-defense.” provocation tary manslaughter lies not in To the N.M. at 878 P.2d at 992. include fear, emotion but the the of rather reason- unlawfulness, element of the trial court of in kill- the defendant’s conduct ableness jury should have the instructed ing.” authority quotation Id. (quoted and prove beyond a reasonable State had omitted). “It is unreasonable that marks not not in self- doubt that Defendant did act of guilty be the accused should found volun- could defense. This instruction have been plea tary manslaughter where the of self- contained in the essential elements instruc defense fails.” Id. defining or in self-de tion the instruction Sosa, fense. State See case, In based on ¶ 31, 1017; 943 for elements instruction second de- essential ¶26, 1999-NMCA-087, Armijo, N.M. jury jury, gree found 764; Puga, see also State v. beyond a reasonable doubt that Defendant (Ct.App. provocation. act As a did not with sufficient 1973) (“Instructions as a are be considered result, beyond a found reasonable whole; all elements of the offense need did not act out of fear doubt that Defendant instruction.”). in one be contained safety. his own found for Because on the The trial court did not instruct beyond a reasonable doubt that Defendant disprove self-defense be- State’s burden subjec- kill victim as a result of did not yond a reasonable in the instructions doubt fear, jury necessarily beyond a found tive murder; pertaining degree howev- to second of that one element self- reasonable doubt that, er, the trial court did instruct the defense, subjective element fear murder, degree prove in order second life, present under the facts in one’s was not prove beyond a had to reasonable voluntary jury’s rejection of this case. The as a “[t]he doubt defendant did not act manslaughter, guilty on the verdict provocation.” In New result of sufficient “ murder, degree charge of second “necessari- told, Mexico, ‘[sufficient was finding ly amounts on an includes or action, provocation’ can be conduct or jury’s omitted from the element rage, anger, circumstances arouse Orosco, 784, 833 at P.2d at fear, resentment, tions.” terror or other ex- sudden provocation treme must be emotions. The sarily supports analysis. this In also Parish determined was

Parish, justification “without convicted defendant of lawful or excuse.” 30-2-KB) (1994). NMSA1978, voluntary § manslaughter, but “the first whether Parish asked decide commit- Orosco, this Court cautioned: ted second which is distin- [U]nder the rule of fundamental guished voluntary manslaughter by required only versal is when the interests provocation.” element of justice require. so A rule automatic 878 P.2d at 995. We were concerned reversal would mandate new trial in ev- provocation in Parish that the instruction on ery instruct, instance of failure to even language that contained was similar to the though only undisputed it was not but “[T]he instruction on self-defense. indisputable that the element was met. easily could that [the have found facts of the result, view, Such a in our would be a fell case] within definition self-defense. perversion justice, a classic demonstra- However, considering the instruction on inequitable profoundly results that voluntary manslaughter, jury may also judiciary follow worships when the form have found in facts the these same element of ignores substance. provocation. Both instructions describe a (quoted 113 N.M. at P.2d at situation fear in which arouses the Defen- omitted). authority quotation marks result, dant----” plausible “[i]t Id. As a is case, indisputable the State juror might that a be confused beyond demonstrated a reasonable doubt finding provocation first sufficient to reduce Defendant did not act self-defense or charge from second murder to provocation. result, with sufficient As a voluntary manslaughter, and to then discard majority’s reversal of Defendant’s second de- concept provocation and use the same gree murder conviction elevates form above facts provocation prove that evinced self- reasons, substance. For these and for the Id. As this discussion demon- defence.” strates',-.the expressed Baca, respect- reasons Justice voluntary distinction between fully dissent. self-defense, manslaughter and and the de- voluntary fendant’s manslaugh- conviction of

ter, analysis critical to our of the Parish. Unlike 2001-NMSC-034 rejected voluntary manslaughter case based on an elements instruction that contained the DELGADO, personal represen Michelle appropriate proof; jury reject- burden Reynaldo Delgado, tative of the estate step ed the first described Parish of find- individually, parent and as the of Dan ing provocation. Accordingly, sufficient Delgado, child, ielle a minor and Gabr question was not faced with of dis- Delgado, child, ielle minor Plaintiff- provocation tinguishing between from self- Petitioner, words, jury rejected defense. other and, “imperfect” doing, self-defense in so also CHINO, INC., PHELPS DODGE a Dela rejected implicitly “perfect” self-defense. corporation, White, ware Charlie indi Abeyta, See 120 N.M. at 901 P.2d at 171 vidually corporate capacity, and in his (“Although the unreasonable belief in the Burkett, individually and Mike and in may need for well self-defense be termed corporate capacity, his Defendants-Re self-defense, imperfect this label is somewhat spondents. misleading. Such conduct is not a true de- 26,360. No. justify killing. fense and does Rath- er, imperfect the claim simply Supreme Court New Mexico. presents mitigating an issue of circumstances 29, 2001. Oct. manslaughter.”). reduce murder to By finding beyond a reasonable doubt that mitigating circumstance of sufficient

provocation present, was not neces-

Case Details

Case Name: State v. Benally

Court Name: New Mexico Supreme Court

Date Published: Oct 17, 2001

Citation: 34 P.3d 1134

Docket Number: 26,245

Court Abbreviation: N.M.