1997 -NMCA- 35, State v. Acosta

• Citation: 939 P.2d 1081,123 N.M. 273,1997 NMCA 35
• Decision Date: 19 March 1997
• Docket Number: No. 16346,16346
• Parties: , 1997 -NMCA- 35 STATE of New Mexico, Plaintiff-Appellee, v. Eliseo ACOSTA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1081

939 P.2d 1081

123 N.M. 273, 1997 -NMCA- 35

STATE of New Mexico, Plaintiff-Appellee, v. Eliseo ACOSTA, Defendant-Appellant.

No. 16346.

Court of Appeals of New Mexico.

March 19, 1997.

Certiorari Granted May 2, 1997.

Tom Udall, Attorney General, Bill Primm, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Douglas W. Baker, Ann Arbor, MI, for Defendant-Appellant.

OPINION

ARMIJO, Judge.

¶1 Defendant appeals his conviction of aggravated battery with a deadly weapon on five grounds: (1) there was fundamental error in the trial court's jury instruction for aggravated battery with a deadly weapon because this instruction failed to include an essential element of the offense; (2) there was fundamental error in the trial court's jury instructions for self-defense and defense of another because these instructions did not clearly place the burden of proof on the State; (3) the failure of Defendant's trial counsel to tender a jury instruction on the less serious offense of negligent use of a deadly weapon amounted to ineffective assistance of counsel; (4) the prosecutor's misconduct during closing arguments denied Defendant a fair trial; and (5) the trial court abused its discretion by denying Defendant's motion for a new trial based on newly discovered evidence. We reverse and remand for a new trial because there was fundamental error in the jury instructions. Because we reverse and remand on issues (1) and (2) relating to instructional error, we do not address the remaining issues raised.

I. BACKGROUND

¶2 Defendant was tried and convicted of aggravated battery with a deadly weapon. His conviction arose from a late-night confrontation outside the Cadillacs and Wranglers bar in Hobbs, New Mexico, on August 29, 1993. Defendant presented evidence that the confrontation arose because a group of people, including the victim, Joe Leal, had chased Defendant and his brother and tried to pick a fight with them. Defendant described Leal's group as consisting of fifteen to twenty people. Defendant further testified that he heard one of the men in Leal's group say "go get your gun" and then saw that man hand some car keys to Leal. After Leal walked over to a white car, went inside it and then reemerged, Defendant feared that Leal had retrieved a gun. Panicking because of this fear, Defendant testified that he grabbed his brother's shotgun and fired one "warning shot" toward the ground to protect himself and his brother. A sheriff's department investigator determined that the shot fired by Defendant travelled level and low to the ground before hitting the white car. Leal was next to the white car and was hit on the arm and neck by birdshot that ricocheted off the car.

¶3 Defendant was arrested and charged with aggravated battery with a deadly weapon and criminal damage to property. At the close of evidence, the trial court entered a directed verdict of not guilty on the criminal damage to property charge. With regard to the aggravated battery charge, the trial court found that there was sufficient evidence to support a jury instruction on self-defense and defense of another. The trial court gave the jury the uniform jury instruction (UJI) for aggravated battery with a deadly weapon tendered by the prosecutor, SCRA 1986, 14-322, as well as the UJIs for self-defense and defense of another tendered by Defendant. SCRA 1986, 14-5181 & -5182. After the jury was instructed, the prosecutor made closing arguments in which he reiterated the elements in the jury instructions for aggravated battery with a deadly weapon, self-defense and defense of another. Defendant's trial counsel did not object to these arguments or the instructions on which they were premised.

¶4 The jury found Defendant guilty of aggravated battery with a deadly weapon on May 11, 1994. On July 12, 1994, Defendant filed a motion for a new trial based on newly discovered evidence. On February 9, 1995, Defendant's motion was denied, and the following day the trial court entered its judgment and sentence. Defendant now appeals from the final judgment and sentence.

II. DISCUSSION

¶5 Although the trial court followed the applicable uniform jury instructions (UJIs) in this case, Defendant claims that the jury instructions given for aggravated battery with a deadly weapon, self-defense and defense of another contain the same defects that amounted to reversible and incurable error in State v. Parish, 118 N.M. 39, 42-46, 878 P.2d 988, 991-95 (1994). Specifically, Defendant claims the aggravated battery instruction was erroneous because it failed to include unlawfulness as a necessary element of that crime when an issue of self-defense was properly raised. See id. at 42-44, 878 P.2d at 991-93 (finding similar error in voluntary manslaughter instruction); State v. Johnson, 122 N.M. 696, 703, 930 P.2d 1148, 1155 (1996) (finding similar error in aggravated assault instruction where issue of citizen's arrest was properly raised). Defendant also claims the instructions given to the jury regarding self-defense and defense of another were erroneous because the jury was not explicitly told that: (1) if it found credible evidence to support Defendant's claim that the shooting was in self-defense or defense of another, then the burden shifted to the State to refute this claim; and (2) if the State could not refute Defendant's claim beyond a reasonable doubt, then the jury was required to find Defendant not guilty. See Parish, 118 N.M. at 44, 878 P.2d at 993 (finding same error in self-defense instruction for justifiable homicide); see also NMUJI 1997, 14-5181 & -5182 (instructions for self-defense and defense of another involving nondeadly force revised to accord with Parish ).

¶6 Before addressing the applicability of Parish to the jury instructions in the case at bar, we address three preliminary questions: (1) whether Defendant was required to preserve the jury instruction issues below; (2) whether this Court should apply the ruling in Parish retrospectively; and (3) whether this Court has the authority to modify the applicable UJIs in this case.

1) Preservation of Error.

¶7 Unlike the defendant in Parish, Defendant in the case at bar failed to object to the aggravated battery instruction and, in fact, tendered the instructions on self-defense and defense of another. The claim of error in these instructions was not raised in the docketing statement or calendar notices; it appeared for the first time in Defendant's Brief-in-Chief. Nonetheless, under our rules of criminal procedure, NMRA 1997, 5-608(A) & (D), and the doctrine of fundamental error, the use of a jury instruction that omits an essential element of the offense can be grounds for reversal even when the omission was caused by the defendant's own actions. See State v. Osborne, 111 N.M. 654, 661-62, 808 P.2d 624, 631-32 (1991) (reversing a conviction for criminal sexual contact of a minor); State v. Kirby, 122 N.M. 609, 611, 930 P.2d 144, 146 (1996) (reversing a conviction for involuntary manslaughter). The rationale behind this ruling is that "it is the duty of the court, not the defendant, to instruct the jury on the essential elements of a crime." Osborne, 111 N.M. at 662, 808 P.2d at 632.

¶8 The State acknowledges the holding in Osborne, but argues that the fundamental error doctrine should not apply in this case because the evidence of Defendant's guilt is not so doubtful as to "shock the conscience." We are unconvinced by this argument for three reasons. First, in determining whether Defendant is required to preserve his claim of error, the Court need not reach the fundamental error doctrine because this issue "may be resolved simply by resort to our Rules of Criminal Procedure." Id. at 661, 808 P.2d at 631 (citing Rule 5-608). Second, while it is true that Defendant abandoned the claim that his conviction was not supported by substantial evidence, the presence of such substantial evidence alone does not render the error harmless. See State v. Hennessy, 114 N.M. 283, 289, 837 P.2d 1366, 1372 (Ct.App.1992), overruled in part on other grounds by State v. Lucero, 116 N.M. 450, 453-54, 863 P.2d 1071, 1074-75 (1993). Given that there also was sufficient evidence to instruct the jury on self-defense and defense of another, we do not regard the error in the jury instructions as harmless or "peripheral." Moreover, because of the emphasis that the prosecutor placed on the jury instructions in his closing argument, there is a reasonable probability that the omission of an essential element in these instructions may have significantly affected the jury's deliberations. Cf. Hennessy, 114 N.M. at 289, 837 P.2d at 1372. Finally, because "the orderly and equitable administration of justice requires that we correct any such error notwithstanding the defendant's responsibility for or complicity in the error," the Court would fail to do "substantial justice" if it allowed Defendant's conviction for aggravated battery to stand on a jury instruction that omitted the essential element of unlawfulness where self-defense and defense of another were at issue. Osborne, 111 N.M. at 662-63, 808 P.2d at 632-33. For these reasons, we address the claimed error in the jury instruction for aggravated battery with a deadly weapon notwithstanding Defendant's failure to object to this instruction at trial.

¶9 If there was not a related error in the aggravated battery instruction, the ambiguous instructions regarding the State's burden of proof in refuting Defendant's claims of self-defense and defense of another might not be as grave an error. Cf. State v. Kendall, 90 N.M. 236, 243, 561 P.2d 935, 942 (Ct.App.) (failure to instruct jury on burden of proof required to sustain sentencing enhancement for use of a firearm is not fundamental error), rev'd on other grounds, 90 N.M. 191, 561 P.2d 464 (1977). However, because " 'instructions must be considered as a whole, and not singly,' " Parish, 118 N.M. at 41, 878 P.2d at 990...