State v. Boeglin

• Decision Date: 21 January 1987
• Docket Number: No. 15746,15746
• Citation: 105 N.M. 247,1987 NMSC 2,731 P.2d 943
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Phillip C. BOEGLIN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 943

731 P.2d 943

105 N.M. 247

STATE of New Mexico, Plaintiff-Appellee, v. Phillip C. BOEGLIN, Defendant-Appellant.

No. 15746.

Supreme Court of New Mexico.

Jan. 21, 1987.

[105 NM 248] Rothstein, Bailey, Bennett, Daly & Donatelli, Martha A. Daly, Santa Fe, for defendant-appellant.

William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

STOWERS, Justice.

Defendant Phillip Boeglin was charged with murder, conspiracy to murder, kidnapping, conspiracy to distribute a controlled substance (methamphetamines), and possession of a controlled substance (methamphetamines), charges arising from events surrounding the February 12, 1982, killing of David Eastman. Codefendants Ralph Earnest and Perry Conner separately were charged with the same offenses. Earnest was tried by a jury and found guilty on all counts but his conviction was reversed by this Court. See State v. Earnest, 103 N.M. 95, 703 P.2d 872 (1985), vacated, --- U.S. ----, 106 S.Ct. 2734, 91 L.Ed.2d 539 (1986). Conner entered a guilty plea and was sentenced to life imprisonment.

After numerous pretrial motions, orders, and interlocutory appeals resulting in the suppression of two of the three statements made by defendant to the police on the day of the crime and of his arrest, defendant went to trial before a jury on December 4, 1984. At the close of the State's case, the district court dismissed the counts regarding controlled substances. After defendant rested his case, the district court submitted to the jury the remaining counts of first degree murder, conspiracy to murder, and kidnapping. The jury returned guilty verdicts on all three counts, and the district court sentenced defendant to life imprisonment on the murder count and to concurrent terms of nine years each on the conspiracy and kidnapping charges, which terms were to run concurrent with his murder sentence.

Defendant appeals from this judgment and sentence, asserting that the district court erred (1) in failing to instruct the jury on the lesser included offense of second degree murder; (2) in admitting into evidence a photograph of the victim's wounds; and (3) in admitting into evidence a tape recording of defendant's statement to the police which constituted false evidence and deprived defendant of the real evidence. We affirm the district court, discussing each of defendant's contentions separately.

I. Lesser Included Offense Instructions.

At the close of the State's case, the district court found that sufficient evidence had been presented to support a jury verdict of first degree murder. For the first time, the district court expressed its willingness to give an instruction on the lesser included offense of second degree murder, if defendant were to request it. At the conclusion of defendant's case, the district court for the second time expressed its willingness to give the lesser included offense instruction if defendant requested it.

Finally, after the State finished presenting its rebuttal evidence, the district court inquired whether the defense had any requested instructions to submit. Replying that the defense did not, defense counsel put on the record a difference of opinion between counsel and defendant. Counsel stated that he would request a second degree instruction if it were his decision to make; however, defendant adamantly had instructed him not to do so.

The district court then examined defendant, informing him that he was entitled to an instruction on the lesser included offense of second degree murder and that without that instruction the jury would be placed in the position of having to acquit him or find him guilty of first degree murder. Defendant indicated that he understood the situation and that he had instructed counsel not to request the lesser included offense instruction. The prosecutor, repeating the court's cautions, asked defendant if it was still his desire to waive his right to that instruction. Defendant said that it was and that it was his choice, despite his counsel's advice to the contrary. The only homicide instruction submitted was first degree murder, and the jury returned a verdict of guilty.

Defendant now asks this Court to reverse his conviction by a jury instructed as he desired. Primarily, he argues that as a matter of policy we should require the giving of a second degree murder instruction, regardless of the defendant's wishes, in order to assure him a fair trial. Alternatively, defendant argues that if we continue to permit waivers of the right to lesser included offense instructions, we nevertheless should find that his waiver was not knowing and voluntary and, therefore, that his rights to due process and a fair trial were violated.

We recently held that where the trial court and the defense agree that a lesser included offense instruction on second degree murder should not be given to the jury, the defendant cannot complain on appeal that reversible error was committed in not giving that instruction. State v. McCrary, 100 N.M. 671, 675 P.2d 120 (1984). Defendant attempts to distinguish his case from McCrary on the ground that his waiver of the right to a second degree murder instruction was contrary to the express advice of counsel. We believe this distinction is untenable because the defendant, not defense counsel, ultimately must decide whether to seek submission of lesser included offenses to the jury. See Standards for Criminal Justice, Sec. 4-5.2 commentary at 4.68 (1980); cf. State v. Martinez, 92 N.M. 256, 258, 586 P.2d 1085, 1087 (1978) (guilty plea); State v. Shroyer, 49 N.M. 196, 203, 160 P.2d 444, 447-48 (1945) (waiver of jury trial); State v. Henry, 101 N.M. 277, 280, 681 P.2d 62, 65 (Ct.App.1984) (waiver of right to testify on own behalf); NMSA 1978, Crim.P.R. 21 (Repl.Pamp.1985) (guilty plea); NMSA 1978, Crim.P.R. 38 (Repl.Pamp.1985) (waiver of jury trial).

Defendant urges us to rule that whenever the evidence in a first degree murder prosecution warrants the submission of a second degree murder instruction, the trial court must give that instruction sua sponte, regardless of requests or objections made by the prosecution or the defendant and his counsel. That policy argument was considered and rejected by this Court in McCrary. See id., 100 N.M. at 676-77, 675 P.2d at 125-26 (Sosa, J., dissenting). Following McCrary, we decline to rule that the district court should have given a second degree murder instruction sua sponte.

A review of our decisions indicates that, with one exception, we consistently have imposed upon the defendant the duty to make the tactical decision whether or not to seek jury instructions on lesser degrees of homicide supported by the evidence, and we repeatedly have held that the defendant cannot be heard to complain if the trial court instructed the jury as he desired. See, e.g., State v. McCrary, 100 N.M. at 675, 675 P.2d at 124; State v. Garcia, 46 N.M. 302, 307, 128 P.2d 459, 462 (1942); State v. Trujillo, 27 N.M. 594, 603, 203 P. 846, 849 (1921); State v. Najar, 94 N.M. 193, 195-96, 608 P.2d 169, 171-72 (Ct.App.1980). The one exception occurred over half a century ago, in State v. Diaz, 36 N.M. 284, 13 P.2d 883 (1932), where we held that in first degree murder cases the trial court had the responsibility to instruct on lesser degrees of homicide supported by the evidence regardless of the requests or objections of the defendant and the prosecution. Id., 36 N.M. at 286-87, 291, 13 P.2d at 885, 887. Less than two years later, however, this Court effectively repudiated the rule of Diaz when it promulgated a rule requiring objection to the instructions given or tender of correct instructions at trial in order to challenge instructions on appeal. See State v. Garcia, 46 N.M. at 306-07, 128 P.2d at 461-62.

Although defendant's failure to object properly to the district court's allegedly incomplete or erroneous instructions constituted a waiver of the objection, see id., 46 N.M. at 307-08, 128 P.2d at 462; State v. Najar, 94 N.M. at 196, 608 P.2d at 172, we nevertheless will grant relief if fundamental error has occurred in a particular case, State v. Garcia, 46 N.M. at 308-09, 128 P.2d at 462-63. Defendant's contention that the district court erred in failing to submit to the jury a second degree murder instruction sua sponte neither raises a jurisdictional question, see State v. Najar, 94 N.M. at 195, 608 P.2d at 171, nor one involving an issue of general public interest, cf. State v. Garcia, 99 N.M. 771, 779, 664 P.2d 969, 977, cert. denied, 462 U.S. 1112, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983) (possible death sentence insufficient ground). See generally NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 308 (Repl.Pamp.1983). Under the circumstances of this case, however, we shall consider whether the district court's instructions "[took] from * * * defendant a right which was essential to his defense and which no court could or ought to permit him to waive." State v. Garcia, 46 N.M. at 309, 128 P.2d at 462.

We conclude that the defendant's right to lesser included offense instructions warranted by the evidence is not such a fundamental right. In New Mexico courts, as well as in federal courts, the defendant is entitled to lesser included offense instructions warranted by the evidence. See State v. Riggsbee, 85 N.M. 668, 671, 515 P.2d 964, 967 (1973); NMSA 1978, Crim.P.R. 41 (Repl.Pamp.1985); see also Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973); Fed.R.Crim.P. 31(c). The United States Supreme Court regards the availability of such instructions as a valuable procedural safeguard. See Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980); see also Keeble v. United States, 412 U.S. at 213, 93 S.Ct. at 1998.

In Beck v. Alabama, the Court struck down a unique Alabama statute that prohibited the submission of lesser included offense instructions in capital cases and mandated imposition of...