Esquibel v. State
| Decision Date | 27 March 1978 |
| Docket Number | No. 11813,11813 |
| Citation | 91 N.M. 498,576 P.2d 1129 |
| Parties | Patricio ESQUIBEL, Petitioner, v. STATE of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
Defendant-appellant was convicted of escape from the New Mexico State Penitentiary in violation of § 40A-22-9, N.M.S.A.1953 (Repl.1972). He contends the trial court erred in refusing a requested instruction which was based upon N.M. U.J.I.Crim. 41.20 (Vol. 6, N.M.S.A.1953 at 329 (Supp.1975)). The trial court refused a tendered instruction by defendant in substantially the language of N.M. U.J.I.Crim. 41.20. The Court of Appeals affirmed the trial court. We reverse.
The Court of Appeals stated in its opinion that N.M. U.J.I.Crim. 41.20 does not appear to be a sufficient instruction on duress as a defense to any crime because it does not cover "opportunity to avoid the danger." The Court of Appeals cites State v. LeMarr, 83 N.M. 18, 487 P.2d 1088 (1971) in support of this view. LeMarr, however, did not establish an additional element of the duress defense which is absent from our present instruction. The "full opportunity to avoid the act without danger" language quoted in LeMarr is merely an alternative expression of the traditional requirement that, in order to constitute a defense, the coercion or duress must be "present, imminent, and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily injury." Annot., 69 A.L.R.3d 678, 684 (1976). The Court of Appeals further stated that N.M. U.J.I.Crim. 41.20 was not intended to cover duress as a defense to an escape charge and that, as a consequence, no uniform jury instruction on duress as a defense to an escape charge has been provided for New Mexico. The Court of Appeals recognizes the rule that it has no authority to set aside an instruction approved by the Supreme Court. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).
Duress and coercion are defenses to a criminal charge, if the accused feared immediate great bodily harm to himself or another person if he did not commit the crime charged and if a reasonable person would have acted the same way under the circumstances. State v. LeMarr, supra; State v. Lee, 78 N.M. 421, 432 P.2d 265 (Ct.App.1967), N.M. U.J.I.Crim. 41.20; Annot., 69 A.L.R.3d 678 at 684 (1976).
N.M. U.J.I.Crim. 41.20 reads:
DURESS NON HOMICIDE CRIMES 1
Evidence has been presented that the defendant was forced to _______ 2 under threats. If the defendant feared immediate great bodily harm to himself or another person if he did not commit the crime and if a reasonable person would have acted in the same way under the circumstances, you must find the defendant not guilty. The burden is on the State to prove beyond a reasonable doubt that the defendant did not act under such reasonable fear.
N.M. U.J.I.Crim., General Use Note (Vol. 6, N.M.S.A.1953 at 289 (Supp.1975)) provides in pertinent part as follows:
When a Uniform Instruction is provided for the elements of a crime, a defense or a general explanatory instruction on evidence or trial procedure, the Uniform Instruction must be used without substantive modification or substitution. . . .
In State v. LeMarr, supra, this Court sets forth the statement of the rule applicable to duress:
In our own Circuit, in an opinion authored by Circuit Judge Sam G. Bratton in Shannon v. United States, 76 F.2d 490, at 493 (10th Cir. 1935), where two defendants among 14, in a conspiracy to kidnap case, asserted a defense of coercion from the other conspirators as a defense to their guilt, Judge Bratton said:
* * * "
As to a statement of the rule in New Mexico, see State v. Lee, 78 N.M. 421, 432 P.2d 265 (1967).
83 N.M. at 21, 487 P.2d at 1091.
In State v. Lee, supra, the Court of Appeals said:
The annotator in 40 A.L.R.2d 908, 910, summarized as follows:
"It has been stated generally that in order to constitute a defense to a criminal charge other than taking the life of an innocent person, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done."
Also in 1 Wharton's Criminal Law and Procedure § 123, we find this statement:
"The defense of duress is not established by proof that the defendant had been threatened with violence at some prior time, if he was not under any personal constraint at the time of the actual commission of the crime charged."
78 N.M. at 423, 432 P.2d at 267.
Duress, as it is expressed in State v. Lee, supra, and State v. LeMarr, supra, is an historical and widely recognized defense. See generally : Annot., 40 A.L.R.2d 908 (1955); Annot., 69 A.L.R.3d 678 (1976); People v. Luther, 394 Mich. 619, 232 N.W.2d 184 (1975). We hold that duress is a defense available in New Mexico except when the crime charged is a homicide or a crime requiring intent to kill.
The defense of duress is a question for the jury. People v. Luther, supra. A defendant successfully raises the defense of duress when he presents evidence, as here, from which a jury could conclude that he feared immediate great bodily harm to himself or another person if he did not commit the crime charged and that a reasonable person would have acted in the same way under the circumstances. The defendant thus having established a prima facie case of duress, the burden then shifts to the State to prove beyond a reasonable doubt that the defendant did not act under such reasonable fear. N.M. U.J.I.Crim. 41.20.
The State urges that we adopt a contrary view, as expressed...
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