Jackson v. State, 14779

Decision Date30 November 1983
Docket NumberNo. 14779,14779
Citation672 P.2d 660,1983 NMSC 98,100 N.M. 487
PartiesPerry JACKSON, Petitioner, v. STATE of New Mexico, Respondent.
CourtNew Mexico Supreme Court
Janet E. Clow, Chief Public Defender, J. Thomas Sullivan, Appellate Defender, Santa Fe, for petitioner
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:

1. Whether the Court of Appeals erred in refusing to reverse defendant's conviction 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.

2. 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The instruction given by the court was the version originally adopted in 1975 that has been superseded by NMSA 1978, UJI Crim. 2.10 and UJI Crim. 2.11 (Repl.Pamp.1982). Noncompliance with the uniform jury instructions in criminal cases is reversible error if the failure eliminates an essential element of the crime in the instruction or if the defendant is prejudiced. State v. Gallegos, 96 N.M. 54, 627 P.2d 1253 (Ct.App.1981). Further, there may be fundamental error if the instruction given differs materially from the required instruction. See, State v. Doe, 672 P.2d 654, S.Ct. No. 14,627 (Filed November 29, 1983). When a uniform jury instruction is provided for the elements of a crime, generally that instruction must be used without substantive modification. NMSA 1978, UJI Crim. General Use Note (Repl.Pamp.1982); see State v. Curlee, 98 N.M. 576, 651 P.2d 111 (Ct.App.), cert. denied, 98 N.M. 590, 651 P.2d 636 (1982). While it is generally true that a defendant who does not object to an incorrect instruction given by the trial court waives his right to object for the first time on appeal, State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977), there are exceptions. It is within the province of this Court, in its discretion, to prevent injustice where a fundamental right of the accused has been violated. State v. Garcia, 46 N.M. 302, 128 P.2d 459 (1942); State v. Garcia, 19 N.M. 414, 143 P. 1012, reh'g granted, 19 N.M. 420, 143 P. 1014 (1914).

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 UJI Crim. 2.10 and UJI Crim. 2.11. The incorrect instruction in this case rises to fundamental error because it does not contain necessary elements of the crime not covered in other instructions. The defendant's conviction must therefore be reversed. The trial court has a duty to instruct the jury on all questions of law essential for a conviction of the crime with which the defendant is charged. NMSA 1978, Crim.P.R. 41(a) (Repl.Pamp.1980); NMSA 1978, UJI Crim. 1.03 (Repl.Pamp.1982). Similarly, both the defendant and the state have a duty to tender correct instructions to the trial court. Had the trial court considered the correct instruction, it may have felt compelled to give the lesser included instruction on manslaughter. Because the trial court failed to properly instruct the jury on the issue of second degree murder, defendant's conviction is reversed and the cause remanded for a new trial.

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." NMSA 1978, UJI Crim. 2.22 (Repl.Pamp.1982).

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, NMSA 1978, UJI Crim. 2.10 (Repl.Pamp.1982). This issue was not properly before the appellate court because it was not raised initially on appeal. This issue was subsequently raised in the defendant's motion for rehearing. The Court of Appeals denied defendant's motion.

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 NMSA 1978, UJI Crim. 2.10 or UJI Crim. 2.11 (Repl.Pamp.1982). The function of the appellate court is not to retry the case but to consider those matters properly before it. A motion for rehearing "shall state with particularity only the points of law or fact which movant believes the court has overlooked or misapprehended." NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 602 (Repl.Pamp.1983) (emphasis added). New points may not be presented in a petition for rehearing. State v. Curlee, 98 N.M. 576, 651 P.2d 111 (Ct.App.); cert. denied, 98 N.M. 590, 651 P.2d 636 (1982). This has been the longstanding rule in this jurisdiction. Id.; State v. Starr, 24 N.M. 180, 173 P. 674 (1917), appeal dismissed 254 U.S. 611, 41 S.Ct. 61, 65 L.Ed. 437 (1920); State v. Williams, 22 N.M. 337, 161 P. 334 (1916); State v. McKnight, 21 N.M. 14, 153 P. 76 (1915), appeal dismissed, 246 U.S. 653, 38 S.Ct. 335, 62 L.Ed. 923 (1918). See also Weese v. Stoddard, 63 N.M. 20, 312 P.2d 545 (1956), reh'g denied (1957); In Re White's Estate, 41 N.M. 631, 73 P.2d 316 (1937); Ellis v. Citizens' National Bank, 25 N.M. 319, 183 P. 34 (1918), reh'g denied (1919). To hold as the majority does sets a dangerous precedent in terms of appellate review and allows matters not properly preserved on the record to be reviewed by the appellate courts.

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...

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