State v. Benally

• Decision Date: 17 October 2001
• Docket Number: No. 26,245.,26,245.
• Citation: 34 P.3d 1134,2001 NMSC 33,131 N.M. 258
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Lathan BENALLY, Defendant-Petitioner.
• Court: New Mexico Supreme Court

34 P.3d 1134

131 N.M. 258

2001 NMSC 33

STATE of New Mexico, Plaintiff-Respondent, v.Lathan BENALLY, Defendant-Petitioner.

No. 26,245.

Supreme Court of New Mexico.

October 17, 2001.

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

Patricia A. Madrid, Attorney General, William McEuen, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

FRANCHINI, Justice.

{1}Defendant was convicted of second-degree murder and tampering with evidence for his involvement in the death of Marco LaPlant following a fight at an outdoor party near Farmington, New Mexico.On appeal, Defendant argues that his conviction must be reversed because errors in the jury instructions prevented the jury from appreciating that the State had the burden of disproving self-defense.The Court of Appeals determined that a third, correct jury instruction cured the error in two instructions that had failed to explain the State's burden.We reverse the Court of Appeals and hold that, because of its distance from the erroneous elements instruction and the unlikelihood that the jury would, sua sponte, graft language from a proper instruction onto improper instructions, the single proper instruction did not correct the improper self-defense instruction.The erroneous instruction therefore constituted fundamental error.We reverse Defendant's second-degree murder conviction and remand for a new trial.

I.

{2} At a late night outdoor party at "the levels," near Farmington, New Mexico, a fight broke out between Defendant and Orlando Delagrito.A friend of Defendant, Christopher Johnson, intervened and chased Mr. Delagrito to a green Chevrolet Nova.When Mr. Delagrito entered the Nova, Christopher Johnson and a third friend threw rocks at the car and challenged Mr. Delagrito to fight.The Nova drove off, but not before a rock shattered a rear window of the vehicle.

{3} The Nova belonged to the victim, Marco LaPlant, a friend of Mr. Delagrito.Mr. LaPlant had witnessed the vandalism of his vehicle and followed the Nova on foot as Mr. Delagrito drove it to safety.After approximately fifteen minutes, an angered Mr. LaPlant drove his Nova back to the levels, where Mr. Johnson had rejoined Defendant and some fourteen other people.The Nova kicked up a cloud of dust as Mr. LaPlant slammed on the brakes next to a truck where the group was gathered.Mr. LaPlant emerged from the vehicle brandishing a car jack that most witnesses believed was a gun.Someone yelled "gun" while everyone scrambled to hide.As Mr. LaPlant approached, Defendant, who had been hiding behind the truck, struck Mr. LaPlant on either the head or shoulder with an empty bottle of whiskey.Defendant and Mr. LaPlant then continued fighting.

{4}The parties dispute the events that followed.According to Mr. Johnson, a witness for the prosecution, when Mr. LaPlant gained position on top of Defendant, Mr. Johnson picked up a large, heavy rock and used it to strike Mr. LaPlant on the back.Mr. Johnson testified that he then helped Defendant to his feet and temporarily left the scene of the fight to go vandalize Mr. LaPlant's Nova.As he left, numerous people, including Defendant, were kicking and punching Mr. LaPlant.When he returned, Mr. Johnson found Mr. LaPlant covered in blood and breathing irregularly.Mr. Johnson testified that he and Defendant then got in a car, but before they could leave, Defendant exited the car and approached Mr. LaPlant.According to Mr. Johnson, Defendant kicked Mr. LaPlant in the side and then dropped a large rock onto the victim.Mr. Johnson did not see where the rock landed.

{5}The State also produced evidence regarding statements allegedly uttered by Defendant during the fray.Eyewitness Danielle Enos and her sister Dacia both testified that they heard Defendant tell Mr. LaPlant "croak, motherfucker, croak."Titus Jacquez testified that Defendant declared that he would have to kill Mr. LaPlant so he would not have to "worry," and then said "later" as he kicked Mr. LaPlant in the face.Mr. Johnson did not remember or could not hear what, if anything, Defendant said to Mr. LaPlant.

{6} Although many witnesses saw Mr. Johnson strike Mr. LaPlant with a rock, only Mr. Johnson, a co-defendant in the case, offered testimony that Defendant struck the victim with a rock.Defendant attacked Mr. Johnson's testimony by raising inconsistencies between his testimony and pre-trial statements.Defendant also attempted to discredit Mr. Johnson's testimony by suggesting that Mr. Johnson, who had pleaded guilty to first degree murder, received a lighter sentence (ten years maximum) and a postponement of that sentence in exchange for his testimony.

{7} According to Defendant, after Mr. LaPlant's Nova came speeding toward the group with whom he had gathered, he heard people yell "gun."Defendant admitted that he hit Mr. LaPlant with a whiskey bottle but claimed that he made contact with his shoulder rather than his head.He said that while Mr. LaPlant had him pinned to the ground he heard someone say "get back," then heard three cracks above him before someone removed Mr. LaPlant from on top of him.Defendant got up and started kicking Mr. LaPlant but could not recall if some of the blows landed on Mr. LaPlant's head.According to Defendant, he entered a friend's car, but exited the vehicle in order to smash the Nova's headlights and windshield.He then returned to the car and left the levels.Defendant testified that he never revisited Mr. LaPlant's body after the initial fight, that he never hit Mr. LaPlant with a rock, and that he neither voiced nor entertained a desire to kill Mr. LaPlant.

{8} According to Dr. Patricia McFeeley, the State's pathologist/medical examiner, the victim died as a result of brain swelling caused by a combination of blows to the head.Dr. McFeeley testified that the fatal head injuries could have been dealt by a bottle, a rock, or a kick to the head regardless of the kind of footwear worn by the person kicking.Dr. Karen Griest, a forensic pathologist hired by Defendant, identified the cause of death as trauma from a "rigid, heavy object."Dr. Griest testified that it was unlikely that a kick leveled by someone wearing tennis shoes of the sort worn by Defendant on the night in question could have caused Mr. LaPlant's death.Dr. Griest also observed that there were no glass fragments in the victim's scalp or clothes.

{9} The jury acquitted Defendant of first-degree murder and convicted him of second-degree murder and tampering with evidence.Defendant received a sentence of fifteen years for the murder and eighteen months for tampering with evidence.On appeal, among other issues, Defendant asserted that the trial court committed fundamental error by giving jury instructions that did not adequately treat his self-defense claim.State v. Benally, No 19,897, at p. 1(NMCAFeb. 21, 2000).A divided Court of Appeals held that the errors in the jury instructions did not amount to fundamental error and affirmed Defendant's conviction.Id. at pp. 3-10.In a dissenting opinion, Judge Bustamante argued that the erroneous jury instructions did amount to fundamental error.Id. at pp. 8-9.We granted certiorari to review the instructions.

II.

{10}The trial court determined that self-defense was at issue in this case and gave the jury a series of self-defense instructions.Defendant alleges that three errors resulting from those instructions require the reversal of his conviction.First, instruction 12, the elements instruction for second-degree murder, failed to include the element of unlawfulness.¹Unlawfulness is an essential element of the offense in cases, like the present one, in which self-defense or defense of another is at issue.State v. Parish,118 N.M. 39, 43, 878 P.2d 988, 992(1994)("[W]hen self-defense or the defense of others is at issue, the absence of such justification is an element of the offense.")(internal citations omitted).In order to prove unlawfulness, the State must disprove the defendant's self-defense claim beyond a reasonable doubt.Seeid.According to Defendant, the failure to include unlawfulness among the elements of second-degree murder prevented the jury from understanding the State's burden.

{11} In addition to the omission of unlawfulness from instruction 12, Defendant complains that instruction 15, which followed the instructions for homicide offenses, described self-defense in non-deadly force cases rather than in homicide cases.²Finally, Defendant observes that instruction 15 failed to explain that the State shouldered the burden of proving that Defendant did not act in self-defense.Because we determine that the omission of unlawfulness from instruction 12 constituted fundamental error, we do not review these claims independently.

{12} The standard of review we apply to jury instructions depends on whether the issue has been preserved.If the error has been preserved we review the instructions for reversible error.SeeParish at 42, 878 P.2d at 991.If not, we review for fundamental error.State v. Cunningham,2000-NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176.Under both standards we seek to determine "`whether a reasonable juror would have been confused or misdirected' by the jury instruction."Cunningham,2000-NMSC-009, ¶ 14, 128 N.M. 711, 998 P.2d 176(quotingParish,118 N.M. at 42, 878 P.2d at 991).A juror may suffer from confusion or misdirection despite the fact that the juror considers the instruction straightforward and "perfectly comprehensible" on its face.Parish,118 N.M. at 44, 878 P.2d at 993.Thus, juror confusion or misdirection may stem not only from instructions that are facially contradictory or ambiguous, but from instructions which, through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law.

{13} In Parish,a defendant standing trial for voluntary manslaughter...