State v. Cunningham, 25,604.

Docket NºNo. 25,604.
Citation128 N.M. 711, 998 P.2d 176, 2000 NMSC 9
Case DateMarch 09, 2000
CourtSupreme Court of New Mexico

Phyllis H. Subin, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, for Appellant. Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.


BACA, Justice.

{1} Danny A. Cunningham was convicted of deliberate-intent first-degree murder contrary to NMSA 1978, § 30-2-1(A)(1) (1994), and sentenced to life in prison. Cunningham appeals his conviction alleging (1) that the trial court committed fundamental error by failing to instruct the jury on the essential element of unlawfulness once Cunningham had raised the issue of self-defense, and (2) that there was insufficient evidence to prove beyond a reasonable doubt that he formed the mens rea required to sustain his deliberate-intent first-degree murder conviction. We conclude that there was no fundamental error and that there was sufficient evidence of deliberate intent to support the jury's verdict. Cunningham's conviction is therefore affirmed.


{2} In the early morning hours of September 15, 1996, Cunningham and Manuel Vasquez engaged in a shootout in the streets of Carlsbad. Mr. Vasquez was fatally wounded during the altercation and Cunningham was shot in the chest. Cunningham admitted firing numerous shots at Mr. Vasquez, but alleged he did so in self-defense.

{3} Cunningham and the State presented different accounts of the altercation. Cunningham, testifying in his own defense, stated that he was on his way to the river when he encountered a weaving vehicle that he did not recognize. Cunningham testified that only after the other vehicle had executed a U-turn, shined a spotlight in his face, and began shooting at him, did he recognize the driver of the other vehicle as Mr. Vasquez. According to Cunningham, Mr. Vasquez then rammed his truck, pinning his vehicle against a rock wall and a tree. Cunningham returned fire, first with his .22 caliber pistol and then with his .380 caliber pistol, emptying each in turn. He then fired one last bullet from a .357 magnum revolver, hitting Mr. Vasquez in the head, killing him.

{4} Contrary to Cunningham's testimony, the State painted a picture of an ongoing feud between Cunningham and Mr. Vasquez. The State's first witness, Stacie Wallen, testified that she was with Mr. Vasquez a few months earlier when after a high speed chase Cunningham threatened to kill Mr. Vasquez, saying, "I'll kill you, I'll shoot you, I don't care." Cunningham maintained that he never threatened Mr. Vasquez and only "knew of him."

{5} The State also offered the testimony of Carlos Perez, who immediately before the altercation, saw two trucks following each other at a high rate of speed, nearly bumper to bumper. He identified the first truck as that owned by Mr. Vasquez but was unable to identify the second truck as that owned by Cunningham. The State suggested that this proved that Cunningham was chasing Mr. Vasquez immediately prior to the altercation.

{6} Another State witness, Jean Jones, testified that she looked out her bedroom window after the noise of vehicles colliding into each other and sound of gunfire woke her. She saw that two vehicles had crashed through her rock wall and stopped when they hit her pecan tree. She also testified that she saw a man get out of his truck and momentarily walk up to the other truck before returning to his vehicle and departing the scene. Cunningham, however, stated that he did not remember exiting his vehicle and that he departed as soon as he could. Cunningham could not explain why his .380 caliber handgun along with numerous shell casings were found on the ground outside of Mr. Vasquez' vehicle. Charlie Jones, husband of Jean Jones, testified that he heard a volley of approximately seven or eight shots before he headed down the stairs of their home. While on his way down the stairs, his wife told him that someone was getting out of the truck, and then he heard one other distinct shot. Based on this testimony, the State maintained that Cunningham was the aggressor in causing the altercation and that Cunningham had deliberately, and with premeditation fired the final fatal shot from the.357 magnum revolver once Mr. Vasquez was immobilized. Therefore, the State argued that Cunningham was not entitled to acquittal based on his claim of self-defense.

{7} The jury was instructed on the elements of deliberate-intent first-degree murder pursuant to UJI 14-201 NMRA 1999.1 The jury was also instructed on the elements of second-degree murder, voluntary manslaughter, and involuntary manslaughter. The jury also received a separate instruction premised on UJI 14-5171 NMRA 1999, the general self-defense instruction.2 The jury returned a verdict finding Cunningham guilty of deliberate-intent murder, and the judge sentenced him to life in prison.

{8} Cunningham now maintains, relying on the reasoning in State v. Parish, 118 N.M. 39, 878 P.2d 988 (1994), that the jury instructions were fundamentally flawed by failing to include any reference to "unlawfulness" in the instruction on deliberate-intent murder.3 However, Cunningham did not object to the jury instructions as given, and therefore we only review for fundamental error. See State v. Acosta, 1997-NMCA-035, 123 N.M. 273, 939 P.2d 1081

(reviewing for fundamental error, an issue not properly preserved and raised for the first time on appeal), cert. granted, 123 N.M. 215, 937 P.2d 76 (1997), cert. quashed, 124 N.M. 312, 950 P.2d 285 (1997). Additionally, Cunningham maintains that there was insufficient evidence to prove beyond a reasonable doubt that he formed the requisite mens rea required to sustain his deliberate-intent murder conviction. We review each of these claims in turn.


{9} Cunningham correctly asserts that unlawfulness is an element of deliberate-intent murder. Our deliberate-intent first-degree murder statute, NMSA 1978, § 30-2-1(A)(1) (1994), provides that murder is the "killing of one human being by another without lawful justification or excuse." It is presumed that any killing of another is unlawful unless that killing is justified or excused. See State v. Noble, 90 N.M. 360, 364, 563 P.2d 1153, 1157 (1977)

("Every killing of a person by another is presumed to be unlawful, and only when it can be shown to be excusable or justifiable will it be held otherwise."). Self-defense as a lawful justification to homicide is defined by NMSA 1978, § 30-2-7(A) (1963). It states that, "Homicide is justifiable when committed ... in the necessary defense of his life, his family or his property, or in necessarily defending against any unlawful action directed against himself, his wife or family[.]" § 30-2-7(A). Cunningham presented evidence "sufficient to raise a reasonable doubt in the minds of the jury as to whether or not" he acted in self-defense. Parish, 118 N.M. at 42,

878 P.2d at 991 (quoting State v. Martinez, 95 N.M. 421, 423, 622 P.2d 1041, 1043 (1981)). In fact, the Use Note to UJI 14-5171 on self-defense provides that if the instruction is to be given, then the language "The defendant did not act in self defense" should be inserted into the essential elements section of the jury instructions. Here, the unlawfulness of Cunningham's behavior was at issue and therefore a reference to unlawfulness or self-defense should have been included in the elements section of the jury instructions. However, that does not end our inquiry. The issue before us is whether the district court committed fundamental error by omitting the element of unlawfulness from the elements instruction on deliberate-intent murder when the jury also received a separate proper instruction on self-defense.


{10} The scope of appellate review is defined by Rule 12-216 NMRA 1999. Generally, this Rule limits appellate review to issues that were properly preserved by invoking the trial court's discretion. Rule 12-216 makes it clear that a formal objection is not required in order to preserve the question for review so long as a "ruling or decision by the district court was fairly invoked." Rule 12-216(A). The doctrine of fundamental error, embodied in Rule 12-216(B)(2), is an exception to the general rule requiring preservation of error. This Court outlined the appellate procedure under a claim of fundamental error in State v. Clark, stating, "To the extent alleged violations rise to the level of fundamental error, the question will be reviewed on appeal and, if fundamental error exists, a new trial will be ordered." 108 N.M. 288, 297, 772 P.2d 322, 331 (1989), habeas corpus granted on other grounds, Clark v. Tansy, 118 N.M. 486, 882 P.2d 527 (1994)


{11} Here, Cunningham did not object to the instructions as tendered and he did not offer a curative instruction of his own. By not invoking the trial court's discretion with regard to the propriety of the jury instructions, Cunningham effectively waived appellate review of this issue. See Rule 12-216. However, errors in jury instructions have been reviewed for fundamental error in the past. See State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991)

(holding that it was fundamental error not to instruct the jury on unlawfulness); see also State v. Acosta, 1997-NMCA-035, ¶ 21, 123 N.M. 273, 939 P.2d 1081; State v. Armijo, 1999-NMCA-087, ¶ 6, 127 N.M. 594, 985 P.2d 764. Therefore, we review Cunningham's claims for fundamental error.


{12} Fundamental error in the context of a jury instruction case was first examined in State v. Garcia, 19 N.M. 414, 143 P. 1012 (1914). In Garcia, the defendant did not object to the jury instructions, and accordingly, the Court examined the claim of error under the doctrine of fundamental error, stating:

There exists in every court ... an inherent power to see that a man's fundamental rights are protected in every

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