State v. Duarte

• Decision Date: 25 January 1996
• Docket Number: No. 15581,15581
• Citation: 915 P.2d 309,121 N.M. 553,1996 NMCA 38
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joe Angel DUARTE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 309

915 P.2d 309

121 N.M. 553

STATE of New Mexico, Plaintiff-Appellee, v. Joe Angel DUARTE, Defendant-Appellant.

No. 15581.

Court of Appeals of New Mexico.

Jan. 25, 1996.

Certiorari Denied March 21, 1996.

[121 N.M. 556] Appeal from the District Court of Eddy County; Fred A. Watson, Judge.

Tom Udall, Attorney General, Daniel F. Haft, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

T. Glenn Ellington, Chief Public Defender, David Henderson, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

BUSTAMANTE, Judge.

1. Defendant appeals his convictions for voluntary manslaughter and conspiracy to tamper with evidence, as well as the enhancement of his sentence under the provisions of the habitual-offender statute. There was evidence that Defendant stabbed the victim during a fight arising out of an argument and that all parties involved were intoxicated at the time of the argument. Defendant was charged with second-degree murder, tampering with evidence, and conspiracy to tamper with evidence. Defendant's counsel raised a pre-trial challenge to Defendant's competency to stand trial. After a hearing, the presiding judge found Defendant competent without submitting the issue to a jury. At trial, Defendant was convicted of the lesser-included offense of voluntary manslaughter and of the conspiracy charge. The State then filed a supplemental criminal information under the habitual-offender statute, requesting enhancement of Defendant's sentence. Defendant unsuccessfully challenged the use of his prior convictions for enhancement purposes, arguing that those convictions were constitutionally infirm because he had not been competent at the time he entered into the pleas that led to the convictions and that he had received ineffective assistance of counsel during the prior proceedings. Defendant's sentence was enhanced, and he was sentenced to a total of twenty and one-half years.

2. On appeal, Defendant raises three issues: (1) the jury should have been given the deadly force defense-of-others instruction that he requested; (2) the procedure followed to determine his competency to stand trial was unconstitutional; and (3) his prior convictions were improperly used to enhance his current sentences. We affirm.

DEADLY FORCE DEFENSE OF ANOTHER

3. Defendant offered, and the trial court refused, a deadly force in defense of another instruction. Defendant argued that if the jury believed he killed the victim, there was evidence that would support a finding that his use of deadly force was justified in that he acted in defense of his girlfriend, Karol Stokes. For Defendant to have been entitled to the deadly force instruction, some evidence tending to establish each of the following factors must have been presented: (a) there was an appearance of immediate danger of death or great bodily harm to Stokes as a result of the victim's actions; (b) Defendant believed that Stokes was in immediate danger of death or great bodily harm from the victim and killed the victim to prevent that death or great bodily harm; and (c) the apparent danger to Stokes would have caused a reasonable person in the same circumstances to act as Defendant did. SCRA 1986, 14-5172 (Recomp.1986). An instruction on a claim of self defense or defense of another should be given if there is any evidence, even slight evidence, to support the claim. State v. Ungarten, 115 N.M. 607, 611, 856 P.2d 569, 573 (Ct.App.1993).

4. It is well established that deadly force may not be used in a situation involving simple battery or in a struggle in which there has been no indication that death or great bodily harm could result. See State v. Heisler, 58 N.M. 446, 457, 272 P.2d 660, 667 (1954) (refusing to allow participants in hand-and-fist combat to resort to deadly force simply because it appears one or the other is about to lose the fight); State v. Strother, 807 S.W.2d 120, 123 (Mo.Ct.App.1991) (where facts indicated nothing more than simple assault situation, defendant who stabbed victim was not entitled to self-defense instruction, despite size differential between victim and defendant); I Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 649 (1986) (stating it is never reasonable to use deadly force against non-deadly attack).

5. With the above principles in mind, we turn to the facts of this case, viewing them in the light most favorable to Defendant's claim that a deadly force instruction should have been given. There was testimony that the victim was a muscular, well-built man, considerably larger than Defendant. The victim had a reputation as an aggressive bully and a fighter who fought with his hands. He liked to fight when he was intoxicated. Stokes knew of the victim's reputation for being "unpleasant," especially when he was drunk. Defendant had known the victim for a long time, virtually all his life. Defendant's intellectual capabilities are somewhat limited, as he is either of borderline intellect or mildly mentally retarded, and he is functionally illiterate.

6. On the evening of the homicide, the victim had consumed a large amount of beer. The victim was drinking with Stokes and a man named Primo Rogers at a residence where the victim was staying temporarily. Defendant later joined the gathering and the drinking. Stokes was babysitting for her friend, the owner of the residence. The victim had been pressuring Stokes to go out with him instead of with Defendant and was not happy that Defendant had shown up. Stokes and the victim began arguing, with the victim insisting that Stokes and Defendant leave the residence and Stokes insisting that she would stay until her friend returned. The argument grew louder and louder, and the victim more and more forceful, until Stokes and the victim were yelling at each other with the victim shouting at Stokes to "Get out!" Finally, the victim said "All right, let's see who here is man enough to stop me from throwing you out!" Stokes interpreted this as a threat to throw her bodily out of the residence. As the victim made this threat, he started to rise from his seated position. Before he could do so, Defendant attacked the victim and began to stab him.

7. The issue is whether this evidence could raise a reasonable doubt as to whether the use of deadly force was justified. The State initially argues that Defendant did not satisfy the requirement that Defendant must actually have been in fear for Stokes' safety and acted because of that fear. Since Defendant did not testify at the trial, the State maintains that there was no evidence that could support a finding as to Defendant's motivation in attacking the victim. While we recognize that it is more difficult to make the requisite showing of actual fear without testimony from Defendant, we disagree that there was complete failure of proof. As Defendant points out, a jury can infer intent from circumstantial evidence. See State v. Wood, 117 N.M. 682, 686, 875 P.2d 1113, 1117 (Ct.App.), cert. denied, 117 N.M. 744, 877 P.2d 44 (1994). There was evidence in this case that the victim had a reputation as a fighter and that Defendant had known the victim for a long time. The jury could therefore infer that Defendant knew of the victim's reputation. In addition, Defendant was present during the argument between Stokes and the victim and participated in that argument. He attacked the victim immediately after the victim threatened Stokes and began to make what could have been interpreted as an aggressive move toward her. From this evidence, the jury could have inferred that Defendant's attack was motivated by a desire to protect Stokes from imminent harm. Defendant's failure to testify, therefore, was not fatal to his defense.

8. However, we affirm the trial court's refusal to give the requested instruction because there was no evidence tending to satisfy the reasonableness prong of the deadly force test. Whether or not Defendant actually feared that the victim would inflict death or great bodily harm upon Stokes, he was not entitled to the deadly force instruction unless there was some evidence that his fear was reasonable. See, e.g., State v. Gallegos, 104 N.M. 247, 249, 719 P.2d 1268, 1270 (Ct.App.), cert. quashed (N.M. June 4, 1986). Under the hybrid test adopted in New Mexico, there must have been some evidence that an objectively reasonable person, put into Defendant's subjective situation, would have thought that Stokes was threatened with death or great bodily harm, and that the use of deadly force was necessary to prevent the threatened injury. Id. at 250, 719 P.2d at 1271 (discussing hybrid test).

9. In support of his claim that there was some evidence tending to establish the reasonableness of his fear, Defendant points to the facts that the victim was quite a bit larger than he was and had a reputation for being a fighter, especially when he was intoxicated. He also emphasizes the escalating tension in the residence and the victim's verbal threat toward Stokes, coupled with his action of starting to rise out of his seated position. Finally, he emphasizes his intellectual deficiencies and maintains that the situation should be seen from the position of a person possessing those deficiencies. We readily acknowledge that this evidence raised a jury question as to whether there was a threat of harm of some sort toward Stokes, as is evidenced by the fact that the non-deadly force defense-of-another instruction was given to the jury. We do not believe, however, that a reasonable person in Defendant's position could have determined that Stokes was faced with a threat of death or great bodily injury and the use of deadly force to prevent the threatened harm was therefore necessary.

10. There was no evidence in this case upon which a reasonable person could base a fear that anything more than a battery was about to take place. The size difference between the victim and Defendant, or between the...