State v. Elliott

Decision Date26 October 2001
Docket NumberNo. 21,463.,21,463.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Leslie Eugene ELLIOTT, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Ass't Attorney General, Albuquerque, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Trace L. Rabern, Ass't Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 27,207, December 7, 2001.

OPINION

PICKARD, Judge.

{1} Defendant appeals from the judgment and sentence imposed after he was convicted by a jury of felony failure to appear, contrary to NMSA 1978, § 31-3-9 (1973, prior to 1999 amendment). Defendant raises five issues: (1) whether the jury instructions were flawed insofar as they omitted an element of the offense, improperly shifted the burden of proof to Defendant, and confused the jury; (2) whether the original trial judge's testimony that he had not excused Defendant's tardiness, and the prosecutor's use of this testimony during closing arguments, directed the jury to convict Defendant; (3) whether Defendant's conviction violated his right to be free from double jeopardy given that Defendant was held without bond for eight months prior to trial; (4) whether Defendant's nine-and-one-half year sentence constitutes cruel and unusual punishment; and (5) whether the trial court erred in finding that a prior conviction from Arizona was a valid felony conviction for purposes of sentencing Defendant as a habitual offender. We affirm.

BACKGROUND

{2} Defendant was scheduled for a felony jury trial on November 25, 1998. Trial was scheduled for 8 a.m. It was disputed whether Defendant's attorney told Defendant that trial was set for 8 a.m. or whether Defendant was just informed that the trial was set and assumed that it was set for 9 a.m., just as other hearings had been. Defendant, dressed for court, left his house and went to his place of business, which he was running in his father's absence. He had a few things he needed to take care of. He returned home and picked up his wife and family at about 9:15 a.m. At that point, a deputy sheriff was waiting for him, having been dispatched by the judge to see if Defendant could be found or needed a ride to court. The deputy followed Defendant and his family to the courthouse, where Defendant was arrested for failure to appear. The deputy's affidavit for the arrest warrant states, "Upon arrival at the courthouse ... [D]efendant said that he knew he was late for court but that something came up."

{3} At 8:30 a.m., the trial judge had become aware of Defendant's absence. Defense counsel told the judge that Defendant had notice that trial began at 8 a.m. and that trial counsel expected Defendant to appear. At 8:45 a.m., the judge told the jury that the trial was delayed and that he expected the delay to last as long as forty-five minutes. Around the same time, the judge dispatched the deputy to look for Defendant. The deputy called the judge at approximately 9 a.m. to say that Defendant mistakenly believed that the trial began at 9 a.m. and that Defendant's wife believed that Defendant was en route to the courthouse. The judge decided to give Defendant an extra fifteen minutes to appear before the judge would dismiss the jury. When Defendant failed to appear by 9:17, the judge dismissed the jury and issued a bench warrant for Defendant's arrest. One minute later, the deputy called to say that Defendant had returned home and was now on his way to the courthouse. The judge told the deputy that the jury had been dismissed and instructed the deputy to arrest Defendant upon his arrival at the courthouse.

{4} A jury found Defendant guilty of failure to appear, contrary to Section 31-3-9(A). A supplemental information charging Defendant with three prior felony convictions was filed, and after a hearing, the court found that all three prior convictions had been proved. The court sentenced Defendant to a nine-and-one-half year term, consisting of one and one-half years on the conviction for failure to appear and a mandatory eight-year term on the habitual offender information. The court suspended the one-and-one-half year term on the failure to appear conviction and ordered one year of mandatory parole supervision with a concurrent one-year probation upon completion of the incarceration. Defendant was also given credit for a presentence confinement of eight months.

DISCUSSION
Issue One: The Jury Instructions Were Proper

{5} Defendant raises three challenges to the jury instructions: (1) the instructions given were confusing and improperly shifted the burden of proof to Defendant, (2) the court erred in refusing Defendant's tendered instruction requiring a finding of deliberate will to thwart the judicial process given that the legislature intended that the failure to appear statute apply only to people who abscond from the jurisdiction or who otherwise attempt to deliberately thwart the judicial process, and (3) the instruction defining "willfully" improperly set forth a civil rather than criminal standard, thereby violating State v. Magby, 1998-NMSC-042, ¶ 17, 126 N.M. 361, 969 P.2d 965, overruled on other grounds by State v. Mascareñas, 2000-NMSC-017, ¶ 27, 129 N.M. 230, 4 P.3d 1221,

and State v. Padilla, 1997-NMSC-022, ¶¶ 2, 4, 123 N.M. 216, 937 P.2d 492. We conclude that the instructions as given were proper.

{6} The applicable uniform jury instruction sets forth the elements of the crime of failure to appear as follows:

For you to find the defendant guilty of failure to appear as required by conditions of release ..., the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. _____ (name of defendant) was released pending [trial] [an appeal] in a criminal action on the condition that _____ (name of defendant) appear as required by the court;
2. _____ (name of defendant) failed to appear as required by the court;
3. The defendant's failure to appear was willful, without sufficient justification or excuse[.]

UJI 14-2229 NMRA 2001; see also § 31-3-9.

The jury in the case at bar was instructed as follows:

INSTRUCTION NO. 4

For you to find the Defendant guilty of Failure to Appear, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The Defendant was released pending trial in State of New Mexico vs. Leslie Elliott, San Juan County cause No. CR 98-95-1.
2. The Defendant willfully failed to appear before the court as required.
....
INSTRUCTION NO. 5
"Willfully" denotes the doing of an act without just cause or lawful excuse.

In addition, the jury was given a general intent instruction at Defendant's request, and over the State's objection. See UJI 14-141 NMRA 2001.

{7} Defendant argues that the instructions as given were confusing because the definition of willfully was contained in a separate instruction, as opposed to being in the elements instruction. Not only did Defendant fail to make this argument below, but Defendant's proposed instructions likewise included a separate instruction defining willfulness. For this reason, we need not consider Defendant's argument on appeal. See State v. Varela, 1999-NMSC-045, ¶ 11, 128 N.M. 454, 993 P.2d 1280

("Ordinarily a defendant may not base a claim of error on instructions he or she requested or to which he or she made no objection."); State v. Santillanes, 2000-NMCA-017, ¶ 17, 128 N.M. 752, 998 P.2d 1203,

rev'd on other grounds,

2001-NMSC-018, 130 N.M. 464, 27 P.3d 456. Even if we were to consider Defendant's argument, however, we would hold that giving the separate definition instruction was not error on the grounds that the elements instruction did expressly contain the element of willfulness, and the definition immediately followed the elements instruction, such that the jury was properly instructed on the burden of proof. See State v. Sosa, 1997-NMSC-032, ¶ 29, 123 N.M. 564, 943 P.2d 1017 (rejecting the defendant's argument that failure to include definition of self defense within elements instruction was error).

{8} Defendant next argues that the jury instructions were confusing in that they required the jury to find a "double negative," namely that Defendant failed to act without excuse or justification, and did not properly inform the jury of the act for which Defendant was being convicted. In our view, the jury instructions were virtually identical in all material respects to the approved UJI, with the exception of the separate definition instruction. The act for which Defendant was convicted was the same act as that required by the statute and the UJI—that Defendant failed to appear as required by the court. In addition, as discussed more fully below, the jury was properly instructed regarding the need to find that Defendant's failure to appear was both intentional and willful.

{9} At this point, it is worth noting our disagreement with the State's position below—that no general intent instruction need be given for failure to appear. Use Note 1 to UJI 14-141 states that the general intent instruction must be given except if the crime contains no intent requirement or if the intent requirement is otherwise specified in the statute or instruction. We acknowledge that willfulness, as set forth in the statute and instruction, is an intent requirement. However, our case involves arguable carelessness. The general intent instruction correctly informs the jurors that to find Defendant guilty of this crime, they must find that Defendant acted intentionally. Defendant could not be convicted for an act of mere carelessness where he had no intent to fail to appear. Thus, an instruction solely on willfulness (defined as the absence of just cause or excuse), without the addition of language on intent, would not adequately apprise the jurors of what they needed to find.

{10} The crux of Defe...

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