State v. Holden

• Court: Court of Appeals of New Mexico
• Writing for the Court: HENDLEY
• Citation: State v. Holden, 85 N.M. 397, 512 P.2d 970, 1973 NMCA 92 (N.M. App. 1973)
• Decision Date: 20 June 1973
• Docket Number: No. 1096,1096
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John E. HOLDEN and Tom Spikes, Defendants-Appellants

Page 970

512 P.2d 970

85 N.M. 397

STATE of New Mexico, Plaintiff-Appellee, v. John E. HOLDEN and Tom Spikes, Defendants-Appellants

No. 1096.

Court of Appeals of New Mexico.

June 20, 1973.

Certiorari denied July 18, 1973.

Charles W. Durrett, John E. Conway, Thomas A. Sandenaw, Jr., Shipley, Durrett, Conway & Sandenaw, Alamogordo, for appellant Holden.

James J. Weldon, Alamogordo, for appellant Spikes.

David L. Norvell, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Prentis Reid Griffith, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

The defendants were tried together on separate criminal informations charging them with first degree murder. The charges grew out of the same set of facts. Defendant Holden was charged was a principal; defendant Spikes as an accessory. After a jury trial Holden was convicted of voluntary manslaughter (§ 40A--2--3(A), N.M.S.A.1953 (2d Repl. Vol. 1972)); Spikes of involuntary manslaughter (§ 40A--2--3(B), N.M.S.A.1953 (2d Repl. Vol. 1972)).

On appeal Holden raises three points; Spikes raises one. Both defendants argue that their convictions are not supported by substantial evidence. Holden's additional points raise issues of error by failure to direct an acquittal on the crimes of first and second degree murder and by admission of a photograph of decedent.

We affirm both convictions.

On the night of July 15, 1972, decedent had a fight with Holden's sister with whom decedent was living. In the course of the fight decedent struck Holden's sister with an ashtray, causing a head wound which bled rather heavily. Holden was summoned to his sister's house after decedent's departure. There is evidence that after leaving his sister's house Holden went looking for decedent intending to beat him up. Holden did not find decedent.

The next morning Spikes, who was also related to Holden's sister, was also looking for decedent. Upon being told that decedent was in a particular cafe, Spikes said he was going ". . . to get a man to beat him (decedent) up. . . ."

Shortly thereafter Spikes drove up with Holden. Decedent and three other men were standing on the street near the cafe. When Spikes pulled up, Holden, by his own admission, ". . . got out of the car and I walked over and said hello to (the other men), and then I went to shooting. . . ." Holden had had the gun in his pocket when he drove up. Spikes stook next to the car during the shooting and watched. Holden fired three shots at decedent while decedent was standing. After decedent fell to the ground Holden stood over him and fired again. Holden then walked back to the car, got in and Spikes drove away. Decedent was pronounced dead on arrival at the hospital.

Holden's appeal

At trial the defense presented testimony by a clinical psychologist and a psychiatrist on the issue of Holden's ability to premediate and deliberate. Both experts testified that, as a reasonable medical or phychological probability Holden was incapable of premeditation or deliberation at the time of the shooting. The psychologist characterized Holden as suffering from an 'explosive personality disorder.' The psychiatrist diagnosed Holden as suffering from 'psycho-motor epilepsy.' The psychiatrist stated that his diagnosis and that of the psychologist were compatible. The state presented no expert testimony on this issue.

In his first point on appeal Holden argues that his conviction of voluntary manslaughter is not supported by substantial evidence. His argument is that under the doctrine of diminished responsibility, which was recognized in State v. Padilla, 66 N.M. 289, 347 P.2d 312 (1959), the only substantial evidence is that he was not capable of committing an intentional act, which, he argues, is a necessary element of voluntary manslaughter. Defendant raises a related issue: whether a defense of diminished responsibility in a first degree murder trial, if accepted by the jury, would in certain circumstances permit a passage to consideration of the defendant's guilt of some degree of manslaughter rather than of second degree murder. We do not find it necessary to decide this issue. See State v. Chambers, 84 N.M. 309, 502 P.2d 999 (1972). Rather we consider the defense of diminished responsibility to be analogous to that of insanity. Expert testimony on the issue of diminished responsibility by reason of mental disease or defect, like that on insanity, is not conclusive on the fact finder. State v. Moore, 42 N.M. 135, 76 P.2d 19 (1938). The jury is free to believe or disbelieve such testimony. State v. James, 85 N.M. 230, 511 P.2d 556 (1973). If such testimony i disbelieved by the jury the presumption of full responsibility, which we view as included in the presumption of sanity, remains in effect. In State v. Gardner, 85 N.M. 104, 509 P.2d 871 (1973), the Supreme Court stated that it is usually the province of the jury to weigh the evidence of insanity and determine what value, if any, to accord it. The jury's function is the same in the case of a defense of diminished responsibility. It is also true that in State v. Gardner, supra, the Supreme Court admitted the possibility that evidence of insanity may be so overwhelming as to require the direction of a verdict of acquittal. We assume that the same may be true of evidence of diminished responsibility. However, the evidence in the present case is not of such a quality as to require a directed verdict. The issue of Holden's responsibility for the crime of voluntary manslaughter was properly submitted to the jury and the resulting conviction is...