State v. Lunn, 1511

Decision Date30 April 1975
Docket NumberNo. 1511,1511
Citation1975 NMCA 51,537 P.2d 672,88 N.M. 64
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Jerry LUNN, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

HERNANDEZ, Judge.

This matter has been before this Court on two previous occasions. State v. Lunn, 80 N.M. 383, 456 P.2d 216 (Ct.App.1969); State v. Lunn, 82 N.M. 526, 484 P.2d 368 (Ct.App.1971). In all, the defendant has been tried four times. The second trial resulted in a hung jury. The trial out of which this appeal arises resulted in defendant's conviction of murder in the second degree. Defendant presently comes before us alleging six points of error. We affirm.

Since the facts developed in this trial do not differ markedly from those developed in the first, we refer the reader to State v. Lunn, 80 N.M. 383, 456 P.2d 216, supra, for a statement of the facts.

POINT I:

'DEFENDANT WAS ENTITLED TO INSTRUCTIONS ON THE DEFENSE OF INTOXICATION AS AFFECTING THE REQUISITE ELEMENTS OF SECOND DEGREE MURDER, AND AS AFFECTING A REDUCTION IN THE CHARGES AGAINST DEFENDANT.'

This identical point was raised and answered negatively by our Supreme Court in State v. Tapia, 81 N.M. 274, 466 P.2d 551 (1970). In the Tapia case, the defendant maintained that since it was necessary for the State to prove beyond a reasonable doubt that the killing had been done unlawfully, willfully, feloniously, with premeditation and with malice aforethought, the jury had to find that a specific intent to unlawfully take a human life had been deliberately formed by defendant before he acted. Thus, the defendant in Tapia urged that 'voluntary intoxication, of a degree which would prevent formation of a specific intent to kill, should have an effect in law of reducing the offense from second degree murder to voluntary manslaughter.' In the insant case, defendant contends that because of his acute intoxication, he was unable to knowingly and willfully commit the act alleged and that the instructions he tendered on the charges of voluntary and involuntary manslaughter and on the question of his ability to harbor the requisite specific intent were improperly denied.

In Tapia, supra, the Supreme Court held as follows:

'Appellant recognizes that for him to prevail on this point it is necessary that the court reconsider State v. Williams, 56 N.M. 578, 417 P.2d 62 (1966), where we stated unequivocally that 'voluntary intoxication is no defense to murder in the second degree,' * * *.' (Citations Omitted.)

'Appellant's argument necessarily turns on his view that a specific intent to kill is an element of the crime of murder in the second degree at least under the instructions given by the court in this case. The law of New Mexico, however, is clear that no specific intent to kill is required for a conviction for second degree murder.'

We hold that the trial court did not err in refusing the requested instructions in the present case because intoxication is not a mitigating factor in the current state of our law. Apart from evidence of intoxication, there is no proof in the record that defendant was otherwise entitled to an instruction on manslaughter.

POINT II:

'THE TESTIMONY OF THE FBI AGENTS INJECTED A FALSE ISSUE INTO THE CASE, WAS IRRELEVANT AND UNCONNECTED TO ANY ISSUE, AND WAS INADMISSIBLE.'

The testimony of which defendant complains was given by agents Zimmer and Gallagher. Two slugs, one removed from the body of the deceased and one taken from the wall behind a television set in the deceased's home, together with four cartridges taken from a cartridge belt found in the defendant's den, were sent to the FBI laboratory in Washington, D.C. Agent Zimmer testified that the slugs and the cartridges were of the same type: copper-coated 'Western .38 specials'. On cross-examination he acknowledged that this was a very popular size and that the number in distribution could be in the millions. He further testified that a .38 caliber cartridge could not have been fired from the .22 caliber pistol found in the defendant's home. Agent Gallagher testified that the two slugs were composed in the same way and that they were of the same composition as three of the four cartridges taken from defendant's cartridge belt. He said that they could have come from the same batch. Gallagher further testified that there could be a difference in composition of ammunition made by the same manufacturer. Two holsters were found at defendant's home but only one weapon, and it was a .22 caliber pistol. The murder weapon was never found. It was shown that the fatal bullet could not have been fired by defendant's .22 caliber pistol.

On this point, we believe that the agents' testimony was relevant in that it tended to connect defendant with the murder. State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct.App.1972). This evidence, albeit inconclusive, was admissible.

Even though Rule 401 of the Rules of Evidence, § 20--4--401, N.M.S.A.1953 (Repl.vol. 4, Supp.1973), had not yet become effective at the time of trial in the instant case, we note it, nonetheless, for its clear statement of the appropriate considerations involved:

"Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'

POINT III:

'THE COURT IMPROPERLY REFUSED DEFENDANT'S TENDER OF EXPERT TESTIMONY AS TO THE AFFECT OF ACUTE INTOXICATION ON THE DEFENDANT'S CAPACITY TO FORM ANY INTENT TO COMMIT MURDER IN THE SECOND DEGREE.'

The testimony referred to was that of Dr. John A. Salazar, a clinical psychologist. Based on testimony in the record that defendant had drunk two or three ounces less than a quart of vodka in a 5 1/4 hour period of time, Dr. Salazar would have testified that the defendant was acutely intoxicated and therefore incapable of deliberation, premeditation or malice aforethought.

Defendant's point is without merit. As was pointed out in State v. Tapia, supra:

'We would agree with the appellant's contention that in crimes where a specific intent is a necessary element, a showing of intoxication to a degree that would make such an intent impossible, would establish a valid defense to the charge. (Citations omitted.) But, as noted above, a specific intent is not required for conviction in second degree murder, thus explaining why voluntary intoxication is no defense to such a charge.' (Citations omitted.)

The evidence tendered, then, was properly excluded because it would not have been probative of any fact material to a determination of guilt on the charge of second degree murder.

POINT IV:

'THE TRIAL COURT SHOULD HAVE EXCLUDED TESTIMONY FROM THE TWO MINOR CHILDREN OF THE DECEASED, AS WELL AS EVIDENCE CONCERNING THE CONDITION OF DEFENDANT'S PICK-UP TRUCK.'

The evidence concerning defendant's truck consisted of the testimony of two police officers. Officer Golden testified that when he examined the truck at 2:10 a.m., it was 'extremely warm', indicating that it had been recently driven. Former Officer Montoya testified that when he examined the cab of the truck at approximately 2:00 a.m., he discovered vomit on the floor board on the drivers side. The widow of the victim testified that during the conversation that occurred in the kitchen just before the shooting, defendant said that he had vomited and had gotten some of it on the lapel of his coat. She said she gave the defendant a damp cloth and that he used it to clean his lapel. The trial court did not err in refusing to exclude this testimony. The evidence showed that the defendant arrived at the Candelaria home about 1:30 a.m., left about 1:45 or 1:50 a.m., and that the police arrived at defendant's home at about 2:10 a.m. Officer Golden's testimony was relevant in that it tended to corroborate the prosecution's reconstruction of the time sequence involved. Officer Montoya's testimony was relevant in that it tended to corroborate testimony of the victim's widow regarding the presence of the defendant at the Candelaria house on the night in question. State v. Thurman, supra; State v. Wright, 84 N.M. 3, 498 P.2d 695 (Ct.App.1972).

The two sons of the deceased were 7 and 11 years of age, respectively, at the time of the shooting. Neither of them had testified at any of the three prior trials.

In his brief-in-chief, defendant states that he:

'* * * objected to allowing their (the boys') testimony upon grounds that the State had indicated on each of the three prior occasions that neither of the children remembered anything; that six years had intervened between the occurrence of their father's death and the trial at which they were called to testify; during which time their mother had married a man with whom she had been keeping company during the prior trials, with the opportunity of prompting the children in their testimony too prevalent to permit its introduction into evidence.'

The objection raised, when properly viewed, challenges the credibility of these witnesses, not their competency. The question of their competency was for the trial court to determine. State v. Manlove, 79 N.M. 189, 441 P.2d 229 (Ct.App.1968). The question of their credibility was for the jury. State v. Romero, 34 N.M. 494, 285 P. 497 (1930). The defendant had ample opportunity on cross-examination to question their credibility. The trial court did not err in allowing them to testify.

POINT V:

'PROSECUTION OF DEFENDANT FOR THE FOURTH TIME WAS A DISCRIMINATORY, UNCONSTITUTIONAL DENIAL OF EQUAL PROTECTION OF THE LAWS, AND WAS CONDUCTED IN AN IMPROPER MANNER.'

Defendant points out that since 1949 only one other defendant has been tried three...

To continue reading

Request your trial
5 cases
  • State v. Campos
    • United States
    • New Mexico Supreme Court
    • May 30, 1996
    ...W. Scott, Jr., Substantive Criminal Law § 4.10(a), at 554 (1986) (footnotes deleted); see also State v. Lunn, 88 N.M. 64, 73-74, 537 P.2d 672, 681-82 (Ct.App.) (Sutin, J., dissenting) (urging the Supreme Court to adopt a rule allowing a jury to weigh the effect of intoxication on a defendan......
  • State v. Gutierrez
    • United States
    • New Mexico Supreme Court
    • May 24, 2011
    ...by a defendant. See NMSA 1978, § 38–3–5 (1929); State v. House, 1999–NMSC–014, ¶ 29, 127 N.M. 151, 978 P.2d 967; State v. Lunn, 88 N.M. 64, 70, 537 P.2d 672, 678 (Ct.App.1975). {36} Child asserts that he was not required to conclusively prove that it was impossible for him to obtain a fair ......
  • State v. Robinson
    • United States
    • New Mexico Supreme Court
    • April 14, 1980
    ...assurances by them were insufficient to protect the defendant's right to a fair trial. The Court of Appeals held in State v. Lunn, 88 N.M. 64, 537 P.2d 672 (Ct.App.1975), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 793, 46 L.Ed.2d 648 (1976), that a......
  • State v. Turner, 2453
    • United States
    • Court of Appeals of New Mexico
    • November 30, 1976
    ...his case on the affidavit. The provisions of § 21--5--3(A)(2)(c), N.M.S.A.1953 (Repl.Vol. 4, 1970) are mandatory (State v. Lunn, 88 N.M. 64, 537 P.2d 672 (Ct.App.1975)) when the prescribed steps have been taken unless evidence is called for. Here, defendant was asked if he wished to produce......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT