State v. Martinez

• Decision Date: 30 January 1981
• Docket Number: No. 12809,12809
• Citation: 622 P.2d 1041,1981 NMSC 16,95 N.M. 421
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Henry MARTINEZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1041

622 P.2d 1041

95 N.M. 421

STATE of New Mexico, Plaintiff-Appellee, v.Henry MARTINEZ, Defendant-Appellant.

No. 12809.

Supreme Court of New Mexico.

Jan. 30, 1981.

Martha A. Daly, Appellate Defender, Melanie S. Kenton, Asst. Appellate Defender, Santa Fe, Charles Wyman, Asst. Public Defender, Carlsbad, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Eddie Michael Gallegos, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

FEDERICI, Justice.

Defendant(appellant) was convicted of felony murder, armed robbery with a firearm and larceny over $2,500, all arising from the same transaction.The trial court sentenced defendant to a life sentence for first degree (felony) murder, and a consecutive term of 15 to 55 years for armed robbery with a firearm enhancement.Prior to and during trial, defendant moved for permission to act as co-counsel with his court-appointed attorney.The motion was denied.Defendant tendered jury instructions as to voluntary manslaughter and self defense.These tendered instructions were refused by the trial court.Evidence introduced at the trial court showed that a struggle had taken place.Both the victim and the defendant had bruises, lacerations and gunshot wounds.The homicide took place in an auto sales shop in Carlsbad, where the victim worked.

The following issues are presented on appeal:

(1) Whether a defendant is entitled as a matter of right to participate in his own defense with court-appointed counsel;

(2) Whether a manslaughter or self defense instruction should have been given;

(3) Whether the trial court erred in sentencing the defendant to consecutive sentences for felony-murder and armed robbery.

POINT I: If the defendant has a right to participate as co-counsel in his own defense, it is under New Mexico Constitution, Art. II, Section 14, which grants the right to every accused person "to appear and defend himself in person, and by counsel."This is a question of first impression in New Mexico.Defendant acknowledges and we have satisfied ourselves that courts in other jurisdictions which have constitutional provisions similar to our own have held that it is not error to deny a request by a defendant to appear as co-counsel where counsel has already been appointed for him by the court.Fowler v. State, 512 P.2d 238(Okl.Cr.App.1973), overruled on other grounds, Brookins v. State, 602 P.2d 215(Okl.Cr.App.1979).See generally, Annot., 77 A.L.R.2d 1233(1961).In the few jurisdictions which hold that the defendant has a constitutional right to appear as co-counsel, the State Constitution provides that a defendant has the right to defend his own cause in person, by attorney, or both.We hold that defendant did not have a state constitutional right to appear as co-counsel, and the trial court did not err in refusing to allow him to do so.

POINT II: On the issue of self-defense, defendant contends that evidence of the struggle and wounds is sufficient to warrant an instruction on his theory of self-defense, and that he has met the requirements of Section 30-2-7,N.M.S.A. 1978, andN.M.U.J.I.Crim. 41.41, N.M.S.A. 1978, which state the essential elements necessary before a self-defense instruction can be given.The requirements are: (1) an appearance of immediate danger of death or great bodily harm to the defendant; (2)the defendant was in fact put in such fear; and (3) a reasonable person would have reacted in a similar manner.

To warrant an instruction on self-defense the evidence must be sufficient to raise a reasonable doubt in the minds of the jury as to whether or not a defendant accused of homicide did act in self-defense.State v. Cochran, 78 N.M. 292, 430 P.2d 863(1967).

Defendant claims that the evidence introduced at trial is sufficient to raise a reasonable doubt as to whether he acted in self-defense because: (1) there was a showing that there had been a struggle inside the office at the scene of the homicide; (2)the defendant's hand was severely wounded and he had multiple wounds on the legs and head; and (3) the hand wound would have greatly diminished his grip.

The evidence at the trial was not sufficient to require submission of instructions to the jury on self-defense.There was a struggle in the office, but the record is clear that this evidence is as consistent with the State's contention that the victim was struggling to ward off the defendant's attacks as it was in support of self-defense.With reference to the defendant's wounds, the court and the jury must look not only to the evidence of the wounds of the defendant but also to the wounds on the body of the victim.In this respect, Dr. H. V. Beighly, M. D., medical investigator for the State, testified that: the victim's scalp contained many lacerations, too many to count, which exposed the skull in some places; the nose was distorted and pushed to one side; there was a wire wrapped around the neck; there was a penetrating wound of the left arm and chest caused by a bullet; there were numerous bruises, lacerations and contusions on both forearms; the wounds on the forearms were, in his opinion, "defensive wounds"; the skull was fractured; the brain had hemorrhaged; the victim was still alive at the time of the bullet wound; and finally, the cause of death was a result of blows to the head.

It appears to us that if the defendant was in fact acting in self-defense, it would not have been necessary for him to shoot the victim through the arm and chest, wrap a cord around the victim's neck, and beat the victim many times about the head and face with such force as to smash the skull and hemorrhage the brain, causing the victim's death.The evidence indicates that the forearm bruises and wounds occurred during defensive movements by the victim, not the defendant, and that the wounds to the victim show offensive, extremely brutal and unnecessary blows by the defendant not consistent with self-defense.Furthermore, there is no direct evidence that defendant acted because of an appearance of immediate danger of death or great bodily harm to himself or that he was in fact put in such fear.Circumstantial evidence of a struggle alone is not sufficient evidence of these requisites to warrant a self-defense instruction.The trial court properly refused to give a self-defense instruction.As to a manslaughter instruction, defendant contends that the jury could reasonably infer from the evidence of the struggle and of defendant's serious wounds that defendant was sufficiently provoked, arousing in him such emotions as fear, anger, resentment and terror.This evidence, he says, was sufficient to support a conviction of manslaughter.

With reference to a manslaughter instruction, if there is evidence to support, or tending to support, an instruction upon a lesser included offense, the defendant has a right to that instruction.State v. Robinson, 94 N.M. 693, 616 P.2d 406(1980).The inquiry is therefore whether there was evidence in this case supporting or sufficiently tending to establish voluntary manslaughter.

If there is enough circumstantial evidence to raise an inference that the defendant was sufficiently provoked to kill the victim, he is entitled to an instruction on manslaughter.State v. Robinson, supra.The definition of manslaughter is stated in ...