State v. Page

• Decision Date: 09 February 1984
• Docket Number: No. 7337,7337
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Curtis Jack PAGE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1353

676 P.2d 1353

100 N.M. 788

STATE of New Mexico, Plaintiff-Appellee, v. Curtis Jack PAGE, Defendant-Appellant.

No. 7337.

Court of Appeals of New Mexico.

Feb. 9, 1984.

Janet E. Clow, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendant-appellant

Paul Bardacke, Atty. Gen., Elizabeth Major, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

DONNELLY, Chief Judge.

Defendant appeals from the judgment and sentence imposed after his conviction of burglary contrary to NMSA 1978, Section 30-16-3(A), following a jury trial. Two issues are presented on appeal: (1) claim of error as to jury instructions; and (2) failure to give credit for presentence confinement. Issues listed in the docketing statement but not briefed are deemed abandoned. State v. Sanchez, 98 N.M. 428, 649 P.2d 496 (Ct.App.1982).

Facts

On the night of October 20, 1982, Lupe Page, the ex-wife of defendant, was awakened by noises outside her home near Ruidoso. She testified that defendant kicked in a door to the house and she fired five shots in an attempt to frighten him. Thereafter, defendant said "I've got something for you, too, you bitch," and entered the house and fired three shots at her. In the exchange of shots neither defendant nor his ex-wife injured the other.

Richard Portillo, a companion of defendant, testified that he had been with defendant during the afternoon of the same day, and had accompanied him when they drove to the home of defendant's ex-wife. Portillo testified that he did not see defendant drink or take any drugs, but that he (Portillo) was drunk when they arrived at Mrs. Page's residence. He stated that he waited in the car and did not know what occurred after defendant left the car to go to the house. Portillo testified that after defendant returned, he and defendant drove to defendant's house and then they drove around. He stated that they stopped once along the highway and defendant got out of the car, but that Portillo did not see what defendant did. Portillo stated he did not see defendant dispose of a pistol.

Defendant testified that earlier on the day of the incident he was suffering from back pain, and had been drinking and smoking marijuana. He also stated he had taken a number of pain pills, and that he was unable to remember anything else that occurred later that day and night.

At trial during the conference on jury instructions, defendant tendered a requested jury instruction on the defense of insanity under NMSA 1978, UJI Crim. 41.00 (Repl.Pamp.1982). Defendant also requested the court to submit a verdict form allowing the jury to find him not guilty by reason of insanity. The State objected to the proposed instruction and verdict form and the court sustained the objection. The court, however, did give defendant's requested jury instruction pursuant to NMSA 1978, UJI Crim. 41.11 (Repl.Pamp.1982), regarding defendant's ability or inability to form the requisite intent to commit burglary, due to either intoxication or mental disease or disorder. The jury was also instructed that they could return one of three possible verdicts on the charge of burglary: (1) innocent; (2) guilty, or (3) "guilty but mentally ill", pursuant to NMSA 1978, UJI Crim. 41.02 (Repl.Pamp.1982).

Following deliberation, the jury returned a verdict finding the defendant was "guilty but mentally ill" at the time of the commission of the offense of burglary. On appeal, defendant raises no issue concerning his competency at the time of trial.

I. Claim of Error in Instructions

Defendant argues that the jury instructions given by the court concerning the defense of insanity were fundamentally unfair and amounted to a constitutional denial of due process. Specifically, defendant asserts that it was error for the trial court to instruct the jury under UJI Crim. 41.02 as to a possible verdict of "guilty but mentally ill," without also instructing the jury under UJI Crim. 41.00 on the basic defense of insanity. Defendant contends that at arraignment he entered a plea of not guilty, and that the alternative verdict of "guilty but mentally ill" may be submitted to the jury only when the defendant has asserted the defense of insanity. Defendant further argues that the submission of an instruction advising the jury that they could return a verdict of "guilty but mentally ill" was confusing because the jury was not also given definitional instructions as to the meaning of "sanity" or "insanity."

The Legislature in 1982 adopted legislation authorizing the fact finder in criminal trials to enter a verdict of "guilty but mentally ill." See Stelzner & Piatt, The Guilty But Mentally Ill Verdict and Plea in New Mexico, 13 N.M.L.Rev. 99 (1983).

NMSA 1978, Section 31-9-3 (Cum.Supp.1983) provides in part:

A. A person who at the time of the commission of a criminal offense was not insane but was suffering from a mental illness is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill * * *.

B. A plea or finding of guilty but mentally ill is not an affirmative defense but an alternative plea or finding that may be accepted or made pursuant to appropriate evidence when the affirmative defense of insanity is raised or the plea of guilty but mentally ill is made.

* * *

* * *

E. When a defendant has asserted a defense of insanity, the court, where warranted by the evidence, shall provide the jury with a special verdict form of guilty but mentally ill and shall separately instruct the jury that a verdict of guilty but mentally ill may be returned instead of a verdict of guilty or not guilty, and that such a verdict requires a finding by the jury beyond a reasonable doubt that the defendant committed the offense charged and that the defendant was not legally insane at the time of the commission of the offense but that he was mentally ill at that time.

Following the enactment of Section 31-9-3, the New Mexico Supreme Court in 1982, adopted an approved jury instruction, UJI Crim. 41.02, authorizing the submission in appropriate cases a jury instruction for a finding of "guilty but mentally ill."

Although Section 31-9-3 specifies that the instruction on "guilty but mentally ill" shall be given when a defendant has asserted the defense of insanity, we do not interpret the statute to preclude a trial court from giving such instruction where the defendant has not pleaded the defense of insanity, but has requested a jury instruction as to his inability to form a requisite intent to commit a criminal offense. UJI Crim. 41.11. The supreme court in approving UJI 41.02 has broadened the instances wherein the instruction as to "guilty but mentally ill" may be given, including instances where a defendant has asserted the defense of an inability to form a specific intent to create the crime charged because of (1) intoxication from use of drugs; or alcohol, or (2) where he was suffering from a mental disease or disorder. Our interpretation is supported by the Use Note to UJI Crim. 41.02, which specifies that "[t]his instruction [guilty but mentally ill] may only be given when Instruction 41.00 [insanity defense] has been given or * * * Instruction 41.11 [inability to form intent to do a further act] has been given because of evidence of a mental disease or disorder." [Emphasis added.]

We interpret UJI Crim. 41.02 to expressly permit the usage of the instruction when defendant has not raised the defense of insanity, but has requested a defense instruction under UJI Crim. 41.11. In the instant case the trial court gave UJI Crim. 41.11 at the request of the defendant, together with UJI Crim. 41.02.

The committee commentary to UJI Crim. 41.02, further supports the actions of the trial court herein. This commentary provides:

Instruction 41.02 was prepared subsequent to the enactment of Section 31-9-3 NMSA 1978 which provides for a finding of "guilty but mentally ill." Section 31-9-3 NMSA 1978 provides that a finding of "guilty but mentally ill" may be made only in a case in which the insanity of the defendant is in issue. The committee believed that this instruction should also be given if the jury has been presented an instruction on inability to form a deliberate or specific intent to commit an offense. In either case, the notice requirements of Rule 35 of the Rules of Criminal Procedure for the District Courts must have been followed.

[Emphasis added.]

Under the circumstances herein, considering all of the instructions given by the trial court as a whole, the instructions adequately instructed the jury on the proper issues involved, and were not confusing as to their import. See State v. Rhea, 86 N.M. 291, 523 P.2d 26 (Ct.App.), cert. denied, 86 N.M. 281, 523 P.2d 16 (1974).

Defendant has failed to show any prejudice resulting from the submission of UJI Crim. 41.02 to the jury, or from the trial court's refusal to give his tendered instruction, UJI Crim. 41.00, as to the defense of insanity. Moreover, defendant did not comply with the notice provisions of NMSA 1978, Crim.P.R. 35 (Cum.Supp.1983), concerning the time requirements to assert the defense of insanity. Defendant did not give timely notice of his intention to assert the defense of insanity and did not establish the existence of evidence to show any abuse of discretion in refusing to permit submission of the defense of insanity. See State v. Young, 91 N.M. 647, 579 P.2d 179 (Ct.App.), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978).

Additionally, defendant failed to properly preserve an error as to the instructions which were in fact given by the trial court. See NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 308 (Repl.Pamp.1983); see also State v. Garcia, 99 N.M. 771, 664 P.2d 969 (1983). Examination of the record indicates UJI 41.02 was not tendered by the State. We assume, but do not decide, the instruction was tendered by defendant. Defendant did not voice any objection to the giving of UJI 41.02....