State v. Parish

• Citation: 878 P.2d 988,118 N.M. 39,1994 NMSC 73
• Decision Date: 11 July 1994
• Docket Number: No. 21182,21182
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Carl R. PARISH, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 988

878 P.2d 988

118 N.M. 39

STATE of New Mexico, Plaintiff-Appellee, v. Carl R. PARISH, Defendant-Appellant.

No. 21182.

Supreme Court of New Mexico.

July 11, 1994.

[118 N.M. 41] David Graham, Taos, for appellant.

Tom Udall, Atty. Gen., Max Shepherd, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

FROST, Justice.

During a violent encounter with local residents, Carl Parish, a visitor to Taos, New Mexico from out of state, shot and killed one of his assailants. We reverse his conviction for voluntary manslaughter and remand for a new trial. Though numerous issues were raised on appeal, we base our decision on two errors in the jury instructions given by the trial court: 1) the jury instructions did not instruct the jury that they must decide whether the killing was unlawful when a claim of self-defense is raised; and 2) the instructions failed to explicitly place the burden upon the State to prove that Defendant did not act in self-defense. We also, for the future guidance of the bench and bar, discuss the potential for confusion if certain jury instructions conflict with one another.

I. FACTS.

Parish, a college student from Purdue University in Indiana, came to Taos, New Mexico in July of 1991 to attend a photography class. On the evening of July 15, Parish and two other students went out to look for a fourth student who had been gone for what seemed an unduly long time. They came upon a gathering of local residents who were drinking around a bonfire near a bar. The group around the bonfire told the students to leave and directed hostilities at them which were possibly racially or ethnically motivated. Though it is unclear who provoked the violence, Parish and one of his fellow students were chased more than 100 feet, tackled, and beaten by at least three and possibly as many as five of the local residents. The residents would not let them leave and shouted racial epithets. The fight ended when Parish pulled out a gun and shot and killed Paul Vigil, one of his assailants.

Parish made a statement to investigating officers shortly after the incident in which he admitted to the killing, claiming he shot only to make the residents stop beating him and his friend. The next day a criminal information charging second degree murder, voluntary manslaughter, and unlawfully carrying of a deadly weapon was filed in Taos magistrate court. Trial commenced on January 13, 1992. At the close of the evidence, Parish objected to certain jury instructions and offered other instructions which were refused. The jury found Parish guilty of voluntary manslaughter with a firearm and unlawfully carrying a deadly weapon. This appeal comes to us by certification from the New Mexico Court of Appeals so that we may address the issues raised relating to the jury instructions given by the trial court.

II. STANDARD OF REVIEW.

A jury instruction standing by itself may appear defective. However, when considered in the context of the other instructions given to the jury it may "fairly and accurately state the applicable law." State v. Hamilton, 89 N.M. 746, 750, 557 P.2d 1095, 1099 (1976) (citing State v. Rushing, 85 N.M. 540, 543, 514 P.2d 297, 300 (1973)); State v. Rhea, 86 N.M. 291, 293, 523 P.2d 26, 28 (Ct.App.), cert. denied, 86 N.M. 281, 523 P.2d 16 (1974). From the early case State v. Crosby, 26 N.M. 318, 191 P. 1079 (1920), we can glean two principles to guide our determination of whether the defective jury instructions gave rise to reversible error: (1) "an erroneous instruction cannot be cured by a subsequent correct one," Id. at 324, 191 P. at 1081 (citing Territory v. Pridemore, 4 N.M. 275, 281, 13 P. 96, 98 (1887)), and (2) "instructions must be considered as a whole, and not singly," Crosby, 26 N.M. at 324-25, 191 P. at 1081 (quoting United States v. Densmore, 12 N.M. 99, 106, 75 P. 31, 32 (1904)). These principles address three situations: erroneous instructions, vague instructions, and contradictory instructions. All three of these situations are presented by this case. As Crosby states, if an instruction is facially erroneous it presents an incurable problem and mandates reversal. Crosby, 26 N.M. at 324, 191 P. at 1081. On the other hand, if a jury instruction is capable of more than one interpretation, then the court must next evaluate whether another part of the jury instructions satisfactorily cures the ambiguity. Id. Finally, if the jury is given two contradictory instructions, each of which is complete and unambiguous, reversible error occurs because it is impossible to tell if the error is cured by the correct instruction; furthermore, there is no way to determine whether the jury followed the correct or the incorrect instruction. State v. Lucero, 110 N.M. 50, 52, 791 P.2d 804, 806 (Ct.App.) (citing State v. Horton, 57 N.M. 257, 261, 258 P.2d 371, 373 (1953)), cert. denied, 110 N.M. 44, 791 P.2d 798 (1990); State v. Cummings, 57 N.M. 36, 37-38, 253 P.2d 321, 322 (1953). The standard against which the court makes its determination is that of the reasonable juror. Lucero, 110 N.M. at 51, 791 P.2d at 805 (finding reversible error if "a reasonable juror might have" misunderstood a jury instruction); see Francis v. Franklin, 471 U.S. 307, 315-16, 105 S.Ct. 1965, 1971-72, 85 L.Ed.2d 344 (1985). Reversible error arises if, under the principles just described, a reasonable juror would have been confused or misdirected.

III. THE INSTRUCTIONS DID NOT INSTRUCT THE JURY ON A

NECESSARY ELEMENT OF THE CRIME CHARGED: THAT THE

ACT WAS UNLAWFUL.

Parish claims that the jury instructions failed to explain that, when the issue of self-defense is raised, unlawfulness becomes a necessary element of the crime of voluntary manslaughter. The New Mexico manslaughter statute, NMSA 1978, Sec. 30-2-3(A) (Repl.Pamp.1984), defines voluntary manslaughter as "the unlawful killing of a human being without malice ... upon a sudden quarrel or in the heat of passion." (Emphasis added.) From the New Mexico murder statute, we may infer that "unlawful" means "without lawful justification or excuse." See NMSA 1978, Sec. 30-2-1 (Repl.Pamp.1984) (first and second degree murder defined as killing "without lawful justification and excuse" rather than "unlawful killing"). See State v. Larson, 94 N.M. 795, 797, 617 P.2d 1310, 1312 (1980). It seems tautological to stress that unlawfulness is an essential aspect of any crime. Indeed, it is not an element which must be proven unless a defense which justifies the homicide is raised. See State v. Noble, 90 N.M. 360, 364, 563 P.2d 1153, 1157 (1977) ("Every killing of a person by another is presumed to be unlawful, and only when it can be shown to be excusable or justifiable will it be held otherwise."). There is no dispute that the facts of this case, if so found by the jury, presented evidence "sufficient to raise a reasonable doubt in the minds of the jury as to whether or not" the defendant acted in self-defense. State v. Martinez, 95 N.M. 421, 423, 622 P.2d 1041, 1043 (1981); State v. Arias, 115 N.M. 93, 95, 847 P.2d 327, 329 (Ct.App.1993). The instruction on self-defense was appropriate.

The jury instructions presented by the trial judge, though properly derived from the Uniform Jury Instructions (U.J.I.), SCRA 1986, 14-101 to -9004 (Recomp. & Cum.Supp.1994), issued by this Court, resulted in reversible error in this case. The trial court's instruction No. 7 on voluntary manslaughter was used directly as prescribed from the U.J.I., SCRA 1986, 14-220:

For you to find the Defendant guilty of Voluntary Manslaughter, as charged in Count I, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime.

¶1 The defendant killed Paul Vigil.

¶2 The defendant knew that his acts created a strong probability of death or great bodily harm to Paul Vigil.

¶3 This happened in New Mexico on or about the 15th day of July, 1991.

The difference between second degree murder and voluntary manslaughter is sufficient provocation. In second degree murder the defendant kills without having been sufficiently provoked, that is, without sufficient provocation. In the case of voluntary manslaughter the defendant kills after having been sufficiently provoked, that is, as a result of sufficient provocation. Sufficient provocation reduces second degree murder to voluntary manslaughter.

Likewise, the instruction No. 11 on self-defense was taken from SCRA 1986, 14-5171:

Evidence has been presented that the defendant killed Paul Vigil while defending himself.

The killing is in self-defense if:

1. There was an appearance of immediate danger of death or great bodily harm to the defendant as a result of being brutally attacked, beaten and kicked by numerous persons;

2. The defendant was in fact put in fear by the apparent immediate danger of death or great bodily harm and killed Paul Vigil because of that fear; and

3. A reasonable person in the same circumstances as the defendant would have acted as the defendant did.

In considering this defense, and after considering all the evidence in the case, if you have a reasonable doubt as to the defendant's guilt, you must find him not guilty.

Thus, to prove voluntary manslaughter, the State was required to prove the following three elements: (1) The Defendant killed Paul Vigil; (2) the Defendant knew that his acts created a strong probability of death or great bodily harm to Paul Vigil; (3) this happened in New Mexico on July 15, 1991. A claim of self-defense would not cast reasonable doubt upon any of those three elements. It is the element of unlawfulness that is negated by self-defense. Parish, by presenting evidence of self-defense, was claiming the homicide was lawful. The State was thus required to prove that it was unlawful. As Judge Pickard said in the certification to this Court, "when self-defense or the defense of others is at issue, the absence of such justification is an element of the offense."

The State relies...