State v. Percival

• Decision Date: 06 February 2017
• Docket Number: NO. 34,385,34,385
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Raquel PERCIVAL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

394 P.3d 979

STATE of New Mexico, Plaintiff-Appellee,
v.
Raquel PERCIVAL, Defendant-Appellant.

NO. 34,385

Court of Appeals of New Mexico.

Filing Date: February 6, 2017

Hector H. Balderas, Attorney General, Santa Fe, NM, John J. Woykovsky, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Josephine H. Ford, Assistant Public Defender, Albuquerque, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Raquel Percival was convicted in metropolitan court for aggravated driving while under the influence of intoxicating liquor or drugs (aggravated DWI), contrary to NMSA 1978, Section 66–8–102 (2010, amended 2016), and careless driving, contrary to NMSA 1978, Section 66–8–114 (1978). She appealed to the district court and that court affirmed her convictions. As a basis for her appeal to this Court, Defendant argues, as she did in the district court, that the metropolitan court incompletely instructed the jury with respect to her duress defense. Defendant also argues that the metropolitan court's misreading of an instruction during its oral charge to the jury constituted fundamental error. We conclude that the jury instructions as given did not constitute either reversible or fundamental error. We therefore affirm Defendant's convictions.

BACKGROUND

{2} On February 16, 2012, at approximately 2:45 a.m., Albuquerque Police Department (APD) Officer Nicholas Sheill observed Defendant driving erratically on Eubank Boulevard in Albuquerque, New Mexico. He also observed that Defendant's license plate lamp was not functioning. He followed Defendant's vehicle for a short time and then conducted a traffic stop.

{3} After approaching Defendant's vehicle, Officer Sheill noted an odor of alcohol emanating from her person. He also observed that Defendant had bloodshot eyes and mildly slurred speech. Officer Sheill called for assistance, and APD Officer Charles Miller arrived to conduct a DWI investigation. As a result of this investigation, Officer Miller placed Defendant under arrest for aggravated DWI. She was also charged with careless driving and an equipment violation.

{4} At trial, Defendant did not deny that she was guilty of the charged offenses but instead claimed that certain circumstances required her to drive in violation of the law. Specifically, Defendant testified that: (1) she was visiting a male friend and that she planned to spend the night at his apartment; (2) she consumed alcohol at the apartment; (3) after she consumed alcohol, her friend invited another man to the apartment; (4) this person's behavior and comments made her feel uncomfortable and unsafe; and (5) fearing for her safety, she left the house while the two men were in the backyard. Officer Sheill stopped Defendant shortly after she left her friend's apartment.

{5} Defendant tendered jury instructions that imbedded the absence of duress as an essential element of aggravated DWI and careless driving. The metropolitan court refused Defendant's tendered instructions and instead gave, among others, UJI 14–4506 NMRA, UJI 14–4505 NMRA, and UJI 14–5130 NMRA.

{6} During its oral charge to the jury, the metropolitan court read each jury instruction. While reading UJI 14–5130, the metropolitan court misspoke; the result was an incorrect articulation of the State's burden of proof. Defendant did not object to this incorrect recitation of the instruction.

{7} Defendant was convicted on all charges. After the district court affirmed the convictions, Defendant filed this appeal.

STANDARD OF REVIEW AND PRESERVATION

{8} Appellate courts review a trial court's rejection of proposed jury instructions

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de novo, "because [the rejection] is closer to a determination of law than a determination of fact." State v. Ellis , 2008–NMSC–032, ¶ 14, 144 N.M. 253, 186 P.3d 245 (internal quotation marks and citation omitted). If the alleged error has been preserved, we review for reversible error. State v. Benally , 2001–NMSC–033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. If the alleged error has not been preserved, we review for fundamental error. Id. An allegation of error is generally preserved by "[t]he tender but refusal of an instruction[.]" Apodaca v. AAA Gas Co. , 2003–NMCA–085, ¶ 40, 134 N.M. 77, 73 P.3d 215. "A jury instruction which does not instruct the jury upon all questions of law essential for a conviction of any crime submitted to the jury is reversible error." Ellis , 2008–NMSC–032, ¶ 14, 144 N.M. 253, 186 P.3d 245 (internal quotation marks and citation omitted). Reversible error also occurs "if the jury is given two contradictory instructions, each of which is complete and unambiguous, ... because it is impossible to tell if the error is cured by the correct instruction [.]" State v. Parish , 1994–NMSC–073, ¶ 4, 118 N.M. 39, 878 P.2d 988.

{9} Defendant tendered alternate jury instructions that the metropolitan court rejected. Defendant additionally argued that the uniform jury instructions, without modification, could result in juror confusion. Because Defendant sufficiently preserved this issue, we review for reversible error. With respect to the remaining and unpreserved issue raised by Defendant on appeal, we review for fundamental error. See Benally , 2001–NMSC–033, ¶ 16, 131 N.M. 258, 34 P.3d 1134 ("[U]npreserved error in jury instructions is ‘fundamental’ when it remains uncorrected, thereby allowing juror confusion to persist.").

UNIFORM JURY INSTRUCTION 14-5130

{10} UJI 14–5130 instructs on the issue of duress, stating,

Evidence has been presented that the defendant was forced to ____________ under threats. If the defendant feared immediate great bodily harm to himself or another person if he did not commit the crime and if a reasonable person would have acted in the same way under the circumstances, you must find the defendant not guilty.

The burden is on the state to prove beyond a reasonable doubt that the defendant did not act under such reasonable fear.

(Footnote omitted.) In 1996, our Supreme Court amended the use notes accompanying various justification-related uniform jury instructions to require that the absence of the relevant consideration be added as an essential element. See Supreme Court Order No. 96-8300 (Oct. 30, 1996) (amending the use notes to UJI 14–5101 to –5103 NMRA, UJI 14–5106 NMRA, UJI 14–5110 to –5111 NMRA, UJI 14–5120 NMRA, UJI 14–5132 NMRA, UJI 14–5170 to –5174 NMRA, UJI 14–5180 to –5184 NMRA). However, the use note accompanying UJI 14–5130 was not amended at that time and does not require that the metropolitan court add the absence of duress as an essential element of the charged offense. Contra, e.g. , UJI 14–5181 Use Note 1 ("If this instruction is given, add to the essential elements instruction for the offense charged, ‘The defendant did not act in self defense.’ ").

{11} An analytical distinction exists between duress and other justification-based defenses. Compare State v. Rios , 1999–NMCA–069, ¶ 12, 127 N.M. 334, 980 P.2d 1068 ("A defendant pleading duress is not attempting to disprove a requisite mental state. Defendants in that context are instead attempting to show that they ought to be excused from criminal liability because of the circumstances surrounding their intentional act." (citation omitted)), with State v. Armijo , 1999–NMCA–087, ¶ 14, 127 N.M. 594, 985 P.2d 764 ("[A] claim of self defense negates the element of unlawfulness[.]"), and State v. Contreras , 2007–NMCA–119, ¶ 15, 142 N.M. 518, 167 P.3d 966 ("Mistake of fact is a defense when it negates the existence of the mental state essential to the crime charged." (internal quotation marks and citation omitted)), and State v. Brown , 1996–NMSC–073, ¶ 21, 122 N.M. 724, 931 P.2d 69 ("Like mistake and mental illness, a state of intoxication may also negate a required offense element[.]"). This distinction—that duress excuses

394 P.3d 984

intentional conduct while the other justification-based defenses negate an essential element of the charged offense—supports the omission of UJI 14–5130 from Order No. 96-8300.¹ As a result, the metropolitan court did not err in refusing Defendant's tendered instructions unless the instructions given by the metropolitan court failed to "instruct the jury upon all questions of law essential for a conviction[,]" Ellis , 2008–NMSC–032, ¶ 14, 144...