State v. Romero
| Decision Date | 14 March 2005 |
| Docket Number | No. 24390.,24390. |
| Citation | 112 P.3d 1113,137 N.M. 456 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Anthony ROMERO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Santa Fe, Joel Jacobsen, Assistant Attorney General, Albuquerque, for Appellee.
John Bigelow, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, for Appellant.
Certiorari Granted, No. 29,159, May 3, 2005.
{1} On motion for rehearing, the opinion filed March 1, 2005, is withdrawn, and the following opinion is substituted in its place. The motion for rehearing is otherwise denied.
{2} Defendant was convicted of second degree murder for the beating death of his wife. The cause of death was contested at trial, with Defendant presenting expert testimony that the death was caused by a liver condition and the State presenting expert testimony that the death was caused either by smothering in the course of a kidnaping or rape, or as a result of multiple complications of mechanical injuries to the head, i.e., being beaten about the head. This case requires us to decide whether Defendant was entitled to instructions on nondeadly force self-defense or involuntary manslaughter based on these facts. We hold that both of these instructions are applicable to the facts of this case, where there was evidence, although contradicted, that the force Defendant used was necessary to protect himself from attack and that this force would ordinarily not result in death or great bodily harm, but unexpectedly did so result in this case. We therefore reverse the conviction. Defendant also raises the issue that his sentence was improperly aggravated because there was no jury finding beyond a reasonable doubt of any aggravating factors. This issue was recently decided in Defendant's favor in State v. Frawley, 2005-NMCA-017, ¶¶ 1, 11-14, 137 N.M. 18, 106 P.3d 580, cert. granted, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74, [no. 29,011, (Feb. 8, 2005)], but we need not reach it here in light of our disposition.
{3} Defendant was charged with first degree murder (deliberate intent or in the commission of the felonies of kidnaping or criminal sexual penetration), criminal sexual penetration, kidnaping, three counts of tampering with evidence, and escape from a community custody electronic monitoring program. At trial, the jury was instructed on these charges, as well as the lesser included offenses of second degree murder and voluntary manslaughter for the murder count, and various lesser included offenses on the kidnaping and criminal sexual penetration counts. The jury acquitted Defendant of kidnaping, criminal sexual penetration, their lesser included offenses, and one count of tampering with evidence; it convicted Defendant of second degree murder and the remaining counts of tampering and escape. This appeal involves only the murder conviction.
{4} The charges arose from the death of Defendant's wife (the victim). It was undisputed that the marriage involved domestic violence. Several months before her death, the victim had kicked Defendant out of the house and obtained a restraining order against him. One month later, an incident occurred at the place where Defendant was living that resulted in Defendant's being convicted of aggravated battery and aggravated assault against a household member. As a result of his arrest for this incident, Defendant was put on electronic monitoring and instructed to have no contact with the victim. Nonetheless, there was evidence that Defendant contacted the victim, stating his eagerness to reconcile. The evidence also revealed that the victim was not blameless in her contacts with Defendant, inasmuch as both the prior incident and the incident that resulted in her death occurred at the place Defendant was living, the victim's having gone there.
{5} The evidence concerning the night of the victim's death consisted of Defendant's statements to others and the forensic testimony. Defendant's statements indicated that the victim came to his room at 3:00 in the morning and was very intoxicated. They watched television and then began trading insults. The victim urinated in her pants and took her hand and rubbed Defendant's face with the urine. The couple then fought physically (including a strike by Defendant that made the victim's nose bleed), made up, and fought again, after which they made up, made love, and fought again. This fighting included the victim's pinning Defendant beneath her, punching him in the face, and elbowing him in the mouth, during which time Defendant bit her. Defendant admitted that he hit the victim four or five times during the last fight and, after the victim grabbed Defendant by the genitals, he also bit her and struck her again on the side of the head to get her to release her grip. Eventually, they stopped fighting and went to sleep. When Defendant woke up at 9:30, the victim was not breathing, and Defendant went to his parents' house nearby to summon help. Defendant turned himself in and an officer saw that he had fingernail and other scratches on his face and neck and redness on his shoulder; the officer remarked that the fight appeared to be "pretty vicious" by looking at Defendant.
{6} The evidence showed that the victim had two black eyes; bleeding on the white of one eye; bruises and scrapes around the forehead, lips, ear, and nose; a broken nose; bleeding into the scalp; small bruises on the strap muscles of the neck; defensive wounds to the hands; and numerous bite marks. The evidence also showed that the victim had a blood alcohol content of .082 percent at the time of death and a liver condition often associated with obesity or consumption of alcohol. The victim was slightly over five feet tall and weighed 155 pounds.
{7} The medical evidence concerning the cause of death was disputed. The State's expert explained that it was a complex case with no obvious cause of death. She testified that there was no reason for the victim to be dead except for the possibility of injuries to the brain or asphyxia, such as by smothering, which could explain the scraping around the nose or the bruises to the neck. There was testimony, however, that the autopsy report did not reveal evidence of injury to the brain or significant indications of asphyxia, perhaps because the victim did not live long enough after injury for these indications to manifest themselves. Nonetheless, the State's expert opined that the victim died as a result of "complications of mechanical injuries to the head," which would include all of the possibilities of brain injury, mechanical occlusion of the nose, and strangulation, all being in the presence of alcohol, which would compromise the victim's life systems. After consultation with colleagues, the State's expert said there was no doubt that this was a homicide, as it fit the pattern of sexual homicide. The State's expert stated that The defense expert testified that the victim died a natural or accidental death as a result of the liver condition because there was no other clear cause of death, although he acknowledged that the State's theories could be possibilities.
{8} Defendant contends that the trial court erred in refusing his requested instructions on nondeadly force self-defense, UJI 14-5181 NMRA, and involuntary manslaughter, UJI 14-231 NMRA. The propriety of jury instructions is a mixed question of law and fact. State v. Gaitan, 2002-NMSC-007, ¶ 10, 131 N.M. 758, 42 P.3d 1207. When considering a defendant's requested instructions, we view the evidence in the light most favorable to the giving of the requested instruction. State v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 139. With those facts in mind, we then review the issue de novo. Id.; see Gaitan, 2002-NMSC-007, ¶ 10,131 N.M. 758,42 P.3d 1207. In the case of self-defense, there must be some evidence, even if slight, to support the defense. State v. Duarte, 1996-NMCA-038, ¶ 3, 121 N.M. 553, 915 P.2d 309. In the case of lesser included offense instructions, there must be some view of the evidence that could sustain a finding that the lesser offense was the highest degree of crime committed. State v. Pettigrew, 116 N.M. 135, 138, 860 P.2d 777, 780 (Ct.App.1993).
{9} The trial court denied the instruction on self-defense, and the State supports such denial, on the ground that the instruction on nondeadly force self-defense is inapplicable as a matter of law when the victim dies. The trial court also denied the instruction on involuntary manslaughter. The State supports this denial on the grounds that, because self-defense was negated, there was no lawful act to be committed in an unlawful manner, the battery committed on the victim was not a misdemeanor, and the Supreme Court rejected involuntary manslaughter as a verdict in cases of imperfect self-defense in State v. Abeyta, 120 N.M. 233, 240, 901 P.2d 164, 171 (1995), abrogated on other grounds by State v. Campos, 1996-NMSC-043, ¶ 32 n. 4, 122 N.M. 148, 921 P.2d 1266. Under the facts of this case, we disagree with enough of these propositions to warrant a reversal.
{10} The premises underlying the State's argument concerning the self-defense instructions are that there are two uniform jury instructions, UJI 14-5171 NMRA and UJI 14-5181, one for deadly force and one for nondeadly force, and that the former is used when death is the result, and the latter is used when there is no death. These premises are logical, at least on first glance, and there are cases from other jurisdictions that support them....
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State v. Wyatt B.
...we view the evidence in the light most favorable to the giving of the requested instruction.” State v. Romero, 2005–NMCA–060, ¶ 8, 137 N.M. 456, 112 P.3d 1113. The district court's refusal of a defendant's requested jury instruction that is supported by the evidence at trial is reversible e......
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...committed “a lawful act done through a negligent behavior.” The district court, reading from State v. Romero, 2005-NMCA-060, ¶ 17, 137 N.M. 456, 112 P.3d 1113, articulated three situations in which evidence warrants an involuntary manslaughter instruction: “killing of a human being ... [ (1......