State v. Sutphin

Citation164 P.3d 72,2007 NMSC 045
Decision Date29 June 2007
Docket NumberNo. 29,387.,29,387.
PartiesSTATE of New Mexico, Plaintiff-Appellant, v. Kevin SUTPHIN, Defendant-Appellee.
CourtSupreme Court of New Mexico

Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM for Appellant.

Inocente, P.C., Brian A. Pori, Albuquerque, NM for Appellee.


CHÁVEZ, Chief Justice.

{1} We are again presented with the opportunity to clarify that a petitioner may raise issues in a petition for a writ of habeas corpus that could have been raised on appeal, but that such issues are reviewed for fundamental error. In this case, notwithstanding two errors in the jury instructions, we conclude that fundamental error did not occur at Petitioner Kevin Sutphin's trial. We thus reverse the district court and deny Petitioner a writ of habeas corpus.


{2} Our recitation of the facts is taken from our opinion upholding on direct appeal Petitioner's conviction for first degree murder and tampering with evidence. State v. Sutphin, 107 N.M. 126, 753 P.2d 1314 (1988). On October 18, 1985, Charles Franklin was found unconscious and covered with a bloody blanket in his cell located in the protective custody unit of the Penitentiary of New Mexico in Santa Fe. Id. at 127, 753 P.2d at 1315. At that time, Petitioner and his co-defendant were housed in the protective custody unit as well. Id.

A ... corrections officer noticed blood on [Petitioner's] forearms and a pinkish-colored towel in his cell, and other items which he knew belonged to Franklin. [Petitioner's] bloody clothes were later found in a trash can. Franklin's autopsy revealed five large lacerations on the right side of his head which resulted in his death; but any one of the blows to his head would have rendered him unconscious.


Defendant testified that on the night of October 18, he was in Franklin's cell when he noticed that Franklin was holding a small pipe in one hand. Fearful that Franklin would attack him, [Petitioner] jumped on him as Franklin started to fall, and straddled him on Franklin's bunk; [Petitioner] proceeded to grab the hand that held the pipe and hit Franklin on his head with it. [Petitioner] further testified that Franklin then pulled from under the pillow a larger pipe, but before Franklin had time to struggle, [Petitioner] grabbed a pipe and repeatedly hit Franklin with it in the head. Codefendant Hoffman observed the incident, pulled [Petitioner] off Franklin and urged [Petitioner] to leave Franklin's cell. At trial, [Petitioner] claimed that he hit Franklin in self-defense.

Id. No defensive wounds were found on Franklin. Id. at 131, 753 P.2d at 1319. Additionally, Petitioner testified that after Franklin became unconscious, he covered Franklin's body with a blanket and continued to hit him with the pipe. Id.

{3} The jury was instructed on first-degree murder and self-defense. The first-degree murder instruction read:

For you to find the defendant guilty of first-degree murder by a deliberate killing 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 Charles Franklin;

2. The killing was with the deliberate intention to take away the life of Charles Franklin;

3. This happened in New Mexico on or about the 18th day of October, 1985.

A deliberate intention refers to the state of mind of the defendant. A deliberate intention may be inferred from all of the facts and circumstances of the killing. The word deliberate means arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice.

The self-defense instruction read:

Evidence has been presented that the defendant killed Charles Franklin 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 Charles Franklin's assaulting him with an iron pipe; and

2. The defendant was in fact put in fear by the apparent danger of immediate death or great bodily harm and killed Charles Franklin 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.

Petitioner did not raise an issue with the jury instructions on direct appeal.

{4} Six years after we upheld Petitioner's conviction, we published State v. Parish, 118 N.M. 39, 878 P.2d 988 (1994). In Parish, the defendant challenged his conviction of voluntary manslaughter on the grounds that: (1) the voluntary manslaughter instruction omitted unlawfulness as an element, and (2) the self-defense instruction failed to explicitly place the burden on the State to disprove self-defense. See id. at 41, 878 P.2d at 990. Regarding the first issue, we stated that when a self-defense claim is properly before the jury in a manslaughter case, the unlawful nature of the killing is an element that must be proven by the State. See id. at 42-43, 878 P.2d at 991-92. Because the element of unlawfulness was omitted in the instructions and because self-defense was appropriate in that case, reversible error occurred. Id. We also determined that the self-defense instruction was ambiguous since it did not explicitly inform the jury that, under New Mexico law, the State has the burden of disproving self-defense beyond a reasonable doubt. Id. at 45-46, 878 P.2d at 994-95. We held that reversible error occurred with this instruction since the ambiguity was not cured by another instruction. Id.

{5} Relying on Parish, Petitioner filed a pro se petition for a writ of habeas corpus. Petitioner argued that his rights to due process were violated since, by omitting the element of unlawfulness, the State was not required to prove every element beyond a reasonable doubt, and because the self-defense instruction used at his trial could have been construed as placing the burden on Petitioner to prove self-defense. After being assigned counsel, Petitioner raised the same issue in an amended petition, arguing that such errors were fundamental.

{6} The State's response to the petition implied that fundamental error had not occurred at Petitioner's trial since there was no plausible evidence of self-defense and because the deliberate-intent instruction "would have alerted the jury that it was the State's burden to prove beyond a reasonable doubt that Petitioner intended to kill the victim for his own purposes and not just in defense of himself." Finally, the State argued that the equitable doctrine of laches precluded Petitioner from prevailing.

{7} A hearing was not held in Petitioner's case until eight years after Petitioner had originally filed his pro se petition. After hearing purely legal arguments on the Parish claim, the district court granted Petitioner a writ of habeas corpus. In its written order, the district court stated: "The errors in the jury instructions on homicide and self-defense violated Mr. Sutphin's state and federal constitutional right to proof beyond a reasonable doubt of every essential element of the crime charged and to present an adequate defense." In conclusion, the order reads:

The errors in the jury instructions on homicide and self defense were so fundamental that post-conviction relief may be afforded. Where, as here, the fundamental error raised by the habeas petitioner is identical to the error the New Mexico Supreme Court discussed in Parish in so many respects, the need for finality must yield to the need for consistency.

The State appealed the district court's order to this Court. See Rule 5-802(H)(1) NMRA. We reverse the district court.


{8} The State's arguments fall into three basic categories. First, the State argues that Petitioner should be barred from raising his Parish claim because he failed to raise it on direct appeal. Second, the State asserts that even if Petitioner can raise the claim in a habeas petition, the equitable doctrine of laches should bar relief. Finally, reaching the merits of Petitioner's claim, the State argues that a writ of habeas corpus should not be granted since no fundamental error occurred at Petitioner's trial. We disagree with the State on the first two points, but agree that the errors at Petitioner's trial were not fundamental.

A. A Habeas Petitioner May Assert Fundamental Error Even If the Claim Could Have Been Raised on Appeal

{9} The State asserts that because all of the facts underlying his Parish claim were known or knowable to Petitioner at the time of trial, Petitioner should be precluded from raising the issue in a habeas petition. Just recently, we addressed this preclusion argument in Campos v. Bravo, 2007-NMSC-021, 141 N.M. 801, 161 P.3d 846. In that case, we reiterated that fundamental error may be corrected in a habeas proceeding even though the record was adequate to address the petitioner's claim on direct appeal. Id. ¶ 7. We take this opportunity to do so again.

{10} Similar to Campos, the facts underlying Petitioner's habeas claim were known or knowable to him at the time of his trial, and the record was adequate to address the issue on direct appeal. See id. ¶ 8. Petitioner's claimed error lies in the jury instructions — obviously an error that was knowable at trial. Additionally, although Petitioner's trial occurred before Parish, that case simply reiterated...

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