State v. Talley

• Decision Date: 04 June 1985
• Docket Number: No. 7921,7921
• Citation: 702 P.2d 353,1985 NMCA 58,103 N.M. 33
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. William Cliff TALLEY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 353

702 P.2d 353

103 N.M. 33

STATE of New Mexico, Plaintiff-Appellee, v. William Cliff TALLEY, Defendant-Appellant.

No. 7921.

Court of Appeals of New Mexico.

June 4, 1985.

[103 N.M. 35] Janet Clow, Chief Public Defender, Kathryn Hormby, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Paul G. Bardacke, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Convicted of two counts of burglary and one count each of larceny and arson, defendant appeals. The dispositive issue is ineffective assistance of counsel. We reverse and remand for a new trial on all counts.

Defendant and Jimmie Don Shamlin met while they were both staying at the Gospel Rescue Mission in Las Cruces, New Mexico. Shamlin had a car and defendant had some money. During the day of the Fourth of July, defendant and Shamlin drove around and shared between five to twelve pitchers of beer at the Welcome Inn. After the Welcome Inn closed, defendant and Shamlin drove to a residence known as "the old Burk house" and removed items valued at over $1,000, or more. The residence had recently been rented by Amazing Grace Fellowship which had employed defendant to do some of the repairs needed. At the time of the theft, defendant informed Shamlin that, since his fingerprints were in places where they should not be, he was going to set fire to the place. A fire was set and subsequently rekindled.

The only witness presented by the defense was Don Combs, a mental health professional, who testified that defendant suffered from an impulse disorder of pyromania. He testified that the disorder was increased by drinking. He also testified that the disorder was serious because of defendant's extensive history of setting fires.

Defendant also claims that it is double jeopardy to prosecute him on the two counts of burglary. We answer his claim only because we remand the case. Because defendant committed the burglaries for two separate reasons--to steal and to commit arson--it is not double jeopardy to prosecute him on two counts of burglary. The claim is without merit.

Ineffective Assistance of Counsel

The standard for ineffective assistance of counsel in New Mexico was changed from the old test of a "sham and mockery" to that of whether defense counsel exercised the skill of a reasonably competent attorney. State v. Orona, 97 N.M. 232, 638 P.2d 1077 (1982); State v. McGuinty, 97 N.M. 360, 639 P.2d 1214 (Ct.App.1982). Orona explained that the change in the language articulating the standard of ineffective assistance was simply a formalization of recent trends in the case law, even though the "sham and mockery" standard was nominally still the rule until Orona and McGuinty. Defendant has the burden of showing both the incompetence of his attorney and the proof of prejudice. McGuinty. Further, absent a showing by defendant, counsel is presumed competent. State v. Moser, 78 N.M. 212, 430 P.2d 106 (1967). In considering an ineffectiveness claim, the entire proceeding must be considered as a whole. State v. French, 92 N.M. 94, 582 P.2d 1307 (Ct.App.1978); State v. Kincheloe, 87 N.M. 34, 528 P.2d 893 (Ct.App.1974).

In considering a claim of ineffective assistance, the duties of counsel are considered. Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). These duties include loyalty, avoiding a conflict of interest, consulting with defendant on important decisions, keeping defendant informed of important developments, and using skill and knowledge to render the trial a reliable adversarial testing process. Strickland. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland. See also United States v. Cronic, --- U.S. ----, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

Cases in New Mexico that have found ineffective assistance of counsel involved conflict of interest ( State v. Aguilar, 87 N.M. 503, 536 P.2d 263 (Ct.App.1975)), the failure to sufficiently instruct client so that a guilty plea could not have been freely given (State v. Kincheloe ), and a cumulation of eight instances of deficient attorney performance ( State v. Pitts, 700 P.2d 650 (1985)). In State v. Luna, 92 N.M. 680, 594 P.2d 340 (Ct.App.1979), this Court remanded a matter for determination of whether failure to file a pretrial motion concerning a conspiracy charge, which either had been dismissed or upon which co-conspirators had been acquitted, constituted ineffective assistance of counsel.

a. Failure to tender a proper instruction on defense of inability to form specific intent.

Defense counsel failed to request a proper instruction on the defense of inability to form specific intent. Instruction Number 10, the instruction given the jury, does not comply with the use instruction which requires that the instruction "[r]epeat the applicable intent to do a further act or achieve a further consequence from the essential elements instruction of the crime." NMSA 1978, UJI Crim. 41.11 (Repl.Pamp.1982). State v. Kendall, 90 N.M. 236, 561 P.2d 935 (Ct.App.1977), considered this requirement. In Kendall, the defendant complained that UJI Crim. 41.11 was not given following each of the kidnapping counts, but instead followed all the kidnapping counts. We held that the "application of a specific intent instruction to several counts involving the same specific intent crime was not a substantial modification of U.J.I.Crim. 41.11." The complaint of defendant in this case is of greater magnitude than the alleged error in Kendall.

In this case, the specific intent instruction followed the elements instructions for three different specific intent crimes--burglary, larceny, and arson. Instead of repeating the language concerning specific intent of each of the substantive crimes, the specific intent instruction simply described the intent in question as "deliberate intention to commit the crimes." The problem in this case arose from the fact that UJI Crim. 41.11 was not given. Rather, the court gave a modified NMSA 1978, UJI Crim. 41.10 (Repl.Pamp.1982), which is the inability to form the specific intent instruction for first degree murder of the willful and deliberate variety. Use [103 N.M. 37] Note 1 to UJI Crim. 41.10. This is contrary to the use instruction for UJI Crim. 41.11, the appropriate instruction in this case, which requires that the "applicable intent to do a further act or achieve a further consequence" be included in the instruction to describe the type of intent that defendant may not have been capable of forming. Use Note 4 to UJI Crim. 41.11. Moreover, this error is compounded by the fact that each of the crimes charged--two counts of burglary, one count of larceny and one count of arson--all carry a specific intent element unique to that crime. (UJI Crim. 41.11's Committee commentary provides that the instruction is only applicable to crimes that contain an element of intent to do a further act or achieve a further consequence. See State v. Beach, 102 N.M. 642, 699 P.2d 115 (1985).) The instructions given were thus contrary to law and, as a consequence, did not allow the jury to make a decision on the effect of defendant's mental disorder, which only affects intent to achieve a further consequence or do a further act. See State v. Buhr, 82 N.M. 371, 482 P.2d 74 (Ct.App.1971). Cf. State v. Trivitt, 89 N.M. 162, 548 P.2d 442 (1976).

The state contends that even if the giving of the erroneous instruction constituted incompetence on the part of defense counsel, no prejudice was shown because Combs' testimony regarding defendant's inability to form a specific intent was "highly equivocal, and even internally contradictory." We disagree.

Combs testified that defendant was a pyromaniac and that pyromaniacs were unable to avoid impulses to set fires. He further testified that when defendant lost his impulse control through intoxication his behavior was not under his control. Defendant suffered prejudice from the fact that the jury was not properly instructed concerning inability to form specific intent.

b. Failure to tender limiting instruction regarding defendant's statement made during a mental examination.

Defendant next argues that ineffective assistance of counsel is demonstrated by the fact that defense counsel did not request that NMSA 1978, UJI Crim. 40.09 (Repl.Pamp.1982) be given, which would have directed the jury that Combs' testimony concerning what defendant said should only be used for the purpose of considering the question of defendant's insanity. The testimony that most concerns defendant was information elicited by the prosecutor on cross-examination of Combs that the defendant had previously set fire to a car that he had stolen because he had touched everything in the car.

The state argues that the failure to give this limiting instruction did not create a reasonable probability that the jury would have reached a different result, one of the tests for showing ineffective assistance of counsel. It contends that the prosecutor's use of the statement concerning the defendant's previous burning of a stolen car to destroy his fingerprints was only for the purpose of refuting Combs' opinion as to the defendant's mental disorder. Thus, the state concludes, since the jury was not urged to use the statement as factual evidence of guilt, defendant has not shown that UJI Crim. 40.09 was necessary to the jury's deliberations.

This reasoning is fallacious. According to the Committee commentary to UJI Crim. 40.09, " 'such statements could be prejudicial * * * [and] [t]he district judge must therefore * * * be careful in instructing the jury as to the significance of the testimony.' " Nowhere is the giving of the instruction limited to situations where the testimony is used by the prosecution for the wider improper...