State v. Traeger

• Decision Date: 31 July 2001
• Docket Number: No. 26,155.,26,155.
• Citation: 130 N.M. 618,2001 NMSC 22,29 P.3d 518
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Joseph TRAEGER, Defendant-Respondent.
• Court: New Mexico Supreme Court

29 P.3d 518

130 N.M. 618

2001 NMSC 22

STATE of New Mexico, Plaintiff-Petitioner, v. Joseph TRAEGER, Defendant-Respondent.

No. 26,155.

Supreme Court of New Mexico.

July 31, 2001.

Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Phyllis H. Subin, Chief Public Defender, Susan Roth, Assistant Public Defender, Santa Fe, NM, for Respondent.

OPINION

BACA, Justice.

{1} The Defendant, Joseph Traeger, appeals his conviction for aggravated battery with a deadly weapon contrary to NMSA 1978, § 30-3-5(A), (C) (1969). He was also convicted of numerous other related crimes which are not the subject of this appeal.¹ This Court issued a writ of certiorari to the Court of Appeals to consider the propriety of the jury instructions on aggravated battery with a deadly weapon. See NMSA 1978, § 34-5-14(B)(4) (1972) (stating that the Supreme Court has jurisdiction to review by writ of certiorari matters including "issue[s] of substantial public interest that should be determined by the [S]upreme [C]ourt"). Specifically, this Court is asked to consider whether a baseball bat, when used to strike a victim, should be considered a deadly weapon without a jury finding to that effect. The State argues that a baseball bat is a "bludgeon" within the definition of a deadly weapon found in NMSA 1978, § 30-1-12(B) (1963). According to this reasoning, a baseball bat would be considered a deadly weapon as a matter of law, or per se. This conclusion would remove the issue of whether a baseball bat is a deadly weapon from the jury. The Court of Appeals declined to classify a baseball bat as a deadly weapon per se, and found reversible error in the jury instructions based on the reasoning in State v. Bonham, 1998-NMCA-178, 126 N.M. 382, 970 P.2d 154. State v. Traeger, 2000-NMCA-015, ¶¶ 9-11, 128 N.M. 668, 997 P.2d 142, cert. granted, 128 N.M. 690, 997 P.2d 822 (2000). We also decline to hold that a baseball bat is a deadly weapon as a matter of law; however, we reverse the Court of Appeals' opinion based on its application of the reversible error standard in this case. We find that because the Defendant did not preserve the error in the jury instructions, a fundamental error standard applies. We hold that the error in the jury instructions given in this case does not rise to the level of fundamental error, and therefore we affirm the Defendant's conviction for aggravated battery with a deadly weapon.

I.

{2} The Defendant and his wife, the victim,² separated in February of 1997. After spending some time in Illinois, the victim moved back to New Mexico, but remained separated from the Defendant. On July 7, 1997, the victim went to the Defendant's trailer to pick up some money and some papers. She only planned to stay a few minutes. After the Defendant asked the victim about her plans for their marriage, she responded that she still intended to get a divorce. The Defendant then gave her an envelope, and told her that he would walk her out. The Defendant went into his bedroom while she went to the front door.

{3} Returning from his bedroom, the Defendant suddenly attacked the victim. He was now wearing black gloves, and he grabbed her by the neck and covered her face and nose. After struggling at the front door, the Defendant dragged her into his bedroom, where he wrapped a string around her neck, making it difficult for her to breathe. In an effort to breathe, the victim tried to get her fingers between the string and her neck, causing defensive wounds around her neck. During the encounter, the Defendant said, "Did you really think I was going to let you go? Did you really think you were going to get a divorce? . . . How stupid are you?"

{4} Eventually the Defendant released the string around the victim's neck, and then he grabbed a wooden baseball bat. Holding the baseball bat up, he ordered the victim to remove her clothes. Attempting to placate the Defendant, she told him "wait," "hold-on," "we'll talk," and "let's just talk." This further angered the Defendant and using the baseball bat, he hit her foot like he was hitting a ball. Her foot swelled immediately and she stated, "I freaked out . . . I couldn't stand on it at all." The Defendant continued yelling and calling her a "liar," and stated, "you're not getting out of this room, and you're not going to get out alive." She understood this to mean that the Defendant intended to kill her.

{5} Despite all of the victim's attempts to placate the Defendant, he again demanded that she remove her clothes and he threatened with the baseball bat that, "next it's going to be your head." She then complied by removing her clothes. Although the victim told the Defendant that she did not want to have intercourse, the Defendant forced himself on her and that conduct resulted in his conviction for criminal sexual penetration.

{6} Following the incident, the victim convinced the Defendant to take her to a hospital. Once alone at the hospital, she described the events that led to the injury to her foot to the attending physician, a nurse, and a police officer. At trial, the victim described her injured foot as "shattered" and testified that it had swelled to approximately five times its normal size. She also said that it was broken in five places.

{7} In addition to other crimes, the Defendant was charged with aggravated battery with a deadly weapon. This charge was based on the Defendant's alleged use of the baseball bat in causing injury to the victim's foot. At the close of the evidence at trial, the jury was given two instructions with respect to this aggravated battery charge. First, the jury was given an instruction on the elements of aggravated battery:

For you to find the defendant guilty of Aggravated Battery with a Deadly Weapon as charged in Count II, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant, Joseph Traeger, hit [the victim] with a baseball bat, an instrument or object which, when used as a weapon, could cause death or very serious injury;

2. The defendant, Joseph Traeger, intended to injure [the victim];

3. This happened in Sandoval County, New Mexico on or about the 6th day of July, 1997.

(Emphasis added.). Second, the jury was instructed on the definition of "deadly weapon" which stated, "A `deadly weapon' includes bludgeons and any instrument which, when used as a weapon, could cause very serious injury or any weapon which is capable of producing death or great bodily harm." The Defendant did not object to these instructions. After deliberation, the jury convicted the Defendant of aggravated battery with a deadly weapon, contrary to Section 30-3-5.

{8} The Defendant appealed his conviction to the Court of Appeals, arguing that the jury instruction on aggravated battery with a deadly weapon was improper. Traeger, 2000-NMCA-015, ¶ 1,128 N.M. 668,997 P.2d 142. The Court of Appeals declined to hold that a baseball bat was a deadly weapon as a matter of law. Id. ¶ 11, 997 P.2d 142. Instead, the court stated that "the question of whether a baseball bat was a deadly weapon should have been left to the jury." Id. The court analogized the elements instruction given in this case with the instruction given in Bonham, 1998-NMCA-178, ¶ 26,126 N.M. 382,970 P.2d 154, which addressed a similar issue under a reversible error standard. Traeger, 2000-NMCA-015, ¶¶ 10-11,128 N.M. 668,997 P.2d 142. In Bonham, the Court of Appeals addressed whether the defendant's conviction for aggravated battery with a deadly weapon should be reversed because the jury was not properly instructed on an essential element of the offense. 126 N.M. 382,970 P.2d 154, 1998-NMCA-178, ¶ 25. The instruction in Bonham read in pertinent part: "The defendant did touch or apply force to [the victim] . . . with a hot plate or trivet frame, an instrument or object which, when used as a weapon, could cause death or very serious injury." Id. ¶ 26, 970 P.2d 154 (emphasis omitted). The Court of Appeals in Traeger, concluded that, as in Bonham, the grammatical structure of the sentence in the jury instruction improperly took from the jury the decision of whether the baseball bat was a deadly weapon. Traeger, 2000-NMCA-015, ¶ 10, 11,128 N.M. 668,997 P.2d 142. Therefore, following the precedent set by Bonham, the Court of Appeals held that the jury instruction on aggravated battery with a deadly weapon was improper and reversed the Defendant's conviction. Id. ¶¶ 1, 21, 970 P.2d 154; see also Bonham, 1998-NMCA-178, ¶ 27,

126 N.M. 382,

970 P.2d 154. On appeal to this Court, the State first argues that the Court of Appeals erred in failing to classify a baseball bat as a bludgeon and therefore, a deadly weapon per se. Alternatively, the State argues that even if a baseball bat is not a deadly weapon as a matter of law, the error in the jury instruction did not amount to fundamental error. We address each of these claims in turn.

II.

{9} First, the State argues that a baseball bat is a bludgeon. Since a "bludgeon" is one of the weapons specifically enumerated in Section 30-1-12(B), the State asserts that a baseball bat is a deadly weapon as a matter of law and therefore not a question for the jury. The issue of whether a baseball bat is a deadly weapon per se is purely a question of law. Therefore, we review this issue de novo. See Churchman v. Dorsey, 1996-NMSC-033, ¶ 10, 122 N.M. 11, 919 P.2d 1076

("Questions of law . . . are reviewed de novo.") (quoting Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993)).

{10} Aggravated battery is the "unlawful touching or application of force to the person of another with intent to injure that person or another." Section 30-3-5(A). Aggravated battery is elevated to a third degree felony if perpetrated by "inflicting great bodily harm or . . . with a deadly weapon or . . . in any manner whereby great bodily harm or death can be...