State v. Venegas
| Decision Date | 05 May 1981 |
| Docket Number | No. 12890,12890 |
| Citation | 628 P.2d 306,1981 NMSC 47,96 N.M. 61 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Velma VENEGAS, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
On rehearing we withdraw our earlier opinion and substitute the following opinion.
Defendant-appellant appeals her convictions for murder, armed robbery and larceny over $2,500 arising out of the same incident, for which she was sentenced to life imprisonment. We affirm.
Defendant asserts error: (1) by the trial court's refusal of her tendered jury instruction, N.M.U.J.I. Crim. 41.15, N.M.S.A. 1978 on mistake of fact; and (2) in allowing the prosecutor's erroneous assertion that defendant had changed her testimony to remain uncorrected. Defendant went to the car lot of Voight Auto Sales in Carlsbad with Henry Martinez who was her paramour and the father of her child. The defendant was nineteen years old and had lived with Martinez for three years.
On the date of the incidents for which she was convicted, defendant and Martinez went to the car lot to see Lillard (Bill) Johnson, the deceased. On arrival, Martinez went inside the office and told defendant to wait outside. Shortly after Martinez entered the office, defendant heard a gunshot. She hurried inside and saw the deceased pointing a shotgun at Martinez whose hand had been shot. Defendant testified that Martinez shouted that Johnson was going to kill him. Defendant grabbed a coke bottle and began striking Johnson with it. The evidence indicates that defendant hit Johnson several times on the back and the side of the head with the coke bottle. Defendant then removed a .22 pistol from her purse and gave it to Martinez. She heard some shots but did not see Martinez shoot Johnson. Although one bullet was recovered from inside the chest cavity of the deceased, the cause of death was "severe trauma to the head and face producing fractures of the skull and subdural hematoma."
The first point the defendant raises in her appeal is that the refusal of an instruction on mistake of fact was error. If, in fact, Venegas entertained an honest belief that the deceased was about to kill or shoot Martinez and acted accordingly, she was mistaken. The only gun then in the hands of the deceased was a single-shot shotgun, which had already been discharged.
The only evidence we find to support the defendant's request for a mistake of fact instruction is her alleged mistaken belief that the deceased was about to shoot Martinez when in fact he lacked the ability to do so. The tendered instruction N.M.U.J.I. Crim. 41.15, N.M.S.A. 1978 reads as follows:
Evidence has been presented that the defendant believed that Henry Martinez was in danger of being killed by Lillard Johnson. If the defendant acted under an honest and reasonable belief in the existence of those facts, you must find her not guilty. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act under such belief.
The theory of the defense to the homicide in the case at bar is justifiable homicide or defense of another embraced within N.M.U.J.I Crim. 41.42, N.M.S.A. 1978, which instruction was given. It is essential to that defense for there to be substantial evidence that the defendant's actions were based upon a reasonable belief that such action was necessary to save the life or prevent great bodily harm to another. Such belief may rest upon apparent danger and need not be supported by actual danger. Thus, the instruction allows and is consistent with mistaken belief. Since an honest and reasonable mistaken belief fits within the justifiable homicide instruction, the tendered instruction on mistake of fact, N.M.U.J.I. Crim. 41.15, duplicates that which was already within N.M.U.J.I. Crim. 41.42 and which was given.
Moreover, adding N.M.U.J.I. Crim. 41.15 could confuse a jury into believing that the elements of apparent danger, resulting in fear, and the test of reasonableness are all unnecessary where the State is unable to prove beyond a reasonable doubt that the defendant did not act under a mistaken belief that the gun was loaded. Admittedly, a defendant in a criminal case is entitled...
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