State v. Wilson

• Decision Date: 19 January 1994
• Docket Number: No. 20805,20805
• Citation: 867 P.2d 1175,1994 NMSC 9,116 N.M. 793
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Russell WILSON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1175

867 P.2d 1175

116 N.M. 793

STATE of New Mexico, Plaintiff-Appellee, v. Russell WILSON, Defendant-Appellant.

No. 20805.

Supreme Court of New Mexico.

Jan. 19, 1994.

[116 N.M. 795] Sammy J. Quintana, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for appellant.

Tom Udall, Atty. Gen., Joel K. Jacobsen, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

RANSOM, Chief Justice.

Russell Wilson was convicted of receiving stolen property under NMSA 1978, Section 30-16-11 (Cum Supp.1993), and of felony possession of stolen credit cards under NMSA 1978, Section 30-16-26 (Repl.Pamp.1984). He appealed his convictions to the Court of Appeals, and, pursuant to NMSA 1978, Section 34-5-14(C) (Repl.Pamp.1990), that Court certified the case to us because it believed that Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973), precluded it from questioning an applicable uniform jury instruction.

In Delgado v. Alexander, 84 N.M. 456, 460, 504 P.2d 1089, 1093 (Ct.App.1972), the Court of Appeals abolished the doctrine of "unavoidable accident" and directed that the relevant instruction no longer be used. On appeal, this Court considered "the propriety of that action in light of the history of the defense." Alexander, 84 N.M. at 718, 507 P.2d at 779 (emphasis added). "Unavoidable accident" was a defense that developed in the common law and had been approved by this Court prior to our adoption of the uniform jury instructions in 1966. Litigants had urged this Court to abolish the defense, but we declined to do so on several occasions. See, e.g., Lucero v. Torres, 67 N.M. 10, 16, 350 P.2d 1028, 1032 (1960) (refusing to follow California's abandonment of unavoidable accident defense). Considering the history of the defense, we held that the Court of Appeals had acted improperly "in overruling precedents of this [C]ourt which not only recognize the defense, but specifically decline to abolish it, and nullifying an instruction which we have approved." Alexander, 84 N.M. at 719, 507 P.2d at 780. Thus, Alexander held that the Court of Appeals is bound by the precedents set by this Court. Id. at 718, 507 P.2d at 779.

In subsequent cases, this Court has relied on Alexander for the proposition that the Court of Appeals is bound by the uniform jury instructions. See, e.g., Collins v. Michelbach, 92 N.M. 366, 367, 588 P.2d 1041, 1042 (1979) (stating that Court of Appeals has "no authority to alter, modify or abolish" uniform jury instructions); Esquibel v. State, 91 N.M. 498, 500, 576 P.2d 1129, 1131 (1978) (stating that Court of Appeals "has no authority to set aside an instruction approved by the Supreme Court"). The Court of Appeals has acknowledged that it has no authority to question the validity of the uniform jury instructions because they are made "mandatory" when the Supreme Court adopts them through a general order. See State v. Martin, 90 N.M. 524, 528, 565 P.2d 1041, 1045 (Ct.App.), cert. denied, 90 N.M. 636, 567 P.2d 485 (1977).

The Supreme Court will amend, modify, or abolish uniform jury instructions when such instructions are erroneous. Collins, 92 N.M. at 367, 588 P.2d at 1042. Similarly, district courts have the authority to disregard uniform jury instructions in cases in which "under the facts or circumstances of the particular case the published [instruction] is erroneous or otherwise improper, and the trial court so finds and states of record its reasons." SCRA 1986, 1-051(D) (Repl.Pamp.1992). We hold today that the Court of Appeals is not precluded from considering error in jury instructions, but is precluded only from overruling those instructions that have been considered by this Court in actual cases and controversies that are controlling precedent.

The Alexander doctrine is based on the principle that "it is not considered good form for a lower court to reverse a superior one. Such actions are unsettling in the law which we ought to strive to make certain, and result in a disorderly judicial process." 84 N.M. at 718, 507 P.2d at 779. If there exists precedent from this Court that specifically addresses the validity of a uniform jury instruction, the Court of Appeals may not overrule that precedent nor alter or reject that instruction. If, however, the uniform jury instruction has not been challenged, we see no reason why the Court of Appeals should be precluded from questioning the validity of the instruction just as it would any other precept not yet passed on by the Supreme Court. Although this Court's adoption of uniform jury instructions proposed by standing committees of the Court establishes a presumption that the instructions are correct statements of law, that fact alone is not sufficient precedent to tie the hands of the Court of Appeals.

Therefore, we hold that the Court of Appeals has authority to question uniform jury instructions in cases in which the instruction has not been challenged previously and to amend, modify, or abolish the instruction if it is erroneous. Further, this Court encourages the Court of Appeals to express its rationale for any reservations it might harbor over Supreme Court precedent. The Court of Appeals, nonetheless, remains bound by Supreme Court precedent and thus does not have authority to alter an instruction that has been reviewed and ruled upon by this Court. To the extent that Collins, Esquibel, Martin, and similar cases are inconsistent with this opinion, they are hereby overruled.

We adopt and append the proposed disposition of the Court of Appeals and remand this case to the district court for entry of judgment and for resentencing for petty misdemeanor possession of stolen credit cards. Because it appears that Wilson will have at most two months to serve following resentencing on the petty misdemeanor (if he is in fact given the maximum sentence of six months), his Petition for Emergency Release on other grounds is denied.

IT IS SO ORDERED.

BACA, MONTGOMERY, FRANCHINI and FROST, JJ., concur.

ATTACHMENT

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

State of New Mexico, Plaintiff-Appellee,

vs.

Russell Wilson, Defendant-Appellant.

No. 13,235

Appeal from the District Court of Taos County Joseph E.

Caldwell, District Judge.

Tom Udall, Attorney General

Joel K. Jacobsen, Assistant Attorney General Santa Fe, New

Mexico Attorneys for Plaintiff-Appellee

Susan Gibbs Santa Fe, New Mexico Attorney for Defendant-Appellant

CERTIFICATION TO THE SUPREME COURT

(Aug. 10, 1992)

PICKARD, Judge.

Defendant appeals his convictions for receiving stolen property and possessing stolen credit cards, contending that (1) his right to counsel was violated, (2) the trial court erred in refusing to suppress evidence or to hold a hearing on the confidential informant's identity, (3) the laws prohibiting possession of stolen credit cards are void for vagueness, and (4) the prosecutor used peremptory challenges in a discriminatory manner. Cumulative error was raised in the docketing statement, but was not briefed, and it is deemed abandoned. See State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.1985). We certify this case to the supreme court, but explain in this certification why we would affirm on issues (1), (2), and (4) and reverse on a variation of issue (3).

I. VIOLATION OF THE RIGHT TO COUNSEL

Attorney Sam B. Sanchez was appointed to represent defendant on July 17, 1990. The grand jury met on August 2, 1990. On August 29, 1990, Sanchez moved to withdraw as defendant's lawyer based on a "legal conflict of interest." The motion was granted, and new counsel was appointed.

Defendant moved to dismiss the indictment or to suppress his grand jury testimony, arguing that he had no lawyer at the grand jury. When the trial court observed that Sanchez was counsel of record on August 2, defendant changed his claim from total deprivation of counsel to ineffective assistance of counsel, based on Sanchez's representation of a codefendant and his failure to appear or make other arrangements for this defendant at the grand jury, apparently because Sanchez was then on vacation. Noting that facts surrounding Sanchez's conflict and failure to appear or find other counsel were not in evidence, the trial court denied the motion. Defendant then moved for the court to take judicial notice of court files in other causes involving the codefendant in order to establish Sanchez's conflict and ineffective assistance. That motion was also denied, with leave to refile. Defendant did not thereafter renew this issue. At trial, the prosecutor briefly referred to defendant's grand jury testimony without objection, and defense counsel established that defendant's grand jury testimony and trial testimony were consistent.

Defendant argues in his brief in chief that he was entitled to have an attorney present at the grand jury and that he was improperly deprived of the opportunity to receive advice of counsel because of his indigence. We do not address the merits of this claim because it was abandoned below when defendant changed his claim to ineffective assistance of counsel. Cf. State v. Shafer, 102 N.M. 629, 635, 698 P.2d 902, 908 (Ct.App.1985) (error may not be predicated on fact that defense counsel withdrew line of questioning, due to objection, in cross-examination, because defendants abandoned any further attempt to cross-examine along those lines). The issue raised below, ineffective assistance of counsel, is not squarely raised on appeal, nor is there a record of evidence to support it. See State v. Powers, 111 N.M. 10, 12, 800 P.2d 1067, 1069 (Ct.App.1990) (insufficient factual basis precludes appellate review). It was defendant's burden to make a sufficient record for review on appeal. See State v. Jim, 107 N.M. 779, 780, 765 P.2d 195, 196 (Ct.App.1988). Moreover, by failing to object to the prosecutor's reference to the grand jury testimony at trial, defendant waived any claim of prejudice arising from the use of that testimony, which was...