State v. Wilson

• Decision Date: 21 September 1973
• Docket Number: No. 9686,9686
• Citation: 1973 NMSC 93,85 N.M. 552,514 P.2d 603
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles WILSON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 603

514 P.2d 603

85 N.M. 552

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

No. 9686.

Supreme Court of New Mexico.

Sept. 21, 1973.

Neil E. Weinbrenner, Las Cruces, for defendant-appellant on appeal

David L. Norvell, Atty. Gen., Jay F. Rosenthal, Sp. Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

STEPHENSON, Justice.

Defendant-Appellant (defendant) was charged and convicted of the first degree murder of Mr. Joe Cardon.

An appal was not timely taken and diverse proceedings were had in respect to defendant's efforts to appeal in the court below and in the United States District Court for the District of New Mexico. It is unnecessary to detail these matters inasmuch as we consider the appeal on its merits.

On an evening in December, 1970, defendant entered the liquor store owned by Mr. Cardon in Las Cruces. Mr. Cardon's wife, his son, Bobby, then fourteen years of age, and a six year old daughter were also present. Mrs. Cardon noticed defendant come into the store. She got up to wait on his, but was told by her husband that he would do it. She sat down and took no further notice until she heard a loud slam and saw the defendant back of the counter, with a drawn gun, opening the cash register. She testified that the defendant told them all to stand back and that 'this is a stick up' or words to that effect. While he was rifling the cash register, Mr. Cardon grabbed him and a struggle ensued, during which both parties fell to the floor. Several shots were fired wildly about the store from the defendant's pistol, one narrowly missing Bobby Cardon. One of the bullets struck Mr. Cardon and fatally wounded him. During the struggle the defendant was shot in the chest by Bobby Cardon with his father's pistol. Mr. Cardon was pronounced dead on arrival at the hospital.

Defendant entered a plea of not guilty by reason of insanity. His witness in support of his plea was Dr. James Lewis, a neurologist who is Director of the Convulsive Disorder Epilepsy Clinic at the University of New Mexico. Dr. Lewis testified that on the basis of his examination he was of the opinion that the defendant suffered from psychomotor epilepsy; that if the defendant was suffering from such a seizure at the time of the shooting he would not be in control of his faculties and would be unable to appreciate the nature and consequences of his acts. He also testified that, in his opinion, there was a fifty percent probability that Wilson was suffering from such seizure at the time of the shooting.

Dr. Lewis' testimony was qualified in certain aspects, if not impeached, upon cross examination. The state offered various rebuttal witnesses to show that the defendant may have been faking a seizure. There was also testimony from Dr. Welsh, a Las Cruces psychiatrist, that he did not think the defendant was suffering from any kind of epileptic seizure at the time of the shooting.

Defendant first contends that the trial court erred in refusing to give a tendered instruction on insanity. The argument centers upon whether the state had the burden of proof on the issue of insanity.

The defendant's tendered instruction was as follows:

'I instruct you that the defendant in this case has entered a plea of not guilty, and under this plea, the defendant can defend on the basis of an insane state of mind of the defendant existing at the time of the commission of the alleged offense herein. This crime involves a guilty intent and cannot be successfully prosecuted against said defendant who is insane at the time of the commission of said alleged crime because an insane person does not have the capacity to form a mental intent.

'In connection with said defense of insanity, the defendant has produced evidence that he was insane at the time of the alleged crime. While ordinarily, it is presumed that every person is sane, in this case, you cannot rely on this presumption because the defendant has introduced sufficient evidence of insanity to rebut said presumption. Consequently I instruct you that the burden of proof is upon the State to prove beyond a reasonable doubt that at the time of the alleged offense, the defendant was sane, and if the State fails to do so, then the defendant is entitled to an acquittal by reason of insanity as to the crime charged against him. Also, if upon a consideration of the whole evidence, there is a reasonable doubt as to whether the defendant was sane or insane at the time of the act charged against him, then the defendant is entitled to the benefit of the doubt and I instruct you to acquit him on the grounds of insanity as to the crime charged against him.'

Defendant made proper objection to the court's failure to so charge the jury.

The court instructed the jury that it was the sole judge of the facts; that it should not single out one instruction alone as stating the law, but must consider the instructions as a whole; that the state had the burden of establishing the defendant's guilt beyond a reasonable doubt; that the defendant was presumed to be innocent which presumption remains with him throughout the trial until his guilt is established beyond a reasonable doubt; that they must find the defendant sane as a prerequisite to a verdict that he was guilty of murder in the first degree and, among other instructions normal to such cases, instructed upon the defense of insanity.

The jury was provided with a form of verdict appropriate to finding the defendant insane at the time of the commission of the acts charged and declaring him acquitted upon the ground of such insanity.

Defendant made no objection to any instruction given by the court and we will hence not detail them further.

A number of New Mexico cases have dealt with the defense of insanity vis-a-vis applicable presumptions and burdens. Typical of such cases and those to which we will make reference are State v. Torres, 82 N.M. 422, 483 P.2d 303 (1971); State v. Moore, 42 N.M. 135, 76 P.2d 19 (1938); State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1 (1936), and State v. James, 83 N.M. 263, 490 P.2d 1336 (Ct.App.1971).

Roy, supra, 40 N.M. at 404, 60 P.2d at 650, mentions the presumption of sanity, and is clear authority for the proposition that:

'* * * the burden of proof is upon the state to prove that the defendant is sane beyond a reasonable doubt.'

In Moore, supra, this court speaking through Justice Zinn, who had authored Roy, supra, as well, spoke of the procedural aspects of the defense of insanity in the following terms:

'The law on the subject in issue has already been enunciated in this jurisdiction. See Faulkner v. Territory, 6 N.M. 464, 30 P. 905; Territory v. McNabb, 16 N.M. 625, 120 P. 907. We said in the case of State v. Roy, 40 N.M. 397, 60 P.2d 646, 650, 110 A.L.R. 1, as follows: 'When the defendant has put in evidence reasonably tending to show him insane, the problem is then to determine whether it is sufficient to take the case to the jury. This is a question for the court to determine. Therefore, when all the evidence is in, if there has been adduced competent evidence reasonably tending to support the fact of insanity urged by the defendant as a defensive issue in the case, it is the duty of the court to instruct on the question of insanity.' It is clear that in this jurisdiction the presumption, that one accused of crime was sane at the time the alleged crime was committed, serves merely the function of casting upon the defendant the necessity of going forward with evidence tending to show that he was insane at the time the alleged crime was committed. If the state has offered evidence which tends to show that the defendant was insane at that time, the defendant is even relieved of that burden. Until evidence is offered and received at the trial which tends to show that the defendant was insane at the time of the alleged crime, the state may rely upon the presumption of sanity and need not offer evidence to establish that fact (Emphasis added). In the absence of evidence, sanity is assumed to exist without evidence of its existence. When, however, evidence is received which tends to show that the accused was insane at the time of the alleged offense, then, and in such case, an issue is raised as to the mental condition of the accused, and it becomes the duty of the jury to determine such issue from the evidence independent of the presumption of sanity. If the jury, however, disbelieves the evidence, then the presumption stands. The court fully understood the law and instructed the jury accordingly.' State v. Moore, supra, 42 N.M. at 154, 155, 76 P.2d at 30, 31.

We agree with Justice Zinn's analysis but recognize that the mode of expression in the emphasized portion has engendered argument.

Except in...