STATE of New Mexico, Plaintiff-Appellee,
vs.
Charles TRAVIS, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, McMANUS, Judge
Joseph H. Mercer, Hanna & Mercer,
Albuquerque, for appellant.
Boston E. Witt, Atty. Gen., David R.
Sierra, Asst. Atty. Gen., Santa Fe, for appellee.
Oman, Judge. Spiess, C. J., and Armijo,
J., concur.
{1} Defendant appeals from an
order denying without hearing his motion filed pursuant to Rule 93 [§
21-1-1(93), N.M.S.A.1953 (Supp. 1967)].
{2} Defendant was tried and
found guilty of voluntary manslaughter. He was sentenced to confinement in the
Penitentiary of New Mexico for a term of from two to ten years commencing
September 14, 1965.
{3} An appeal was taken from
the judgment and sentence, but apparently the appeal was abandoned. In any
event, he now seeks to have the judgment and sentence vacated and the cause
remanded for a new trial upon the ground that certain of the court's
instructions were improper.
{4} He fully recognizes that
proceedings under Rule 93 are not intended as a substitute for an appeal as a
means of correcting errors which occur during the course of the trial. State v.
Williams,
78 N.M. 431,
432 P.2d 396 (1967). However, he urges that the claimed
errors in the trial court's instructions were so grave as to constitute
fundamental error, as that term is defined and explained in State v. Garcia,
46
N.M. 302,
128 P.2d 459 (1942).
{5} There is no question as
to the sufficiency of the evidence to support the conviction. The proceedings,
decision and judgment of the trial court are entitled to the support of every
reasonable intendment and presumption in their favor. Scott v. Brown,
76 N.M.
501,
416 P.2d 516 (1966); Ellis v. Parmer,
76 N.M. 626,
417 P.2d 436 (1966).
{6} Defendant concedes that
unless the instructions, which he here attacks, are so fundamentally wrong and
prejudicial as to have deprived him of due process, then he must fail.
{7} His first attack is upon
the so-called "shotgun" or supplementary instruction given by the
court some time after the jury had received the case for its deliberations and
had failed to reach a verdict. Unquestionably, the giving of a supplementary
instruction has been approved by our Supreme Court. State v. Hatley,
72 N.M.
377,
384 P.2d 252 (1963); Garcia v. Sanchez,
68 N.M. 394,
362 P.2d 779 (1961);
State v. Giddings,
67 N.M. 87,
352 P.2d 1003 (1960); State v. Moore,
42 N.M.
135,
76 P.2d 19 (1938); State v. Hunt,
26 N.M. 160,
189 P. 1111 (1920);
Territory v. Donahue,
16 N.M. 17,
113 P. 601 (1911). See also State v. Manfove,
{*309} (Ct.App.)
441 P.2d 229, decided
April 19, 1968.
{8} In State v. Manlove,
supra, which was before us on a direct appeal, rather than by collateral attack
under Rule 93, we stated that such an instruction is improper if it coerces the
jury into agreement or tends to unduly hasten the jury in its consideration of
the case. The instruction in question tended to coerce and unduly hasten the
jury's consideration of the case, and we might well feel constrained to reverse
were the case here on a direct appeal and the error properly preserved for
review. However, this is not the situation, and the posture of the case, as
above stated, is now quite different.
{9} Since the sufficiency of
the evidence to support the conviction is not in question, we cannot possibly
say that it fails to support the verdict, or that it conclusively shows
defendant did not commit the crime, which we must be able to say before
concluding that fundamental error was committed. State v. Olguin,
78 N.M. 661,
437 P.2d 122 (1968); State v. Torres,
78 N.M. 597,
435 P.2d 216 (1967); State
v. Salazar,
78 N.M. 329,
431 P.2d 62 (1967). Nor are we able to say defendant's
guilt is open to such doubt that it would shock the conscience to permit his
conviction to stand. State v. Sanders,
54 N.M. 369,
225 P.2d 150 (1950); State
v. Torres, supra. Nothing said in State v. Garcia, supra, compels a different
result. See also State v. Minor,
78 N.M. 680,
437 P.2d 141 (1968).
{10} Defendant next contends
that fundamental error was committed by the trial court in giving the
instructions on self defense. Only portions of the two instructions given on
self defense are claimed to have been erroneous and to have amounted to
fundamental error. They are:
1. "* * * And it is for you to determine from all
of the evidence whether the claim of the defendant that he acted in self
defense is made in good faith or is a mere pretense.
2. "If you believe from the evidence. * * *"
{11} Defendant's position is
that the effect of this quoted language was "to require [him] to affirmatively
establish his plea of self defense," and that this constituted "a
denial of fundamental fairness." He relies upon the cases of State v.
Cochran,
78 N.M. 292,
430 P.2d 863 (1967), and State v. Pruett,
24 N.M. 68,
172
P. 1044 (1918).
{12} We do not agree that the
effect of the questioned language in the instructions was to require him to
establish his plea of self defense, or that this language, when considered with
all the other instructions, and particularly with those expressly directed toward
the burden of proof, constituted a denial of fundamental fairness. We note that
the language quoted above under number "1", as well as the entire
self defense instruction of which this language is a part, was specifically
approved in almost identical form in State v. Pruett, supra. As to the language
quoted above under number "2", the Pruett case cannot be cited as
authority for the notion that there is something intrinsically wrong with an
instruction merely because it includes the phrase, "if you believe from
the evidence," as defendant implies.
{13} Moreover, even if we
were to agree that the instructions quoted contain the vice held to be error in
the Cochran and Pruett cases, we would still be faced with the fact that,
unlike those cases, the errors here were not called to the attention of the
trial court, and the appeal from the judgment and sentence was never perfected.
Even if these errors had been sufficient to warrant a reversal on a direct
appeal, had they been properly preserved in the trial court, they do not
constitute fundamental error. See the discussion and cases cited above as to
the meaning and circumstances under which the doctrine of fundamental error
will be applied.
{14} As above stated, Rule 93
proceedings are not intended as a substitute for an appeal as a means of
correcting errors which occur in the course of the trial. Our Rule 93 was very
largely copied from 28 U.S.C.A. § 2255, and the Federal interpretations of that
statute are persuasive as to the interpretations to be made by us of our Rule
93.
{*310} State v. Gibby,
78 N.M. 414,
432 P.2d 258 (1967); State v. Weddle,
77 N.M. 420,
423 P.2d 611 (1967). The
Federal cases seem to have uniformly held that questions of error in the law or
facts, such as claimed error in instructions, which arise during the trial,
must be raised by timely appeal, if the defendant wishes to raise them, and
that the remedy provided by § 2255 does not give a defendant the right to have
the case tried again because of such claimed error. Adams v. United States, 95
U.S.App.D.C. 354, 222 F.2d 45 (1955); Hastings v. United States, 184 F.2d 939
(9th Cir. 1950); Taylor v. United States, 177 F.2d 194 (4th Cir. 1949); Rush v.
United States, 225 F. Supp. 843 (E.D.La.1964).
{15} The order denying the
motion should be affirmed.