STATE V. NAJAR, 1980-NMCA-033, 94 N.M.
193, 608 P.2d 169 (Ct. App. 1980)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
LORENZO NAJAR, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1980-NMCA-033, 94 N.M. 193, 608 P.2d 169
APPEAL FROM THE DISTRICT COURT OF
CHAVES COUNTY, SNEAD, Judge.
Petition for Writ of Certiorari Denied
March 13, 1980
JEFF BINGAMAN, Attorney General, FRANK A.
MURRAY, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Appellee.
WILLIAM H. LAZAR, Espanola, New Mexico,
Attorney for Appellant.
WOOD, Chief Judge, wrote the opinion. WE
CONCUR: William R. Hendley J., Leila Andrews, J.
{1} Defendant appeals his
conviction of second degree murder. Issues listed in the
{*194}
docketing statement, but not briefed, were abandoned.
State v. Gallegos,
92 N.M. 336,
587 P.2d 1347 (Ct. App. 1978). We discuss: (1) issues not included
in the docketing statement; (2) requested defense instructions; and (3) the
trial court's duty to instruct in a criminal case, absent a request to
instruct.
{2} The party began at the
residence of Victor Baca. During that party, Michael Fuentes and Vincent Baca
had a fight. Michael left.
{3} The party moved to
defendant's house. Michael returned to the party with his brother Jerry and his
father, Domingo Fuentes. An altercation occurred between these three and Victor
and Vincent Baca. During this altercation some shooting occurred. There is
testimony that Victor shot Domingo in the leg and that Domingo shot Victor in
the leg. This altercation occurred outside defendant's house. Defendant was not
present during the Baca-Fuentes altercation; he was inside the house.
{4} After the initial
shootings, defendant came out of his house with a gun. The evidence as to his
activities will be referred to subsequently. However, it is undisputed that
defendant fired his gun. A permissible inference from the evidence is that a
bullet from defendant's gun struck, and killed, Jerry Fuentes.
Issues Not Included in the Docketing Statement
{5} Defendant requested
instructions concerning defense of habitation, self-defense, defense of another
and the right to stand one's ground. See U.J.I. Crim. 41.40, 41.41, 41.42 and 41.60.
Defendant's brief argues that the trial court erred in refusing each of these
requested instructions.
{6} Defendant's docketing
statement, prepared by the trial attorney, asserts the trial court erred in
refusing two of the requested instructions -- on self-defense and defense of
habitation. The docketing statement does not complain of the refusal to
instruct on defense of another and the right to stand one's ground. The
appellate attorney thus asserts error in the refusal of two instructions about
which the trial attorney had no complaint.
{7} N.M. Crim. App. 501(a)(2)
provides that the brief shall contain a statement of the issues "which
shall be limited to the issues designated in the docketing statement[.]"
N.M. Crim. App. 501(a)(4) provides that argument in the brief shall be
"with respect to each issue presented * * *." The brief-in-chief,
filed by defendant's appellate attorney, violated these rules.
{8} Supreme Court decisions
interpreting the criminal appellate rules have not condoned rule violations.
N.M. Crim. App. 102 authorizes, for rule violations, a refusal to consider the
offending party's contentions.
Olguin v. State,
90 N.M. 303,
563 P.2d 97
(1977).
State v. Vogenthaler,
89 N.M. 150,
548 P.2d 112 (Ct. App. 1976)
held that issues not included in the docketing statement will not be
considered. Compare
Melon v. State,
90 N.M. 787,
568 P.2d 1233 (1977);
State
v. Jacobs,
91 N.M. 445,
575 P.2d 954 (Ct. App. 1978).
{9} The trial court's refusal
of requested instructions on defense of another and the right to stand one's
ground will not be considered.
Requested Defense Instructions
{10} The requested
instruction on defense of habitation was properly refused because there is no
evidence that defendant shot in defense of his habitation.
{11} There is some evidence
concerning self-defense but it was insufficient for submission of self-defense
to the jury.
{12} The evidence most
favorable to a self-defense instruction was in the statement of defendant
introduced by the State. Defendant heard the shots from the Baca-Fuentes
altercation. He went outside and saw what was happening, fetched his gun from
the house and fired two shots. He shot in the direction of Domingo Fuentes. He
did not know whether he hit Domingo "because everybody was shooting like
that and, you know, in all different ways * *." He did not know if he was
aware of what was happening during the shooting -- "I was kind of
drunk." Domingo shot first and
{*195} barely
missed the defendant, but "I don't know if I was shooting at him [Domingo]
or not * * *." Asked if he was trying to shoot Domingo, defendant replied:
"No, I wasn't trying to. I don't know how to shoot."
{13} In defining a killing in
self-defense, U.J.I. Crim. 41.41 requires that there be an appearance of
immediate danger to the defendant; that the defendant, in fact, be put in fear
by the apparent danger and that defendant killed because of that fear. See
State
v. Parks,
25 N.M. 395,
183 P. 433 (1919);
State v. Chesher,
22 N.M.
319,
161 P. 1108 (1916);
State v. Vansickel,
20 N.M. 190,
147 P. 457
(1915).
{14} Defendant's statement is
evidence of apparent danger; Domingo fired first. However, there is neither
evidence nor inference that defendant was put in fear by the apparent danger or
that defendant shot because of fear. The self-defense instruction was properly
refused.
Trial Court's Duty to Instruct
{15} Neither the prosecution
nor the defense requested an instruction on voluntary manslaughter. Defense
counsel informed the trial court that the defense did not desire an instruction
on voluntary manslaughter. The trial court then questioned both defendant and
his counsel concerning such an instruction, explaining there was sufficient
evidence for a voluntary manslaughter instruction. Both defendant and counsel
stated they did not desire such an instruction.
{16} No voluntary
manslaughter instruction was given. Defendant's appellate lawyer contends that
the failure to instruct on voluntary manslaughter was jurisdictional error
which may be raised for the first time on appeal. This contention disregards
the meaning of "jurisdictional" error. Defendant was before the trial
court which had authority over the offense charged and authority to proceed in
the matter. Thus, there was no absence of "jurisdiction" in the
traditional sense. See
State v. Urban,
86 N.M. 351,
524 P.2d 523 (Ct.
App. 1974).
{17} The
"jurisdictional" claim involves the sufficiency of the instructions
as to the crime charged. "[F]ailure to properly instruct on all of the
essential elements of the crime charged is jurisdictional and may be raised for
the first time on appeal."
State v. Gunzelman,
85 N.M. 295,
512
P.2d 55 (1973). The crime charged, in the jury instructions, was murder in the
second degree, something different from voluntary manslaughter. Compare §§
30-2-1 and
30-2-3, N.M.S.A. 1978;
Smith v. State,
89 N.M. 770,
558 P.2d
39 (1976).
{18} This issue does not
involve "jurisdictional" error; it does however raise an issue as to
the trial court's duty to instruct in a criminal case when not requested to do
so. There are two answers to the claim that the trial court erred in failing to
instruct on voluntary manslaughter. The first answer is that, assuming a duty
to instruct, defendant waived any error. The second answer is that under
current requirements, the trial court had no duty to instruct on voluntary
manslaughter unless requested to do so.
{19} State v. Smith,
26 N.M.
482,
194 P. 869 (1921) states "that the court must instruct in every
degree of the crime charged when there is evidence in the case tending to
sustain such degree." See
State v. King,
90 N.M. 377,
563 P.2d 1170
(Ct. App. 1977). In the subsequent discussion on duty to instruct, we point out
that this requirement depends on rules applicable to the particular case. At
this point we assume a duty to instruct.
There should be no practical difficulty in the administration
of the rule that instructions should be limited to the degree of the crime
shown by the evidence. It is within the province of the court to submit to the
counsel for the state and for the defendant in every case the question as to what
degree should be submitted to the jury. When thus called upon by the court it
is their duty to speak, and a refusal by counsel for defendant to take a
position upon the matter {*196} will
amount to a waiver of the error of the court in that regard, if error shall
occur. It will be available error only in case the court fails to agree with
counsel as to the proper scope of the instructions.
{21} Here, defendant did not
refuse to take a position, which would have been a waiver. Defendant took the
position that no voluntary manslaughter instruction should be given, which was
a waiver.
State v. Diaz,
36 N.M. 284,
13 P.2d 883 (1932) indicates that
waiver could not exist when there was a duty to instruct on certain degrees of
homicide. This holding was repudiated in
State v. Garcia,
46 N.M. 302,
128 P.2d 459 (1942). Assuming the trial court had a duty to instruct on
voluntary manslaughter, defendant waived any error based on the failure to
instruct by taking the position that no such instruction should be given. This
holding, of waiver, is independent of the requirements of Rule of Crim. Proc.
41.
{22} The duty to instruct
rule, on which defendant relies, is stated in
State v. Diaz, supra:
Ordinarily, instructions given are the law of the case, and
cannot be complained of unless the accused objected to those given, or
requested others. This applies to a failure to submit involuntary manslaughter.
But, the erroneous failure to submit second degree murder or voluntary
manslaughter will require a new trial, even though the accused has not objected
in any way to the omission. While this result may not be entirely logical, it
is not entirely without reasonable support * *.
{23} The holding in
State
v. Diaz, supra, was reached after considering the relationship of two
items: (1) a "statute" which made it the duty of the trial court, in
all cases, to instruct the jury as to the law of the case; and (2) the rule
that errors not brought to the attention of the trial court may not be relied on
in the appellate court.
Diaz resolved the relationship by a special rule
for murder and voluntary manslaughter only. The general rule that the matter
must be brought to the attention of the trial court continued to apply except
for murder in the first or second degree and voluntary manslaughter. Where
those three charges were involved, the trial court had a duty to instruct,
whether or not requested.
{24} State v. Simpson,
39
N.M. 271,
46 P.2d 49 (1935) characterized the result in
State v. Diaz,
supra, as an unsatisfactory conclusion reached upon conflicting "lines of
decision" and upon "peculiar statutes;" that the
"statute" in
State v. Diaz, supra, had been revised. The
revision was a rule requiring, for the preservation of error, either an
objection to the instructions given or the tender of a correct instruction in
the case of a failure to instruct. See
State v. Hall,
40 N.M. 128,
55
P.2d 740 (1935).
{25} Although the decision in
State v. Diaz, supra, seems to have been premised on fundamental error,
State
v. Garcia, supra, rejected the "fundamental error" approach and
held that the rule adopted subsequent to the
Diaz decision was
controlling; "the right that an accused has to have a jury instructed on
the law of the case is controlled by * * * [the rule]."
{26} The decision in
State
v. Garcia, supra, that the right of an accused to instructions is
controlled by rule, is still the applicable law. The rule which required either
an objection to an instruction given, or the tender of a correct instruction
when there was a failure to instruct, continued in effect until the adoption of
the rules of criminal procedure. See § 21-1-1(51)(2)(h), N.M.S.A. 1953 (Supp.
1969) and Per curiam Order of the Supreme Court dated May 3, 1972, which
repealed prior procedural rules and adopted the rules of criminal procedure.
{27} As adopted in 1972, Rule
of Crim. Proc. 41 provided:
(a) The court must instruct the jury upon all questions of
law necessary for guidance in returning a verdict.
(g) Except as provided in paragraph (a) of this rule, for the
preservation of error in the charge, objection to any instruction given must be
sufficient to alert {*197} the mind of
the court to the claimed vice therein, or, in case of failure to instruct on
any issue, a correct written instruction must be tendered before the jury is
instructed.
{28} Rule of Crim. Proc.
41(a), as originally adopted, modified the rule discussed in
State v. Garcia,
supra, and required the trial court to instruct "upon all questions of law
necessary for guidance in returning a verdict" without regard to whether
counsel objected or tendered an instruction. "[Q]uestions of law necessary
for guidance" included instruction on the essential elements of the crime
charged,
State v. Puga,
85 N.M. 204,
510 P.2d 1075 (Ct. App. 1973), but
did not include definition instructions.
State v. Urban, supra.
{29} The full meaning of Rule
of Crim. Proc. 41(a), as originally adopted, had not been litigated before it
was amended in 1975. The amended rule applies in this case. The Committee
Commentary to Rule of Crim. Proc. 41(a), as originally adopted, states that the
rule "is limited to those instructions which are essential to the return
of a verdict." This limited view was clarified by the 1975 amendment.
{30} Rule of Crim. Proc.
41(a), after amendment in 1975, provided:
The court must instruct the jury upon all questions of law
essential for a conviction of the crime or crimes submitted to the jury.
The provisions of original Rule of Crim. Proc. 41(g) were
carried forward into the amended rule as Rule of Crim. Proc. 41(d).
{31} The Committee Commentary
to the amended Rule 41(a) states:
Rule 41(a), codifying prior court decisions, requires the
district court to instruct the jury on the law essential for a conviction of
the crimes submitted to the jury even if no requested instructions are
presented by the parties. (Our emphasis.)
State v. Gunzelman, supra, is cited in support of the
commentary. Gunzelman holds that the trial court must instruct on all of
the essential elements of the crime charged. The Gunzelman
holding was applied in State v. Bender, 91 N.M. 670, 579 P.2d 796
(1978). Bender states that amended Rule of Crim. Proc. 41(a)
"requires the trial court to instruct the jury on the law essential for a
conviction of the crime submitted to the jury even if no requested instruction
is tendered."
1. The special rule adopted in State v. Diaz, supra,
for instructions in murder and voluntary manslaughter cases, was repudiated in State
v. Garcia, supra, and has never been revived. In connection with mandatory
instructions in criminal cases, there is no distinction based on the type of
criminal offense.
2. The fundamental error approach adopted in State v. Diaz,
supra, was rejected in State v. Garcia, supra. The Garcia rule is
the applicable law -- whether error occurred in connection with the
instructions depends on the applicable rule.
3. The applicable rule is Rule of Crim. Proc. 41(a), as
amended in 1975. This rule imposes a duty upon the trial court to instruct upon
the law essential for a conviction of the crime submitted to the jury, whether
or not requested to do so. State v. Bender, supra. The rule, as worded,
applies to "the crime or crimes submitted to the jury." As worded,
the rule does not apply to lesser degrees of the crime submitted or to lesser
included offenses. A party must, under Rule of Crim. Proc. 41(d), request an
instruction on lesser degrees or lesser included offenses to claim error if the
trial court fails to instruct on lesser crimes. To hold otherwise would be
contrary not only to the wording of the rule, but contrary to decisional
history concerning the trial court's mandatory duty to instruct.
4. In this case, the trial court submitted the crime of
murder in the second degree to the jury. The trial court had a duty, even in
absence of a request, to instruct on the {*198}
law essential for a conviction of murder in the second degree. There is no
claim that the trial court failed to properly instruct on the crime submitted.
5. The trial court had no duty to instruct on voluntary
manslaughter unless requested. Defendant did not request a voluntary
manslaughter instruction. Fundamental error is not involved; the evidence
sustains the verdict of guilt for second degree murder and it does not shock
our conscience to let the conviction stand. State v. Urban, supra.
{32} The judgment and
sentence are affirmed.
William R. Hendley, J., Leila Andrews, J.