STATE V. GALLEGOS, 2001-NMCA-021,
130 N.M. 221, 22 P.3d 689
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
ANNETTE GALLEGOS, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2001-NMCA-021, 130 N.M. 221, 22 P.3d 689
APPEAL FROM THE DISTRICT COURT OF TAOS
COUNTY. PEGGY J. NELSON, District Judge.
Released for Publication May 8, 2001.
Petition for Writ of Certiorari Denied May 29, 2001.
Patricia A. Madrid, Attorney General, Ann
M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.
Lee DesChamps, Ranchos de
Taos, NM, for Appellant.
CYNTHIA A. FRY, Judge. WE CONCUR: A.
JOSEPH ALARID, Judge, MICHAEL D. BUSTAMANTE, Judge.
{1} Defendant Annette
Gallegos appeals from a conviction of involuntary manslaughter, contrary to
NMSA 1978, §
30-2-3(B) (1994). She argues that the district court erroneously
refused to instruct the jury on the theory of defense of another. We hold that
Defendant was entitled to a jury instruction on this theory, and we therefore
reverse and remand for a new trial.
{2} On January 26,
1998, Defendant and her husband, Roger Gallegos (Husband), were drinking in
their mobile home with four other individuals. After several hours, three of
the guests became combative and one of them, Samuel Mascarenas (Victim),
punched Defendant in the face. At this point, Defendant and Husband asked the
three men to leave. Husband and Defendant escorted the three, as they continued
to argue, out of the home into the front yard where Husband, the other three
men, and Defendant began a physical altercation. In the course of the
altercation, Husband was stabbed twice in the left shoulder.
{3} Husband yelled
that he had been stabbed. It was unclear to Defendant which of the three men
had wielded the knife, although she assumed it was Jonathan Sandoval. At this
point, Defendant ran back into the residence and retrieved a pistol. She walked
back through the entry door onto the porch, intending to shoot the gun up in
the air in order to stop the fight. Before she could do anything, however, the
gun fired and the bullet struck Victim in the head. Victim died a short time
later. Soon after the incident, law enforcement officials administered a blood
alcohol content (BAC) test to Defendant which indicated that her BAC was .12.
{4} Defendant
testified that she had gone inside to retrieve the pistol because she was
fearful that the men would not stop beating Husband and that they would
continue to stab him. She said she was afraid "they would continue with
Roger, then come and get me, and then my girls." She testified further
that her intent at the time she retrieved the pistol was to go back out onto
the porch and fire a shot into the air to scare the men and break up the fight.
Although one witness testified that Defendant aimed the gun at a fleeing
combatant, Defendant testified that she never took aim and did not realize the
gun had fired until someone shouted that she had shot Victim. She said she did
not intend for the gun to go off when it did.
{5} At trial,
Defendant submitted a jury instruction based on UJI
14-5172 NMRA 2001
(justifiable homicide; defense of another). Although it is not entirely clear
from the record, the district court apparently refused the tendered instruction
on two grounds: (1) Defendant's testimony that the shooting was accidental was
inconsistent with the theory of defense of another which presupposes an
intentional act; and (2) even if defense of another were a viable theory,
Defendant's use of deadly force was unreasonable as a matter of law. The jury
convicted Defendant of the only crime charged, involuntary manslaughter, and
this appeal followed.
{6} The propriety of
jury instructions given or denied is a mixed question of
{*223}
law and fact that we review de novo.
State v. Salazar, 1997-NMSC-44,
P49,
123 N.M. 778,
945 P.2d 996. "An instruction on a claim of
self-defense or defense of another should be given if there is any evidence,
even slight evidence, to support the claim."
State v. Duarte,
1996-NMCA-38, P3,
121 N.M. 553,
915 P.2d 309. "Failure to give an
instruction which is warranted by the evidence is not harmless error."
Salazar,
1997-NMSC-44, P50,
123 N.M. 778,
945 P.2d 996.
B. Inconsistency of Charge and Defense
{7} We note at the
outset that the case law and commentary treat "defense of another"
and "self-defense" as virtually identical for purposes of analysis.
See
UJI 14-5172 Committee Commentary (defense of another instruction
cross-referencing self-defense instruction's Committee Commentary);
Duarte,
1996-NMCA-38, P10 (referring to self-defense theory in analyzing propriety of
instruction on defense of another). Therefore, for convenience, in this opinion
we will use the term "self-defense" interchangeably with
"defense of another."
{8} The State argues
that Defendant was not entitled to a self-defense instruction because her
intent was to fire a warning shot, not to shoot the man she perceived to be
attacking her husband. The district court reasoned that, because self-defense
requires an intent to do something in order to prevent injury or death, it is
inconsistent with involuntary manslaughter, which is the charge for an
accidental killing. In other words, Defendant could not have both intended to
shoot the victim and, at the same time, shoot the victim accidentally. Although
it is understandable that the district court found an intentional act of
self-defense to be inconsistent with a claim of accidental shooting, we
conclude that the jury should have been permitted to resolve the tension
between the two.
{9} It is well settled
that "self-defense [or defense of another] is a justification to all
homicides and results in acquittal rather than mitigation."
State v.
Abeyta, 1995-NMSC-52,
120 N.M. 233, 239,
901 P.2d 164, 170 (1995),
abrogated
on other grounds by State v. Campos, 1996-NMSC-43,
122 N.M. 148, 158 n.4,
921 P.2d 1266, 1276 n.4 (1996). In order for the jury to acquit the defendant,
the defendant must introduce evidence that will raise in the minds of the
jurors a reasonable doubt that the killing was not justified by self-defense or
by defense of another.
State v. Parish, 1994-NMSC-72,
118 N.M. 39, 44,
878 P.2d 988, 993 (1994). Defense of another contains three elements: (1) there
was an appearance of death or great bodily harm to a person; (2) the defendant
believed the person was in immediate danger of death or great bodily harm from
the victim and killed the victim to prevent the death or great bodily harm; and
(3) the apparent danger "would have caused a reasonable person in the same
circumstances to act as the defendant did." UJI 14-5172. It is
well-settled law that the State bears the burden of proving beyond a reasonable
doubt that the Defendant did not act in self-defense or in defense of another.
Parish,
118 N.M. at 44, 878 P.2d at 993.
{10} The legislature
has defined involuntary manslaughter as "manslaughter committed in the
commission of an unlawful act not amounting to felony, or in the commission of
a lawful act which might produce death in an unlawful manner or without due
caution or circumspection." NMSA 1978, §
30-2-3(B) (1994). Thus, the
mens
rea for involuntary manslaughter is criminal negligence.
State v.
Yarborough, 1996-NMSC-68, P20,
122 N.M. 596,
930 P.2d 131.
{11} Several courts in
other jurisdictions agree with the district court in the instant case and hold
that involuntary manslaughter and self-defense are mutually exclusive. For
example, in
State v. Warren, 5 Kan. App. 2d 754, 624 P.2d 476 (Kan. Ct.
App. 1981), the defendant and the victim were drinking in a bar and began to
argue. The argument moved outside, and, according to the defendant's testimony,
the victim knocked defendant to the ground, whereupon defendant removed a gun
from her boot. Although she did not recall pulling the trigger, she recalled
hearing two shots. 624 P.2d at 477-78. On appeal, the court held that the trial
court had erroneously instructed the jury that it could find defendant guilty
of involuntary manslaughter if it found that she
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unintentionally killed the victim while acting in self-defense in a wanton
manner. The appellate court stated that the instruction was improper because it
is a legal impossibility to act in self-defense
and at the same time act
in reckless disregard of, or indifference to, the consequences of one's
actions. 624 P.2d at 480;
accord State v. Godfrey, 37 N.C. App. 452, 246
S.E.2d 156 (N.C. Ct. App. 1978);
Grimes v. McAnulty, 957 S.W.2d 223 (Ky.
1997).
{12} We decline to
follow this authority. It is entirely plausible that a person could act
intentionally in self-defense and at the same time achieve an unintended
result. Numerous other jurisdictions agree with our conclusion. For example, in
People v. Robinson, 163 Ill. App. 3d 754, 516 N.E.2d 1292, 114 Ill. Dec.
898 (Ill. App. Ct. 1987), the defendant testified that, in the course of an
argument with the victim, the victim began to shout at the defendant, defendant
became frightened, and the victim's companion pulled out a shotgun. Defendant
grabbed for the gun which fell to the ground and discharged, striking the
victim. 516 N.E.2d at 1297. The trial court refused defendant's tendered
self-defense instruction on the ground that the defense was inconsistent with defendant's
claim that the shooting was accidental.
Id. The appellate court
reversed, holding that defendant was entitled to a self-defense instruction.
516 N.E.2d at 1305. "The testimony of fright, defensive motive, shotgun,
and struggle, if believed by the jury, would have been sufficient to support a
finding of self-defense. . . . Moreover, the allegedly accidental nature of the
ultimate gunshot does not vitiate the self-defense evidence as to the struggle
that immediately preceded it." 516 N.E.2d at 1304-05;
see also Jordan
v. State, 782 S.W.2d 524 (Tex. Ct. App. 1990) ("The right of
self-defense attaches when an accused finds himself in a situation causing him
to have a reasonable expectation or fear of death or serious bodily injury, . .
. and this right of self-defense is not lost simply because the accused claims
the gun discharged accidentally." (internal quotation marks and citations
omitted; quoting
Merritt v. State, 85 Tex. Crim. 565, 213 S.W. 941, 942
(Tex. Crim. App. 1919));
In re Smith, 396 Pa. Super. 624, 579 A.2d 889,
897 (Pa. Super. Ct. 1990) ("Self-defense, if justifiable, is a complete
defense to any criminal homicide, whether it be murder, third degree murder,
voluntary manslaughter or involuntary manslaughter.")
{13} Thus, pursuant to
this line of reasoning, a defendant is entitled to a self-defense instruction
if he or she introduces evidence from which the jury could reasonably find that
the killing resulted from the threats or provocation that preceded it, even if
the ultimate injury occurred accidentally.
See Robinson, 516 N.E.2d at
1303.
{14} Homicide is
justifiable if the killer acted reasonably in self-defense.
Abeyta, 120
N.M. at 239, 901 P.2d at 170. We see no reason why this should be true when the
defendant is charged with murder and not true when the defendant is charged
with a lesser degree of homicide such as involuntary manslaughter. If a
defendant presents any evidence supporting a self-defense theory, then the jury
should be instructed on that theory.
State v. Lopez, 2000-NMSC-3, P23,
128 N.M. 410,
993 P.2d 727. A jury given a self-defense instruction can resolve
any anomalies in the circumstances surrounding the homicide, including the
question of whether the defendant accidentally killed the victim while
defending himself or another.
{15} In the present
case, had the jury been properly instructed, Defendant should have been
acquitted of all homicide charges only if she raised a reasonable doubt in the
minds of the jury by arguing that: (1) there was an appearance of immediate
danger or great bodily harm to Husband as a result of Victim's stabbing of
Husband; (2) Defendant believed Husband was in immediate danger and killed
Victim to prevent the death or serious injury; and (3) the apparent danger would
have caused a reasonable person in the same circumstances to act as Defendant
did. The evidence suggesting that she may not have known whether it was Victim
who stabbed Husband or that she did not intend to fire the gun at Victim or
anyone else is evidence relevant to the analysis of self-defense. For example,
if the jury found that the gun discharged accidentally due to some
{*225} negligence on Defendant's part, it
could also find that a reasonable person in the same circumstances would have
taken care that the gun did not discharge. Therefore, Defendant's self-defense
theory would fail, and the jury could convict her of the crime charged -
involuntary manslaughter. The jury could also reject the self-defense theory if
it found that Defendant knew that someone other than Victim stabbed Husband.
Thus, the anomalies in the evidence that troubled the district court will be
resolved by the jury when it is properly instructed.
{16} The trial court
apparently relied on
Abeyta in rejecting Defendant's instruction on
defense of another.
Abeyta is distinguishable because there, the court
held that proof of "imperfect self-defense" (defending oneself by
using excessive force) could not mitigate a murder charge to involuntary
manslaughter. 120 N.M. at 242, 901 P.2d at 173. By contrast, our concern is
whether self-defense, imperfect or otherwise, can be raised as a defense to an
initial charge of involuntary manslaughter.
Cf. 120 N.M. at 242, 901
P.2d at 173 ("While a claim of imperfect self-defense does not give rise to
the need for an involuntary manslaughter instruction, a claim of accidental
shooting might.")
{17} The present case
is also distinguishable from
State v. Ho'o,
99 N.M. 140,
654 P.2d 1040 .
In that case the court held that the trial court properly refused an
instruction on defense of another where the defendant testified that he shot in
the direction of the victims' dog out of fear that the dog would attack the
defendant's friend. The shot missed the dog and hit the victims.
Id. at
145, 654 P.2d at 1045. The defendant's testimony - that he perceived the dog as
the danger - was inconsistent with the self-defense jury instruction, which
presupposes that the victim is the person the defendant perceives as creating
the danger of great bodily harm to another.
Id. By contrast, Defendant
here presented evidence from which a reasonable jury could infer that Defendant
perceived that Victim posed a danger to Husband.
{18} We hold that a
defendant charged with involuntary homicide can raise the theory of
self-defense. Were we to hold otherwise, a person charged with first degree
murder would conceivably be in a better position than a person charged with
involuntary manslaughter. The former would be acquitted if the evidence
established self-defense, while the latter, tendering the same evidence of
self-defense, might yet be convicted. Such a result would be untenable.
C. Reasonable Fear of Danger and Degree of Force
{19} The State also
argues that, even if self-defense is available as a defense to involuntary
manslaughter, Defendant failed to present sufficient evidence to support a jury
instruction because she did not establish that she reasonably feared that
Husband faced immediate death or great bodily harm. We disagree. Andrew
Martinez, one of the combatants in the affray that night, and Defendant both
testified that Defendant did not go get the gun until after Husband said he had
been stabbed. There was evidence that Husband was bleeding as a result of the
stabbing, that his sweater was soaked with blood, and that he raised a
blood-covered hand to show the extent of his injury. This evidence was
sufficient to permit the jury to find that Defendant reasonably believed
Husband was in immediate danger of serious injury or death.
See State v.
Allen, 2000-NMSC-2, P66,
128 N.M. 482,
994 P.2d 728 (holding that jury
could have reasonably inferred from evidence presented at trial that defendant
inflicted great bodily harm on victim).
{20} The same evidence
refutes the State's argument that Defendant's use of deadly force was
unreasonable. Although deadly force may not be used in a situation where there
is no indication that death or great bodily harm is imminent,
Duarte,
1996-NMCA-38, P4, the evidence that Husband had been stabbed and was bleeding
could foreseeably allow a jury to conclude that Defendant's use of a gun was
reasonable under the circumstances. The jury should have been allowed to
consider the question of reasonableness.
{21} We hold that
Defendant was entitled to a jury instruction on her theory of defense of
another. We therefore reverse Defendant's conviction and remand for a new trial
on the charge of involuntary manslaughter.
MICHAEL D. BUSTAMANTE, Judge