STATE V. MASCARENAS, 2000-NMSC-017,
129 N.M. 230, 4 P.3d 1221
CASE HISTORY ALERT: see ¶27 - affects
1998-NMSC-042
STATE OF NEW MEXICO,
Plaintiff-Respondent,
vs.
MARCOS MASCARENAS, Defendant-Petitioner.
SUPREME COURT OF NEW MEXICO
2000-NMSC-017, 129 N.M. 230, 4 P.3d 1221
ORIGINAL PROCEEDING ON CERTIORARI.
Peggy J. Nelson, District Judge.
As Corrected July 5, 2000. Released for
Publication June 13, 2000.
Phyllis H. Subin, Chief Public Defender,
Lisabeth L. Occhialino, Assistant Appellate Defender, Santa Fe, NM for
Petitioner.
Patricia A. Madrid, Attorney General,
Steven S Suttle, Assistant Attorney General, Santa Fe, NM for Respondent.
JOSEPH F. BACA, Justice. WE CONCUR: PAMELA
B. MINZNER, Chief Justice, GENE E. FRANCHINI, Justice, PATRICIO M. SERNA,
Justice, PETRA JIMENEZ MAES, Justice.
{1} Defendant, Marcos
Mascarenas, appeals his conviction and sentence of twelve years imprisonment
for negligent child abuse resulting in death, contrary to NMSA 1978, §
30-6-1(C) (1973, as amended through 1989).
1
We granted certiorari pursuant to NMSA 1978, §
34-5-14 (1972) (outlining the
scope of our appellate jurisdiction) to review the Court of Appeals' decision
affirming Mascarenas' conviction for child abuse.
See also Rule
12-502
NMRA 2000. Mascarenas appeals his conviction on several grounds: 1) fundamental
error occurred because the trial court failed to provide the jury with an
instruction for negligent child abuse that adequately defined criminal
negligence; 2) fundamental error occurred because the jury instructions omitted
an essential element requiring that the State prove he acted "without
justification"; 3) the child abuse statute is unconstitutionally vague; 4)
the trial court committed reversible error by refusing to allow the testimony
of his rebuttal expert witness regarding the public's awareness of shaken baby
syndrome (SBS); 5) insufficient evidence exists to support the verdict; 6) the
trial court improperly admitted evidence of Mascarenas' prior drug use and a
prior injury to the child; 7) the State's opening statement and closing
argument contained misleading statements about the law and facts not in
evidence; 8) his conviction and twelve year sentence, despite lacking criminal
intent, amounts to cruel and unusual punishment; and 9) the cumulative effect
of the trial court's errors deprived him of his right to a fair trial. Because
we reverse Mascarenas' conviction based on the deficiencies in the jury
instructions and hold that sufficient evidence exists to support remand, we
need not reach his other claims of error.
{2} On October 6,
1996, emergency medical technicians were summoned to render assistance to
six-month old Matthew Cisneros, who was suffering from a seizure. Upon arrival,
the medical technicians found Matthew unresponsive and displaying signs that
his brain was not receiving oxygen. He was transported to the emergency room at
Holy Cross Hospital in Taos where tests revealed the likelihood that Matthew
had suffered head trauma. The treating physician diagnosed Matthew's injuries
as subdural hematoma, cerebral edema, and cardio-pulmonary arrest all of which
were consistent with shaken baby syndrome. Matthew later went into complete
respiratory and cardiac arrest and was successfully resuscitated. Matthew was
transported via helicopter to the Pediatric Intensive Care Unit at University
of New Mexico Hospital in Albuquerque. Over the next four days Matthew's
neurologic functions deteriorated and brain death was declared on October 10,
1996. Matthew died after he was taken off life support. Mascarenas was
subsequently arrested and charged with child abuse resulting in death.
{3} At trial,
Mascarenas testified that Matthew was left in his care after Lisa, the child's
mother, left for work in the morning. Matthew then became agitated and began
crying. Mascarenas testified that he was frustrated that Matthew would not stop
crying and admitted that he shook Matthew "hard once." He also
testified that he tossed Matthew in the air, took him for a ride in his truck,
and fed him in the attempt to calm him down. After returning home, Matthew had
a seizure and Mascarenas testified that he and his cousin drove Matthew to
Lisa's parents' home a short distance away and then called 911 to summon
emergency medical assistance.
{4} During the trial,
Matthew's treating doctors, a radiologist, and a pathologist, testified as the
State's expert witnesses. They stated that the cause of death was SBS and that
Matthew displayed classic SBS symptoms. The radiologist testified that CT scans
of Matthew's head indicated that he had suffered two separate injuries, one
occurring in the last twelve to eighteen hours, the other, ten to fourteen days
earlier. Although the State's expert witnesses testified that it was their
opinion that only forceful, repeated shaking could cause the severe injuries
associated with SBS, one State expert witness did concede that there was a
debate within the medical community as to whether one shake was sufficient to
cause the injuries associated with SBS.
{5} Mascarenas based
his defense on his lack of knowledge of SBS. He explained that his initial
failure to tell family members and medical personnel that he had shaken Matthew
was because he did not know that shaking a baby could cause the symptoms
Matthew displayed. Medical personnel testified that Mascarenas answered their
questions without hesitation. At trial he testified, "I hurt to know that
my stupidity and ignorance caused this to my child, to my baby."
{6} Despite his
defense, Mascarenas was convicted of negligent child abuse resulting in death
and sentenced to twelve years in prison. He now appeals his conviction claiming
the jury instructions failed to adequately define the requisite criminal
negligence standard. We agree and hold that the failure to adequately define
the criminal negligence standard constitutes fundamental error.
{7} Mascarenas did not
object to the jury instruction or tender a curative instruction. Because he
failed to preserve this error for appeal, we review only for fundamental error.
See State v. Sosa, 1997-NMSC-32, PP23-24,
123 N.M. 564,
943 P.2d 1017
("Having failed to proffer accurate instructions, object to instructions
given, or otherwise preserve the issue for appeal . . . we will limit our
evaluation to the claim of fundamental error."); Rule
12-216 NMRA 2000
(setting forth preservation requirements). In
State v. Clark, we stated,
"To the extent alleged violations rise to the level of fundamental error,
the question will be reviewed on appeal and, if fundamental error exists, a new
trial will be ordered."
108 N.M. 288, 297,
772 P.2d 322, 331 (1989),
habeas
corpus relief granted on other grounds by,
Clark v. Tansy,
118 N.M.
486,
882 P.2d 527 (1994). Fundamental error exists "when guilt is so
doubtful that it would shock the judicial conscience to allow the conviction to
stand."
State v. Baca, 1997-NMSC-45, P41,
124 N.M. 55,
946 P.2d
1066. In
State v. Garcia,
46 N.M. 302, 309,
128 P.2d 459, 462 (1942),
this Court observed, "error that is fundamental must be such error as goes
to the foundation or basis of a defendant's rights or must go to the foundation
of the case or take from the defendant a right which was essential to his
defense and which no court could or ought to permit him to waive."
{8} Mascarenas claims
that fundamental error occurred because the trial court failed to provide the
jury with an instruction defining criminal negligence. The jury was provided an
instruction which tracked the language of UJI
14-602 NMRA 1999.
2 The negligent child abuse
instruction provided to the jury read:
For you to find Marcos Mascarenas guilty of child
abuse resulting in death as charged in Count I, the state must prove to your
satisfaction beyond a reasonable doubt each of the following elements of the
crime:
Marcos Mascarenas negligently caused Matthew Cisneros
to be placed in a situation which endangered the life or health of Matthew
Cisneros or to be cruelly punished.
To find that Marcos Mascarenas negligently
caused child abuse to occur, you must find that Marcos Mascarenas knew or
should have known of the danger involved in forcefully shaking Matthew
Cisneros and acted with reckless disregard for the safety or health of
Matthew Cisneros.
Marcos Mascarenas['] actions resulted in the death of
Matthew Cisneros.
Matthew Cisneros was under the age of 18.
This happened in New Mexico on or about the 6th day of
October, 1996.
(emphasis added). Mascarenas argues that this instruction
fails to adequately define the requisite culpable mental state for criminal
negligence by including language confusing criminal negligence and civil
negligence. Specifically, he argues that the use of the term
"negligently" in the second element of the jury instruction,
juxtaposed with the terms "knew or should have known" and "acted
with a reckless disregard" creates the "distinct possibility that the
jury understood the applicable negligence standard to criminalize 'careless'
conduct or perhaps only 'extremely careless' conduct." See State v.
Magby, 1998-NMSC-42, P15, 126 N.M. 361, 969 P.2d 965 (noting that neither
understanding was correct) (citing State v. Yarborough, 1996-NMSC-68,
P21, 122 N.M. 596, 930 P.2d 131).
{9} Criminal
negligence has been defined as including "conduct which is reckless,
wanton, or willful."
State v. Arias,
115 N.M. 93, 96,
847 P.2d 327,
330 ,
overruled on other grounds by State v. Abeyta, 1995-NMSC-52,
120
N.M. 233, 242,
901 P.2d 164, 173;
see also State v. Harris,
41 N.M. 426,
428,
70 P.2d 757, 757 (1937) (defining criminal negligence as "conduct . .
. so reckless, wanton, and willful as to show an utter disregard for the safety
of [others]"). In contrast, we have defined civil negligence to include
conduct "a reasonably prudent person would foresee as involving an
unreasonable risk of injury to [himself] [herself] or to another and which such
a person, in the exercise of ordinary care, would not do." UJI
13-1601
NMRA 2000. Mascarenas argues that it is impossible to determine if jurors
applied the incorrect civil negligence standard typically invoked by the
"knew or should have known" language or the proper criminal
negligence standard which requires a finding that he acted in reckless
disregard of the danger.
{10} Both parties
agree that the State must prove criminal negligence to secure a child abuse
conviction under Section 30-6-1(C).
See Santillanes v. State,
115 N.M.
215, 222,
849 P.2d 358, 365 (1993);
see also Yarborough, 1996-NMSC-68,
P18, 122 N.M. at 602, 930 P.2d at 137 ("Only criminal negligence may be a
predicate for a felony unless another intention is clearly expressed by the
legislature."). The jury instruction provided by the trial court in this
case conformed to the requirements articulated in
Santillanes and
tracked the language of Rule 14-602.
3
{11} The substantive
considerations in this case have already been resolved by our opinion in
Magby
where this Court addressed a challenge similar to Mascarenas' claim.
See
Magby, 1998-NMSC-42,
126 N.M. 361,
969 P.2d 965. In
Magby, the
defendant was charged with abuse of a child resulting in death, in violation of
Section 30-6-1(C). After Magby removed the bit and bridle from a horse that a
four-year-old girl was sitting on with her mother, the horse bolted into a
gallop causing the child to fall.
Magby, 1998-NMSC-42, P2, 126 N.M. at
362, 969 P.2d at 966. She later died from her injuries. The jury was provided
with an instruction containing the same language as the instruction given at
Mascarenas' trial: "To find that Robert Leon Magby negligently caused
child abuse to occur, you must find that Robert Leon Magby knew or should have
known of the danger involved and acted with a reckless disregard for the safety
or health of Heather Naylor."
Magby, 1998-NMSC-42, P5, 126 N.M. at
362, 969 P.2d at 966 (emphasis omitted). Magby tendered a jury instruction that
defined "reckless disregard" which the trial court improperly
rejected.
4 Magby, 1998-NMSC-42, P9, 126
N.M. at 363, 969 P.2d at 967.
{12} At the outset, we
note that because Magby offered a proper curative instruction, Magby's
conviction was properly reversed under a reversible error standard.
See
State v. Cunningham, 2000-NMSC-9, PP18-19,
128 N.M. 711,
998 P.2d 176.
However, because Mascarenas failed to preserve the error we examine the jury
instructions for fundamental error. Despite this difference, we find the
substantive analysis of the errors in the jury instructions in
Magby
analogous and persuasive. In
Magby, this Court held that the failure to
define reckless disregard "resulted in the distinct possibility of juror
confusion as to the mens rea necessary for conviction." 1998-NMSC-42, P1,
126 N.M. at 362, 969 P.2d at 966. This Court concluded that "the ordinary
meaning of the terms 'negligently' and 'reckless disregard' may misdirect
jurors as to the standard of negligence required for conviction, thereby
rendering UJI 14-602 fatally ambiguous."
Magby, 1998-NMSC-42, P13,
126 N.M. at 364, 969 .2d at 968.
Magby highlighted the "distinct
possibility that the jury understood the applicable negligence standard to criminalize
'careless' conduct or perhaps only 'extremely careless' conduct" neither
of which were correct interpretations.
Magby, 1998-NMSC-42, P15, 126
N.M. at 364, 969 P.2d at 968. The
Magby Court found that because it was
impossible to determine whether the jury had a correct or incorrect
understanding of the instructions, reversible error occurred.
See Magby,
1998-NMSC-42, PP15-16, 126 N.M. at 364, 969 P.2d at 968. The same concerns are
implicated in this case.
{13} The Court of
Appeals, in its memorandum opinion, concluded that
Magby was applicable
to this case, but refused to address the merits of Mascarenas' claim stating
that he had failed to properly preserve the issue for review and that "we
decline to consider it as fundamental error."
State v. Mascarenas,-NMCA-18,871,
slip op. at 4 (Jan. 13, 1999). The Court of Appeals also held that
Magby
's rule was not retroactively applicable.
Id. We disagree and hold there
is a distinct possibility that Mascarenas was convicted of child abuse based on
the improper civil negligence standard, a crime which
Santillanes
determined does not exist in New Mexico.
Santillanes, 115 N.M. at 219,
849 P.2d at 362 ("Our interpretation of this criminal statute requires
that the term 'negligently' be interpreted to require a showing of criminal
negligence instead of ordinary civil negligence."). The jury instructions
failed to sufficiently define the proper negligence standard for child abuse,
and there is no way to determine if the jury based their conviction on the terms
"knew or should have known," language typically associated with a
civil negligence standard, or on the proper criminal negligence standard which
requires that they find defendant acted in "reckless disregard" of
the safety of the child. Thus, we find that the trial court's failure to
provide the jury with an instruction that adequately defined criminal
negligence was an error.
{14} Despite the
presence of this error, the State contends that the facts in this case
demonstrate circumstances sufficient to distinguish Mascarenas' conduct from
Magby's. The State argues that Magby's conduct could have been viewed as merely
careless while Mascarenas "acted with great and repeated violence against
his baby." Because of this, the State posits that "it is highly
unlikely that this jury did not have a correct understanding of the
instructions [because] the facts of this case leave little room for speculation
as to whether shaking Matthew endangered his life or whether the Petitioner
should have known of the danger involved and acted with reckless disregard of
that danger." This argument is similar to that addressed by this Court in
Santillanes.
115 N.M. at 223, 849 P.2d at 366. In
Santillanes, this Court found that
the trial court erred by failing to properly instruct the jury on criminal
negligence. However, the Court held that it did not amount to reversible error,
reasoning, "no rational jury could have concluded that Santillanes cut his
nephew's throat . . . without satisfying the standard of criminal negligence
that we have adopted today."
Id. The
Santillanes Court was
confident that "there could be no dispute that the element of criminal
negligence was established by the evidence."
Id. Based on the
comparison of the defendant's conduct in
Magby and the present case, as
well as the reasoning articulated in
Santillanes, the State argues that
no rational jury could have found that Mascarenas shook his baby with such
violence without satisfying the requisite criminal negligence standard. We
disagree.
{15} In this case, the
extent of how severely and how often Matthew was shaken was a disputed issue at
trial, and the State's contention that Mascarenas shook Matthew with great and
repeated violence was not conclusively established. If the jury believed
Mascarenas' defense that he did not know that shaking Matthew could cause the
injuries associated with SBS and that he shook the child only "hard
once," it is possible that the jury could have, with an instruction
properly defining criminal negligence, attributed his conduct to mere
carelessness and not reckless disregard of Matthew's safety and health.
Therefore, unlike the
Santillanes Court, we cannot state with confidence
that the jury concluded that Mascarenas' actions in shaking his baby satisfied
the proper criminal negligence standard. Also, in this case, a rational jury
might have concluded that Mascarenas shook his baby "hard once"
without acting in "reckless disregard" of Matthew's safety. Thus,
despite the State's arguments to the contrary, the factual analogies identified
by the State are not relevant here.
{16} We hold that the
trial court erred by failing to provide the jury with an instruction that
adequately defined the proper culpable mens rea for negligent child abuse.
{17} In this Court's
recent opinion in
Cunningham, we held that a fundamental error analysis
requires that we consider jury instructions as a whole to determine "the
existence of circumstances that 'shock the conscience' or implicate a
fundamental unfairness . . . that would undermine judicial integrity if left
unchecked." 2000-NMSC-9, P21, 998 P.2d at 182. In the context of jury
instructions, this Court has held that a reviewing appellate court must
determine whether "a reasonable juror would have been confused or misdirected"
by the jury instructions provided.
See State v. Parish, 1994-NMSC-72,
118 N.M. 39, 42,
878 P.2d 988, 991 (1994). In
State v. Allen, we stated
that "ambiguous instructions are those that are 'capable of more than one
interpretation.'" 2000-NMSC-2, P77,
128 N.M. 482,
994 P.2d 728 (quoting
Parish,
118 N.M. at 42, 878 P.2d at 991). In this case, there were no other
instructions provided to the jury that might have cured any ambiguities.
See
Parish, 118 N.M. at 41-42, 878 P.2d at 990-91 ("If a jury instruction
is capable of more than one interpretation, then the court must next evaluate
whether another part of the jury instructions satisfactorily cures the
ambiguity.").
{18} Despite the error
in the jury instruction, the State seeks to save the conviction by directing us
to the language in
State v. Carnes,
97 N.M. 76, 78,
636 P.2d 895, 897 ,
which states, "The failure to instruct the jury on the
definition or
the amplification of the elements of an offense is not error when there has
been a failure to request such an instruction." (emphasis added). Both the
State and Court of Appeals cite with approval
Magby 's reference to
Carnes,
97 N.M. at 78, 636 P.2d at 897, to support the argument that a failure to
adequately define criminal negligence does not rise to the level of fundamental
error and reversal would be warranted in future cases only when the defendant
offered a curative definitional instruction.
Mascarenas,-NMCA-18,871,
slip op. at 4 (Jan. 13, 1999) (citing
Magby, 1998-NMSC-42, P18, 126 N.M.
at 365, 969 P.2d at 969). Based on this language, the Court of Appeals inferred
from
Magby 's citation to
Carnes that the omission of the
definition of "reckless disregard" in the instructions in this case
did not rise to the level of fundamental error.
See Mascarenas,-NMCA-18,871,
slip op. at 4 (Jan. 13, 1999). By relying on this language the State and the
Court of Appeals presupposes that the instruction on "reckless
disregard" in this case is a mere amplification or definition. We believe
the definition of "reckless disregard" is of central importance to
Mascarenas' defense, and therefore conclude that the Court of Appeals' and the
State's interpretation of
Magby and their reliance on
Carnes is
misplaced.
{19} Carnes and the
cases it relied upon involved claims of error predicated on the trial court's
failure to or refusal to accept jury instructions that required the
amplification or definition of terms.
Carnes, 97 N.M. at 78, 636 P.2d at
897. The Court in
Carnes held that the trial court's refusal to accept
defendant's tendered instruction defining the term "hostage" in
connection with kidnapping charges did not mandate reversal because the term
was not a technical term and because "jurors could properly apply the common
meaning of hostage . . . and the application of the common meaning did not
prejudice defendant."
Carnes, 97 N.M. at 79, 636 P.2d at 898
(internal citation omitted). "[A] failure to give a definitional
instruction is not a failure to instruct on an essential element."
State
v. Allen, 2000-NMSC-2, P76,
128 N.M. 482,
994 P.2d 728 (quoting
State v.
Crain,
1997-NMCA-101, P11,
124 N.M. 84,
946 P.2d 1095).
{20} In this case,
clearly the opposite situation exists from that in
Carnes. We find it
instructive that in
State v. Ervin, upon which
Carnes relies, the
Court stated, "The defendant did not make a tender nor was there evidence
which would make this amplification a critical determination."
96 N.M.
366, 367,
630 P.2d 765, 766 (1981) (no evidence presented that the failure to
define "dwelling" in connection with a burglary charge was a critical
determination). Mascarenas is not merely seeking an amplification of a term his
argument that the jury instructions should have included a definition of "reckless
disregard" to prevent confusion of the standard necessary to sustain a
conviction is, under these facts, a "critical determination." In this
case, the trial court's failure to provide the instruction was a critical
determination akin to a missing elements instruction.
See State v. Kirby,
1996-NMSC-69, PP3-6,
122 N.M. 609,
930 P.2d 144 (characterizing a jury
instruction that required the State prove the defendant unlawfully drove a wide
mobile home transport vehicle "such that an ordinary person would
anticipate that death might occur under the circumstances" as a failure to
instruct on the essential element of criminal negligence). Because Mascarenas'
defense theory rested on the claim that he was unaware of the risks associated
with SBS, we agree that the instructions, as provided, failed to conform to the
requirements we have outlined in
Magby and had the potential effect of
confusing the jury as to the proper standard of negligence to apply.
{21} There is simply
no way to determine that the jury delivered its verdict on a legally adequate
basis. Furthermore,
Magby 's finding that reversible error existed
because the trial court refused defendant's tendered instruction does not
preclude this Court from finding that the trial court's failure to define
criminal negligence despite Mascarenas' failure to object or tender a curative
instruction, also rises to the level of fundamental error. To allow Mascarenas'
conviction to stand when there is a distinct possibility that he was convicted
under a civil negligence standard and not the proper criminal negligence
standard would result in a miscarriage of justice and therefore we find that
fundamental error occurred.
{22} Notwithstanding
the existence of the fundamental error in the jury instructions, the State
argues that
Magby 's discussion of prospective and retroactive
application of judicial rules precludes relief in this case. The State directs
us to language in
Magby where this Court concluded that its holding had
"no bearing on cases in which a jury has already rendered a verdict,
unless a proper curative instruction was tendered and refused."
Magby,
1998-NMSC-42, P18, 126 N.M. at 365, 969 P.2d at 969 (citing
Carnes, 97
N.M. at 78, 636 P.2d at 897). Regarding the decision to only apply its holding
prospectively, the
Magby Court stated:
We stress that our holding on the negligent child
abuse instruction tendered in this case is not applicable retroactively to
other cases. As in Santillanes, our holding has only prospective
application to cases in which a verdict has not been reached and those cases on
direct review in which the issue was raised and preserved below.
Magby, 1998-NMSC-42, P18, 126 N.M. at 365, 969 P.2d at
969. Based on this language, the State argues this Court has no power to
redress the error in the jury instructions because Mascarenas did not tender a
curative instruction, a verdict had already been reached, and the case was
pending review at the time Magby was decided without having properly
preserved the issue for review. The Court of Appeals' unpublished memorandum
opinion agreed with the State's argument, holding, "[Mascarenas] cannot
avail himself of the Court's decision in Magby " because
"unlike that case [Mascarenas] failed to object to the jury instruction or
tender a curative instruction." Mascarenas,-NMCA-18,871, slip op.
at 4 (Jan. 13, 1999). We do not disagree with Magby 's recitation of the
principles of retroactive and prospective application of judicial decisions,
however, we hold that they are not relevant to this inquiry. Because this case
involves a claim of error requiring the clarification of an existing rule, and
not one premised on the application of a new judicial rule, we review for
fundamental error and are not bound by Magby 's prohibition of
retroactive application in this case.
{23} Magby relied on
Santillanes
to conclude that its holding on the negligent child abuse instruction was not
applicable retroactively to other cases and only prospectively to those cases
where a verdict had not been reached and to cases on direct review when the
issue was properly preserved.
See Magby, 1998-NMSC-42, P18, 126 N.M. at
365, 969 P.2d at 969. In
Santillanes, the Court invoked its inherent
power to "give its decision prospective or retroactive application without
offending constitutional principles." 115 N.M. at 223, 849 P.2d at 366
(citing
Lopez v. Maez,
98 N.M. 625, 632,
651 P.2d 1269, 1276 (1982)).
The
Santillanes Court, weighing the considerations outlined in
Linkletter
v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965), concluded
that the criminal negligence standard it adopted should be given only
prospective application.
See Santillanes, 115 N.M. at 224, 849 P.2d at
367.
5
{24} An appellate
court's consideration of whether a rule should be retroactively or
prospectively applied is invoked only when the rule at issue is in fact a
"new rule."
Santillanes considered whether its "
new
interpretation of 'negligently' under the child abuse statute, [was] to be
given retrospective or prospective application."
Santillanes, 115
N.M. at 223-25, 849 P.2d at 366-68 (emphasis added). There, we stated that
"the issue of retroactive effect arises only when a court's decision
overturns prior case law or makes new law when law enforcement officers have
relied on the prior state of the law."
Id. at 223, 849 P.2d at 366;
see also Jackson 1996-NMSC-54, P5, 122 N.M. at 435, 925 P.2d at 1197
(characterizing a new rule as one "where an appellate decision overrules
prior law and announces a new principle");
Beavers, 118 N.M. at
398, 881 P.2d at 1383 (quoting with approval
Whenry v. Whenry,
98 N.M.
737, 739, 652 P.2d 1,188 (1982), which stated "the decision to be applied
nonretroactively must establish a new principle of law, either by overruling
clear past precedent on which litigants may have relied, or by deciding an
issue of first impression whose resolution was clearly not
foreshadowed."). In
Teague v. Lane, 489 U.S. 288, 301, 103 L. Ed.
2d 334, 109 S. Ct. 1060 (1989), the United States Supreme Court acknowledged
the difficulties in considering whether a case announces a new rule stating:
"We do not attempt to define the spectrum of what
may or may not constitute a new rule for retroactivity purposes. In general,
however, a case announces a new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government. To put it differently, a
case announces a new rule if the result was not dictated by precedent existing
at the time the defendant's conviction became final."
(internal citations omitted).
{25} Based on this
reasoning, we find it more accurate to characterize the holding in
Magby
as merely a clarification of an existing rule and not a new rule.
See Kirby,
1996-NMSC-69, P5, 122 N.M. at 611, 930 P.2d at 146.
Magby 's holding did
not create a new rule that child abuse should be prosecuted under a criminal
rather than civil negligence standard - it merely requires that the jury be
properly instructed on the criminal negligence standard previously established
by
Santillanes.
{26} We find support
for this conclusion in
Kirby, 1996-NMSC-69,
122 N.M. 609,
930 P.2d 144.
In
Kirby, the Court was faced with the question of whether it should
apply a recently announced rule in
Yarborough that "the difference
'between reckless disregard' and 'would anticipate that death might occur'
evinces a failure to instruct on criminal negligence" retroactively or
prospectively.
Kirby concluded that "the rule of Yarborough was not
new law, it was a statement of what the law had been at all times applicable to
the instant case."
Kirby, 1996-NMSC-69, P5, 122 N.M. at 611, 930
P.2d at 146 (citing
State v. Yarborough,
120 N.M. 669, 672-73,
905 P.2d
209, 212-13 ).
{27} The same analysis
is applicable to the present case.
Magby 's holding does not represent a
new rule of law. It is merely a clarification of the existing rule of
Santillanes
: "The mens rea element of negligence in the child abuse statute . . .
requires a showing of criminal negligence instead of ordinary civil
negligence."
Santillanes, 115 N.M. at 222, 849 P.2d at 365. In this
case, as in
Kirby, we are only clarifying a "statement of what the
law had been at all times applicable to the instant case."
Kirby,
1996-NMSC-69, P5, 122 N.M. at 611, 930 P.2d at 146.
Magby did not
overturn prior case law and instead merely requires a trial court to fulfill
its obligation to ensure that a jury is properly instructed as to the correct
mens rea requirement for conviction.
See Santillanes, 115 N.M. at 223,
849 P.2d at 366;
Jackson, 1996-NMSC-54, P5, 122 N.M. at 435, 925 P.2d at
1197. Thus, we overrule
Magby only to the extent that it assumes its
holding requiring more precise identification of the distinctions between
criminal negligence and civil negligence is a new rule.
{28} This Court is not
bound by
Magby 's conclusions regarding retroactive application because
in this case we have determined that fundamental error exists. We conclude that
the reasoning advanced by
Magby fails to contemplate the inherent power
of this Court to review for fundamental error.
See Cunningham,
2000-NMSC-9, P21, 998 P.2d at 182. In
Kirby, we stated that retroactive
application of new rules operates independently of a fundamental error
analysis.
Kirby, 1996-NMSC-69, P4, 122 N.M. at 610-611, 930 P.2d at
145-146.
Kirby also involved a claim of error in the jury instructions
that was raised for the first time on appeal.
Kirby, 1996-NMSC-69, P3,
122 N.M. at 610, 930 P.2d at 145. A similar error in the jury instructions at
issue in
Kirby was adjudged to be reversible error in
Yarborough.
See Yarborough, 1996-NMSC-68,
122 N.M. 596,
930 P.2d 131. The
application of
Yarborough to the facts of
Kirby would mandate a
reversal, however, the Court of Appeals' unpublished memorandum opinion in
Kirby
declared that the rule
Yarborough announced could only have prospective
application and thus the Court of Appeals denied relief.
See Kirby,
1996-NMSC-69, P4, 122 N.M. at 610-611, 930 P.2d at 145-146. We agree with the
rule announced by this Court in
Kirby that "retrospectivity is
irrelevant if the trial court committed fundamental error in instructing the
jury."
Id. In reversing the Court of Appeals,
Kirby
concluded that the issue of whether
Yarborough should be applied
retroactively or prospectively was not a proper characterization of the issue.
There, this Court highlighted the relationship of fundamental error to the
question of retrospectivity: "the retrospectivity of
Yarborough is
irrelevant if the trial court committed fundamental error in instructing the
jury."
Id.
{29} Furthermore, we
have stated: "An exception to the general rule barring review of questions
not properly preserved below . . . applies in cases which involve fundamental
error. Fundamental error cannot be waived."
State v. Varela,
1999-NMSC-45, P11,
128 N.M. 454,
993 P.2d 1280 (quoting
State v. Osborne,
111 N.M. 654, 662,
808 P.2d 624, 632 (1991)). In
Acosta, the Court of
Appeals cited with approval
Kirby 's conclusion that "cases are not
final until there has been a judgment of conviction, sentence, and exhaustion
of rights of appeal." 1997-NMCA-35, P10,
123 N.M. 273,
939 P.2d 1081. In
the present case, Mascarenas had not already exhausted all his rights of
appeal.
{30} Since we hold
that this case involves a mere clarification of an existing rule and because we
believe that fundamental error exists in this case, we hold that we are not
bound by
Magby 's conclusion that its holding should be applied only
prospectively.
{31} Mascarenas also
claims that there was insufficient evidence to support his conviction. Although
we reverse Mascarenas' conviction and remand for a new trial based on the
deficiencies in the jury instructions, we believe it prudent to address his
claim regarding the sufficiency of the evidence.
See United States v. Miller,
952 F.2d 866, 874 (5th Cir. 1992) ("Although not mandated by the double
jeopardy clause, it is accordingly clearly the better practice for the
appellate court on an initial appeal to dispose of any claim properly presented
to it that the evidence at trial was legally insufficient to warrant the thus
challenged conviction.");
see also State v. Rosaire,
1996-NMCA-115,
P20,
123 N.M. 250,
939 P.2d 597 (stating, "our review of the sufficiency
of the evidence is analytically independent from the issue of the defect in the
jury instruction."). By addressing Mascarenas' claim of insufficient
evidence and determining that retrial is permissible, we ensure that no double
jeopardy concerns are implicated.
See Rosaire,
1996-NMCA-115, P20, 123
N.M. at 254, 939 P.2d at 601 ("We hold that where the trial court errs by
failing to instruct the jury on an essential element of the crime, retrial
following appeal is not barred if the evidence below was sufficient to convict
the defendant under the erroneous jury instruction.");
State v. Post,
109 N.M. 177, 181,
783 P.2d 487, 491 ("If all of the evidence, including
the wrongfully admitted evidence, is sufficient, then retrial following appeal
is not barred [by the Double Jeopardy Clause].").
{32} At trial,
emergency medical technicians, medical experts and several of Matthew's
treating doctors testified about the extent of the injuries and suggested that
only repeated hard shakes could have caused Matthew's injuries. Mascarenas also
testified about the circumstances surrounding the shaking of the baby. We
conclude that reasonable minds could infer that Mascarenas had the requisite
intent necessary to support a conviction under the negligent child abuse
statute and therefore that retrial is permissible.
See State v. Allen,
2000-NMSC-2, P65,
128 N.M. 482,
994 P.2d 728 (stating that circumstantial
evidence may be used to prove intent);
see also Rosaire,
1996-NMCA-115,
P21, 123 N.M. at 254-255, 939 P.2d at 601-602 ("We consider all of the
evidence in support of conviction under the erroneous jury instruction to
determine whether Defendant is entitled to acquittal as opposed to
retrial.").
{33} Therefore, for
the foregoing reasons, we reverse Mascarenas' conviction and remand for a new
trial.
PAMELA B. MINZNER, Chief Justice
GENE E. FRANCHINI, Justice
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
1
We note that Mascarenas was convicted under the statute, as amended through
1989, prior to the adoption of the 1997 amendment to Section 30-6-1. Unless
otherwise indicated, our discussion of Section 30-6-1 refers to the 1989
statute.
2
This Court has adopted the new UJI Rule 14-602, effective February 1, 2000.
Unless otherwise indicated, all references to Rule 14-602, are to the rule as
it existed prior to the latest changes.
3
We note that UJI 14-602 was amended in 1993 in response to the requirements
articulated in Santillanes.
4
The instruction tendered by Magby read:
"For you to find that the Defendant acted recklessly in
this case, you must find that he knew or should have known that his conduct
created a substantial and foreseeable risk, that he disregarded that risk and
that he was wholly indifferent to the consequences of his conduct and to the
welfare and safety of others."
5
We note that our recent opinion in State v. Ulibarri recognized that Santillanes
"failed to mention that the United States Supreme Court had abandoned the Linkletter
approach." State v. Ulibarri, 1999-NMCA-142, PP21-23, 128 N.M. 546,
994 P.2d 1164, aff'd, 2000-NMSC-7, 128 N.M. 686, 997 P.2d 818; see
Griffith v. Kentucky, 479 U.S. 314, 322, 93 L. Ed. 2d 649, 107 S. Ct. 708
(1987) (stating that the "failure to ap a newly declared constitutional
rule to criminal cases pending on direct review violates basic norms of
constitutional adjudication"); Ulibarri also observed that
"New Mexico courts have not dealt comprehensively with the issue of
retroactivity in the context of criminal cases as yet." In the context of
criminal cases, Ulibarri appears to continue New Mexico's departure from
United States Supreme Court precedent on the issue of retroactivity by relying
on the criteria set forth in Linkletter and echoed by Santillanes.
See also, Jackson v. State, 1996-NMSC-54, P6, 122 N.M. 433, 925
P.2d 1195 (citing with approval Santillanes ' and Linketter 's
case-by-case determination of prospective or retroactive application of new
rules); see also Beavers v. Johnson Controls World Servs., 118 N.M. 391,
393, 881 P.2d 1376, 1378 (1994) (expressly declining to follow the United
States Supreme Court's rule of universal retroactivity in civil cases announced
in Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 113, 125 L. Ed. 2d
74, 113 S. Ct. 2510 (1993)). We note that our discussion of the issue of
retroactive or prospective application of new rules is limited only to an
explanation of why it is inapplicable to this case.