State v. Jernigan

Page 537

127 P.3d 537

2006 NMSC 003

STATE of New Mexico, Plaintiff-Respondent, v. Tremaine JERNIGAN, Defendant-Petitioner.

No. 28,525.

Supreme Court of New Mexico.

December 16, 2005.

Rehearing Denied January 20, 2006.

COPYRIGHT MATERIAL OMITTED

John Bigelow, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Respondent.

Freedman Boyd Daniels Hollander & Goldberg P.A., Zachary A. Ives, Albuquerque, NM, Amicus Curiae, New Mexico Criminal Defense Lawyers Association.

OPINION

CHÁVEZ, Justice.

{1} Defendant was convicted of second-degree murder for the killing of Jerome Scott, attempted second-degree murder for the shooting of Chris Washington, and tampering with evidence. For these convictions, Defendant was sentenced to twenty-eight years in prison. His basic sentence of nineteen years and six months was enhanced by six years and six months based on the trial court's finding of aggravating circumstances.¹ Defendant contends that his convictions for both second-degree murder and attempted second-degree murder should be reversed because the trial court erred in refusing to instruct the jury on defense of another. As an additional ground for reversing his conviction for attempted second-degree murder, Defendant contends the trial court erred in refusing to instruct the jury on attempted voluntary manslaughter. Finally, Defendant contends that it was unconstitutional for the trial judge to enhance his sentence by finding aggravating circumstances based on facts not found by the jury. The Court of Appeals affirmed Defendant's convictions and sentencing. We granted Defendant's Petition for Certiorari.

{2} We hold that the evidence presented did not support Defendant's theories of defense of another for the shooting of Washington or the killing of Scott. As a matter of first impression, we hold that under limited circumstances attempted voluntary manslaughter is a crime in New Mexico. Because Defendant presented evidence of sufficient provocation for the shooting of Washington, and the jury was instructed on attempted second-degree murder with lack of sufficient provocation as an element, the district court should have instructed the jury on attempted voluntary manslaughter. Having refused the tendered attempted voluntary manslaughter instruction, we reverse Defendant's conviction for attempted second-degree murder and remand for a new trial. Finally, we hold that it was constitutional for the trial court to enhance Defendant's sentence based on aggravating circumstances found by the court and not a jury based on this Court's recent opinion in State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754.

I. DEFENSE OF ANOTHER JURY INSTRUCTION

{3} Defendant argues the trial court erred in refusing to instruct the jury on defense of another for the shooting of Washington and killing of Scott. An instruction on defense of another should be given if "the evidence is sufficient to allow reasonable minds to differ as to all elements of the defense." State v. Lopez, 2000-NMSC-003, ¶ 23, 128 N.M. 410, 993 P.2d 727 (internal citation omitted); see also State v. Coffin, 1999-NMSC-038, ¶ 12, 128 N.M. 192, 991 P.2d 477 (stating that the possible existence of such a reasonable belief is why we recognize self-defense as a complete justification to homicide). Failure to instruct a jury on a defendant's theory of the case is reversible error. State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69.

{4} To receive the defense of another instructions for the shooting of Washington and killing of Scott, Defendant would have had to present sufficient evidence there was an appearance that Jessica Runningwater ("Jessica") was in immediate danger of death or great bodily harm from Washington or Scott, and that Defendant's actions would have prevented such harm. See UJI 14-5184 NMRA. Defendant failed to present such evidence as to either the shooting of Washington or the killing of Scott.

{5} Defendant testified that on the night of the shooting, Washington came looking for Washington's girlfriend, Jessica, at the trailer where Defendant was partying with Jessica and others. Defendant testified that he was outside the trailer urinating when Washington and his friends arrived and entered the trailer. After hearing screams coming from inside the trailer, Defendant testified he reentered the trailer and saw "Washington ... standing over [Jessica] hitting her in the head." Defendant testified he grabbed Washington by the arm and told him to stop beating Jessica, and that Washington ordered Jessica outside. Once outside, Defendant testified he saw Washington grab Jessica by the hair, hit her in the head again and then chase Jessica around the vehicles parked in front of the trailer. According to Defendant, because Jessica was screaming for his help, he told Washington, "you want to hit on the woman, hit on me." Defendant testified he then pushed Washington, who fell back away from him. After falling back, Defendant testified Washington came toward him "coming out of his waistline area" as though he were pulling a pistol. Defendant testified, "At first when we were all out there arguing, I thought it was just going to be a little scrap or scuffle ... and that was it. But when I seen him go for the gun, I was scared." Defendant also testified, "In my mind, when I seen his hand go for his crotch area, I thought he had a pistol. That's the only reason I shot at him." Although the evidence shows Jessica was clearly at risk of some injury, it does not support the view that Defendant believed Jessica was in imminent danger of death or great bodily harm so as to warrant a defense of another instruction for the shooting of Washington.

{6} Even less testimony was offered by Defendant to support an instruction for defense of another for the killing of Scott. Defendant testified that "[Scott] wasn't the violent one.... Only reason I shot [Scott] is because he went to the car and he was coming back and ... he looked like he had ... a gun in his hand." This evidence does not support an instruction for defense of another for the killing of Scott, as it does not support any appearance of imminent death or great bodily harm to Jessica.²

{7} Viewing the evidence in the light most favorable to giving the requested instruction, see State v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 139, we hold Defendant did not present sufficient evidence to allow reasonable minds to differ as to all elements of the defense of another. We affirm the trial court's decision not to instruct the jury on defense of another.

II. ATTEMPTED VOLUNTARY MANSLAUGHTER JURY INSTRUCTION

{8} Defendant was charged with attempt to commit murder against Washington. While the parties and the court were settling jury instructions, Defendant's attorney tendered an instruction entitled "attempt to commit the crime of manslaughter." However, the tendered instruction included only the elements for an "attempt to commit a felony" instruction. See UJI 14-2801 NMRA (requiring the State to prove beyond a reasonable doubt that: (1) the defendant intended to commit the crime; (2) the defendant began to do an act which constituted a substantial part of the crime but failed to commit the crime; and (3) the attempt took place on a certain date). Defendant argued below, and now argues on appeal, that because the court was going to instruct the jury on attempted second-degree murder, there was evidence of sufficient provocation to entitle him to an instruction on "attempted manslaughter."

A. DEFENDANT ADEQUATELY PRESERVED THE ISSUE FOR REVIEW

{9} The State's primary argument is that Defendant failed to properly preserve this issue for review because his tendered instruction was an incorrect statement of the law. The instruction tendered by the Defendant was for "attempt to commit the crime of manslaughter." Thus, the State contends that since "attempted manslaughter" is not a crime in New Mexico, the tendered instruction was an incorrect statement of the law. Defendant claims that it was clear from the discussions that the attorneys and the judge knew he was asking for an "attempted voluntary manslaughter" instruction. The State points out that Defendant also did not tender an instruction defining the elements of attempted voluntary manslaughter. The trial court indicated that aggravated battery was the appropriate instruction and refused the tendered instruction.

{10} Generally, to preserve error on a trial court's refusal to give a tendered instruction, the Appellant must tender a legally correct statement of the law. State v. Foster, 1999-NMSC-007, ¶ 54, 126 N.M. 646, 974 P.2d 140. However, if the record reflects that the judge clearly understood the type of instruction the Defendant wanted and understood the tendered instruction needed to be modified to correctly state the law, then the issue is deemed preserved for appellate review. Hill, 2001-NMCA-094, ¶ 7, 131 N.M. 195, 34 P.3d 139. The rationale for allowing such flexibility regarding preservation is reinforced by the actual purpose of Rule 5-608(D) NMRA,³ which is to alert the trial court to the defendant's argument. See Hill, 2001-NMCA-094, ¶ 7, 131 N.M. 195, 34 P.3d 139.

{11} The record in this case demonstrates that the judge understood Defendant was asking for an "attempted voluntary manslaughter" instruction. See id. The following discussion took place with respect to Defendant's requested instruction number 10, "attempt to commit the crime of manslaughter":

Ms. Stevens (State's Attorney): I would strongly object to that. Manslaughter is simply — it's second-degree murder reduced because of provocation. There wouldn't be an attempted manslaughter. Would be an aggravated battery. Which is that he knew his acts created a strong probability of great bodily harm. That's...