State v. Benally

{1} Defendant was convicted of second-degree murder and tampering with evidence for his involvement in the death of Marco LaPlant following a fight at an outdoor party near Farmington, New Mexico. On appeal, Defendant argues that his conviction must be reversed because errors in the jury instructions prevented the jury from appreciating that the State had the burden of disproving self-defense. The Court of Appeals determined that a third, correct jury instruction cured the error in two instructions that had failed to explain the State’s burden. We reverse the Court of Appeals and hold that, because of its distance from the erroneous elements instruction and the unlikelihood that the jury would, sua sponte, graft language from a proper instruction onto improper instructions, the single proper instruction did not correct the improper self-defense instruction. The erroneous instruction therefore constituted fundamental error. We reverse Defendant’s second-degree murder conviction and remand for a new trial.

I.

{2} At a late night outdoor party at “the levels,” near Farmington, New Mexico, a fight broke out between Defendant and Orlando Delagrito. A friend of Defendant, Christopher Johnson, intervened and chased Mr. Delagrito to a green Chevrolet Nova. When Mr. Delagrito entered the Nova, Christopher Johnson and a third friend threw rocks at the car and challenged Mr. Delagrito to fight. The Nova drove off, but not before a rock shattered a rear window of the vehicle.

{3} The Nova belonged to the victim, Marco LaPlant, a friend of Mr. Delagrito. Mr. LaPlant had witnessed the vandalism of his vehicle and followed the Nova on foot as Mr. Delagrito drove it to safety. After approximately fifteen minutes, an angered Mr. La-Plant drove his Nova back to the levels, where Mr. Johnson had rejoined Defendant and some fourteen other people. The Nova kicked up a cloud of dust as Mr. LaPlant slammed on the brakes next to a truck where the group was gathered. Mr. LaPlant emerged from the vehicle brandishing a car jack that most witnesses believed was a gun. Someone yelled “gun” while everyone scrambled to hide. As Mr. LaPlant approached, Defendant, who had been hiding behind the truck, struck Mr. LaPlant on either the head or shoulder with an empty bottle of whiskey. Defendant and Mr. LaPlant then continued fighting.

{4} The parties dispute the events that followed. According to Mr. Johnson, a witness for the prosecution, when Mr. LaPlant gained position on top of Defendant, Mr. Johnson picked up a large, heavy rock and used it to strike Mr. LaPlant on the back. Mr. Johnson testified that he then helped Defendant to his feet and temporarily left the scene of the fight to go vandalize Mr. LaPlant’s Nova. As he left, numerous people, including Defendant, were kicking and punching Mr. LaPlant. When he returned, Mr. Johnson found Mr. LaPlant covered in blood and breathing irregularly. Mr. Johnson testified that he and Defendant then got in a car, but before they could leave, Defendant exited the car and approached Mr. La-Plant. According to Mr. Johnson, Defendant kicked Mr. LaPlant in the side and then dropped a large rock onto the victim. Mr. Johnson did not see where the rock landed.

{5} The State also produced evidence regarding statements allegedly uttered by Defendant during the fray. Eyewitness Danielle Enos and her sister Dacia both testified that they heard Defendant tell Mr. LaPlant “croak, motherfucker, croak.” Titus Jacquez testified that Defendant declared that he would have to kill Mr. LaPlant so he would not have to “worry,” and then said “later” as he kicked Mr. LaPlant in the face. Mr. Johnson did not remember or could not hear what, if anything, Defendant said to Mr. LaPlant.

{6} Although many witnesses saw Mr. Johnson strike Mr. LaPlant with a rock, only Mr. Johnson, a co-defendant in the ease, offered testimony that Defendant struck the victim with a rock. Defendant attacked Mr. Johnson’s testimony by raising inconsistencies between his testimony and pre-trial statements. Defendant also attempted to discredit Mr. Johnson’s testimony by suggesting that Mr. Johnson, who had pleaded guilty to first degree murder, received a lighter sentence (ten years maximum) and a postponement of that sentence in exchange for his testimony.

{7} According to Defendant, after Mr. La-Plant’s Nova came speeding toward the group with whom he had gathered, he heard people yell “gun.” Defendant admitted that he hit Mr. LaPlant with a whiskey bottle but claimed that he made contact with his shoulder rather than his head. He said that while Mr. LaPlant had him pinned to the ground he heard someone say “get back,” then heard three cracks above him before someone removed Mr. LaPlant from on top of him. Defendant got up and started kicking Mr. LaPlant but could not recall if some of the blows landed on Mr. LaPlant’s head. According to Defendant, he entered a friend’s car, but exited the vehicle in order to smash the Nova’s headlights and windshield. He then returned to the car and left the levels. Defendant testified that he never revisited Mr. LaPlant’s body after the initial fight, that he never hit Mr. LaPlant with a rock, and that he neither voiced nor entertained a desire to kill Mr. LaPlant.

{8} According to Dr. Patricia McFeeley, the State’s pathologist/medical examiner, the victim died' as a result of brain swelling caused by a combination of blows to the head. Dr. McFeeley testified that the fatal head injuries could have been dealt by a bottle, a rock, or a kick to the head regardless of the kind of footwear worn by the person kicking. Dr. Karen Griest, a forensic pathologist hired by Defendant, identified the cause of death as trauma from a “rigid, heavy object.” Dr. Griest testified that it was unlikely that a kick leveled by someone wearing tennis shoes of the sort worn by Defendant on the night in question could have caused Mr. LaPlant’s death. Dr. Griest also observed that there were no glass fragments in the victim’s scalp or clothes.

{9} The jury acquitted Defendant of first-degree murder and convicted him of second-degree murder and tampering with evidence. Defendant received a sentence of fifteen years for the murder and eighteen months for tampering with evidence. On appeal, among other issues, Defendant asserted that the trial court committed fundamental error by giving jury instructions that did not adequately treat his self-defense claim. State v. Benally, No 19,897, at p. 1 (NMCA Feb. 21, 2000). A divided Court of Appeals held that the errors in the jury instructions did not amount to fundamental error and affirmed

Defendant’s conviction. Id. at pp. 3-10. In a dissenting opinion, Judge Bustamante argued that the erroneous jury instructions did amount to fundamental error. Id. at pp. 8-9. We granted certiorari to review the instructions.

II.

{10} The trial court determined that self-defense was at issue in this case and gave the jury a series of self-defense instructions. Defendant alleges that three errors resulting from those instructions require the reversal of his conviction. First, instruction 12, the elements instruction for second-degree murder, failed to include the element of unlawfulness. Unlawfulness is an essential element of the offense in cases, like the present one, in which self-defense or defense of another is at issue. State v. Parish, 118 N.M. 39, 43, 878 P.2d 988, 992 (1994) (“[W]hen self-defense or the defense of others is at issue, the absence of such justification is an element of the offense.”) (internal citations omitted). In order to prove unlawfulness, the State must disprove the defendant’s self-defense claim beyond a reasonable doubt. See id. According to Defendant, the failure to include unlawfulness among the elements of second-degree murder prevented the jury from understanding the State’s burden.

{11} In addition to the omission of unlawfulness from instruction 12, Defendant complains that instruction 15, which followed the instructions for homicide offenses, described self-defense in non-deadly force cases rather than in homicide cases. Finally, Defendant observes that instruction 15 failed to explain that the State shouldered the burden of proving that Defendant did not act in self-defense. Because we determine that the omission of unlawfulness from instruction 12 constituted fundamental error, we do not review these claims independently.

{12} The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review the instructions for reversible error. See Parish at 42, 878 P.2d at 991. If not, we review for fundamental error. State v. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176. Under both standards we seek to determine “ “whether a reasonable juror would have been confused or misdirected’ by the jury instruction.” Cunningham, 2000-NMSC-009, ¶ 14, 128 N.M. 711, 998 P.2d 176 (quoting Parish, 118 N.M. at 42, 878 P.2d at 991). A juror may suffer from confusion or misdirection despite the fact that the juror considers the instruction straightforward and “perfectly comprehensible” on its face. Parish, 118 N.M. at 44, 878 P.2d at 993. Thus, juror confusion or misdirection may stem not only from instructions that are facially contradictory or ambiguous, but from instructions which, through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law.

{13} In Parish, a defendant standing trial for voluntary manslaughter presented evidence that raised a reasonable possibility that he acted in self-defense. Parish, 118 N.M. at 42, 878 P.2d at 991. Parish tendered an instruction that listed the absence of self-defense as an element of voluntary manslaughter, but the trial court rejected that instruction. Id. at 44, 878 P.2d at 993. Although not required by the Uniform Jury Instructions at the time, we held that reversible error nevertheless resulted from the trial court’s failure to include the element of unlawfulness among the other elements of voluntary manslaughter. Id. at 43-44, 878 P.2d at 992-93. The erroneous voluntary manslaughter instruction could not be corrected by other instructions. Id. at 44, 878 P.2d at 993.

{14} In State v. Armijo, 1999-NMCA-087, ¶¶ 11-27, 127 N.M. 594, 985 P.2d 764, the Court of Appeals evaluated a set of jury instructions that were slightly different from those in Parish. As in Parish, the trial court had instructed the jury on self-defense but failed to include unlawfulness as an element in the instructions for the relevant offense. Armijo, 1999-NMCA-087, ¶11, 127 N.M. 594, 985 P.2d 764. The Armijo Court distinguished its case from Parish, however, because in Parish, apart from the error in the elements section, the general self-defense instruction had also failed to properly state the State’s burden of disproving self-defense. Armijo, 1999-NMCA-087, ¶¶ 15-17, 127 N.M. 594, 985 P.2d 764 (citing Parish at 44, 878 P.2d at 993). In Armijo, on the other hand, the general self-defense instruction did state the proper burden of proof. Id. The Armijo Court held that in determining the sufficiency of jury instructions, “it is sufficient if [the State’s burden to disprove self-defense] is in the defense instruction, even if not in the elements instruction, provided that no other instruction causes the defense instruction to be confusing or meaningless.” Id. at ¶ 26. Because the self-defense instruction given to jury in Armijo accurately described this burden, the Court affirmed the defendant’s aggravated battery conviction. Id. at ¶ 28.

{15} In Cunningham, we elaborated on the capacity of other instructions to cure an elements instruction that improperly omits unlawfulness. Cunningham involved a first-degree murder conviction based on an elements instruction that, like the instructions at issue in Parish and Armijo, failed to include unlawfulness. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176. Unlike the defendant in Parish, Cunningham failed to object to the erroneous instruction. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176. We therefore reviewed his claim for fundamental error, not reversible error. Id. Under the fundamental error analysis in Cunningham, we sought to determine whether the erroneous jury instruction was “corrected by subsequent proper instructions that adequately address[ ] the omitted element.” Id. at ¶ 21. After examining the record as a whole, we affirmed Cunningham’s conviction because a separate instruction correctly stated the element at issue, thereby erasing the possibility of juror confusion on the matter. Id. at ¶ 14.

{16} In New Mexico, then, unpreserved error in jury instructions is “fundamental” when it remains uncorrected, thereby allowing juror confusion to persist. Because both parties in the present ease agree that instruction 12 was erroneous, and that Defendant failed to object to that error, we now employ Cunningham and review the case for fundamental error. Examining the whole record, we seek to determine whether the erroneous omission of the burden of proof from instruction 12 was corrected so as to eliminate juror confusion.

III.

{17} The incomplete elements instruction in the present case was followed by two self-defense instructions: instruction 15, which also omitted the State’s burden, and instruction 25, which included the correct burden. The State argues that, notwithstanding instruction 15, instruction 25 corrected all possible confusion stemming from instruction 12. We agree with the State, and with the Court of Appeals, that instruction 25 was proper: it represented a precise adaptation of UJI 15-5183, and, most importantly, explained to the jury that “[t]he burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense.” Benally, 19,897, at p. 3. It is therefore clear that the jury understood the State’s burden with regal’d to the set of offenses to which instruction 25 pertained. We now address whether instruction 25 was capable of rescuing the jury from the confusion that stemmed from the omission in instruction 12.

{18} We begin our evaluation of the corrective capacity of instruction 25 with the common sense proposition that the jury understands the inclusion and omission of language in a jury instruction to reflect the intent of its author. Just as a jury expects an element included in an instruction to reflect the intent to include that element within the relevant law, the jury would naturally assume that the omission of an element reflects the intent to exclude that element from the law governing the issue. When posed with instruction 25 that included the State’s burden of proof, and instructions 12 and 15, which omitted the burden, we believe that a juror would be inclined to believe that the author of instructions 12 and 15 intended the omission, and that the State’s burden of proof was therefore not part of those instructions. Thus, in order to correct the error in instruction 12, instruction 25 must have convinced the jury that its correct statement of the burden of proof applied not only to the offenses it addressed, but also to the offense of second-degree murder, which instruction 12 addressed.

{19} Nothing on the face of the instructions, nor in their placement, suggested to the jury that the burden of proof from instruction 25 applied to second-degree murder. Instruction 25 addressed aggravated battery and voluntary manslaughter rather than second-degree murder, and a span of thirteen instructions separated it from instruction 12. The comparative nearness of erroneous instruction 15 to instruction 12 suggests that the jury would apply it, before the more remote instruction 25, to second-degree murder.

{20} The inapplicability of instruction 25 to second-degree murder would probably have been reinforced in the minds of the jury by other instructions. Instruction 9, which admonished the jury that “[e]ach crime charged should be considered separately,” would have buttressed their logical inclination to consider the instructions accompanying the manslaughter and battery offenses separately from the instructions accompanying second-degree murder. UJI 14-6004 NMRA 2001. Instruction 1, which ordered the jury not to “pick out one instruction or parts of an instruction and disregard others,” would have prevented the jury from interposing language from instruction 25 onto instructions 12 and 15. UJI 14-6001 NMRA 2001. We believe it is likely that at least some jurors would have perceived the two inconsistent instructions in a manner consistent with that theorized by Judge Bustamante in his dissent:

I believe I would be very confused by the two self defense instructions, and that, in an effort to make sense of them, I would apply the erroneous self defense instruction to the first degree and second degree murder charges which it follows, and would apply the correct jury instruction to the voluntary manslaughter and aggravated battery instruction which it follows.

Benally, 19,897 at p. 10. Because we do not believe that a reasonable juror, following the given instructions, would graft the correct burden of proof from instruction 25 to the offense of second-degree murder, we hold that instruction 25 could not have corrected the omitted element from instruction 12.

IV.

{21} The State also argues that the prosecutor’s remarks during her closing statement, in which she read instruction 25 and reminded the jury of the State’s burden of proof, supports the conclusion that a reasonable juror would not have been confused or misled as to the appropriate burden of proof. We do not agree that attorney commentary is capable of correcting an erroneous jury instruction. We presume that the jury followed the instructions given by the trial court, not the arguments presented by counsel. State v. Baca, 1997-NMSC-045, ¶45, 124 N.M. 55, 946 P.2d 1066 (“[W]e are not willing to assume that the jury took the comment during closing and applied it as the law governing the case, ignoring the instructions given by the court.”); State v. Armendarez, 113 N.M. 335, 338, 825 P.2d 1245, 1248 (1992) (“We presume that the jury followed the written instructions and did not rely for its verdict on one very brief part of the State’s closing remarks.”). For these reasons, the prosecutor’s closing argument was incapable of correcting the fundamental error that resulted from the defective jury instructions. Neither have we found any other indication, either within the instructions or the record as a whole, that the jury overcame the error in instruction 12 and reached an accurate understanding of the State’s burden of proof.

V.

{22} The juror confusion and misdirection resulting from instruction 12 remained uncorrected and resulted in fundamental error under the Cunningham standard. Cunningham, 2000-NMSC-009, ¶20, 128 N.M. 711, 998 P.2d 176. We therefore reverse Defendant’s conviction and remand for a new trial.

{23} IT IS SO ORDERED.

PAMELA B. MINZNER and PETRA JIMENEZ MAES, JJ„ concur.

JOSEPH F. BACA, J., and PATRICIO M. SERNA, C.J., dissented.

.Instruction 12 read as follows:

For you to find the defendant guilty of second degree murder, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant killed Marco LaPlant[ ];

2. The defendant knew that his acts created a strong probability of death or great bodily harm to Marco LaPlant;

3. The defendant did not act as a result of sufficient provocation;

4. This happened in New Mexico on or about the 7th day of July, 1997.

Instructions 10 and 18, listing the elements for first degree murder and voluntary manslaughter, respectively, also erroneously omitted the element of unlawfulness. However, because Defendant was not convicted of either first degree murder or voluntary manslaughter, we do not address these errors.

.Instruction 15 informed the jury that:

Evidence has been presented that the Defendant acted while defending himself.

The Defendant acted in self-defense if:

1. There was an appearance of immediate danger of death or great bodily harm to the Defendant as a result of being attacked with a deadly weapon by Marco LaPlant[ ]; and

2. The Defendant was in fact put in fear, by the apparent danger of immediate death or great bodily harm and struck Marco LaPlant[ ] because of that fear; and

3. The apparent danger would have caused a reasonable person in the same circumstances to act as the Defendant did.

In considering this defense, and after considering all the evidence in the case, if you have a reasonable doubt as to the Defendant’s guilt, you must find him not guilty.

. Instruction 25 provided:

Evidence has been presented that the defendant acted in self-defense. The defendant acted in self-defense if:

1. There was an appearance of immediate danger of death or great bodily harm to the defendant as a result of being attacked by Marco LaPIant[ ] with a deadly weapon;

2. The defendant was in fact put in fear of immediate death or great bodily harm and struck Marco LaPlant[ ];

3.The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did.

The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self-defense. If you have a reasonable doubt as to whether the defendant acted in self-defense, you must find the defendant noft] guilty.

(Emphasis added).