{ "id": 1594902, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Julian Victor PRIVETT, Defendant-Appellant", "name_abbreviation": "State v. Privett", "decision_date": "1986-04-11", "docket_number": "No. 15852", "first_page": "79", "last_page": "83", "citations": [ { "type": "official", "cite": "104 N.M. 79" }, { "type": "parallel", "cite": "717 P.2d 55" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "125 Ariz. 484", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1597263 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ariz/125/0484-01" ] }, { "cite": "94 N.M. 172", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573043 ], "year": 1980, "pin_cites": [ { "page": "173-74" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0172-01" ] }, { "cite": "93 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568803 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "defendant not entitled to instruction where record devoid of any evidence that claimed intoxication rendered him incapable of acting purposefully" }, { "parenthetical": "defendant not entitled to instruction where record devoid of any evidence that claimed intoxication rendered him incapable of acting purposefully" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0773-01" ] }, { "cite": "100 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588699 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nm/100/0487-01" ] }, { "cite": "94 N.M. 706", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573175 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "where defendant testified that his son had shot the victim, it was error to refuse a voluntary manslaughter instruction if there was evidence to support it." }, { "parenthetical": "where defendant testified that his son had shot the victim, it was error to refuse a voluntary manslaughter instruction if there was evidence to support it." } ], "opinion_index": 0, "case_paths": [ "/nm/94/0706-01" ] }, { "cite": "83 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337260, 5338631 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0259-02", "/nm/83/0259-01" ] }, { "cite": "83 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335988 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0269-01" ] }, { "cite": "76 N.M. 578", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503747 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0578-01" ] }, { "cite": "98 N.M. 734", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582557 ], "weight": 2, "pin_cites": [ { "page": "735" }, { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0734-01" ] }, { "cite": "98 N.M. 527", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582520 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0527-01" ] }, { "cite": "567 P.2d 486", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 637", "category": "reporters:state", "reporter": "N.M.", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 256", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0256-01" ] }, { "cite": "86 N.M. 689", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823205 ], "weight": 4, "pin_cites": [ { "page": "690" }, { "page": "1283" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0689-01" ] }, { "cite": "94 N.M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573120 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "234" }, { "page": "1116" } ], "opinion_index": 1, "case_paths": [ "/nm/94/0232-01" ] }, { "cite": "94 N.M. 172", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573043 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "174" }, { "page": "150", "parenthetical": "Emphasis added." } ], "opinion_index": 1, "case_paths": [ "/nm/94/0172-01" ] }, { "cite": "93 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568803 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "defendant not entitled to instruction where record did not contain any evidence that defendant's intoxication rendered him incapable of acting purposefully" }, { "parenthetical": "defendant not entitled to instruction where record did not contain any evidence that defendant's intoxication rendered him incapable of acting purposefully" } ], "opinion_index": 1, "case_paths": [ "/nm/93/0773-01" ] } ], "analysis": { "cardinality": 803, "char_count": 16921, "ocr_confidence": 0.763, "pagerank": { "raw": 1.6779140749603058e-07, "percentile": 0.6970056941543696 }, "sha256": "70eb03870f3e0bfeafc0d1c412e4eab3372bfa8acd2072a57f89c94e4f7841f6", "simhash": "1:920460e27bafc8f8", "word_count": 2796 }, "last_updated": "2023-07-14T22:33:25.530063+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SOSA, Senior Justice, and FEDERICI, J., concur.", "RIORDAN, C.J. and STOWERS, J. dissent." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Julian Victor PRIVETT, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWALTERS, Justice.\nDefendant Privett appeals from a conviction of first degree murder on two grounds:\n(1) The trial court erred in refusing to instruct the jury on diminished responsibility resulting from intoxication (NMSA 1978, UJI Crim. 41.10) (Repl.Pamp.1982)).\n(2) The trial judge\u2019s conduct deprived defendant of a constitutionally fair trial.\nBecause it was error to refuse defendant\u2019s requested instruction, we do not reach the second issue.\nThe evidence in this case was circumstantial. At approximately 8:15 a.m. on August 31, 1984, a family acquaintance (Mrs. Cos-per) went to the Privett home in response to defendant Privett\u2019s call for help. When she arrived, she found that defendant\u2019s wife was unable to walk and had multiple bruises, contusions and abrasions on her body. Defendant and Mrs. Cosper assisted Mrs. Privett into bed and Mrs. Cosper left around 9:00 a.m. after defendant promised that he would call an ambulance.\nApproximately an hour later, Mrs. Cos-per returned with her brother and a friend and was told by defendant that Mrs. Privett had fallen out of bed and he had \u201cjust throwed her back on.\u201d After conversing with defendant for about five minutes, Mrs. Cosper went into the bedroom and found Mrs. Privett dead.\nAt trial, Mr. Privett testified that his wife had lost her equilibrium and had fallen repeatedly during the 36 hours preceding her death. He stated that he suffered from arthritis and was not fully able to help his wife so, on one occasion, she had crawled from the bedroom to the kitchen. He denied having hit her and said she had refused to go to the hospital because she was on probation for DWI and \u201chad too much alcohol in her.\"\nAccording to pathologist witnesses, over 90% of Mrs. Privett\u2019s injuries occurred within 24 hours of her death, the wounds being inconsistent with those caused by falling. The Privetts\u2019 daughter and grandson testified that Mr. Privett had beaten his wife in the past, that his personality changed when he was drinking, and that sometimes he became violent. Evidence showed, too, that Mr. Privett suffered from occasional alcoholic blackouts.\nMrs. Privett was also an alcoholic. She had a medical history of bruising easily, of severe lung disease, and a recent history of dizzy spells. The cause of her death was pneumonia which was either caused or aggravated by her broken ribs.\nThe trial court refused defendant\u2019s tendered instructions on voluntary and involuntary manslaughter and on diminished responsibility resulting from intoxication. The jury was instructed on first and second degree murder; it returned a verdict of first degree murder. Mr. Privett was immediately sentenced to life imprisonment. He does not appeal the refusal of his requested manslaughter instructions.\nThe specific, deliberate intent to kill is an essential element of a willful, premeditated first degree murder. See NMSA 1978, \u00a7 30-2-1(A)(1) (Repl.Pamp.1984); NMSA 1978, UJI Crim. 2.00 (Repl.Pamp.1982). However, a showing of intoxication to a degree that would make the specific intent impossible is a valid defense to the charge. State v. Crespin, 86 N.M. 689, 526 P.2d 1282 (Ct.App.1974). Thus, UJI Crim. 41.10 tells the jury:\nEvidence has been presented that the defendant was intoxicated from the use of alcohol. You must determine whether or not the defendant was intoxicated, and if so, what effect this had on the defendant\u2019s ability to form the deliberate intention to take away the life of another.\nIf the defendant was not capable of forming a deliberate intention to take the life of another, you must find him not guilty of a first degree murder by deliberate killing.\n(Emphasis added.)\nThe order of this Court entered in connection with the Uniform Criminal Jury Instructions adopts the instructions and Use Notes and directs that they be used in criminal cases filed in district courts. See Order Adopting Uniform Jury Instructions for Criminal Cases, NMSA 1978, UJI Crim. at 4 (Repl.Pamp.1982); see also State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App.), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977), overruled in part, State v. Reynolds, 98 N.M. 527, 650 P.2d 811 (1982). The General Use Note states that \u201cwhen a uniform instruction is provided for the elements of a crime [or] a defense * * * the uniform instruction must be used * * NMSA 1978, UJI Crim. General Use Note (Repl.Pamp.1982) (emphasis added). \u201cRefusal or failure to follow the Supreme Court mandate on use of Uniform Jury Instructions is not a prerogative of the trial court.\u201d State v. Otto, 98 N.M. 734, 735, 652 P.2d 756, 757 (Ct.App.1982) (citation omitted).\nThe Use Note for Instruction 41.10 directs that \u201c[t]his instruction * * * should immediately follow Instruction 2.00 [Willful and Deliberate Murder] when the defendant has relied on the defense of \u2018diminished responsibility\u2019 or \u2018inability to form specific intent.\u2019 \u201d (Emphasis added.) Thus, the requested instruction must be given if it is raised and supported by the evidence. See State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966); State v. Nelson, 83 N.M. 269, 490 P.2d 1242 (Ct.App.), cert. denied, 83 N.M. 259, 490 P.2d 1232 (1971). This is true even if the instruction is contrary to the defendant\u2019s initial theory of the case. Cf. State v. Benavidez, 94 N.M. 706, 616 P.2d 419 (1980)(where defendant testified that his son had shot the victim, it was error to refuse a voluntary manslaughter instruction if there was evidence to support it.)\nThe jury heard considerable evidence relating to Mr. Privett\u2019s long-term alcoholism and his alcoholic condition during the hours surrounding his wife\u2019s death. Deputy Sheriff David Couch, who had had previous dealings with the Privetts, testified that when he arrived at the Privett home at about 10:20 a.m., Mr. Privett had a strong odor of alcohol on his breath and appeared \u201cstrongly intoxicated,\u201d even though he was able to answer questions and recognize people and surroundings. Deputy Couch placed Mr. Privett in protective custody because Mr. Privett appeared too intoxicated to take care of himself.\nCouch further testified that the blood test done on Mr. Privett two hours later revealed an alcohol level of 0.18% which, according to Couch, was nearly twice the level required for issuance of a DWI citation. The parties stipulated that alcohol is normally eliminated from the bloodstream at a rate of 0.015% per hour.\nDeputy Bobby Roybal, when asked whether he had seen any evidence that Mr. Privett had been drinking, replied \u201cNo, I did not smell anything.\u201d Roybal noted, however, that Privett became belligerent when asked to leave the house, and that two deputies, by continuing to talk to him, were able to put shoes on his feet and get him into the patrol car.\nMrs. Cosper\u2019s brother, Fred Netzel, testified that when he arrived at the Privett home at 10:00 a.m., Mr. Privett was drinking a can of beer and appeared \u201cmoderately intoxicated,\u201d Sheriff\u2019s officers found five empty beer cans and three empty whiskey bottles in the house. Defendant said that he had had \u201cvery little\u201d to drink the night before but had consumed two beers between 12:00 midnight and 2:00 a.m., and four beers between 7:00 a.m. and 10:30 a.m., when he was taken into custody. He insisted that Mrs. Privett had drunk all three bottles of whiskey but he couldn\u2019t remember when or over what period of time.\nPrivett\u2019s testimony was generally vague and contradictory regarding dates, times and events during the five days up to and including the day of his wife\u2019s death. He contradicted the testimony of other witnesses and, on cross examination, repeatedly and gratuitously contradicted his own description of events he had testified to on direct. The jury could have inferred, from his testimony, that he was so intoxicated during the time surrounding his wife\u2019s death that he could not accurately remember what had happened.\nThere was evidence that Mr. Privett\u2019s conduct and emotional responses in the presence of witnesses on August 31, 1984, ranged from inappropriate to bizarre. When Mrs. Cosper first arrived at the Privett home about 8:15 in the morning, Mr. Privett told her to sit down because he had better prepare her for what she would see. He then began discussing a television set that he wanted to give Mrs. Cosper. During that conversation, Mrs. Privett called out from the bathroom. They found her there lying on the floor, but Mr. Privett made no effort to help his wife up off the floor until Mrs. Cosper told him he must do so. When Mrs. Cosper asked Mrs. Privett about the abrasions on her knees, defendant instead answered, \u201cBy God, I made her crawl.\u201d\nMr. Privett and Mrs. Cosper assisted Mrs. Privett into the bedroom. Upon reaching the bed, Mr. Privett simply sat down while retaining a grip on his wife's arm so that she was pulled into a position partly on and partly off the bed. He then \u201cwhopped her ... with his hand on her bare bottom,\u201d and said, \u2018You don\u2019t get off this bed no more today.\u2019 \u201d He did not attempt to help her the rest of the way into bed until Mrs. Cosper insisted that he do so.\nMrs. Cosper returned to the Privett home at 10:00 a.m. because she \u201cthought Privett was drunk and had beaten Aliene up.\u201d She and others also testified that when Privett heard that his wife was dead, he expressed disbelief but displayed little emotion. He did not go into the bedroom to check her condition for himself and he later told law enforcement officers that he did not want to see his wife\u2019s body.\nFrom the evidence of Privett\u2019s conduct and other testimony, the jury was entitled to consider whether Privett was intoxicated and, if so, what its effect was on his state of mind. Compare the facts in State v. Crespin, 86 N.M. at 690, 526 P.2d at 1283. The defendant\u2019s mental state is a matter solely for the jury. See State v. Nelson. The trial court has a duty to instruct the jury on all questions of law essential for a conviction. NMSA 1978, Crim.P.R. 41(a) (Repl.Pamp.1985); Jackson v. State, 100 N.M. 487, 672 P.2d 660 (1983).\nWe have held that to authorize an instruction on intoxication the record must contain some evidence showing or tending to show that defendant consumed an intoxicant and the intoxicant affected his mental state at or near the time of the homicide. State v. Williams; accord State v. Luna, 93 N.M. 773, 606 P.2d 183 (1980)(defendant not entitled to instruction where record devoid of any evidence that claimed intoxication rendered him incapable of acting purposefully). In deciding whether the instruction is proper, the trial court must not weigh the evidence, but must simply determine whether such evidence exists. Cf. Poore v. State, 94 N.M. 172, 173-74, 608 P.2d at 148, 149-50 (1980). The record here contains such evidence. The dissent filed in the instant case rests upon absence of expert evidence regarding the effect of intoxication upon defendant\u2019s ability to form a deliberate intent to kill. The instruction does not require such expert evidence and, in fact, imposes on the jury the determination of the effect of intoxication. That is because, of course, it is well recognized that laymen are capable of assessing the effects of intoxication as a matter within their common knowledge and experience. State v. Laffoon, 125 Ariz. 484, 610 P.2d 1045 (1980).\nThis case is analagous to Poore v. State wherein the trial court was reversed for refusing a particular uniform instruction on the defense of the victim\u2019s negligence which had been promulgated for use with a more general instruction on vehicular homicide. Here, the trial court refused a particular instruction on the defense of intoxication promulgated for use with the general instruction on willful, deliberate murder. In Poore, we said:\nIf under any reasonable hypothesis the instruction could have been of any benefit to the defendant when considered by a jury of lay persons, then defendant was harmed and prejudiced by the refusal to give it * * * * Emphasis within the instructions upon defendant\u2019s theory could only benefit defendant\u2019s case, especially in this case where the particular instruction 2.51 would follow the generalized instruction of 2.50.\nJust as a defendant in a criminal case is protected by the requirement of proof beyond a reasonable doubt * * * so also should the defendant be accorded some semblance of liberality in having the jury instructed with particularity as to his defenses that are supported by the evidence. Obviously, this is the reason for adopting both U.J.I.Crim. 2.50 and 2.51 as law to be used together instead of only U.J.I Crim. 2.50.\n94 N.M. at 174, 608 P.2d at 150 (emphasis added).\nThe trial court\u2019s refusal to instruct the jury on the defense of intoxication was error. We therefore reverse and remand for a new trial.\nSOSA, Senior Justice, and FEDERICI, J., concur.\nRIORDAN, C.J. and STOWERS, J. dissent.", "type": "majority", "author": "WALTERS, Justice." }, { "text": "RIORDAN, Chief Justice and STOWERS, Justice\n(respectfully dissenting).\nWe respectfully dissent from the majority opinion. The majority states:\n[T]hat to authorize an instruction on intoxication the record must contain some evidence showing or tending to show that defendant consumed an intoxicant and the intoxicant affected his mental state at or near the time of the homicide. (Emphasis added.)\nHowever, the effect of the majority\u2019s holding is that an instruction on intoxication is now authorized where there is only evidence showing that defendant consumed an intoxicant. The requirement that there also be evidence that the intoxicant affected defendant\u2019s mental state is no longer necessary under the majority opinion.\nAs stated in the majority opinion, there was evidence that defendant had consumed large amounts of an intoxicant. With a blood alcohol level of 0.18%, the defendant must have been under the influence of alcohol at the time of the murder. However, we do not feel that evidence merely showing that defendant was drunk at the time of the commission of the murder is sufficient to warrant the giving of the instruction absent testimony to show what effect the alcohol had on defendant\u2019s ability to deliberate or to form the intent to take a life. U.J.I. 41.10 reads in pertinent part:\nEvidence has been presented that the defendant was intoxicated from the use of alcohol. You must determine whether or not the defendant was [intoxicated] and if so, what effect this had on the defendant\u2019s ability to form the deliberate intention to take away the life of another. (Emphasis added).\nIn the instant case there was no evidence presented as to how a 0.18% blood alcohol level would affect a person\u2019s ability to form the deliberate intention to kill. The jury was merely given the fact of the 0.18% blood alcohol level and told that this level is almost twice the legal limit used in DWI cases. Without some expert evidence as to how such a high level of intoxication might have affected defendant\u2019s ability to form the deliberate intent to kill his wife, the jury was left to speculate on the issue and therefore the instruction is not appropriate.\nThe majority analogize the instant case with Poore v. State, 94 N.M. 172, 608 P.2d 148 (1980). However, the two cases are distinguishable. This court stated in Poore:\nJust as a defendant in a criminal case is protected by the requirement of proof beyond a reasonable doubt as opposed to the preponderance of evidence in a civil case, so also should the defendant be accorded some semblance of liberality in having the jury instructed with particularlity as to his defenses that are supported by the evidence.\nId. at 174, 608 P.2d at 150 (Emphasis added.) The evidence in Poore supported the elements of the instruction. However, in the instant case the element of the instruction requiring the jury to determine the effect of intoxication on defendant\u2019s ability to form the deliberate intent to kill is not supported by the evidence. There is no evidence on this issue.\nThis case is similar to State v. Lujan, 94 N.M. 232, 234, 608 P.2d 1114, 1116 (1980), where in this court stated:\n[U]nless there is evidence that the defendant could not have formed the requisite intent, the diminished responsibility instruction is improper.\nSee also State v. Luna, 93 N.M. 773, 606 P.2d 183 (1980) (defendant not entitled to instruction where record did not contain any evidence that defendant\u2019s intoxication rendered him incapable of acting purposefully).\nBy holding as it does the majority is disregarding established case law and the requirements of U.J.I. 41.10.\nWe therefore dissent.", "type": "dissent", "author": "RIORDAN, Chief Justice and STOWERS, Justice" } ], "attorneys": [ "Paul Bardacke, Atty. Gen., Patricia Frieder, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Janet Clow, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendant-appellant.", "Fred Boone, Calvin R. Newmann, Clovis, for trial attys. for defendant." ], "corrections": "", "head_matter": "717 P.2d 55\nSTATE of New Mexico, Plaintiff-Appellee, v. Julian Victor PRIVETT, Defendant-Appellant.\nNo. 15852.\nSupreme Court of New Mexico.\nApril 11, 1986.\nPaul Bardacke, Atty. Gen., Patricia Frieder, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJanet Clow, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nFred Boone, Calvin R. Newmann, Clovis, for trial attys. for defendant." }, "file_name": "0079-01", "first_page_order": 113, "last_page_order": 117 }