{ "id": 2866368, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Raymond \"Topper\" HAMILTON, Defendant-Appellant", "name_abbreviation": "State v. Hamilton", "decision_date": "1976-12-13", "docket_number": "No. 10890", "first_page": "746", "last_page": "751", "citations": [ { "type": "official", "cite": "89 N.M. 746" }, { "type": "parallel", "cite": "557 P.2d 1095" } ], "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": "81 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5366447 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0503-01" ] }, { "cite": "89 N. M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861787 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0458-01" ] }, { "cite": "87 N.M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2830850 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0345-01" ] }, { "cite": "86 N. M. 281", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2829066, 2822506, 2823099, 2824454 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0281-04", "/nm/86/0281-03", "/nm/86/0281-01", "/nm/86/0281-02" ] }, { "cite": "86 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2821753 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0291-01" ] }, { "cite": "85 N.M. 540", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777330 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0540-01" ] }, { "cite": "330 A.2d 176", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "273 Md. 383", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1875969 ], "opinion_index": 0, "case_paths": [ "/md/273/0383-01" ] }, { "cite": "39 N.M. 284", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573411 ], "weight": 2, "year": 1935, "opinion_index": 0, "case_paths": [ "/nm/39/0284-01" ] }, { "cite": "61 N. M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5317307 ], "weight": 3, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0225-01" ] }, { "cite": "89 N.M. 568", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868612 ], "weight": 4, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0568-01" ] }, { "cite": "87 N.M. 299", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2830032, 2836377, 2835003, 2834479 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/87/0299-04", "/nm/87/0299-03", "/nm/87/0299-02", "/nm/87/0299-01" ] }, { "cite": "87 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2834105 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0307-01" ] }, { "cite": "18 A.L.R. 914", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1921, "opinion_index": 0 }, { "cite": "27 N.M. 265", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841891 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nm/27/0265-01" ] }, { "cite": "88 N.M. 511", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841692 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0511-01" ] }, { "cite": "88 N.M. 233", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839071 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0233-01" ] }, { "cite": "89 N.M. 408", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867454 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0408-01" ] } ], "analysis": { "cardinality": 835, "char_count": 16722, "ocr_confidence": 0.808, "pagerank": { "raw": 1.9850254293536617e-07, "percentile": 0.7410474510289982 }, "sha256": "5436b94d36324c36f8003a7e86404d91f125e766ceab8eca16dd756df82b35f1", "simhash": "1:b669f203967238fa", "word_count": 2763 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN, C. J., and EASLEY, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Raymond \u201cTopper\u201d HAMILTON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nMcMANUS, Justice.\nDefendant was charged in a two-count indictment for the April 3, 1975 murders of his ex-wife, Janie Canales Hamilton (hereafter \u201cJanie\u201d) (Count I) and her mother, Juanita Canales (hereafter \u201cMrs. Canales\u201d) (Count II), pursuant to \u00a7 40A-2-1A, N.M.S.A.1953 (2d Repl.Vol. 6, 1972).\nHamilton and Janie were married in May 1974. The marriage was stormy and the defendant and Janie later separated. On the evening of April 2, 1975, the couple met to discuss arrangements concerning their child. Subsequently a disagreement developed and Janie filed a complaint against Hamilton with the local police. The police did not pick up the defendant that night.\nShortly after 6:00 a.m. on April 3, 1975 the defendent went to his father\u2019s house, where he was living at the time, and took his father\u2019s .308 rifle. He then wrote a note which he claimed was a suicide note, but which the State contended was a suicide-homicide' note. Hamilton walked to the Canales\u2019 home and waited across the street. At 7:00 a.m. he saw Mr. Canales leave for work and shortly thereafter Janie crossed the street to a neighbor\u2019s house to use the phone because the telephone line at the Canales\u2019 house had been cut. Janie telephoned the police and asked them to check the neighborhood to see if Hamilton was around. As Janie left the neighbor\u2019s house the shooting began, which resulted in the death of Janie and Mrs. Canales and the wounding of Hamilton.\nHamilton contends that Mrs. Canales came out of her house and shot at him with a .38 revolver, then fired a second shot after he retrieved his rifle from the ground. Hamilton testified that he then fired an accidental shot down the street from his rifle, and tried to run away from Mrs. Canales. In his attempt to escape, the defendant testified that he dived through the picture window of the Canales house into the living room. Inside the house Mrs. Canales fired at him again, missed, and Hamilton shot at her, and missed. Mrs. Canales then fired again, hitting Hamilton in' the shoulder, and he fired at her, his bullet piercing her abdomen and inflicting a mortal wound. Hamilton denied any knowledge of how Janie had been shot.\nThe State\u2019s evidence was quite different and indicated that Mrs. Canales\u2019 first shot had been in the air, not directed toward the defendant, that Hamilton ran after Janie and fired at her and dived through the window after both Janie and Mrs. Canales had retreated into the house. Then those outside heard an indistinguishable volley of shots.\nWhen the police arrived, they found Janie and Hamilton lying wounded in the kitchen and Mrs. Canales lying on the front porch. A search of the defendant\u2019s pockets revealed the note he had written. All three victims were taken to the hospital, where Janie and Mrs. Canales subsequently died of their wounds. Hamilton suffered a collapsed left lung, from which he recovered.\nDefendant was found guilty by a jury on both counts of the indictment and sentenced to dealth. An order of April 5, 1976 stayed execution pending this appeal.\nThe issues raised on this appeal are:\nPOINT I: The imposition of the sentence of death for the crime of first degree murder under the law of New Mexico violates the Eighth and Fourteenth Amendments.\nPOINT II: The trial court erred in denying defendant\u2019s motion for a mistrial based on the improper question by the prosecutor regarding the defendant\u2019s post-arrest silence.\nPOINT III: The court erred in instructing the jury on \u201ctransferred intent\u201d murder, where the defendant was not charged under that theory, and where the evidence did not support giving the instruction.\nPOINT IV: The trial court erred in responding to certain questions put by the jury, because the questions dealt with issues not properly before the jury, and because the answers given were incorrect and usurped the function of the jury.\nPOINT V: The trial court erred in instructing the jury that it could convict the defendant of first degree murder upon a finding of implied malice.\nPOINT VI: The trial court erred by misinstructing the jury on the essential elements of second degree murder.\nPOINT VII: The trial court erred in its instructions to the jury on self defense.\nPOINT VIII: The accumulation of errors in the instructions constitute reversible error.\nPoint I was answered in State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (1976). The appropriate sentence for first degree murder is now life imprisonment.\nIn Point II defendant claims that there was an improper comment on the exercise of his constitutional right to remain silent. During direct examination of State\u2019s witness Axline, the following question and answer were recorded:\nQ. But he did not make any statement to you concerning the incident of the of- \u25a0 fense; is that correct ?\nA. No sir. I asked him if he wished to have an attorney and he advised me he did not. And I asked him if he wished to talk to me and he said \u201cNo. I don\u2019t want to talk to you.\u201d\nWitness Axline further testified that she had given Hamilton the proper Miranda warnings.\nRelying on State v. Lara, 88 N.M. 233, 539 P.2d 623 (Ct.App.1975), defendant asserts the statement by the witness was prejudicial and that the defense counsel\u2019s motion for mistrial should have been granted. In,Lara the State\u2019s attorney posed a question directly commenting on defendant Lara\u2019s failure to provide information after being advised of his Miranda rights.\nSuch is not the situation in the case at bar. In. Lara the defendant remained silent, here he did not. Defendant stated that he did not want to talk to Officer Ax-line. State v. Olguin, 88 N.M. 511, 542 P. 2d 1201 (Ct.App.1975) is more appropriate. In Olguin the court rejected the Lara-based contention that the prosecutor\u2019s question was an improper comment on 01-guin\u2019s silence because Olguin had made an affirmative statement which was contrary to his testimony during the trial.\nHamilton\u2019s refusal to talk to Axline was not an exercise of his right to remain silent, but rather a statement specifically directed toward her. Shortly afterward the defendant requested to talk to Detective Schulz whom he recognized. Hamilton then confessed to Schulz. The facts indicate that the defendant knew and trusted Schulz and that Hamilton preferred to talk to Schulz and not to Officer Axline. Under these circumstances, Axline\u2019s testimony concerning Hamilton\u2019s statement was not a comment on his right to remain silent. As the trial judge stated:\nIn the first place, in the case at bar, the fact that the defendant declined to make a statement to Mrs. Axline was not solicited by the State but was altogether volunteered by the witness. In the second place, the witness did consequently make a statement to another officer and he did not state flatly that he would not make a statement. He simply stated that he did not wish to talk to Mrs. Axline.\nWe agree that this response was not improper.\nIn Point III the error claimed is based on the court\u2019s instruction regarding transferred intent. The defendant contends that this instruction was improper because \u201ctransferred intent\u201d murder was not charged in the indictment and there was insufficient evidence to support that theory. We do not agree.\nThe defendant was indicted on an \u201copen\u201d charge of murder and contends that since he was not charged under the specific transferred intent subsection that the instruction on that theory was improper. The defendant misapprehends the nature of this theory. Transferred intent is merely the doctrine that allows the elements of malice or intent to be demonstrated when an \u201cinnocent\u201d non-original victim is killed. State v. Carpio, 27 N.M. 265, 199 P. T012, 18 A.L.R. 914 (1921). Therefore, it is not necessary to charge the defendant with transferred intent because the indictment specifically informed the defendant of the crime and what he must be prepared to meet. State v. Cutnose, 87 N.M. 307, 532 P.2d 896 (Ct.App.), cert. denied, 87 N.M. 299, 532 P.2d 888 (1974). Cf. State v. Hicks, 89 N.M. 568, 555 P.2d 689 (filed October 26, 1976).\nThis Court long ago adopted the theory of \u201ctransferred intent\u201d whereby the elements of premeditation and malice directed against an intended victim are transferred or flow from the prepetrator to the actual victim. State v. Carpi\u00f3, supra. In Carpi\u00f3 the defendant intended to kill Lucero but instead killed Rios, a bystander. The Court held that the malice directed at Lucero followed the bullet and was transferred to Rios. See State v. Ochoa, 61 N. M. 225, 297 P.2d 1053 (1956); State v. Wilson, 39 N.M. 284, 46 P.2d 57 (1935); Gladden v. State, 273 Md. 383, 330 A.2d 176 (Ct.App.1974).\nThere was sufficient evidence to permit the jury to conclude that the defendant intended to murder Janie and that he did so act with malice aforethought. This act supplied the necessary elements for first degree murder. The State\u2019s theory of the death of Mrs. Canales was that Hamilton did not deliberately shoot at Mrs. Canales but rather that she was hit by a bullet intended for Janie. This was a reasonable conclusion that the jury could have drawn from the evidence, and therefore, this instruction was proper.\nIn Point IV the alleged assignment of error is based on an answer submitted to the jury. Defendant questions the trial court\u2019s response to the second question submitted.\nThe question and answer are as follows:\n2) For \u201ctransfer\u201d to apply, must the murder of the \u201cdifferent person\u201d be a result of the same exact act of attempting to harm the original intended victim, or may another act resulting in death of the \u201cdifferent person\u201d taking place in the chain of events cause it to apply?\nThe court responded:\nIn answer to your second question, the intent would transfer unless you find as a fact that the defendant acted in self defense as defined in your original instructions.\nDefendant states the answer is wrong as a matter of substantive law and that the instruction told the jury that if the unintended victim is killed by any act taking place in the chain of events causing the death of the intended victim that it is transferred-intent murder. If this was an erroneous theory of transferred intent it is cured by a given instruction which states:\nWhen one intends to kill or injure a certain person, and kills a different person, the crime, if any, is the same as though the original intended victim had been killed. In such a case, the law regards the intent as transferred from the original intended victim to the actual victim.\nThis instruction conforms with the doctrine of transferred intent as stated in State v. Carpio, supra, and State v. Ochoa, supra. Instructions are to be read and considered as a whole and when so considered they are proper if they fairly and accurately state the applicable law. State v. Rushing, 85 N.M. 540, 514 P.2d 297 (1973); State v. Rhea, 86 N.M. 291, 523 P.2d 26 (Ct.App.) cert. denied, 86 N. M. 281, 523 P.2d 16 (1974). The answer given when considered with the instructions on transferred intent is an accurate statement of the law.\nThe next error the defendant alleges is based upon the instructions regarding express and implied malice. Section 40A-2-1, supra, provides that, \u201cMurder is the unlawful killing of one human being by another with malice aforethought, either express or implied * * * \u201d The instructions were worded accordingly; however, a finding of express malice is mandatory to support a conviction of first degree murder, whereas, implied malice is sufficient for second degree murder. State v. Hicks, supra; State v. Vigil, 87 N.M. 345, 533 P.2d 578 (1975). The statute makes no explicit reference to how this distinction applies to the degrees of murder and unless the instructions as a whole set out this difference, this instruction alone is \u201cincomplete, misleading and constitutes error.\u201d State v. Hicks, supra. Therefore, we must consider all of the given instructions.\nAfter the challenged instruction concerning malice aforethought come three explanatory instructions given in this case regarding the murder-malice connection. The first explains the degrees of murder and the necessary elements:\nMurder is the unlawful killing of one human being by another with malice aforethought, either express or implied, by any of the means with which death may be caused.\nA. Murder in the fist degree consists of all murder perpetrated by any kind of willful, deliberate and premeditated killing.\nB. Murder in the second degree consists of all other murder perpetrated with an intent to kill or to do great bodily harm.\nThe second concerns the necessary \u201cevil design\u201d type of intention :\nA willful, deliberate and premeditated intention refers to the state of mind of the defendant. A willful, deliberate and premeditated intention may be inferred from all of the facts and circumstances of the killing. The words willful, deliberate and premeditated means [sic] arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a willful, deliberate and premeditated killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice.\nDeliberate intent has been equated with express malice. State v. DeSantos, 89 N. M. 458, 553 P.2d 1265 (1976). The third instruction clearly states the distinction between express and implied malice:\nMalice is express malice, when there is the deliberate intention, unlawfully to take away the life of a fellow creature and which is manifested by external circumstances capable of proof.\nMalice shall be implied when no considerable provocation appears or when all circumstances of the killing show a wicked and malignant heart.\nTaking the instructions as a whole, it is apparent that the jury had before it a clear explanation of the relationship between express malice and first degree murder, and implied malice and second degree murder.\nThis problem should be resolved by the new Uniform Jury Instructions for Criminal Cases, which became effective September 1, 1975. The new instruction on first degree murder N.M.U.J.I.Crim. 2.00, does not use the phrase \u201cmalice aforethought either express or implied,\u201d but instead discusses \u201cdeliberate intention to take away the life of\u201d the victim. We are confident that the confusion raised by the terms \u201cexpress\u201d and \u201cimplied\u201d malice will now be eliminated. See generally Institute of Public Law and Services, Committee Commentary to N.M.U.J.I.Crim. 2.00, New Mexico Uniform Jury Instructions Criminal Approved Committee Commentaries (1975).\nIn Points VI and VII defendant alleges errors in instructions concerning second degree murder and self-defense. In neither instance was an objection made nor was there a request for any other instruction. An objection to an instruction is necessary to preserve an issue on appeal. State v. Rodriguez, 81 N.M. 503, 469 P.2d 148 (1970). Hamilton asserts that the lack of instruction on the essential elements of second degree murder is a fundamental error that may be raised for the first time on appeal. The defendant was convicted of first degree .murder upon substantial evidence. An erroneous instruction on second degree murder in this case was harmless and non-prejudicial.\nIn Point VIII the defendant claims that the accumulation of errors in the instructions constitute reversible error. We have stated heretofore that the doctrine of fundamental error resulting from an accumulation of error is to be sparingly and strictly applied:\nA review of our precedents discloses that it is rarely applied. In a number of cases it has been argued that although several errors standing alone would not constitute fundamental error, their cumulative effect was that the defendant did not receive a fair trial. Such claims are usually rejected (footnotes omitted).\nState v. DeSantos, 89 N.M. at 462, 553 P. 2d at 1269.\nThe record does not reveal the type of cumulative errors that would change the result in this case.\nThe defendant\u2019s conviction is hereby affirmed. The cause is remanded only for the purpose of sentencing the defendant to life imprisonment.\nIT IS SO ORDERED.\nOMAN, C. J., and EASLEY, J., concur.", "type": "majority", "author": "McMANUS, Justice." } ], "attorneys": [ "Jan A. Hartke, Chief Public Defender, Reginald J. Storment, Appellant Defender, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Raymond Hamilton, Anthony Tupler, Asst. Attys. Gen., Sante Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "557 P.2d 1095\nSTATE of New Mexico, Plaintiff-Appellee, v. Raymond \u201cTopper\u201d HAMILTON, Defendant-Appellant.\nNo. 10890.\nSupreme Court of New Mexico.\nDec. 13, 1976.\nJan A. Hartke, Chief Public Defender, Reginald J. Storment, Appellant Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Raymond Hamilton, Anthony Tupler, Asst. Attys. Gen., Sante Fe, for plaintiff-appellee." }, "file_name": "0746-01", "first_page_order": 782, "last_page_order": 787 }