# State v. Benally > New Mexico Supreme Court · October 17, 2001 · 131 N.M. 258 URL: https://www.frixlaw.com/law-library/cases/9796559 ## Case - **Full name:** STATE of New Mexico, Plaintiff-Respondent, v. Lathan BENALLY, Defendant-Petitioner - **Court:** New Mexico Supreme Court - **Decided:** October 17, 2001 - **Citations:** 131 N.M. 258; 34 P.3d 1134; 2001 NMSC 033 - **Precedential status:** Published - **Opinion:** Dissent by Serna - **Judges:** Baca, Franchini, Jimenez, Joseph, Maes, Minzner, Pamela, Patricio, Petra, Serna - **Cited by:** 294 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796559 ## How later opinions describe it (automated extraction) - stating that where the facts adduced at trial do not support a self-defense instruction, “so far as the jury was instructed at all on that subject, the defendant got more than he was entitled to on the evidence and error, if any, in the instructions so given may not be made th… - concluding that the 14 failure to include the essential element of unlawfulness in the instruction given to the 15 jury for second-degree murder gave rise to fundamental error and warranted reversal 16 of defendant’s conviction on that count - stating that, when reviewing the adequacy of jury instructions, we determine “whether a reasonable juror would have been confused or misdirected by the jury instruction” (internal quotation marks and citation omitted) - explaining that reversible error is the proper standard when 14 the jury instructions are facially contradictory or ambiguous, or fail to provide the jury 15 with an accurate rendition of the relevant law - stating that “[t]he standard of review we apply to jury instructions depends on whether the issue has been preserved},]” and, if the error was not preserved, “we review for fundamental error” ## Opinion text SERNA, Chief Justice (dissenting). {48} I respectfully dissent. I concur in Justice Baca’s dissent and agree with his thorough review of the doctrine of fundamental error. I write separately to express one additional reason why I believe the instructional error in this case does not amount to fundamental error. I believe that the element of unlawfulness was necessarily established under the instructions given by the trial court. “Clearly, when a jury’s finding that a defendant committed the alleged act, under the evidence in the case, necessarily includes or amounts to a finding on an element omitted from the jury’s instructions, any doubt as to the reliability of the conviction is eliminated and the error cannot be said to be fundamental.” Orosco, 113 N.M. at 784, 833 P.2d at 1150. {49} “It is the element of unlawfulness that is negated by self-defense.” Parish, 118 N.M. at 43, 878 P.2d at 992. To include the element of unlawfulness, the trial court should have instructed the jury that the State had to prove beyond a reasonable doubt that Defendant did not act in self-defense. This instruction could have been contained in the essential elements instruction or in the instruction defining self-defense. See State v. Sosa, 1997-NMSC-032, ¶ 31 , 123 N.M. 564 , 943 P.2d 1017 ; State v. Armijo, 1999-NMCA-087, ¶26 , 127 N.M. 594 , 985 P.2d 764 ; see also State v. Puga, 85 N.M. 204, 207 , 510 P.2d 1075, 1078 (Ct.App.1973) (“Instructions are to be considered as a whole; all elements of the offense need not be contained in one instruction.”). {50} The trial court did not instruct on the State’s burden to disprove self-defense beyond a reasonable doubt in the instructions pertaining to second degree murder; however, the trial court did instruct the jury that, in order to prove second degree murder, the State had to prove beyond a reasonable doubt that “[t]he defendant did not act as a result of sufficient provocation.” In New Mexico, as the jury was told, “ ‘[sufficient provocation’ can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition.” UJI 14-222 NMRA 2001. By contrast, self-defense has the objective component that the defendant act as a reasonable person would act under the circumstances. However, self-defense, like sufficient provocation, also contains a subjective component which requires that the defendant be put in fear of immediate death or great bodily harm. In fact, “New Mexico has long recognized that ‘heat of passion’ [, or sufficient provocation,] includes fear for one’s own safety that may result in an unreasonable belief in the need to defend oneself.” State v. Abeyta, 120 N.M. 233, 240 , 901 P.2d 164, 171 (1995). “If the jury rejects the theory of self-defense, it may still find that the defendant acted under provocation of fear and may mitigate the charge of murder to the lesser charge of voluntary manslaughter.” Id. “[T]he critical difference between self-defense and voluntary manslaughter lies not in provocation or the emotion of fear, but rather in the reasonableness of the defendant’s conduct in killing.” Id. (quoted authority and quotation marks omitted). “It is not unreasonable that the accused should be found guilty of voluntary manslaughter where the plea of self-defense fails.” Id. {51} In the present case, based on the essential elements instruction for second degree murder given to the jury, the jury found beyond a reasonable doubt that Defendant did not act with sufficient provocation. As a result, the jury found beyond a reasonable doubt that Defendant did not act out of fear for his own safety. Because the jury found beyond a reasonable doubt that Defendant did not kill the victim as a result of a subjective fear, the jury necessarily found beyond a reasonable doubt that one element of self-defense, the subjective element of fear for one’s life, was not present under the facts in this case. The jury’s rejection of voluntary manslaughter, and verdict of guilty on the charge of second degree murder, “necessarily includes or amounts to a finding on an element omitted from the jury’s instructions.” Orosco, 113 N.M. at 784, 833 P.2d at 1150. {52} Parish supports this analysis. In Parish, the jury convicted the defendant of voluntary manslaughter, but “the jury was first asked to decide whether Parish committed second degree murder, which is distinguished from voluntary manslaughter by the element of provocation.” Parish, 118 N.M. at 46, 878 P.2d at 995. We were concerned in Parish that the instruction on provocation contained language that was similar to the instruction on self-defense. Id. “[T]he jury could easily have found that [the facts of the case] fell within the definition of self-defense. However, upon considering the instruction on voluntary manslaughter, the jury may also have found in these same facts the element of provocation. Both instructions describe a situation which arouses fear in the Defendant----” Id. As a result, “[i]t is plausible that a reasonable juror might be confused by first finding sufficient provocation to reduce the charge from second degree murder to voluntary manslaughter, and to then discard the concept of provocation and use the same facts that evinced provocation to prove self-defence.” Id. As this discussion demonstrates',-.the distinction between voluntary manslaughter and self-defense, and the defendant’s conviction of voluntary manslaughter, was critical to our analysis of the jury instructions in Parish. {53} Unlike Parish, the jury in the present case rejected voluntary manslaughter based on an elements instruction that contained the appropriate burden of proof; the jury rejected the first step described in Parish of finding sufficient provocation. Accordingly, the jury was not faced with the question of distinguishing between provocation from self-defense. In other words, the jury rejected “imperfect” self-defense and, in so doing, also implicitly rejected “perfect” self-defense. See Abeyta, 120 N.M. at 240 , 901 P.2d at 171 (“Although the unreasonable belief in the need for self-defense may well be termed imperfect self-defense, this label is somewhat misleading. Such conduct is not a true defense and does not justify the killing. Rather, the claim of imperfect self-defense simply presents an issue of mitigating circumstances that may reduce murder to manslaughter.”). By finding beyond a reasonable doubt that the mitigating circumstance of sufficient provocation was not present, the jury necessarily also determined that the killing was “without lawful justification or excuse.” NMSA1978, § 30-2-KB) (1994). {54} In Orosco, this Court cautioned: [U]nder the rule of fundamental error reversal is required only when the interests of justice so require. A rule of automatic reversal would mandate a new trial in every instance of a failure to instruct, even though it was not only undisputed but indisputable that the element was met. Such a result, in our view, would be a perversion of justice, a classic demonstration of profoundly inequitable results that follow when the judiciary worships form and ignores substance. 113 N.M. at 785, 833 P.2d at 1151 (quoted authority and quotation marks omitted). In this case, it is indisputable that the State demonstrated beyond a reasonable doubt that Defendant did not act in self-defense or with sufficient provocation. As a result, the majority’s reversal of Defendant’s second degree murder conviction elevates form above substance. For these reasons, and for the reasons expressed by Justice Baca, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796559. Public record. Not legal advice.