N.M. R. Crim. P. Dist. Ct. 5-608
N.M. R. Crim. P. Dist. Ct. 5-608
Committee commentary. - This rule was amended in 1975 in conjunction with the Uniform Jury Instructions project. The main purpose of the revision of the rule was to provide a procedure for instructions similar to that used after the adoption of UJI Civil. See Rule 1-051 NMRA. As stated by the New Mexico Supreme Court in State v. Sherwood, 39 N.M. 518, 50 P.2d 968 (1935), "Prudence and justice would suggest that it would be safest and best, before submitting instructions to a jury, to call upon counsel for both sides to point out specifically what objections, if any, they may have to such instructions, and to request them to suggest such additional instructions as they may think are necessary".
Paragraph A of this rule, codifying prior court decisions, requires the district court to instruct the jury on the law essential for a conviction of the crimes submitted to the jury even if no requested instructions are presented by the parties. See Territory v. Baca, 11 N.M. 559, 71 P. 460 (1903). In State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973), the supreme court held that the failure of the district court to properly instruct on all of the essential elements of the crime charged was jurisdictional and could be raised for first time on appeal. See also, State v. Walsh, 81 N.M. 65, 463 P.2d 41 (Ct. App. 1969). Although this rule only requires the court to include instructions essential for conviction "on his own motion", the rule would not prevent the court from including other instructions supported by the evidence when no instruction is tendered.
Paragraph D of this rule retains the language of former Subdivision (g) of this rule. It requires a proper objection or tendering of a proper instruction for matters not covered by Paragraph A of this rule. See State v. Romero, 86 N.M. 99, 519 P.2d 1180 (Ct. App. 1974); State v. Urban, 86 N.M. 351, 524 P.2d 523 (Ct. App. 1974); State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct. App. 1975). The final sentence of the rule was added in 1975 to make it clear that the parties are entitled to have the district judge hear the objections. See Webb v. Webb, 87 N.M. 353, 533 P.2d 586 (1975).
ANNOTATIONS Compiler's notes. - For reference to superseding of civil rules of procedure governing criminal proceedings by Rules of Criminal Procedure for the District Courts, see compiler's notes to Rule 5-101 NMRA. Conviction of offense not presented to jury. - Where a jury acquitted a defendant of 44 out of 52 charges of violating the Water Quality Act, and defendant appealed his convictions of the remaining eight felony counts, and the appellate court found insufficient evidence to sustain the eight convictions but remanded to the district court to enter judgment and resentencing of eight counts of attempt to commit the offenses of which defendant was convicted, even though he was not charged with attempt and the jury was not instructed regarding the crime of attempt, a conviction of an offense not presented to the jury would deprive the defendant of notice and an opportunity to defend against that charge and would be inconsistent with New Mexico law regarding jury instructions and preservation of error. State v. Villa, 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017. Rule requires trial court to instruct the jury on the law essential for a conviction of the crime submitted to the jury even if no requested instruction is tendered. State v. Bender, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796. This rule requires the court to instruct on all essential elements of a crime. State v. Osborne, 1991-NMSC-032, 111 N.M. 654, 808 P.2d 624; State v. Acosta, 1997-NMCA-035, 123 N.M. 273, 939 P.2d 1081, cert. quashed, 124 N.M. 312, 950 P.2d 285. Trial court's failure to instruct the jury in embezzlement prosecution on the essential element of fraudulent intent constituted reversible error under this rule. State v. Green, 1993-NMSC-056, 116 N.M. 273, 861 P.2d 954. Both the defendant and the state have a duty to tender correct instructions to the trial court. Jackson v. State, 1983-NMSC-098, 100 N.M. 487, 672 P.2d 660. Error to alter uniform jury instruction on elements of crime. - When a uniform jury instruction is provided for the elements of a crime, it is error to alter the instruction. State v. Jackson, 1983-NMCA-007, 99 N.M. 478, 660 P.2d 120, rev'd on other grounds, 1983-NMSC-098, 100 N.M. 487, 672 P.2d 660. Where court rejects modified instruction proposed by defendant. - In case of a failure to instruct on an issue, the phrase "a correct written instruction must be tendered before the jury is instructed" is not applicable when refusal by the court of a proposed instruction on a lesser included offense depends upon a requested modification of the uniform jury instruction. If the court believes no modification is appropriate, the court should instruct in the exact language of the uniform jury instruction. The party requesting the modification can preserve error by alerting the mind of the court to any vice claimed to be present in the uniform jury instruction. Gallegos v. State, 1992-NMSC-014, 113 N.M. 339, 825 P.2d 1249. Failure of trial court to properly instruct on all essential elements of crime charged is jurisdictional and may be raised for the first time on appeal. State v. Bender, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796. The failure to give an instruction on the law essential for a conviction, required by supreme court mandate, is jurisdictional and reversible error, and the defendant need not tender a mandatory instruction nor object to its omission in order to preserve the error. State v. Otto, 1982-NMCA-149, 98 N.M. 734, 652 P.2d 756. The failure to instruct the jury on the essential elements of an offense constitutes fundamental error. Where fundamental error is involved, it is irrelevant that the defendant was responsible for the error by failing to object to an inadequate instruction or by objecting to an instruction which might have cured the defect in the charge to the jury. State v. Osborne, 1991-NMSC-032, 111 N.M. 654, 808 P.2d 624; State v. Acosta, 1997-NMCA-035, 123 N.M. 273, 939 P.2d 1081, cert. quashed, 124 N.M. 312, 950 P.2d 285. Defendant is entitled to have his theory of case submitted to jury under proper instructions where the evidence supports it. State v. Montano, 1980-NMCA-163, 95 N.M. 233, 620 P.2d 887. Right of accused to instructions is controlled by criminal procedure rules. State v. Najar, 1980-NMCA-033, 94 N.M. 193, 608 P.2d 169. Instruction with alternative intent requirements based on statutory language. - There is no difference between an indictment in the alternative in which the charge follows the language of Section 30-6-1C NMSA 1978, relating to child abuse, and the giving of an instruction which includes alternative intent requirements based on the language of the statute; if the alternative charging is not legally deficient, then the instruction is not legally deficient. State v. Utter, 1978-NMCA-064, 92 N.M. 83, 582 P.2d 1296. Where there is basis in evidence for each self-defense instruction, UJI Crim. 41.41 and 41.51 (see now UJI 14-5171 and 14-5181 NMRA), and each instruction states the basis for its factual application, the instructions are neither conflicting nor confusing; it would not be an error to refuse an additional instruction explaining how to apply the self-defense instructions, and it is not an error to fail to give such an additional instruction which is not requested. State v. Brown, 1979-NMCA-038, 93 N.M. 236, 599 P.2d 389, cert. denied, 93 N.M. 172, 598 P.2d 215, cert. denied, 444 U.S. 1084, 100 S. Ct. 1041, 62 L. Ed. 2d 769 (1980). Defendant must tender correct instruction before premising error on refusal to instruct. - In order to premise error on the refusal of the trial court to instruct, the defendant must tender a legally correct instruction on the law. State v. Jackson, 1983-NMCA-007, 99 N.M. 478, 660 P.2d 120, rev'd on other grounds, 1983-NMSC-098, 100 N.M. 487, 672 P.2d 660; State v. Garcia, 1983-NMCA-069, 100 N.M. 120, 666 P.2d 1267; State v. Crislip, 1990-NMCA-054, 110 N.M. 412, 796 P.2d 1108. Defendant properly preserved the issue of failure to instruct on a lesser included offense where he tendered correct written instructions and brought the issue to the trial court's attention as shown by the court's initializing of his denial of the instructions. State v. Curley, 1997-NMCA-038, 123 N.M. 295, 939 P.2d 1103. Rationale for allowing flexibility regarding preservation is reinforced by the actual purpose of Paragraph D of this rule. State v. Jernigan, 2006-NMSC-003, 139 N.M. 1, 127 P.3d 537 139 N.M. 1, 127 P.3d 537. Defendant's right to challenge defective instruction. - The rules of criminal procedure exempt from the normal requirements for preserving an issue on appeal errors involving the essential elements of an offense. Moreover, a defendant's offer of defective instructions and failure to object to the omission of an element in the instructions given by the court does not bar consideration of this issue on appeal. State v. Peterson, 1998-NMCA-049, 125 N.M. 55, 956 P.2d 854. Defendant must submit a proper instruction to preserve error only if no instruction is given on the issue in question on appeal. Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358. Defendant may not complain of instruction given at his request. State v. Mills, 1980-NMCA-005, 94 N.M. 17, 606 P.2d 1111, cert. denied, 94 N.M. 628, 614 P.2d 545. As a general proposition, a defendant may not complain of an instruction given at his request. State v. Norush, 1982-NMCA-034, 97 N.M. 660, 642 P.2d 1119. Waiver of error based on failure to instruct. - The defendant in a murder trial waived any error based on the failure to instruct on voluntary manslaughter by taking the position that no such instruction should be given. State v. Najar, 1980-NMCA-033, 94 N.M. 193, 608 P.2d 169. A defendant neither tendered a written instruction nor orally dictated one to the trial court regarding a modification of jury instructions, the purpose of this rule requiring a tendered written instruction was not met, and the issue was not preserved for review. State v. Badoni, 2003-NMCA-009, 133 N.M. 257, 62 P.3d 348, cert. denied, 133 N.M. 126, 61 P.3d 835. Where there was no objection in trial court to definition of negligence, that issue may not be raised for the first time on appeal. State v. Robinson, 1979-NMCA-001, 93 N.M. 340, 600 P.2d 286, cert. denied, 92 N.M. 532, 591 P.2d 286 (1979), overruled on other grounds by Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358. Trial court's failure to offer defense counsel an opportunity to object on the record to the court's rejection of a tendered instruction on aiding and abetting, before the jury began its deliberations, deprived defendant of a fair trial. State v. Wilson, 1990-NMSC-019, 109 N.M. 541, 787 P.2d 821. Am. Jur. 2d, A.L.R. and C.J.S. references. - Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal, 81 A.L.R.4th 659. Court's duty to inform counsel of proposed action on requested instructions under Rule 30 of Federal Rules of Criminal Procedure, 40 A.L.R. Fed. 495. When does trial court's noncompliance with requirement of Rule 30, Federal Rules of Criminal Procedure, that opportunity shall be given to make objection to instructions upon request, out of presence of jury, constitute prejudicial error, 55 A.L.R. Fed. 726. Propriety of lesser-included-offense charge to jury in federal criminal case - general principles, 100 A.L.R. Fed. 481.