dissenting.
I respectfully dissent.
The majority opinion holds that because the trial court failed in its duty to properly instruct the jury on the charge of second degree murder, defendant’s conviction should be reversed and the cause remanded for a new trial. However, the sole issue raised on appeal by the defendant was whether the trial court erred in refusing to submit to the jury defendant’s requested instruction on the lesser included offense of voluntary manslaughter.
The Court of Appeals affirmed the trial court. In a dissent, one appellate judge voluntarily or sua sponte raised the issue that the trial court had not given the correct instruction on second degree murder, NMSA 1978, UJI Crim. 2.10 (Repl.Pamp. 1982). This issue was not properly before the appellate court because it was not raised initially on appeal. This issue was subsequently raised in the defendant’s motion for rehearing. The Court of Appeals denied defendant’s motion.
The majority opinion takes this one step further and finds a failure on the part of the trial court to instruct the jury on second degree murder pursuant to either NMSA 1978, UJI Crim. 2.10 or UJI Crim. 2.11 (Repl.Pamp.1982). The function of the appellate court is not to retry the case but to consider those matters properly before it. A motion for rehearing “shall state with particularity only the points of law or fact which movant believes the court has overlooked or misapprehended.” NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 602 (Repl.Pamp.1983) (emphasis added). New points may not be presented in a petition for rehearing. State v. Curlee, 98 N.M. 576, 651 P.2d 111 (Ct.App.); cert. denied, 98 N.M. 590, 651 P.2d 636 (1982). This has been the longstanding rule in this jurisdiction. Id.; State v. Starr, 24 N.M. 180, 173 P. 674 (1917), appeal dismissed 254 U.S. 611, 41 S.Ct. 61, 65 L.Ed. 437 (1920); State v. Williams, 22 N.M. 337, 161 P. 334 (1916); State v. McKnight, 21 N.M. 14, 153 P. 76 (1915), appeal dismissed, 246 U.S. 653, 38 S.Ct. 335, 62 L.Ed. 923 (1918). See also Weese v. Stoddard, 63 N.M. 20, 312 P.2d 545 (1956), reh’g denied (1957); In Re White’s Estate, 41 N.M. 631, 73 P.2d 316 (1937); Ellis v. Citizens’ National Bank, 25 N.M. 319, 183 P. 34 (1918), reh’g denied (1919). To hold as the majority does sets a dangerous precedent in terms of appellate review and allows matters not properly preserved on the record to be reviewed by the appellate courts.
In order for a matter to be before this Court for appellate review it must be properly preserved on the record. This requires a proper objection or tendering of a proper instruction. See State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App.1975); State v. Urban, 86 N.M. 351, 524 P.2d 523 (Ct.App.1974); State v. Romero, 86 N.M. 99, 519 P.2d 1180 (Ct.App.1974).
The trial court has a duty to correctly instruct the jury on the law. However, this is not such an absolute duty that trial counsel can completely abdicate the responsibility and duty to alert the trial court to any mistake found in a proposed jury instruction, and then later complain and receive the benefit of this total abdication of responsibility. This responsibility is set forth in NMSA 1978, Crim.P.Rule 41(d) (Repl. Pamp.1980), which provides in pertinent part:
[F]or the preservation of error in the charge, objection to any instruction given must be sufficient to alert the mind of the court to the claimed vice therein, or, in case of failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed. Before the jury is instructed, reasonable opportunity shall be afforded counsel so as to object or tender instructions, on the record and in the presence of the court.
A failure to comply with this rule constitutes a waiver provided there was no prejudice to the defendant. In the present case, trial counsel failed not only to tender correct written jury instructions but also failed to object to the instruction given by the trial court. As such, defendant’s objection to jury instructions cannot be raised for the first time on appeal. See State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973); State v. Jones, 88 N.M. 110, 537 P.2d 1006 (Ct.App.), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975); State v. Herrera, 82 N.M. 432, 483 P.2d 313 (Ct.App.), cert. denied, 404 U.S. 880, 92 S.Ct. 217, 30 L.Ed.2d 161 (1971); State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969). Even though this concept has been stated many times, the majority opinion fails to recognize this concept or apply it. The majority opinion only serves to undermine this concept of waiver as it applies to Rule 41(d).
Without attempting to address which was the correct instruction, the majority opinion states that “[t]he jury instruction on second degree murder used in this case substantively differed from either of the current instructions set forth at UJI Crim. 2.10 and UJI Crim. 2.11.”. UJI Crim. 2.10 (Repl. Pamp.1982) is to be given only when voluntary and involuntary manslaughter is a lesser included offense. In this case, the trial court refused the tendered jury instructions on the lesser included offenses of voluntary and involuntary manslaughter. Contrary to what was stated in the Court of Appeals dissent and contrary to the position taken by the majority opinion, UJI Crim. 2.10 (Repl.Pamp.1982) would not have been given.
The instruction given, NMSA 1978, UJI Crim. 2.10 (Orig.Pamp.) (emphasis added), required the State to prove that “[t]he defendant had an intent to kill or do great bodily harm,” while the current instruction which would have been given, NMSA 1978, UJI Crim. 2.11 (Repl.Pamp.1982) (emphasis added) requires that “[t]he defendant knew that his acts created a strong probability of death or great bodily harm.” The majority opinion fails to consider whether the instruction given at trial adequately apprised the jury of the law which they were to consider in reaching a verdict. Although it was not the current instruction, the unobjected to instruction given was a proper instruction prior to the change and placed a heavier burden of proof on the State because it was based on a stricter standard. Therefore, no fundamental rights of the accused were violated.
Noncompliance with the uniform jury instructions in a criminal case is reversible error if the slightest evidence of prejudice to the defendant appears. State v. Gallegos, 96 N.M. 54, 627 P.2d 1253 (Ct.App.1981). However, in the present case, there was no prejudice to the defendant because the jury instruction given without objection required a stricter burden of proof. The crucial question is, did the defendant receive a fair trial. In this case, he did.
The majority opinion only serves to elevate form over substance and is therefore improper.
For the foregoing reasons, I would affirm the defendant’s conviction.