State v. Duncan

830 P.2d 554, 113 N.M. 637
CourtNew Mexico Court of Appeals
DecidedMay 31, 1990
Docket10563
StatusPublished
Cited by17 cases

This text of 830 P.2d 554 (State v. Duncan) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Duncan, 830 P.2d 554, 113 N.M. 637 (N.M. Ct. App. 1990).

Opinion

OPINION *

APODACA, Judge.

Defendant appeals his jury convictions for aggravated burglary, kidnapping, false imprisonment, two counts of armed robbery, six counts of criminal sexual penetration (CSP) in the second degree, two counts of attempt to commit CSP in the second degree, and unlawful taking of a motor vehicle. He raises three issues on appeal: the trial court erred in (1) excluding the expert testimony of a psychologist concerning the character of the person defendant claimed coerced him, offered in connection with his defense of duress; (2) refusing defendant’s requested jury instruction also relating to his defense; and (3) instructing the jury on the CSP charges where the evidence was insufficient to support the instruction. We reverse and remand for a new trial on the first issue, concluding the trial court’s exclusion of the testimony denied defendant his defense of duress in that the coercer’s character was an essential element of the defense.

We also address the second and third issues because they may arise again at a second trial. As to those issues, we affirm because we conclude the trial court did not err in refusing the tendered instruction and in instructing the jury on the CSP charges.

FACTS

A. Factual Background

Defendant met the primary victim (Polly) and her husband through a prison fellowship program while defendant was incarcerated at the Los Lunas Correctional Facility (the facility). Defendant temporarily stayed with Polly’s family after he was released from the facility in 1985. Their friendship continued after defendant moved into his own place. Both Polly and defendant testified that defendant thought of Polly as a mother or grandmother. She would often assist him by arranging transportation and dental appointments. Ultimately, another inmate, Jim Wiggington, was released from the facility sometime in late July 1986.

Defendant has been in and out of correctional institutions most of his life. He first met Wiggington in 1980 while they were incarcerated at the state penitentiary in Santa Fe. Eventually both were transferred to the facility, where they continued to be friends. In both institutions, they appeared to have been living in the same unit and to have spent a good deal of time together.

Wiggington had bragged to defendant that he had killed people during the 1980 riot but had not been caught. Both of them, along with other inmates, spent a fair amount of time playing Dungeons and Dragons, a fantasy quest game. Most inmates played to pass the time; Wigging-ton, however, played to antagonize and intimidate. He also seemed to particularly enjoy bullying and intimidating defendant while playing the game. One of his tactics was to “discover” and “kill,” in bizarre ways, members of defendant’s imaginary family. Defendant was aware Wiggington received counseling at the facility. It was this counseling that gave rise to the expert testimony at issue in this appeal.

B. Facts Surrounding the Incident

The charges against defendant grew out of an incident that occurred during the late night hours of August 5 and the early morning hours of August 6, 1986. Wiggington had been released about a week or ten days before the incident. Defendant had stored some boxes of Wiggington’s personal belongings in Polly’s garage. On July 30, 1986, defendant, Wiggington, and another former inmate went to Polly’s home to get the boxes. Although they were there for only thirty minutes, they learned that Polly’s husband would be away on the night of August 5.

On August 5, Wiggington picked up defendant at work. Instead of taking defendant home, Wiggington took him to a supermarket near Polly’s house. He told defendant that they were going to play Dungeons and Dragons “for real” that night. He pulled a knife out of a satchel and told defendant he was going to use it to cut Polly’s throat. Defendant protested, saying he loved Polly like a mother. Wigging-ton told defendant that if defendant went along, he would not have to kill Polly.

Defendant testified he accompanied Wiggington to prevent him from killing Polly and also because he feared Wiggington would kill him if he refused to go. Wiggington’s use of the phrase “are you with me or against me,” as well as his reference to the fact that he believed himself to be a magical person who would not be caught, reminded defendant of the way Wiggington had played Dungeons and Dragons. Defendant thought Wiggington was crazy, that he was extremely unstable, and that, if defendant refused to go with him, Wiggington would go alone and kill Polly.

At the supermarket, Wiggington told defendant to telephone Polly. Still possessing the knife, Wiggington was present when the call was made. Polly agreed to pick up defendant so he could spend the night at her house. When she arrived, Wiggington persuaded her to let him stay at the house also.

They arrived at Polly’s home about 11:15 p.m. Polly went into her bedroom to get clean sheets, and Wiggington followed her. He immediately pulled the knife and told Polly he was going to rape and rob her. Throughout the course of the night, he forced her to commit various sexual acts. On several occasions during the night, at Wiggington’s request, defendant brought coffee and cigarettes to Wiggington in the bedroom.

During the night, Wiggington told Polly he was possessed by two spirits, Dramasus and another whose name Polly could not remember. Wiggington considered himself a warlock who had sold his soul to the devil. The knife he was going to use to kill Polly had been dedicated on an altar for that purpose. Dramasus was mad at Polly because she had hung up the phone on Dramasus. Dramasus was also telling Wiggington to do terrible things to her because of her strong Christian faith.

Later, Wiggington attempted to murder Polly by suffocating her. He directed defendant to do the same to Paula, an exchange student living with Polly and her husband. Paula also had been kept hostage during the night. Defendant did not do what Wiggington instructed. Instead, he eventually persuaded Wiggington to leave the two women alive. They then left with household belongings defendant had stacked in the living room during the night.

SUMMARY OF TRIAL PROCEEDINGS

A brief summary of what occurred at trial will provide an understanding of how the testimony exclusion issue arose. Wiggington did not testify at trial. Thus, the facts regarding Wiggington and the incident were introduced through the testimony of Polly, Paula, and defendant. A psychologist called by defendant and a psychiatrist called by the state testified concerning defendant’s psychological status. There was little, if any, conflict in the facts of the incident. Defendant’s defense of duress was premised on two contentions: (1) he had gone along with Wiggington because he was afraid Wiggington would kill Polly if he did not; (2) he feared Wiggington would kill him also, if he did not do as Wiggington directed.

Before trial, the state had moved to exclude the testimony of defendant’s two psychologists. The trial court reserved ruling on the motion until trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Grantham
New Mexico Court of Appeals, 2022
State v. Vargas
New Mexico Court of Appeals, 2021
State v. Martinez
New Mexico Court of Appeals, 2019
State v. Ortiz
2018 NMCA 18 (New Mexico Court of Appeals, 2017)
Arty Price v. State
Court of Appeals of Texas, 2015
State v. Campbell
2007 NMCA 051 (New Mexico Court of Appeals, 2007)
State v. Maestas
2005 NMCA 062 (New Mexico Court of Appeals, 2005)
State v. Laney
2003 NMCA 144 (New Mexico Court of Appeals, 2003)
Hawkins, Gary Lee v. State
Court of Appeals of Texas, 2002
Miller v. State
36 S.W.3d 503 (Court of Criminal Appeals of Texas, 2001)
Duncan v. Barreras
Tenth Circuit, 1999
State v. Anderson
881 P.2d 29 (New Mexico Supreme Court, 1994)
State v. Duncan
872 P.2d 380 (New Mexico Court of Appeals, 1994)
Cowan v. Powell
856 P.2d 251 (New Mexico Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
830 P.2d 554, 113 N.M. 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duncan-nmctapp-1990.