voluntary intoxication instruction in New Mexico

2026Cf. State v. Garcia, 2011-NMSC-003, ¶ 37, 149 N.M. 185, 246 P.3d 1057 (concluding that the defense counsel had a “legitimate strategy well within the ‘wide range of reasonable professional assistance’” when deciding not to seek a voluntary intoxication instruction (citation omitted)). {35} Because Defendant has not shown counsel’s performance was deficient, we need not consider prejudice to address his claim.

2026Cf. State v. Garcia, 2011-NMSC-003, ¶ 37, 149 N.M. 185, 246 P.3d 1057 (concluding that the defense counsel had a “legitimate strategy well within the ‘wide range of reasonable professional assistance’” when deciding not to seek a voluntary intoxication instruction (citation omitted)). {35} Because Defendant has not shown counsel’s performance was deficient, we need not consider prejudice to address his claim.

2019In that case, our Supreme Court held that a defendant may 20 also assert a voluntary intoxication defense to first-degree depraved mind murder. 21 Brown, 1996-NMSC-073, ¶ 1 .

2019Brown, 1996-NMSC-073, ¶ 1 .

2020If there was error, we must “review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the [d]efendant’s conviction was the result of a plain miscarriage of justice.” Id. (internal quotation marks and citation omitted). {33} Whether the lack of a voluntary intoxication instruction resulted in fundamental error in this case first depends on whether Defendant would have been entitled to a voluntary intoxication instruction had he requested one.

2020Barber, 2004-NMSC-019, ¶ 18 (internal quotation marks and citation omitted).

2019See State v. Foster, 1999-NMSC-007, ¶ 54 , 126 N.M. 646 , 974 P.2d 140 (stating that “we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses,” and that appellate courts will not free defendants from the consequences of their choice to ask for, or decline to ask for, such an instruction), abrogation on other grounds recognized by Kersey v. Hatch, 2010- NMSC-020, ¶ 17, 148 N.M. 381 , 237 P.3d 683 . {27} Here, Defendant requested lesser-included offense instructions that were contingent on his argument

2019See State v. Foster, 1999-NMSC-007, ¶ 54 , 126 N.M. 646 , 974 P.2d 140 (stating that “we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses,” and that appellate courts will not free defendants from the consequences of their choice to ask for, or decline to ask for, such an instruction), abrogation on other grounds recognized by Kersey v. Hatch, 2010- NMSC-020, ¶ 17, 148 N.M. 381 , 237 P.3d 683 . {27} Here, Defendant requested lesser-included offense instructions that were contingent on his argument

2019See State v. Foster, 1999-NMSC-007, ¶ 54 , 126 N.M. 646 , 974 P.2d 140 (stating that “we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses,” and that appellate courts will not free defendants from the consequences of their choice to ask for, or decline to ask for, such an instruction), abrogation on other grounds recognized by Kersey v. Hatch, 2010- NMSC-020, ¶ 17, 148 N.M. 381 , 237 P.3d 683 . {27} Here, Defendant requested lesser-included offense instructions that were contingent on his argument

2019See State v. Foster, 1999-NMSC-007, ¶ 54 , 126 N.M. 646 , 974 P.2d 140 (stating that “we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses,” and that appellate courts will not free defendants from the consequences of their choice to ask for, or decline to ask for, such an instruction), abrogation on other grounds recognized by Kersey v. Hatch, 2010- NMSC-020, ¶ 17, 148 N.M. 381 , 237 P.3d 683 . {27} Here, Defendant requested lesser-included offense instructions that were contingent on his argument

2011See State v. Crain, 1997-NMCA-101, ¶ 25 , 124 N.M. 84 , 946 P.2d 1095 (“[W]e regard trial counsel’s choice and presentation of defenses and defense witnesses as falling within the ambit of trial tactics and strategy.”).

2011See State v. Crain, 1997-NMCA-101, ¶ 25 , 124 N.M. 84 , 946 P.2d 1095 (“[W]e regard trial counsel’s choice and presentation of defenses and defense witnesses as falling within the ambit of trial tactics and strategy.”).

2011See State v. Brown, 1996-NMSC-073, ¶ 34 , 122 N.M. 724 , 931 P.2d 69 ; see also State v. Hernandez, 2003-NMCA-131, ¶¶ 20-22 , 134 N.M. 510 , 79 P.3d 1118 .

2011See State v. Brown, 1996-NMSC-073, ¶ 34 , 122 N.M. 724 , 931 P.2d 69 ; see also State v. Hernandez, 2003-NMCA-131, ¶¶ 20-22 , 134 N.M. 510 , 79 P.3d 1118 .

2011See Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.1998) (“[C]ounsel’s failure to seek an intoxication instruction was reasonable, because the instruction would have conflicted with his chosen trial strategy.”); see also People v. LaVearn, 448 Mich. 207 , 528 N.W.2d 721, 724-25 (1995) (per curiam) (rejecting an ineffective assistance claim where counsel made the strategic decision to forego a voluntary intoxication defense and instead pursue a mistaken identity theory).

2011See Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.1998) (“[C]ounsel’s failure to seek an intoxication instruction was reasonable, because the instruction would have conflicted with his chosen trial strategy.”); see also People v. LaVearn, 448 Mich. 207 , 528 N.W.2d 721, 724-25 (1995) (per curiam) (rejecting an ineffective assistance claim where counsel made the strategic decision to forego a voluntary intoxication defense and instead pursue a mistaken identity theory).

2011See Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.1998) (“[C]ounsel’s failure to seek an intoxication instruction was reasonable, because the instruction would have conflicted with his chosen trial strategy.”); see also People v. LaVearn, 448 Mich. 207 , 528 N.W.2d 721, 724-25 (1995) (per curiam) (rejecting an ineffective assistance claim where counsel made the strategic decision to forego a voluntary intoxication defense and instead pursue a mistaken identity theory).

2011First, Defendant was not entitled to a voluntary intoxication claim, and second, the decision not to seek a voluntary intoxication was effective trial strategy, well within the parameters of sound representation. {35} A finding of voluntary intoxication provides a defense to specific intent crimes where “the intoxication is to such a degree as would negate the possibility of the necessary intent.” State v. Lovato, 110 N.M. 146, 147 , 793 P.2d 276, 277 (Ct.App.1990).

2011First, Defendant was not entitled to a voluntary intoxication claim, and second, the decision not to seek a voluntary intoxication was effective trial strategy, well within the parameters of sound representation. {35} A finding of voluntary intoxication provides a defense to specific intent crimes where “the intoxication is to such a degree as would negate the possibility of the necessary intent.” State v. Lovato, 110 N.M. 146, 147 , 793 P.2d 276, 277 (Ct.App.1990).

1996See Garcia, 114 N.M. at 272 , 837 P.2d at 865 . {31} Although we recognize concerns that a voluntary intoxication defense may be abused or fabricated, these concerns are no different from those arising with respect to any type of exculpatory evidence presented at trial.

1996See Garcia, 114 N.M. at 272 , 837 P.2d at 865 . {31} Although we recognize concerns that a voluntary intoxication defense may be abused or fabricated, these concerns are no different from those arising with respect to any type of exculpatory evidence presented at trial.