1998 -NMCA- 19, State v. Johnson

• Decision Date: 06 November 1997
• Docket Number: No. 17200,17200
• Citation: 954 P.2d 79,1998 NMCA 19,124 N.M. 647
• Parties: , 1998 -NMCA- 19 STATE of New Mexico, Plaintiff-Appellee, v. Aaron Delvonte JOHNSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 79

954 P.2d 79

124 N.M. 647, 1998 -NMCA- 19

STATE of New Mexico, Plaintiff-Appellee, v. Aaron Delvonte JOHNSON, Defendant-Appellant.

No. 17200.

Court of Appeals of New Mexico.

Nov. 6, 1997.

Certiorari Denied Jan. 6, 1998.

[124 N.M. 648] Tom Udall, Attorney General, Steven S. Suttle, Assistant Attorney General, Albuquerque, for Plaintiff-Appellee.

Rita LaLumia, Santa Fe, for Defendant-Appellant.

OPINION

BOSSON, Judge.

¶1 This case involves the fatal shooting of Abel Gallegos, who broke into a vehicle, stole a car stereo, and was in the process of driving away when he was shot and killed by Aaron Johnson, a friend of the owner of the vehicle. Johnson was refused a jury instruction on the defense of justifiable homicide when stopping a fleeing felon, and he appeals on that sole issue. We affirm the ruling of the district court. We hold as an issue of first impression under New Mexico law that deadly force by a private citizen in apprehending a suspected fleeing felon is subject to standards of reasonableness that were not present in this case.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On April 20, 1995, Steve Haddox and Aaron Johnson, along with Matt Neel and others, were at a party at an apartment complex located in a residential area of Albuquerque. At around 10:30 or 11:30 p.m. a friend told Haddox and Johnson that someone was breaking into Neel's Suzuki automobile. Haddox, Johnson, and Neel went to the parking lot of the apartment complex and saw someone--later identified as Abel Gallegos--run from the Suzuki, get into a waiting car, and start to speed off. The window of the Suzuki had been broken, and the car stereo was missing. Haddox and Johnson then each produced handguns and fired eleven shots at the car, fatally wounding Abel Gallegos. Haddox and Johnson returned to the party, and Haddox told people there that he may have hit someone. Two officers of the Albuquerque Police Department were nearby, heard shots, and saw the Gallegos car speeding away with its lights off. The officers stopped the car and found Gallegos shot through the heart. Another bullet was also found lodged in the car. No weapons were found in the car or on any of the occupants. The officers questioned Haddox and Johnson, who admitted to the shooting and gave their weapons to the police. Neither Haddox nor Johnson asserted that he had acted in self-defense. The bullet that killed Gallegos was fired from Johnson's gun and the bullet found lodged in the car was fired from Haddox's gun.

¶3 Defendants were charged with second degree murder and various other crimes in indictments returned by the Bernalillo County Grand Jury. They each entered pleas of guilty to the lesser included offense of involuntary manslaughter, NMSA 1978, § 30-2-3(B) (1994), pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Each reserved the right to appeal the district court's refusal to give a justifiable homicide instruction, which would have permitted the jury to find that the death of Abel Gallegos was justified if Defendants were attempting to make a citizen's arrest of a fleeing felon. While on appeal, but after oral argument, Haddox dismissed his appeal, and therefore this opinion specifically applies only to Defendant Johnson.

ANALYSIS

¶4 New Mexico's statute on justifiable homicide in a case of a citizen's arrest has remained essentially unchanged since Territorial times. See Kearney Code, art. II, § 1 (1846); NMSA 1915, § 1469 (1907); NMSA 1915, § 1471 (1897); NMSA 1941, § 41-2413 (1929); NMSA 1953, § 40A-2-8 (1963). This statute, currently at NMSA 1978, Section 30-2-7(C) (1963) (emphasis added), provides that homicide by a private citizen is justifiable "when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed in his presence, or in lawfully suppressing any riot, or in necessarily and lawfully keeping and preserving the peace."

¶5 Defendant interprets this subsection to mean that a citizen attempting an arrest may use that amount of force reasonably believed necessary to apprehend the felon. Thus, under this analysis, a citizen may use deadly force and even kill a suspected felon to prevent him from fleeing, regardless of whether the suspect is armed or considered dangerous, or whether the arresting citizen is placed in fear of bodily harm. Indeed, this interpretation of Section 30-2-7(C) would allow a citizen to use deadly force no matter how passive or nonviolent the suspected felony might be (e.g., embezzlement, forgery, tax or welfare fraud), and regardless of other external circumstances like time and place (e.g., populated area when people are out and about). Simply put, Defendant would be guided by one measure only: any means necessary to prevent the suspect from fleeing.

¶6 To support his interpretation of the statute, Johnson argues that case law in New Mexico applies the justifiable homicide defense to the apprehension of all fleeing felons. Relying on Alaniz v. Funk, 69 N.M. 164, 167, 364 P.2d 1033, 1034-35 (1961), Defendant claims that a private citizen or a police officer may use deadly force to stop a fleeing felon regardless of whether the felony is considered serious or not.

¶7 Alaniz was a wrongful death action against an acting deputy sheriff who attempted to prevent the escape of a man accused of having stolen rifles. The deputy fired shots at the getaway vehicle, killing the driver of the car. Id. at 165, 364 P.2d at 1033. Despite the nonviolent nature of the crime, and the absence of a concrete threat to the officer's safety, the court found the deputy's use of force to be reasonable as a matter of law under statutory language similar to that at hand, which made homicide justifiable " '[w]hen necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed[.]' " Id. at 166, 364 P.2d at 1034 (quoting NMSA 1953, § 40-24-13). However, the facts in Alaniz did not involve a private citizen's use of deadly force. Id. at 167-68, 364 P.2d at 1035-36. The holding in Alaniz applies only to the use of deadly force by a law enforcement officer and, therefore, is not controlling in the current case.

¶8 Moreover, Alaniz today would be limited by the holding of the United States Supreme Court in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Garner involved a lawsuit filed under 42 U.S.C. § 1983 by the family of an unarmed fleeing house burglar, who was killed by a police officer attempting to stop him. Garner, 471 U.S. at 3-4, 105 S.Ct. at 1697. Finding the killing of an unarmed fleeing suspect unreasonable under the Fourth Amendment, the Court stated that "it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out." Id. at 8, 105 S.Ct. at 1699. The Garner Court emphasized that the use of deadly force under such circumstances "frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment." Id. at 9, 105 S.Ct. at 1700. The Court observed that although the apprehension of criminals was a goal of the state, the Court was "not convinced that the use of deadly force is a sufficiently productive means of accomplishing [that goal] to justify the killing of nonviolent suspects." Id. at 10, 105 S.Ct. at 1700. Thus, the Court required that officers have probable cause to believe that they or others are threatened with serious harm before the use of deadly force could be constitutionally reasonable under the Fourth Amendment.

¶9 In Garner, as in the current case, the defendants argued that the common-law rule "allowed the use of whatever force was necessary to effect the arrest of a fleeing felon." Id. at 12, 105 S.Ct. at 1701. The Court rejected that argument, observing that, historically, many crimes that are now felonies were only misdemeanors, and that in the past most felonies were punishable by death. Id. at 14, 105 S.Ct. at 1702-03. Thus, the common-law felony rule applied to the most severe class of crimes, most of which by definition would pose a threat of harm to an arresting officer or others (e.g., murder, suicide, manslaughter, burglary, arson, robbery, rape, larceny, sodomy, and mayhem). See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.1(b), at 90-91 (1986) [hereinafter LaFave]. The Court also declared:

There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk.

Garner, 471 U.S. at 14-15, 105 S.Ct. at 1703. This is clearly not the case today, and as the Garner Court noted, "changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied." Id. at 15, 105 S.Ct. at 1703.

¶10 Thus, the classification of a crime as a misdemeanor or a felony is far different today than in Territorial times, and New Mexico law on warrantless arrests by police officers has reflected this change. While the common-law misdemeanor arrest rule has always restricted warrantless public arrests to offenses committed in the presence of the arresting officer, State v. Luna, 93 N.M. 773, 777-78, 606 P.2d 183, 187-88 (1980), historically, there was no such restriction on an officer's authority to make a warrantless public arrest for a felony. Recently, however, our Supreme Court interpreted Article II, Section 10 of the New Mexico Constitution so that warrantless public arrests by police officers for felonies must be supported by both probable cause and exigent circumstances, thus providing additional restrictions and safeguards on the police in apprehending suspects under our New Mexico Constitution. See Campos v. State, 117 N.M. 155, 157-59, 870 P.2d...