State v. Cooper

• Decision Date: 29 October 1999
• Docket Number: No. 19,680.,19,680.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey COOPER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

993 P.2d 745

128 N.M. 428

STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey COOPER, Defendant-Appellant.

No. 19,680.

Court of Appeals of New Mexico.

October 29, 1999.

Certiorari Denied December 21, 1999.

Patricia A. Madrid, Attorney General, Santa Fe, Max Shepherd, Assistant Attorney General, Albuquerque, for Appellee.

Max Houston Proctor, Hobbs, for Appellant.

Certiorari Denied, No. 26,064, December 21, 1999.

OPINION

BOSSON, Judge.

{1} Defendant appeals his conviction for aggravated assault against a household member. The sole issue on appeal is whether the trial court erred in refusing Defendant's self-defense instruction. As an issue of first impression, we hold that when an accused reasonably feels threatened by multiple assailants who appear to be acting in concert, and forcibly uses one assailant as a shield against the other, the accused is entitled to a self-defense instruction with regard to charges of assault against the person used as a shield. For the reasons discussed below, we reverse the trial court's decision rejecting the self-defense instruction and remand for a new trial.

BACKGROUND

{2} The testimony of the witnesses conflicts considerably, and Defendant's recollection of the events in question is largely disputed by other witnesses. However, because the only issue on appeal is whether the trial court erred in denying Defendant's self-defense instruction, we examine the evidence from Defendant's point-of-view. See State v. Gallegos, 104 N.M. 247, 249-50, 719 P.2d 1268, 1270-71 (Ct.App.1986) (holding that element of self-defense is measured by viewing the circumstances from the standpoint of the defendant).

{3} Defendant was married to Collette Cooper (Collette), the victim in this case. At the time of the incident Defendant and Collette were separated, and some degree of distrust remained between them. Collette and a friend, John Oliver (John), drove to Defendant's home to retrieve Collette's personal belongings. Before departing, Collette called Defendant's home twice, leaving messages on his answering machine. In the first message, Collette is heard to ask, "Are you home?" Collette then appears to be talking to someone else saying, "he may not be there" and making a comment about the possibility of breaking the door down. In the second message, Collette is heard to say, "This is Collette, I see you haven't died yet, anyway look at the bright side." Defendant testified that he felt threatened by these messages based on past incidents of violence with Collette. Collette had previously stabbed Defendant after an argument, and on another occasion she had displayed an open knife in front of a witness, threatening Defendant with bodily harm.

{4} When Collette and John arrived at Defendant's home, Defendant saw Collette get out of the car with John, who was unknown to Defendant. Initially, Defendant testified, he did not fear Collette because she had recently visited his house without incident. Collette walked into the house, passing Defendant near the door without saying anything. When John approached the door behind Collette, Defendant testified that he saw a gun in John's hand. Although John did not say anything to Defendant or point the gun at him, Defendant became scared. He grabbed Collette, took her around the counter to grab a knife, and while holding Collette against her will, allegedly with a knife at her throat, Defendant told John that John would have to kill Collette to get to him. Defendant then kicked the door shut, locking John out and Collette in. John was no closer than four feet from the front door when Defendant kicked the door shut. Defendant then forced Collette into the bedroom. While holding the knife in his hand, Defendant told Collette to stay on the bed.

{5} At trial, Defendant was asked, "At what point did you become scared?" Defendant replied that he was scared when he saw John with the gun, and he added, "after that phone message I heard, I didn't know what the heck was going on." When Defendant was asked why he was afraid of Collette, Defendant testified that he was not afraid of Collette until he saw the gun. Defendant explained that he became afraid of Collette because, "well, if I'm watching another one, I don't know what the other one's doing." Defendant later testified that, after making Collette go to the bedroom, she smiled at him saying, "your day's coming."

{6} When asked if John ever tried to force his way into Defendant's house, Defendant testified that as he was taking Collette to the bedroom, John started kicking at the door and beating on it. Defendant stated that, "when you kick a door, to me that's trying to get through the door." After sheriff's deputies arrived on the scene, Defendant released Collette. Defendant was tried and convicted of aggravated assault against a household member under NMSA 1978, § 30-3-13 (1995), for his actions toward Collette.

DISCUSSION

Propriety of Self-Defense Instruction

{7} In New Mexico, an instruction on self-defense is warranted if there is any evidence, even slight evidence, supporting the claim. See State v. Duarte, 1996-NMCA-038, ¶ 3, 121 N.M. 553, 915 P.2d 309. The propriety of denying a jury instruction is a mixed question of law and fact that we review de novo. See State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. Thus, we do not weigh the evidence but rather determine whether "there is sufficient evidence to raise a reasonable doubt" as to whether Defendant using Collette as a shield was in self-defense. State v. Ungarten, 115 N.M. 607, 611, 856 P.2d 569, 573 (Ct.App. 1993). "When evidence at trial supports the giving of an instruction on a defendant's theory of the case, failure to so instruct is reversible error." State v. Trammel, 100 N.M. 479, 481, 672 P.2d 652, 654 (1983).

{8} To justify the use of deadly force in self-defense, there must be some evidence that "an objectively reasonable person, put into Defendant's subjective situation, would have thought that [he or she] was threatened with death or great bodily harm, and that the use of deadly force was necessary to prevent the threatened injury." Duarte, 1996-NMCA-038, ¶ 8, 121 N.M. 553, 915 P.2d 309. In the usual case, self-defense is justified when force is directed toward a person posing a threat of imminent bodily harm. This case presents a unique twist on the normal use of self-defense. Here, the threat of force did not come from Collette, at least not directly; it came from John. Yet Defendant did not apply force to John; he took Collette hostage, holding her against her will by threatening her with a knife. In other words, Defendant forcibly used Collette as a shield to protect himself from a perceived threat that arose in large part from someone else.

{9} There is very little case law addressing a situation in which a defendant uses the victim as a shield to protect himself from an aggressor. In the human-shield cases we have located, the defendants wrongly used innocent third parties to protect themselves from the threatened harm. See generally 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7(g) (1986). For example, in State v. Richardson, No. CR-160417, 1982 WL 5367, at *5 (Ohio Ct.App. May 13, 1982), a store owner confronted the defendant believing the defendant to be the same man who attempted to rob his store the previous night. When the defendant turned to leave, the store owner shot him. The defendant grabbed an innocent third person as a shield against being shot again. The trial court refused to give a self-defense instruction against an assault charge because the defendant was not entitled to act aggressively toward an innocent bystander. See State v. Banks, 24 Ariz. App. 369, 539 P.2d 173, 174-75 (1975) (holding that a defendant who used a third person as a shield is not entitled to a self-defense instruction because his actions were not directed toward the person who constituted the threat). We agree that a defendant is not entitled to a self-defense instruction if his actions are taken against an innocent third party, whether he uses that third party merely as a shield or causes the person serious injury.

{10} Defendant argues that his case differs from these human-shield cases in that Collette was not a mere innocent bystander. Defendant claims to have reasonably believed that Collette and John were acting together, threatening him with serious harm, or at least a reasonable jury could so conclude under the circumstances. Defendant makes a legitimate point.

{11} When two or more persons undertake overt action to harm another, the victim may use an appropriate amount of force to defend himself against either aggressor, or both of them. If supported by the evidence, the defendant is entitled to a self-defense instruction in which the jury considers threatened harm from all assailants, not just the one against whom the defendant may have retaliated. See Lerma v. State, 807 S.W.2d 599, 601-02 (Tex.Ct.App.1991). In Lerma, a teenage defendant became fearful when two adults pushed, struck, and cursed him during an argument. The defendant observed that one of the adults possessed a gun and believed that he would be killed. In reacting to such fear, he shot and killed the unarmed assailant. That court reversed the subsequent murder conviction for failing to give sufficiently broad jury instructions which included the theory of self-defense from the threatening behavior of both assailants, not only the aggressor with the gun.

{12} Another multiple assailant opinion from Texas, Frank v. State, 688 S.W.2d 863, 868 (Tex.Crim.App.1985) (en banc), is closer to the facts of this case. In Frank, an ex-wife, known to carry and use a knife, and her adult son, who had a reputation for violence, surprised the defendant at his house while allegedly retrieving her belongings after a bitter divorce. By the aggressive manner in which the two approached him, the defendant feared for...