State v. Anderson
| Decision Date | 31 March 2021 |
| Docket Number | Nos. A-1-CA-38091,A-1-CA-37936,s. A-1-CA-38091 |
| Citation | 493 P.3d 434 |
| Court | Court of Appeals of New Mexico |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Tobby Twofeathers ANDERSON, Defendant-Appellant. State of New Mexico, Plaintiff-Appellee, v. Dustin Lee Wilson, Defendant-Appellant. |
Hector H. Balderas, Attorney General, Anne Minard, Assistant Attorney General Santa Fe, NM, for Appellee
Bennett J. Baur, Chief Public Defender, Charles D. Agoos, Assistant Appellate Defender Santa Fe, NM, for Appellants
{1} In this opinion, we consider two appeals: those of Dustin Lee Wilson and Tobby Twofeathers Anderson (collectively, Defendants).1 Defendants were among several inmates in Pod D-2 of the Otero County Detention Center who defied an order to lock down during a shift change of correction officers on April 30, 2017. Both were convicted of unlawful assault on a jail, contrary to NMSA 1978, Section 30-22-19 (1963). On appeal, Defendants contend that (1) the assault on a jail statute is unconstitutionally vague; (2) the assault on a jail instruction failed to provide the jury with an accurate rendition of the relevant law; and (3) the evidence was insufficient to support convictions. Anderson additionally asserts that the district court committed reversible error by (1) refusing to instruct the jury on lesser included offenses and (2) denying his motion to continue. We affirm.
{2} On April 30, 2017, Defendants were among several inmates who defied a lockdown order arising from events that began when a guard forcibly ended an inmate's phone call. Some inmates refused to lock down during the ensuing routine shift change, prompting the shift supervisor to summon additional law enforcement officers. Realizing their pod was to be raided, those inmates attempted to block the entrance to it with a mattress and plastic cots, and one squirted liquid soap on the stairs and floor leading to the pod. As officers ascended the stairs to the pod, inmates used the mattress to try to push them backward. In Defendants’ separate trials, the State presented still imagery from a stationary surveillance camera that depicts Defendants participating in the conflict. The conflict lasted only about ninety seconds and ended when officers deployed pepper spray, tasers, and shock shields to regain control of the inmates and pod. Convicted of all counts with which they were charged,2 Defendants now appeal their convictions for assault on a jail.
{3} This case requires examination of New Mexico's assault on a jail statute. See § 30-22-19. We briefly outline its legislative history before addressing Defendants’ arguments on appeal. The assault on a jail statute originated shortly after the Territory of New Mexico was established. At the time, led by the likes of Billy the Kid, penetrations of jail premises by outside actors were common, to the chagrin of sheriffs like Pat Garrett, and evidently the New Mexico Legislature. See Richard H. Underwood, A Riff on Billy the Kid , 32 Touro. L. Rev. 225, 230-31 (2016). A ban on such activities was passed into law when the Legislature criminalized both intended and actual assaults on jails, defining the former as that "intended to be committed on the jail ... for the purposes of procuring the homicide or escape of any or several of the prisoners which may be in jail," and the latter as actual penetration "by force and with violence, into any jail" with the same intended objective. Laws of the Territory of N.M. 1857-58, ch. 8, §§ 1, 4. This language remained largely intact even after New Mexico obtained statehood in 1912. See N.M. Stat. Ann. §§ 3056, 3059 (1915).
{4} In 1963, as part of a general revision of the entire criminal code, see State v. Fellhauer , 1997-NMCA-064, ¶ 6, 123 N.M. 476, 943 P.2d 123, the Legislature enacted the current iteration of Section 30-22-19, repealing the historic requirement that in order for an assault on a jail to be criminal in nature it must occur to achieve "the homicide or escape of any or several of the prisoners." Compare § 30-22-19, with Laws of the Territory of N.M. 1857-58, ch. 8, § 1. Indeed, the current statute expands its applicability by requiring no such specific purpose associated with the proscribed act. Yet even after 1963, jury instructions in cases prosecuting violations of the statute continued to unnecessarily include a specific intent element related to the removed language, thereby heightening the evidentiary burden necessary for the state to attain conviction. See State v. Tijerina (Tijerina I ), 1972-NMCA-169, ¶ 44, 84 N.M. 432, 504 P.2d 642 (), transferred to State v. Tijerina (Tijerina II ), 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127 ; see also UJI 14-2227 NMRA comm. cmt. ("Although the statutory elements do not include any specific intent to procure the escape of prisoners, that intent was included in jury instructions in the prosecution for the Tierra Amarilla courthouse raid of 1967.").
{5} As presently codified, Section 30-22-19 states:
We observe that while the Legislature saw fit to remove the intent element, it retained the penalty classification for the offense as a third degree felony. State v. Chavez , 2009-NMSC-035, ¶ 16, 146 N.M. 434, 211 P.3d 891 ().
{6} Defendants contend that in recent years at the district court level, Section 30-22-19 has been broadly applied and employed to charge multiple inmates who jointly participated in incidents that commenced not outside of, but within, jail or prison facilities.3 See Criminal Complaint , State v. Gurule , No. T-4-CR-2015-002791 (Bernalillo Cnty. Metro. Ct. Mar. 1, 2015) (alleging that the defendant kicked a metal cage and blocked tasers with his clothing); Criminal Complaint , State v. Cordero , No. T-4-CR-2015-002792 (Bernalillo Cnty. Metro. Ct. Mar. 1, 2015) (arising from the same incident and alleging that the defendant broke a window and used a mattress to block chemical agents). Thus, the focus of the statute's use by prosecutors has shifted from raid to uprising.
{7} Defendants contend that "in the absence of a requirement of a forcible entry into a jail, the assault on a jail statute is unconstitutionally vague." Specifically, Defendants assert that "[a]bsent a limiting construction, the statute ... fail[s] to sufficiently apprise defendants of what conduct the statute criminalizes." Defendants argue that "the vagueness of the term ‘assault,’ which can be read so broadly as to include non-compliance, dignitary slights, and even omissions, and the term ‘jail,’ which can be read so broadly as to encompass an operation or a metaphysical institution ... could potentially render the statute unconstitutionally vague." Defendants also raise policy concerns, arguing that the statute unconstitutionally delegates standardless discretion to law enforcement officers who may then "arbitrarily decide to felonize almost any conduct that they subjectively perceive to be in any way ‘assaultive.’ " The State answers that Defendants’ vagueness challenge fails because "the plain language of Section 30-22-19 proscribes Defendant[s’] acts."
{8} We review a vagueness challenge de novo "in light of the facts of the case and the conduct which is prohibited by the statute." State v. Smile , 2009-NMCA-064, ¶ 17, 146 N.M. 525, 212 P.3d 413 (internal quotation marks and citation omitted). "[W]e review void-for-vagueness constitutional claims even when they are not preserved below." State v. Chavez , 2019-NMCA-068, ¶ 11, 451 P.3d 115. We apply "a two-part test for vagueness, considering whether the statute (1) fails to provide persons of ordinary intelligence using ordinary common sense a fair opportunity to determine whether their conduct is prohibited, or (2) fails to create minimum guidelines for enforcement and thus encourages subjective and ad hoc application of the law." State v. Tsosie , 2011-NMCA-115, ¶ 31, 150 N.M. 754, 266 P.3d 34 (). Our case law requires that we exercise the "strong presumption of constitutionality [that] underlies each legislative enactment, and [hold] the party challenging constitutionality [to its] burden of proving [the] statute is unconstitutional beyond all reasonable doubt." State v. Laguna , 1999-NMCA-152, ¶ 24, 128 N.M. 345, 992 P.2d 896. "Appellate courts have a duty to construe a statute in such a manner that it is not void for vagueness if a reasonable and practical construction can be given to its language." State v. Duttle , 2017-NMCA-001, ¶ 13, 387 P.3d 885 (internal quotation marks and citation omitted).
{9} Applying the first part of the vagueness test, we disagree with Defendants that the assault on a jail statute fails to "provide persons of ordinary intelligence using ordinary common sense a fair opportunity to determine whether their conduct is prohibited[.]" Tsosie , 2011-NMCA-115, ¶ 31, 150 N.M. 754, 266 P.3d 34 (internal quotation marks and citation omitted). Defendants ask us to conclude that absent a requirement of external forcible entry into a jail, the assault on a jail statute...
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...instruction, and so we consider whether the refusal to give the instruction was reversible error. State v. Anderson , 2021-NMCA-031, ¶ 14, 493 P.3d 434. The failure to instruct is reversible error if the "evidence at trial supports the giving of an instruction on a defendant's theory of the......