State v. Castrillo

• Decision Date: 15 October 1991
• Docket Number: No. 19821,19821
• Citation: 1991 NMSC 96,819 P.2d 1324,112 N.M. 766
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Arthur CASTRILLO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1324

819 P.2d 1324

112 N.M. 766

STATE of New Mexico, Plaintiff-Appellee, v. Arthur CASTRILLO, Defendant-Appellant.

No. 19821.

Supreme Court of New Mexico.

Oct. 15, 1991.

[112 N.M. 768] Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Tom Udall, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BACA, Justice.

We accepted certification of this appeal from the court of appeals pursuant to NMSA 1978, Section 34-5-14 (Repl. Pamp.1990) to clarify the law of duress as a defense to the crime of felon in possession of a firearm. We also consider the other two issues raised in this appeal: Whether the trial court improperly denied defendant's motion to discharge the jury, and whether the use of the same prior felony to prove the crime of felon in possession of a firearm and defendant's status as a habitual offender violates double jeopardy. We affirm the district court's resolution of the first two issues and remand for resentencing as to the last claim.

Defendant-appellant Castrillo acknowledged before trial that he was a convicted felon and had been in possession of a firearm. He notified the court he would present a defense of duress, based on several incidents that allegedly caused him to reasonably fear immediate bodily harm and to purchase a firearm to protect himself. Those incidents include (1) defendant's estranged wife intentionally smashed his car windshield five and one-half months prior to defendant purchasing the weapon; (2) approximately one month later she appeared at the home of defendant's parents (where he was staying), shouted obscenities, and fired a gun; and (3) during the same time frame, the former boyfriend of defendant's girlfriend threatened to kill him and apparently was armed. After that incident, defendant and his girlfriend moved to Albuquerque to avoid further problems. They remained there for four months, but the relationship ended, and defendant returned to Roswell. Three days before he bought the weapon, defendant's car was shot up while he was visiting his wife. He had walked to the side of his wife's house to knock on a window when he heard gunshots and screeching tires. He returned to his car to find several bullet holes; several ricochets also had hit the windshield, which was darkly tinted. The tint made it impossible to see if the automobile was occupied. After he bought the firearm, another incident involving defendant's wife and her family occurred that included an exchange of gun fire.

At trial, defendant submitted an instruction on duress. See SCRA 1986, 14-5130. The court refused the instruction, and defendant was convicted of being a felon in possession of a firearm pursuant to NMSA 1978, Section 30-7-16 (Cum.Supp.1991).

I. REFUSAL TO INSTRUCT THE JURY ON DURESS.

To warrant submission to the jury of the defense of duress, a defendant must make a prima facie showing that he was in fear of immediate and great bodily harm to himself or another and that a reasonable person in his position would have acted the same way under the circumstances. Esquibel v. State, 91 N.M. 498, 500, 576 P.2d 1129, 1131 (1978); SCRA 1986, 14-5130.¹ If the evidence supports a theory of the case, a defendant is entitled to instruction on that theory. State v. Venegas, 96 N.M. 61, 628 P.2d 306 (1981).

A. Objection Was Not Untimely.

Defendant contends the state failed to enter a timely objection to his defense. He asserts he was prejudiced by the state's initial acquiescence because at trial he admitted the elements of the crime charged, believing he could present his theory of duress to the jury. We find no error. Defendant bore the burden to present a prima facie case of duress warranting its submission to the jury. See Esquibel, 91 N.M. at 501, 576 P.2d at 1132. The state did not act improperly when it waited until after defendant presented his case to object to its submission to the jury. Although it had notice of the facts that defendant sought to prove in his prima facie case, the state could not know whether defendant would carry his burden until the evidence had been presented.

B. Immediacy of the Feared Harm.

We address whether, and if so, to what extent, the defense of duress is available to a convicted felon accused of the offense of felon in possession of a firearm. The duress defense is similar, in this context, to other justification defenses, and thus we turn to other courts' analyses of those similar defenses to provide guidance. See, e.g., United States v. Nolan, 700 F.2d 479, 484 (9th Cir.) (duress defense comparable to coercion, necessity, or self defense in this context), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983); State v. Crawford, 308 Md. 683, 691 n. 1, 521 A.2d 1193, 1197 n. 1 (1987) (discussing distinction between duress and necessity). Duress recognizes psychological coercion--it is a threat that "operates upon the defendant's mind" and causes him to justifiably violate a criminal law to avoid greater harm. W. LaFave & A. Scott, Jr., Criminal Law Sec. 49, at 374 (1972).²

Initially, we discern no reason why the defense of duress, under the appropriate circumstances, should not be available to a felon accused of possessing a firearm. See, e.g., United States v. Panter, 688 F.2d 268 (5th Cir.1982) (self-defense available to a felon); Crawford, 308 Md. at 696, 521 A.2d at 1199 (necessity may be a defense to illegal possession of handgun charge); see generally Annotation, Fact that Weapon was Acquired for Self-Defense or to Prevent its Use Against Defendant as Defense in Prosecution for Violation of State Statute Prohibiting Persons Under Indictment for, or Convicted of, Crime from Acquiring, Having, Carrying, or Using Firearms or Weapons, 39 A.L.R.4th 967 (1985) (weight of authority supports allowing affirmative defenses in nature of justification).

In its certification to us, the court of appeals determined that defendant's testimony about his state of mind, together with evidence of threats and threatening acts, sufficed to create jury issues on whether he was afraid and whether he feared great bodily harm. We agree with that portion of its analysis. The court also determined that the evidence created a jury question regarding whether a reasonable person would have acted the same way under the circumstances. We shall return to that question, but first we address the element of immediacy.

In Esquibel, this court addressed the meaning of "immediate danger of death or serious bodily harm." In that case, we held that it depends on the circumstances of the individual case and determined that a prolonged history of beatings and threats, including a threat some two to three days prior to the crime, sufficed to present a question for the jury. 91 N.M. at 501-02, 576 P.2d at 1132-33; see also State v. Torres, 99 N.M. 345, 657 P.2d 1194 (Ct.App.1983) (immediacy of compulsion can be found in threat of future harm); State v. Norush, 97 N.M. 660, 642 P.2d 1119 (Ct.App.1982) (duress can be found where there is a continuing and constant fear of great bodily harm that extended for a substantial period of time); State v. Lee, 78 N.M. 421, 432 P.2d 265 (Ct.App.1967) (defense of duress not established by showing defendant threatened with evidence at some prior time; what is required is personal constraint at time crime committed).³

We agree with the court of appeals that Esquibel and the court of appeals' precedent indicate that the requirement of immediacy should not be interpreted too literally when a defendant's fear is based on a pattern of prior threats. However, a prolonged period of threats, extending until two to three days before the crime is committed, is not a talisman creating a question of fact whether a defendant feared immediate harm in every circumstance.

The facts and circumstances surrounding alleged duress when the crime charged is felon in possession of a firearm will necessarily differ from other crimes. The offense is a possessory crime imposing liability approaching strict liability for its transgression. See State v. Haddenham, 110 N.M. 149, 149, 793 P.2d 279, 279 (Ct.App.), cert. denied, 110 N.M. 183, 793 P.2d 865 (1990); see also Nolan, 700 F.2d at 484 (federal firearms law approaches absolute liability). Its purpose is to keep firearms from felons because the law presumes they are more likely to unlawfully use firearms or to resort to force in violation of the law. See People v. King, 22 Cal.3d 12, 21, 582 P.2d 1000, 1005, 148 Cal.Rptr. 409, 414 (1978) (in bank). The prohibition against the possession of firearms must be read together with permissive and legitimate uses of firearms. While the prohibition against possession may be relaxed when the possession is justified, a felon is justified to possess a firearm only when strictly required because of the strict liability nature of the offense and the evil the offense is designed to prevent. Thus, the felon may be forced to resort to alternatives that a nonfelon would not be required to pursue before arming himself. See id. at 25, 582 P.2d at 1007, 148 Cal.Rptr. at 416; Panter, 688 F.2d at 271 (balance absolute prohibition against possession with right to defend self).

A common sense examination of the problem demonstrates the propriety of this approach. The strict liability of the crime of felon in possession of a firearm makes a convicted defendant criminally liable the moment he takes possession of a firearm. Thus, for example, a felon who is attacked and wrestles a weapon from his attacker would be criminally liable absent the availability of a justification defense. See, e.g., Panter, 688 F.2d at 269 (defendant was tending bar; he was attacked and stabbed; when he fell to the floor, he reached for a club beneath the bar but instead found waitress's gun); Crawford, 308 Md. at 685-90, 521 A.2d at 1194-96 (defendant attacked in apartment and wrestled gun...