State v. Diaz, No. 15825

Docket NºNo. 15825
Citation121 N.M. 28, 908 P.2d 258, 1995 NMCA 137
Case DateOctober 30, 1995
CourtCourt of Appeals of New Mexico

Page 258

908 P.2d 258
121 N.M. 28
STATE of New Mexico, Plaintiff-Appellee,
v.
Sergio Castillo DIAZ, Defendant-Appellant.
No. 15825.
Court of Appeals of New Mexico.
Oct. 30, 1995.
Certiorari Denied Dec. 11, 1995.

Page 259

[121 N.M. 29] Tom Udall, Attorney General, Gail MacQuesten, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Sammy J. Quintana, Chief Public Defender, Christopher Bulman, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

PICKARD, Judge.

1. Defendant appeals his conviction of four counts of aggravated assault on a peace officer in violation of NMSA 1978, Section 30-22-22(A)(1) (Repl.Pamp.1994). Defendant raises ten issues on appeal. Our review of the record indicates that the trial court erred in failing to instruct the jury on the lesser included offense of resisting or abusing an officer. See NMSA 1978, § 30-22-1 (Repl.Pamp.1994). Accordingly, we remand for a new trial.

2. Defendant also raises three issues relating to jury instructions on the elements of the crime of aggravated assault on a peace officer, five issues alleging error in the trial court's restricting Defendant in his ability to present evidence or cross-examine witnesses due to his failure to abide by discovery deadlines or due to time constraints, and a claim of cumulative error. In light of our reversal and remand for a new trial, we need not address any of these issues. Nor do we believe that any of the issues will be raised in the same way on retrial; thus, we do not address them for the purpose of guidance on retrial.

FACTS

3. On May 31, 1992, Defendant had been drinking and left his home on foot to go to a friend's house. Defendant's wife ("Wife") and daughters came looking for Defendant in the family's Ford Bronco. When Wife was unable to find Defendant at the friend's house, she returned to the Bronco. Defendant was there. He was intoxicated and very angry that she had been looking for him. He was breaking the Bronco's windows. Defendant began yelling at Wife. Wife asked a passing motorist to call the police. The motorist notified Officer James Lujan, who was a few blocks away on another call.

4. When Lujan arrived, he saw Defendant near the Bronco holding a knife and yelling at his Wife. Lujan drew his gun, approached Defendant, and ordered him to drop the weapon. Defendant did not obey the order, and he instead backed away, still holding the knife.

5. Officers David Webb, Jesse Bransford, Sandra Gomez, and Martin Lopez arrived next. Webb and Lopez drew their weapons and joined Lujan. These three officers formed a semi-circle around Defendant. Gomez and Bransford stayed behind the officers and put away their weapons. The officers testified that they repeatedly ordered Defendant to "put down," "drop," or "throw" the knife. Defendant did not put the knife down,

Page 260

[121 N.M. 30] but instead continued to back down the street, followed by the officers.

6. Defendant and the array of officers continued down the street for approximately 150 to 200 yards. Officer Ignacio Salazar drove up behind Defendant and parked his car to block Defendant's path. Defendant stepped up onto the sidewalk and stopped. By this time, the officers had moved to within a few feet of Defendant. Salazar joined the other officers in the semi-circle around Defendant. Defendant had essentially been "cornered" between some trees behind the sidewalk, Salazar's vehicle, and the officers.

7. The officers testified that Defendant at this point made a move toward them. Salazar fired one shot. Defendant was struck, dropped the knife, and fell to the ground.

LESSER INCLUDED OFFENSE

8. A failure to instruct the jury on a lesser included offense constitutes reversible error if: (1) the lesser offense is included in the greater, charged offense, State v. Wingate, 87 N.M. 397, 397-98, 534 P.2d 776, 776-77 (Ct.App.1975); (2) there is evidence tending to establish the lesser included offense and that evidence establishes that the lesser offense is the highest degree of crime committed, State v. Fish, 102 N.M. 775, 779, 701 P.2d 374, 378 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985); and (3) the defendant has tendered appropriate instructions preserving the issue, SCRA 1986, 5-608(D) (Repl.1992). We discuss each of these requirements as well as a fourth issue--the trial judge's stated reason for refusing Defendant's request. We discuss preservation last.

Resisting as offense included in peace officer assault

9. We first analyze whether the instructions sought by Defendant were for a lesser offense included in the greater charged offense. See Wingate, 87 N.M. at 397-98, 534 P.2d at 776-77. Defendant was charged with aggravated assault on a peace officer in violation of Section 30-22-22(A)(1) ("Aggravated assault upon a peace officer consists of ... unlawfully assaulting or striking at a peace officer with a deadly weapon while he is in the lawful discharge of his duties.") The jury was instructed that, to find Defendant guilty, it had to find that:

1. The Defendant used a knife in a menacing or threatening manner ... [which] caused [the officer] to believe that he was about to be hurt or injured; and a reasonable person in the same circumstances would have had the same belief.

2. The Defendant used a knife.

3. At the time [the officer] was a Santa Fe City Police Officer and was performing his duties.

10. Defendant argues that the versions of resisting upon which the jury should have been instructed are Sections 30-22-1(B) ("[r]esisting, evading or obstructing an officer consists of ... intentionally fleeing, attempting to evade or evading an officer of this state when the person committing the act ... has knowledge that the officer is attempting to apprehend or arrest him") or 30-22-1(D) ("[r]esisting, evading or obstructing an officer consists of ... resisting or abusing any ... peace officer in the lawful discharge of his duties"). There is a uniform jury instruction for both of these versions of resisting providing that the State needs to prove:

1. [name of victim] was a peace officer in the lawful discharge of his duties; and [either]

2. The defendant, with the knowledge that [name of victim] was attempting to apprehend or arrest him, fled, attempted to evade or evaded the officer; [OR]

2. The defendant resisted or abused [name of victim].

SCRA 1986, 14-2215.

11. Our first inquiry is whether either or both of these ways of resisting is a lesser or necessarily included offense of aggravated assault on a peace officer. In general, a crime is a lesser included offense of another when the defendant could not have committed the greater offense without also committing the lesser offense. State v. McGuire, 110 N.M. 304, 309, 795 P.2d 996, 1001 (1990). In New Mexico, there are at least two tests for whether an offense is necessarily included within another offense.

Page 261

[121 N.M. 31] Our Supreme Court's latest case on the issue appears to limit lesser included offenses to those that satisfy a strict elements test so that a lesser offense cannot have any element not included in the greater and must have at least some elements of the greater. State v. Henderson, 116 N.M. 537, 541, 865 P.2d 1181, 1185 (1993). In the past, however, our Supreme Court has approved of a test that is not as strict and that views the elements in light of the facts proved at trial so that a lesser offense can have elements, in the abstract, that are not included in the greater, but that the method of committing the greater crime in the particular case will necessarily include commission of the lesser crime. State v. DeMary, 99 N.M. 177, 179, 655 P.2d 1021, 1023 (1982).

12. Resisting in violation of Section 30-22-1(D) is a lesser included offense of aggravated assault on a peace officer under the Henderson test, while resisting in violation of Section 30-22-1(B) is not. However, under the facts of this case, resisting in violation of Section 30-22-1(B) is a lesser included offense under the DeMary test. We explain.

13. Insofar as Section 30-22-1(D) is concerned, we addressed a similar situation in State v. Padilla, 101 N.M. 78, 678 P.2d 706 (Ct.App.1983), rev'd on other grounds, 101 N.M. 58, 678 P.2d 686 (1984), aff'd sub nom. Fugate v. New...

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39 practice notes
  • State v. Jimenez, NO. 34,375
    • United States
    • New Mexico Court of Appeals of New Mexico
    • February 14, 2017
    ...to use the bathroom, walked out the back door of the house, then jumped over a backyard fence); State v. Diaz , 1995-NMCA-137, ¶ 17, 121 N.M. 28, 908 P.2d 258 (explaining that "evidence that [the d]efendant was backing away from the officers ... would have supported a finding that [the d]ef......
  • McGarry v. Bd. of Cnty. Commissioners for the Cnty. of Lincoln, No. CIV 16–0483 JB/GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 28, 2018
    ...police officers' commands. See State v. Prince, 1999-NMCA-010, ¶ 17, 126 N.M. 547, 972 P.2d 859, 863 ; State v. Diaz, 1995-NMCA-137, ¶ 17, 121 N.M. 28, 908 P.2d 258, 262 ("If the jury were persuaded by testimony indicating that Defendant was intoxicated and defiant of the police ... the jur......
  • 1997 -NMSC- 44, State v. Salazar, No. 22891
    • United States
    • New Mexico Supreme Court of New Mexico
    • September 3, 1997
    ...421 (1980), overruled on other grounds by Sells v. State, 98 N.M. 786, 788, 653 P.2d 162, 164 (1982); State v. Diaz, 1995 NMCA 066, p 24, 121 N.M. 28, 908 P.2d 258; State v. Arias, 115 N.M. 93, 96, 847 P.2d 327, 330 (Ct.App.1993), overruled on other grounds by State v. Abeyta, 1995 NMSC 052......
  • State v. Nemeth, No. 20,637.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 20, 2001
    ...of battery is the highest degree of crime committed. See State v. Salazar, 1997-NMSC-044, ¶ 50, 123 N.M. 778, 945 P.2d 996; State v. Diaz, 121 N.M. 28, 30, 908 P.2d 258, 260 (Ct.App.1995) (stating the elements required for giving a lesser-offense jury instruction). The trial court must give......
  • Request a trial to view additional results
39 cases
  • State v. Jimenez, NO. 34,375
    • United States
    • New Mexico Court of Appeals of New Mexico
    • February 14, 2017
    ...to use the bathroom, walked out the back door of the house, then jumped over a backyard fence); State v. Diaz , 1995-NMCA-137, ¶ 17, 121 N.M. 28, 908 P.2d 258 (explaining that "evidence that [the d]efendant was backing away from the officers ... would have supported a finding that [the d]ef......
  • McGarry v. Bd. of Cnty. Commissioners for the Cnty. of Lincoln, No. CIV 16–0483 JB/GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 28, 2018
    ...police officers' commands. See State v. Prince, 1999-NMCA-010, ¶ 17, 126 N.M. 547, 972 P.2d 859, 863 ; State v. Diaz, 1995-NMCA-137, ¶ 17, 121 N.M. 28, 908 P.2d 258, 262 ("If the jury were persuaded by testimony indicating that Defendant was intoxicated and defiant of the police ... the jur......
  • 1997 -NMSC- 44, State v. Salazar, No. 22891
    • United States
    • New Mexico Supreme Court of New Mexico
    • September 3, 1997
    ...421 (1980), overruled on other grounds by Sells v. State, 98 N.M. 786, 788, 653 P.2d 162, 164 (1982); State v. Diaz, 1995 NMCA 066, p 24, 121 N.M. 28, 908 P.2d 258; State v. Arias, 115 N.M. 93, 96, 847 P.2d 327, 330 (Ct.App.1993), overruled on other grounds by State v. Abeyta, 1995 NMSC 052......
  • State v. Nemeth, No. 20,637.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 20, 2001
    ...of battery is the highest degree of crime committed. See State v. Salazar, 1997-NMSC-044, ¶ 50, 123 N.M. 778, 945 P.2d 996; State v. Diaz, 121 N.M. 28, 30, 908 P.2d 258, 260 (Ct.App.1995) (stating the elements required for giving a lesser-offense jury instruction). The trial court must give......
  • Request a trial to view additional results

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