State v. Ellis

• Decision Date: 07 February 2007
• Docket Number: No. 26,263.,26,263.
• Citation: 155 P.3d 775,2007 NMCA 037
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert W. ELLIS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

155 P.3d 775

2007 NMCA 037

STATE of New Mexico, Plaintiff-Appellee, v. Robert W. ELLIS, Defendant-Appellant.

No. 26,263.

Court of Appeals of New Mexico.

February 7, 2007.

Certiorari Granted, No. 30,258, March 26, 2007.

Gary K. King, Attorney General Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.

Templeman and Crutchfield, Barry C. Crutchfield, Lovington, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Defendant was convicted of aggravated assault upon a peace officer contrary to NMSA 1978, § 30-22-22 (1971), based on threatening the officer with a tire tool. On appeal, Defendant argues that his conviction should be reversed because the district court failed to properly instruct the jury with regard to his self-defense claim. The State concedes that the district court erred by failing to properly instruct the jury, but argues that the error was harmless because Defendant was not entitled to a self-defense instruction in the first place. We hold that the district court erred in refusing Defendant's tendered jury instruction and conclude that the error was not harmless. We therefore reverse Defendant's conviction for aggravated assault upon a peace officer and remand for a new trial with proper jury instructions.

BACKGROUND

{2} Defendant was pulled over for a seatbelt violation while test-driving a used pickup truck with a friend. As Deputy Sheriff Ruben Castro pulled Defendant over, he turned on his in-car camera and microphone and the entire stop was recorded. After stopping Defendant and asking him and his friend for identification and proof of insurance, Deputy Castro informed Defendant that he was issuing a warning for lack of proof of current insurance and a citation for a seatbelt violation.

{3} Defendant contested the citation, arguing that Deputy Castro could not pull him over for a seatbelt violation and stating that he would not sign the ticket. On the videotape, Defendant can be seen moving in and out of the camera's view, alternatively walking toward Deputy Castro and then back to the pickup as Deputy Castro can be heard, loudly and apparently out of control, giving conflicting instructions to Defendant to either "stay over there" or "come here." Defendant eventually walked over to Deputy Castro and took his driver's license from Deputy Castro's clipboard. According to Defendant and his friend, Deputy Castro pulled his gun during this first encounter and pointed it at the ground. Defendant and his friend also testified that Deputy Castro pointed his gun at Defendant as the parties continued to argue. Deputy Castro denied pulling his gun at the initial stop.

{4} After Defendant grabbed his driver's license and Deputy Castro allegedly pointed his gun at Defendant, Defendant got back into the pickup truck and drove to a nearby residence. Defendant explained that he drove away because he was afraid of Deputy Castro and wanted to go some place where there were witnesses. Deputy Castro called for backup and followed Defendant and his friend to a nearby residence where the owner of the pickup truck lived. Defendant waited for Deputy Castro to turn his patrol car around before driving away, and Defendant maintained the speed limit during the entire drive.

{5} After both vehicles arrived at the residence, Deputy Castro pointed his gun at Defendant and ordered him to the ground. Defendant then became angry and moved toward Deputy Castro, stating that he was going to "kick [his] ass" for pulling a gun on him. Deputy Castro testified that as the Defendant approached him, he put his gun back into his holster and sprayed Defendant with pepper spray twice. At this point, Defendant went back to the pickup truck and pulled a tire tool from the bed of the truck. Defendant then began walking back toward Deputy Castro, who again pulled his gun. Defendant tossed the tire tool back over his shoulder and got back into the pickup truck. Defendant drove closer to the residence. Eventually, additional police officers arrived and after a struggle, both Defendant and his friend were arrested.

{6} Defendant's first trial resulted in a mistrial because the jury was unable to reach a verdict. At both trials, Defendant requested a self-defense instruction. The State did not object to the instruction. The district court found that there was sufficient evidence to support a jury instruction on self-defense. Although the district court accepted Defendant's general self-defense instruction, Defendant argued that if a self-defense instruction is given, a reference to self-defense must also be included in the elements instruction for the charged crime. Defendant then tendered an instruction including such a reference. The district court rejected Defendant's tendered jury instruction, stating that a general self-defense instruction would adequately cover Defendant's self-defense claim. Defendant was convicted of aggravated assault upon a peace officer and sentenced to eighteen months in prison.

DISCUSSION

{7} On appeal, Defendant argues that although the district court correctly determined that he was entitled to a self-defense instruction, the district court erred in refusing Defendant's tendered jury instruction that included the concept that Defendant "did not act in limited self defense" as one of the elements of the aggravated assault charge. The State concedes that the district court erred, but argues that Defendant's conviction should not be reversed because the error was harmless. Because we are not bound by the State's concession, we will first independently review the district court's decision regarding Defendant's submitted jury instruction. See State v. Foster, 1999-NMSC-007 ¶ 25, 126 N.M. 646, 974 P.2d 140. Second, we will address the State's harmless error argument.

Jury Instructions on Self-defense

{8} "The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review the instructions for reversible error. If not, we review for fundamental error." State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (citation omitted). In the present case, because Defendant's argument was preserved, "[w]e review the jury instructions to determine whether a reasonable juror would have been confused or misdirected by the instructions." State v. Griffin, 2002-NMCA-051, ¶ 8, 132 N.M. 195, 46 P.3d 102; see also State v. Parish, 118 N.M. 39, 41-42, 878 P.2d 988, 990-91 (1994). "[I]f an instruction is facially erroneous it presents an incurable problem and mandates reversal." Parish, 118 N.M. at 41, 878 P.2d at 990. Further, "[i]t is reversible error if a reasonable juror might have misunderstood a jury instruction." Griffin, 2002-NMCA-051, ¶ 8, 132 N.M. 195, 46 P.3d 102 (internal quotation marks and citation omitted).

{9} The use notes for the jury instructions for self-defense provide that if a self-defense instruction is deemed appropriate, the district court must also include within the essential elements instruction for the charged offense the phrase, "[t]he defendant did not act in self defense." UJI 14-5181 NMRA, Use Note 1; UJI 14-5183 NMRA, Use Note 1. In the present case, Defendant tendered such an instruction, but the district court refused the instruction.

{10} District courts must give uniform jury instructions as written. UJI-Criminal General Use Note NMRA ("[T]he uniform instruction must be used without substantive modification or substitution."); State v. Armijo, 1999-NMCA-087, ¶ 24, 127 N.M. 594, 985 P.2d 764. The failure to do so may constitute reversible error. See Griffin, 2002-NMCA-051, ¶ 10, 132 N.M. 195, 46 P.3d 102; see also Parish, 118 N.M. at 44, 878 P.2d at 993 ("A jury instruction which does not instruct the jury upon all questions of law essential for a conviction of any crime submitted to the jury is reversible error." (internal quotation marks and citation omitted)). We have previously recognized that the failure to include a reference to self-defense within an elements instruction—where a self-defense argument is supported by the evidence—is an error that may lead to reversal on appeal. See Griffin, 2002-NMCA-051, ¶ 20, 132 N.M. 195, 46 P.3d 102 ("The only way to correctly instruct the jury in this case is to comply with the applicable Use Note and include as an essential element the requirement that Defendant did not act in self-defense."); State v. Foxen, 2001-NMCA-061, ¶ 10, 130 N.M. 670, 29 P.3d 1071 (holding that the failure to include a reference to self-defense in the elements instruction, as well as the failure to include the appropriate burden of proof in the self-defense instruction, constituted fundamental error); Armijo, 1999-NMCA-087, ¶ 12, 127 N.M. 594, 985 P.2d 764 ("Because of the importance of the instructions to the jury concerning the essential elements of a crime, failure to do so can result in fundamental error."). Thus, the district court erred by failing to comply with applicable use notes, which require that the concept of self-defense, when supported by the evidence, be included as an element of the charged crime.

{11} We therefore agree with Defendant's assertion, and the State's concession, that the district court erred by refusing Defendant's tendered jury instruction. We now must address the State's argument that the district court's error was harmless.

Harmless Error

{12} The State argues that although the district court failed to properly instruct the jury with respect to self-defense, any error was harmless because Defendant was not entitled to a self-defense instruction in the first place. Specifically, the State argues that the evidence presented at trial did not support such an instruction and therefore that Defendant actually received more than he deserved by way of the jury instructions. We disagree.

{13} Initially, we note that there is some disagreement as to whether the district court's error in this case should be subject to harmless...