State v. Ellis

• Decision Date: 28 May 2008
• Docket Number: No. 30,258.,30,258.
• Citation: 2008 NMSC 032,186 P.3d 245
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Robert ELLIS, Defendant-Respondent.
• Court: New Mexico Supreme Court

186 P.3d 245

2008 NMSC 032

STATE of New Mexico, Plaintiff-Petitioner, v. Robert ELLIS, Defendant-Respondent.

No. 30,258.

Supreme Court of New Mexico.

May 28, 2008.

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

Templeton & Crutchfield, C. Barry Crutchfield, Lovington, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} During a routine traffic stop, Defendant Robert Ellis threatened Eddy County Sheriff's Deputy Ruben Castro with a tire iron, for which he was charged and convicted of aggravated assault on a peace officer, a felony. At trial, Defendant claimed that he acted in self-defense against the deputy's alleged use of excessive force, and the jury was so instructed, though imperfectly. At the heart of this case lies Defendant's claim that he was entitled to a self-defense instruction, and the related issue of whether any jury reasonably could have found Deputy Castro's use of force excessive in light of the evidence presented at trial. We conclude that Defendant did not present evidence of excessive force by Deputy Castro, and thus was not entitled to a jury instruction on self-defense. It follows that any error in the self-defense instruction actually given at trial is inconsequential. The Court of Appeals having held otherwise, we reverse and affirm Defendant's conviction.

BACKGROUND

{2} The following overview of the events that took place on August 13, 2004, provides the initial framework for our discussion, which we will supplement as necessary further in the Opinion. The facts recited in this Opinion are derived from the trial testimony of Defendant, the passenger Roy Peppers, and Deputy Castro, as well as from the videotape of the encounter, which this Court reviewed, that was recorded by Deputy Castro's in-car camera. The videotape of the encounter was admitted as evidence and was played for the jury. A large portion of the encounter was not captured on tape, and many of the key scenes take place off-camera. However, the deputy's microphone recorded the conversations that took place off-camera. Because we review the evidence in the light most favorable to the giving of the self-defense instruction, State v. Duarte, 1996-NMCA-038, ¶ 5, 121 N.M. 553, 915 P.2d 309, when there is contradictory testimony, we rely on Defendant's version of the events. For example, Deputy Castro denied drawing his gun during the first encounter, contrary to Defendant's testimony that the deputy drew his gun twice. For purposes of this Opinion, we consider the contested facts as alleged by Defendant.

{3} The events that transpired are best described as two separate encounters occurring on the same evening. The first encounter occurred when Deputy Castro pulled Defendant over for the seatbelt violation. The second encounter occurred after Defendant refused to stay at the site of the initial encounter, contrary to the Deputy's instructions. At trial, Defendant focused on the events of the first encounter, specifically the fact that Deputy Castro drew his weapon twice, as evidence that Deputy Castro used excessive force, which justified Defendant's threat of force during the second encounter.

{4} The first encounter began when Deputy Castro observed that neither occupant of an oncoming truck was wearing a seatbelt. Deputy Castro activated his emergency lights, indicating that he wanted the vehicle to pull over. When Deputy Castro approached the truck, both Defendant and the passenger were wearing their seatbelts. Defendant told Deputy Castro that he was test-driving the truck, which belonged to a Terry Mann. After processing their information, Deputy Castro stated that he was going to issue Defendant a citation for failure to wear a seatbelt and a warning for lack of insurance.

{5} At this point, Defendant's mood appeared to change. He argued with Deputy Castro and he went so far as to grab his driver's license from the deputy's clipboard without permission. It was then, according to Defendant, that Deputy Castro first drew his gun and pointed it at the ground. Defendant started pacing back and forth between his truck and the patrol car. Defendant testified that Deputy Castro pulled his gun a second time during this initial encounter and pointed it directly at Defendant. The first encounter ended when Defendant returned to the truck and left the scene. Defendant testified that he told the deputy that he was returning to the Mann house because he was afraid that the deputy was going to shoot him, and he wanted witnesses. Deputy Castro followed Defendant with his siren activated for the mile-and-a-half trip to Mann's home.

{6} The second encounter began when Defendant arrived at the Mann house. Upon reaching the driveway, Defendant got out of his car in an aggressive manner, immediately approached the deputy's patrol car, and confronted him. Defendant can be heard on the video threatening the deputy, yelling, "I'll whip your f------ ass," and "I'll beat your ass. . . . Don't ever pull a gun on me." Meanwhile, Deputy Castro can be heard yelling, "Get down, get down." Deputy Castro then sprayed Defendant twice with pepper spray and, testified Defendant, drew his weapon again. According to Deputy Castro, he drew his gun for the first time when he got out of his patrol car at the second stop.

{7} Defendant testified that at this point he needed to protect himself against Deputy Castro, and so he picked up a tire iron from the bed of the truck. With the tire iron in hand, he approached the deputy in a threatening manner, although he never actually struck the deputy. Instead, Defendant threw the tire iron away from the deputy's direction and, after it landed, returned it to the bed of the pickup truck. During this time, both Defendant and Peppers continued to threaten Deputy Castro. Eventually, other officers arrived at the house and, after a struggle, Defendant was subdued and arrested. Defendant was charged with aggravated assault upon a peace officer and with resisting, evading or obstructing a peace officer.

{8} Defendant's first trial ended with a conviction for the misdemeanor count of resisting, evading or obstructing, but with a mistrial on the felony count of aggravated assault upon a peace officer. Defendant was tried a second time for aggravated assault and was convicted. In both trials, Defendant argued successfully that he was entitled to a self-defense instruction, claiming that Deputy Castro used excessive force when he drew his gun twice during the first encounter for a mere seatbelt violation.

{9} And, in both trials, the district court agreed that Defendant was entitled to a self-defense instruction. However, the court did not include the phrase, "Defendant did not act in self defense," as one of the essential elements of the crime of aggravated assault that the State was required to prove. During the jury instruction conference at the second trial, Defendant specifically requested that the phrase be included in the aggravated assault instruction, but the court refused stating, "Self-defense covers it. . . . . That doesn't go in the elements instruction."

{10} After his conviction for aggravated assault, Defendant appealed to the Court of Appeals arguing that his aggravated assault conviction should be reversed because the jury was improperly instructed with regard to self-defense. State v. Ellis, 2007-NMCA-037, ¶ 7, 141 N.M. 370, 155 P.3d 775. The Court of Appeals agreed with Defendant, holding that the failure to include the phrase "did not act in self defense," having been preserved at trial, was reversible error justifying a new trial. Id. ¶¶ 29-31. We granted certiorari to determine whether the evidence presented at trial entitled Defendant to a self-defense instruction, and thus, whether any error in the jury instruction given was harmless.

DISCUSSION

{11} The Court of Appeals, after a thorough discussion, held that "the district court erred in refusing Defendant's tendered jury instruction." Id. ¶ 7. On certiorari to this Court, and on appeal to the Court of Appeals, the State concedes error. Nevertheless, the State contends that Defendant's conviction should be upheld because Defendant was not entitled to a self-defense instruction. For the reasons that follow, we agree that the trial court committed error below.

{12} As we have previously held, a failure to instruct the jury "on the element of unlawfulness after self-defense evidence had been introduced" is reversible error, because the jury is not instructed on all of the elements essential for conviction. State v. Parish, 118 N.M. 39, 44, 878 P.2d 988, 993 (1994). The Use Notes for the Uniform Jury Instructions on self-defense provide that, if a self-defense instruction is necessary, the district court must include the phrase "[t]he defendant did not act in self defense" with the essential elements of the crime that the State must prove. See UJI 14-5181 NMRA Use Note 1; UJI 14-5183 NMRA Use Note 1. When a defendant is charged with certain offenses, including assault and battery, the court should include an "unlawfulness instruction." UJI 14-132 NMRA Use Note 1. The unlawfulness instruction "is intended to aid the court and the parties in preparing an instruction when the statutory definition of the offense includes the term `unlawful' and an issue is raised as to the lawfulness of the defendant's act." Id. The Use Note further instructs that if the "instruction is given, add to the essential elements instruction of the offense charged, `The defendant's act was unlawful.'" Id. Finally, the Use Note states that the "instruction need not be given if the unlawfulness element is included in another instruction such as self-defense or defense of another." Id.

{13} The district court, believing that the "unlawfulness instruction" was adequate, rejected Defendant's requested instruction, stating, "You don't get both." The Use Notes make it clear that when a self-defense instruction...