State v. Hill

• Decision Date: 04 October 2001
• Docket Number: No. 21,347.,21,347.
• Citation: 34 P.3d 139,2001 NMCA 94,131 N.M. 195
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Stanley Bryant HILL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

34 P.3d 139

131 N.M. 195

2001 NMCA 94

STATE of New Mexico, Plaintiff-Appellee, v. Stanley Bryant HILL, Defendant-Appellant.

No. 21,347.

Court of Appeals of New Mexico.

October 4, 2001.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Plaintiff-Appellee.

Phyllis H. Subin, Chief Public Defender, Samantha J. Fenrow, Assistant Appellate Defender, Santa Fe, NM, for Defendant-Appellant.

OPINION

FRY, Judge.

{1} Defendant appeals his convictions for battery on a peace officer and improper display of registration plate. He argues that the district court erred in failing to instruct the jury on: self-defense; the lawfulness of the police officer's actions; resisting, obstructing, or evading a police officer as a lesser included crime of battery on a peace officer; and entrapment. Defendant further argues that the evidence was insufficient to support his conviction for improper display of a registration plate. We hold that the district court should have instructed the jury on self-defense and reverse Defendant's conviction for battery on a peace officer. We further hold that there was sufficient evidence to support Defendant's conviction for improper display of a registration plate. We remand for a new trial in accordance with this opinion. Although we need not resolve Defendant's other claims of error, we briefly discuss them.

FACTS

{2} On the night in question, Defendant was visiting his girlfriend at the gas station where she worked. Officers Briseno and Fowler also happened to be at the gas station, and they left the station at about the same time Defendant drove off in his mother's truck. Because the truck's trailer hitch was obstructing the registration sticker on the truck's license plate, the officers pulled Defendant over. Defendant immediately jumped out of the truck and began yelling at the officers. The officers told Defendant to get back in his truck, and he complied. Officer Fowler then asked for Defendant's license and registration, and after checking for warrants, she returned the documents to Defendant. She told Defendant she was not going to cite him but that he should remove the trailer hitch from the truck so that the registration sticker could be seen. Defendant said he was going to report the officers to the chief of police if they continued to harass him. Officer Briseno then asked for Defendant's license and registration again so that he could issue a citation, whereupon Defendant said, "[y]ou guys can see me at my house." The truck began to move forward, and Officer Briseno ran along beside it.

{3} At this point the participants' accounts of the encounter diverge. Defendant testified that the truck's movement was a surprise to him. He said that just before the truck began to move, Officer Briseno, without provocation, struck Defendant's arm with something. Without realizing the truck was in gear, Defendant somehow pressed the throttle with his foot and was surprised when the truck lurched forward. Officer Briseno, hanging onto the truck as it moved forward, struck Defendant in the throat and dug his nails into Defendant's shoulder. According to Defendant, Officer Briseno drew his firearm and Defendant saw him try to pull the trigger twice. Fearing for his life, Defendant testified that he began to kick at Officer Briseno.

{4} By contrast, Officer Briseno testified that when Defendant threatened to complain to the chief of police, he decided to issue a citation in order to document the incident. He asked for Defendant's license again, whereupon Defendant forcefully hit the truck's dashboard with his hand and began to drive away. Officer Briseno reached into the truck, grabbed Defendant's arm, and tried to turn off the ignition key. He testified that Defendant began punching him with his fist, and the truck stalled. Officer Briseno, who did not relish hanging on the side of the truck if Defendant took off at high speed, drew his firearm and ordered Defendant not to start the truck. When Defendant ignored him and attempted to start the truck, Officer Briseno re-holstered his weapon in order to have the use of both hands and tried again to turn off the ignition. Defendant started the truck, leaned over onto the passenger seat and began kicking Officer Briseno with both feet. With the assistance of other officers, Defendant was taken into custody and arrested.

DISCUSSION

I. Jury Instruction on Self Defense

{5} Whether the district court properly refused Defendant's tendered jury instruction is a mixed question of law and fact that we review de novo. State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. We view the evidence in the light most favorable to the giving of the requested instruction. State v. Vallejos, 1996-NMCA-086, ¶ 28, 122 N.M. 318, 924 P.2d 727, aff'd in part and rev'd in part on other grounds, 1997-NMSC-040, 123 N.M. 739, 945 P.2d 957.

A. Preservation

{6} The State argues that Defendant did not properly preserve this issue for review because his tendered instruction constituted an incorrect statement of the law. Defendant submitted UJI 14-5181, NMRA 2001, "Self-defense; nondeadly force by defendant" with slight, non-substantive variations. The State argues that the instruction proposed to give Defendant an unlimited right of self-defense, while State v. Kraul, 90 N.M. 314, 319, 563 P.2d 108, 113 (Ct.App. 1977), limits the right of a person to defend himself against a peace officer. "One may defend oneself against excessive use of force by the officer. One does not have the right to self-defense when the officer is using necessary force to effect an arrest." Id. Because Defendant did not tender a correct written instruction, the State argues Defendant did not properly preserve this issue. See Rule 5-608(D) NMRA 2001; State v. Garcia, 100 N.M. 120, 125, 666 P.2d 1267, 1272 (Ct.App.1983) ("To preserve error on the refusal of the trial court to give a proffered instruction, the defendant must tender a legally correct statement of law.").

{7} We disagree. The State overlooks the purpose of the rule requiring the tender of a correct instruction, which is to alert the trial court to the defendant's argument. See Gallegos v. State, 113 N.M. 339, 341, 825 P.2d 1249, 1251 (1992). In this case, the court clearly understood the type of instruction Defendant wanted and understood that the instruction should be modified to correctly state the law. Judge Birdsall and the attorneys had an extensive discussion about the self-defense issue. The Judge stated that if the jury believed Defendant,

[t]he jury could have concluded that [Defendant] acted out of fear of immediate death or great bodily harm. Not only did the officer violently grab the defendant, but he also drew his gun and pointed it at [Defendant], who was not engaging in threatening behavior. The evidence could have led the jury to conclude that the officers used excessive force against [Defendant] and that [Defendant] kicked out with his feet merely in an attempt to block the officer from further harming him, not in an attempt to commit a battery.... My concern is there's been testimony. I mean there is some evidence out there.

The State responded, "Right, judge. I agree with you that the evidence is out there." This discussion establishes that the district court was sufficiently alerted to this issue. See State v. Diaz, 121 N.M. 28, 33, 908 P.2d 258, 263 (Ct.App.1995) ("[A]n instruction issue had been properly preserved by tender of a uniform jury instruction although the specifically tendered instruction was incorrect."). Having determined that Defendant sufficiently preserved his argument that he was entitled to a self-defense instruction, we now address the merits of the issue.

B. Entitlement to Self Defense Jury Instruction

{8} "An instruction on a claim of self defense or defense of another should be given if there is any evidence, even slight evidence, to support the claim." State v. Lucero, 1998-NMSC-044, ¶ 6, 126 N.M. 552, 972 P.2d 1143 (internal quotation marks and citation omitted). A person has a right to self-defense against a police officer when excessive force is used to effect an arrest. State v. Gonzales, 97 N.M. 607, 610, 642 P.2d 210, 213 (Ct.App.1982). "One does not have the right to self-defense when the officer is using necessary force to effect an arrest." Kraul, 90 N.M. at 319, 563 P.2d at 113. When there are questions as to whether excessive force has been used by a peace officer, "it devolves upon the jury, under the evidence in the case and proper instructions of the court, to resolve these questions." Gonzales, 97 N.M. at 610, 642 P.2d at 213 (internal quotation marks and citation omitted).

{9} It was this question of excessive force that posed difficulty for the trial court. In rejecting Defendant's proposed self-defense instruction, the court stated:

Here's what I'm going to do and I'm not sure for the record which way is right. I'm going to refuse the self-defense instruction. The reason I'm going to do that is that the testimony of the defendant to me does not reach the level-and I'm kind of splitting the baby here-of what we have read, excerpts from State v. Kraul and State v. Brown. ... However, I do think the defendant is entitled to-I'm going to permit him to make the argument about performing duties of a peace officer as an opposition to the elements offense.

It is apparent from these comments that the judge was concerned that the evidence did not conform to the common law limitations of one's right to defend oneself against a peace officer.

{10} The State argues that Defendant was not entitled to a self-defense instruction because Defendant's use of force incited Officer Briseno's use of force. See Vallejos, 1997-NMSC-040, ¶ 40, 123 N.M. 739, 945 P.2d 957. We are not persuaded. Unless reasonable minds could not differ, the question of whether Defendant was the instigator or the victim should be left to the jury. S...