State v. Mantelli

• Decision Date: 29 January 2002
• Docket Number: No. 21,464.,21,464.
• Citation: 42 P.3d 272,2002 NMCA 33,131 N.M. 692
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joseph Lucas MANTELLI, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

42 P.3d 272

131 N.M. 692

2002 NMCA 33

STATE of New Mexico, Plaintiff-Appellee, v. Joseph Lucas MANTELLI, Defendant-Appellant.

No. 21,464.

Court of Appeals of New Mexico.

January 29, 2002.

Certiorari Denied March 7, 2002.

Patricia A. Madrid, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Appellee.

Gerald E. Baca, Las Vegas, NM, Joe M. Romero, Jr., Scott D. Johnson, Albuquerque, NM, for Appellant.

Certiorari Denied, No. 27,368, March 7, 2002.

OPINION

BUSTAMANTE, Judge.

{1} Joseph Mantelli (Defendant), a police officer, appeals his conviction for voluntary manslaughter, aggravated assault with a deadly weapon (a firearm), and shooting at a motor vehicle resulting in injury. Defendant argues the trial court erred by: (1) refusing to change venue, (2) refusing to honor Defendant's peremptory notice of excusal of the trial judge, (3) denying Defendant's motion to exclude certain expert testimony offered by the State, (4) failing to instruct the jury on an essential element of shooting at a motor vehicle, (5) refusing to instruct the jury on justifiable homicide by a police officer, and (6) sustaining Defendant's conviction for voluntary manslaughter and aggravated assault because insufficient evidence supported the convictions.

{2} Concluding that Defendant was entitled to have the jury instructed on justifiable homicide by a police officer in accordance with NMSA 1978, § 30-2-6 (1989), we reverse Defendant's convictions and take this opportunity to discuss the use of deadly force by police officers in New Mexico. We also address the remaining issues—with the exception of Defendant's motion to exclude certain expert testimony which is unlikely to recur—and remand for a new trial.

I. FACTS

{3} Defendant, a uniformed officer with the Las Vegas, New Mexico Police Department (LVPD), shot and killed Abelino Montoya, an eighteen-year-old Robertson High School senior, in the early morning hours of February 14, 1998. At trial Defendant testified that while on duty, wearing his uniform and patrolling in a marked police unit with Sergeant Steve Marquez (Sgt. Marquez), the officers spotted a white Toyota truck near the Las Vegas City Plaza. They believed this was the same vehicle that earlier that night was going the wrong way on a one-way street, causing Sgt. Marquez to swerve to avoid a collision. The truck, driven by Montoya, had in fact eluded Sgt. Marquez after a brief chase that ended when Sgt. Marquez's marked police unit became disabled.

{4} Defendant activated the overhead lights and wig-wag lights on the police unit and moved to get behind the truck. Defendant testified that Montoya reacted to the lights by increasing his speed, and proceeding through an intersection without stopping for a stop signal. During the course of the pursuit, Montoya ran through six or seven stop signs, eventually reaching a dead-end at Valley and Chavez Streets.

{5} What occurred next was disputed at trial. Gabriel Rubio, a passenger in Montoya's truck throughout the evening, testified for the State. Rubio testified that Montoya, in an attempt to avoid being stopped, drove north on Valley Street, which dead-ends at Chavez Street. Montoya apparently was not aware that Valley Street came to a dead-end until he was in the intersection of Valley and Chavez Streets. Once in the intersection Montoya slammed on his brakes and the truck skidded at least a car length past the intersection. Rubio was watching the police car coming at them. Meanwhile, Montoya had put the truck in reverse and was backing up trying to position the truck to avoid a rock wall at the intersection as he attempted to turn the truck onto Chavez Street. Rubio testified the two vehicles collided in the middle of the intersection of Valley and Chavez.

{6} Once the two vehicles collided, Rubio testified that Defendant seemed to immediately be at the driver's side window trying to break the window with the butt of his handgun. At the same time Montoya was shifting the manual transmission of the truck out of reverse and turning the wheel to the right in a continuing attempt to turn down Chavez Street. While they were still in the middle of the intersection, Defendant succeeded in breaking the driver's side window. Montoya put the truck into first gear and began to drive away, going up and over the curb. He had to drive slowly as he turned right down Chavez Street to avoid the rock wall at the intersection. After clearing the wall, Montoya drove the truck fast down Chavez Street. As they were driving away, Rubio heard two shots. With one shot Rubio felt something graze his head and he ducked. He also told Montoya to stop. Rubio described the shots as coming one right after the other. After the shots rang out, the truck went out of control and hit the side of a house some distance down Chavez Street. Montoya suffered one shot in the back and a second in the head, killing him almost instantly. Rubio testified that he did not think that he and Montoya had ever put any officer's life in danger.

{7} The dispatcher tape-recorded Sgt. Marquez's calls as the second chase proceeded. The tape included the sound of the crash at the intersection of Valley and Chavez, and fifteen seconds later Sgt. Marquez saying "shots fired," and forty-one seconds from the crash Sgt. Marquez announcing that there was a death.

{8} The State's theory at trial was that Defendant shot Montoya to prevent him from escaping. The State also presented testimony from Defendant's roommate, Adrian Crispin, a fellow LVPD officer, that Defendant told him right after the shooting that he had shot at the truck as it was moving away because it was about to get away.

{9} At trial Defendant testified to a different reason for the shooting. Defendant testified he believed at the time of the shooting that the truck was being used as a deadly weapon to attack him and Sgt. Marquez, that their lives were in danger, and that he was therefore justified in using deadly force in self-defense and defense of another.

{10} Defendant testified that he positioned his police car to try to "block-in" the truck so that it could not escape. On cross-examination, Defendant also admitted that he was aware of department policy that an officer was not to use his patrol car as a roadblock without ensuring the pursued vehicle had a way out of the roadblock. Defendant testified that he was shocked and scared when Montoya began to back up the truck. Defendant believed that Sgt. Marquez had exited the police car and then had been knocked down and possibly run over and killed or injured. Thus, standing an arm's length away from the truck, Defendant fired one round into the truck because he believed that his partner was in danger. He fired two more shots to the back of the truck because he thought the truck was backing up a second time to ram them again, and not because Montoya was trying to escape by negotiating the rock wall at the corner of Chavez and Valley. Sgt. Marquez also fired a single shot at the truck.

II. JURY INSTRUCTION ON JUSTIFIABLE HOMICIDE BY A POLICE OFFICER

a. Background

{11} Defendant argues that it was reversible error for the trial court to refuse to instruct the jury on justifiable homicide by a police officer in accordance with Section 30-2-6. Defendant requested one modified uniform jury instruction, based on UJI 14-5173 NMRA 2001, and three non-uniform instructions premised upon the United States Supreme Court decision in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), which related to justifiable homicide by a police officer. The State does not argue that the requested instructions were incorrect statements of the law.

{12} Defendant asserted that as a commissioned police officer in the line of duty for the LVPD, he was authorized to use deadly force under Section 30-2-6 to apprehend a fleeing felon who had threatened him and Sgt. Marquez with serious harm or deadly force and the jury should have been allowed to consider this defense under proper instructions. Defendant asserts that instructions on this theory specifically applicable to police officers would have allowed him to argue additional and alternative theories of justification for the shooting which went beyond the normal self-defense and defense-of-others theories applicable to the public at large.

{13} The State has never disputed that Defendant was a commissioned police officer and on-duty for the LVPD at the time of the shooting, and that he was justified in pursuing and attempting to apprehend Montoya. However, it argues that State v. Johnson, 1998-NMCA-019, 124 N.M. 647, 954 P.2d 79, requires a defendant requesting a justifiable homicide instruction to establish that his conduct satisfied a standard of "objective reasonableness" for the use of the deadly force prior to receiving such an instruction. Id. ¶ 13. The State contends that Defendant's actions in shooting at Montoya as he fled, exceeded Defendant's authority under Section 30-2-6 to use deadly force and cannot be considered reasonable as a matter of law. The State dramatized this point to the jury in its closing argument by repeatedly stating that police officers in New Mexico are not allowed to "shoot at a fleeing suspect."

{14} The State also argues that Defendant did not present evidence that he shot Montoya in an attempt to arrest him for committing a felony per Section 30-2-6. Instead, it argues that under Defendant's version of events, the proper instruction was that the killing was justified as occurring in self-defense or defense of another and not "necessarily committed" in order to prevent the escape of a felon. Defendant was granted the UJI 14-5171 NMRA 2001 self-defense instruction.

{15} The trial judge, persuaded by the State's arguments, refused to instruct the jury on justifiable homicide because sufficient evidence was not presented by Defendant for the court to believe that Defendant's actions could be...