State v. Ortiz
| Decision Date | 23 April 2020 |
| Docket Number | NO. S-1-SC-36865,S-1-SC-36865 |
| Citation | 468 P.3d 833 |
| Parties | STATE of New Mexico, Plaintiff-Petitioner, v. Crystal ORTIZ, Defendant-Respondent. |
| Court | New Mexico Supreme Court |
Hector H. Balderas, Attorney General, Walter M. Hart III, Assistant Attorney General, Santa Fe, NM for Petitioner
Bennett J. Baur, Chief Public Defender, John Charles Bennett, Assistant Appellant Defender, Albuquerque, NM for Respondent
{1} If a criminal defendant wants a duress instruction then they must admit that they committed the criminal act. See Esquibel v. State , 1978-NMSC-024, ¶ 9, 91 N.M. 498, 576 P.2d 1129, overruled on other grounds by State v. Wilson , 1994-NMSC-009, ¶ 6, 116 N.M. 793, 867 P.2d 1175. Defendant Crystal Ortiz was convicted of four crimes, two of which were related to her driving her vehicle into another person. At her trial, Ortiz requested the jury be instructed to consider whether she acted under duress when she struck the person. However, because she testified at trial that she hit the person accidentally, the district court denied her duress instruction. The Court of Appeals reversed and determined that she was entitled to a duress instruction. State v. Ortiz , 2018-NMCA-018, ¶ 16, 412 P.3d 1132. We reverse the Court of Appeals.
{2} A basic statement of the facts and procedural history of this case is provided below. Additional facts are provided as necessary in the discussion section.
{3} A grand jury indicted Ortiz on five counts. The crimes charged were (1) causing great bodily injury by vehicle (DWI), a violation of NMSA 1978, Section 66-8-101(B), (C) (2004, amended 2016) ; (2) aggravated battery with a deadly weapon (a vehicle), a violation of NMSA 1978, Section 30-3-5(A), (C) (1969) ; (3) leaving the scene of an accident where great bodily injury had occurred, a violation of NMSA 1978, Section 66-7-201(A), (C) (1989) ; (4) aggravated driving while under the influence of intoxicating liquor, a violation of NMSA 1978, Section 66-8-102(D) (2010, amended 2016) ; and (5) criminal damage to property amounting to $1,000 or less, a violation of NMSA 1978, Section 30-15-1 (1963).
{4} The indictment flowed from an incident in which Ortiz, while intoxicated, drove her vehicle (an SUV) into Brandon Hughes, her ex-boyfriend. After striking Hughes, Ortiz crashed her SUV into a fence where it became stuck. Hughes' leg was severely injured. Ortiz fled from the scene on foot and was located by the police a short time later.
{5} On the morning of the first day of trial, Ortiz alerted the district court that she wanted the jury instructed on duress because Hughes engaged in threatening conduct. The court determined that it would resolve the question "whether there's evidence to support [the giving of the duress instruction] or not once we get to that point."
{6} During trial, Ortiz explained that she struck Hughes accidentally and amid a flurry of chaotic activity precipitated by Hughes who made unwanted sexual advances and behaved aggressively. Ortiz explained that these advances were alarming to her because Hughes had raped her during the time they dated. While testifying for the State, Hughes denied these allegations and gave an account of the incident that suggested that Ortiz hit him purposefully because she was angry with him. He explained that Ortiz drove her SUV onto the sidewalk, hit him, and crashed through the fence with him on the hood.
{7} When, at the end of trial, the district court returned to the question of Ortiz's entitlement to a duress jury instruction, the court initially expressed agreement with the State's perspective that, because Ortiz claimed that she struck Hughes accidentally, she could not claim duress as a defense to any charge predicated on the fact that Hughes was struck. Ultimately, however, the court concluded that Ortiz was not entitled to a duress instruction because the law is settled that the accused's "[f]ear of immediate harm must be viewed together with whether a reasonable person in the defendant's position would have acted the same way under the circumstances" and that "a reasonable person would not violate the law if legal alternatives are available." State v. Castrillo , 1991-NMSC-096, ¶ 15, 112 N.M. 766, 819 P.2d 1324, holding modified by State v. Baca , 1992-NMSC-055, ¶ 15, 114 N.M. 668, 845 P.2d 762. The district court determined that Ortiz did not act reasonably by driving her SUV into Hughes as she could have taken less drastic action to escape whatever threat to her he purportedly presented.
{8} The jury convicted Ortiz on all but one of the counts—criminal damage to property. She appealed all counts except her conviction for leaving the scene of an accident. Ortiz , 2018-NMCA-018, ¶ 1, 412 P.3d 1132.
{9} The Court of Appeals affirmed Ortiz's aggravated DWI conviction, but reversed her convictions for great bodily injury by vehicle and aggravated battery. Id. ¶ 27. The Court held that the district court wrongly denied Ortiz the opportunity to present a duress defense as to these two counts and reasoned that Ortiz offered sufficient evidence at trial—Ortiz's rape allegations and assertions that Hughes made unwanted sexual advances and behaved aggressively on the night of the incident—to warrant giving her jury the duress instruction. Id. ¶¶ 16-17. The Court remanded for a new trial. Id. ¶ 27.
{10} Ortiz did not petition this Court for a writ of certiorari to challenge the Court of Appeals' affirmance of the aggravated DWI conviction. The State did ask this Court to review the Court of Appeals' decision to reverse the great bodily injury and aggravated battery convictions. Our jurisdiction is uncontested. See N.M. Const. art. VI, § 3 ; NMSA 1978, § 34-5-14(B) (1972).
{11} The specific question presented is whether Ortiz's jury should have been instructed that duress was a possible defense to causing great bodily injury by vehicle and aggravated battery. The State argues that Ortiz's contention that she accidentally perpetrated the criminal acts at issue here precludes her from asserting duress as a defense to the crimes. We agree, and to understand why, we clarify the law governing duress and closely examine the record and evidence presented at trial.
{12} A defendant seeking a duress instruction must make "a prima facie showing that he was in fear of immediate and great bodily harm to himself or another and that a reasonable person in his position would have acted the same way under the circumstances." Castrillo , 1991-NMSC-096, ¶ 4, 112 N.M. 766, 819 P.2d 1324. By asserting duress, the accused admits performing the crime but seeks excusal from punishment on grounds that the action was compelled by an imminent threat of serious harm to the accused or another. See Rule 14-5130 NMRA (); Esquibel , 1978-NMSC-024, ¶ 9, 91 N.M. 498, 576 P.2d 1129 ; State v. Rios , 1999-NMCA-069, ¶¶ 12, 17, 127 N.M. 334, 980 P.2d 1068. These New Mexico authorities hint at the conclusion we reach here—to claim duress, you must admit committing the criminal act. Case law from other jurisdictions reaches the same conclusion.
{13} "[A] person who commits a crime under duress makes a choice to violate the law, even though that choice is compelled." State v. Daoud , 141 N.H. 142, 679 A.2d 577, 581 (1996) (internal quotation marks and citation omitted). They know their "actions will lead to injury or that [their] purpose is to cause injury." United States v. Solorzano-Rivera , 368 F.3d 1073, 1079-80 (9th Cir. 2004) (internal quotation marks and citation omitted). The assertion of duress necessarily presupposes "that the defendant has voluntarily performed the criminal act[.]" United States v. Johnson , 956 F.2d 894, 897 (9th Cir. 1992). The defendant asserting "duress admits that [they] committed the unlawful act, but pleads an excuse for doing so." State v. Riker , 123 Wash.2d 351, 869 P.2d 43, 52 (1994) (en banc).
{14} In duress, "the actor engages in conduct voluntarily, correctly perceives the nature of his act, and is aware that it is wrong." Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis , 82 Colum. L. Rev. 199, 225 (1982). Id. If duress is successfully asserted, the crime perpetrated is excused as a blameless act. Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits , 62 S. Cal. L. Rev. 1331, 1350, 1357-60 (1989).
{15} For these reasons, some jurisdictions refer to duress as a "confession and avoidance" defense. See State v. Hess , 9 Ariz.App. 29, 449 P.2d 46, 50 (1969), abrogated on other grounds by State v. Rodriguez , 192 Ariz. 58, 961 P.2d 1006, 1011 (1998) ; People v. Suazo , 867 P.2d 161, 166 (Colo. App. 1993) ; State v. Gordon , 170 Conn. 189, 365 A.2d 1056, 1056 (1976) ; People v. Calvano , 30 N.Y.2d 199, 331 N.Y.S.2d 430, 282 N.E.2d 322, 325 (1972) ; People v. Contes , 91 A.D.2d 562, 563, 457 N.Y.S.2d 45 (N.Y. App. Div. 1982), aff'd , 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 (1983) ; State v. Duty , 1982 WL 2887, at *4 (Ohio Ct. App. 1982) ; State v. Milam , 108 Ohio App. 254, 156 N.E.2d 840, 857 (1959) (Skeel, J., dissenting); Rodriguez v. State , 368 S.W.3d 821, 824 (Tex. App. 2012). These jurisdictions do this because duress requires the defendant "to first admit that he engaged in the proscribed conduct by admitting to all elements of the underlying offense, then claim that his commission of the offense" excuses the act. Rodriguez , 368 S.W.3d at 824 (internal quotation marks and citation omitted). The basic thought at work here is that "[o]ne cannot establish that an act is [excused] without first ... admitting to the commission of[ ] the predicate act." Id. (internal quotation...
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