State v. Padilla, 16430

• Decision Date: 20 May 1996
• Docket Number: No. 16430,16430
• Citation: 122 N.M. 92,920 P.2d 1046,1996 NMCA 72
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Danny A. PADILLA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1046

920 P.2d 1046

122 N.M. 92

STATE of New Mexico, Plaintiff-Appellee, v. Danny A. PADILLA, Defendant-Appellant.

No. 16430.

Court of Appeals of New Mexico.

May 20, 1996.

Certiorari Denied July 3, 1996.

[122 N.M. 93] Tom Udall, Attorney General, Joan M. Waters, Assistant Attorney General, Albuquerque, for Appellee.

Douglas W. Baker, Ann Arbor, MI, for Appellant.

OPINION

BOSSON, Judge.

1. In this appeal, we determine whether under the aggravated burglary statute, NMSA 1978, § 30-16-4(B) (Repl.Pamp.1994), a defendant "arms himself with a deadly weapon" when he steals a knife during a burglary but does not use or threaten to use that knife as a weapon. We also discuss the risks in using a showup identification as evidence, particularly when the accused is not positively identified at trial by that witness. Finally, we discuss summarily a comment by the prosecutor on Defendant's failure to testify when defense counsel opens the door. We affirm.

FACTS

2. The facts are not in dispute. During the early morning hours before first light a witness saw someone in the used car lot across the street from his house. The witness then saw the suspect leave the car lot on foot heading toward a nearby railroad overpass. The police were contacted and informed of the suspect's general appearance and his direction of travel. Shortly thereafter, a police officer approached the overpass and observed a person trying to board a moving train who matched the suspect's description. It was Defendant. The police placed him under arrest for other outstanding charges and searched him. In Defendant's pockets the police found two small pocket knives and five car keys. Defendant was carrying a white plastic trash can in which the police discovered several beer cans and a "large hunting knife" with a "green camouflage handle" in a "camouflage sheath." All these items, including the knife, belonged to the automobile dealer and were positively identified as fruits of the burglary. Shortly thereafter, the police took Defendant to the car lot, where the witness identified him as he sat in the back of the police car. Defendant was convicted of aggravated burglary as well as unlawful taking of a motor vehicle and criminal damage to property under $1000.

Did Defendant Arm Himself With a Deadly Weapon During the Burglary?

3. The aggravated burglary statute, Section 30-16-4, reads as follows:

Aggravated burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with intent to commit any felony or theft therein and the person either:

A. is armed with a deadly weapon;

B. after entering, arms himself with a deadly weapon;

C. commits a battery upon any person while in such place, or in entering or leaving such place.

We are concerned only with subsection B. The facts show Defendant never used or threatened to use the hunting knife as a weapon but only carried it in the portable plastic trash can with the rest of the stolen goods. Defendant's factual contentions are not in dispute. The question is whether it makes any difference how the knife was actually used. Recognizing the force of precedent against him, Defendant asks us to overrule State v. Luna, 99 N.M. 76, 653 P.2d 1222 (Ct.App.), cert. denied, 99 N.M. 148, 655 P.2d 160 (1982), or limit it to its facts.

4. In Luna, this Court construed the same aggravated burglary statute and held that a burglar "arm[ed] himself with a deadly weapon" under Section 30-16-4(B) when he carried away unloaded guns as part of his theft without attempting to load the guns or otherwise use them as weapons. Id. 99 N.M. at 77-78, 653 P.2d at 1223-24. The legislature could reasonably aspire to deter potential violence by punishing even the bare possession of guns during the commission of a crime regardless of whether the guns were loaded or how they were used. Id. at 77, 653 P.2d at 1223.

5. There is a self-described split among the states. The majority follow Luna, holding that stealing weapons during a burglary is enough to support the aggravated enhancement without any requirement of proof that a defendant used them as weapons. See Pardue v. State, 571 So.2d 333, 333-35 (Ala.1990); Wesolic v. State, 837 P.2d 130, 133-34 (Alaska Ct.App.1992); People v. Loomis, 857 P.2d 478, 481-82 (Colo.Ct.App.1992), cert. denied (Aug. 30, 1993); State v. Merritt, 247 N.J.Super. 425, 589 A.2d 648, 650-51 (App.Div.), cert. denied, 126 N.J. 336, 598 A.2d 893 (1991); State v. Hall, 46 Wash.App. 689, 732 P.2d 524, 527-28, review denied, 108 Wash.2d 1004 (1987); Britt v. State, 734 P.2d 980, 982-83 (Wyo.1987). While most cases involve guns, loaded or unloaded, and some involve statutes that require actual or threatened use for weapons other than guns, see Wesolic, 837 P.2d at 133; Hall, 732 P.2d at 527; Britt, 734 P.2d at 981, others specifically include knives. See Loomis, 857 P.2d at 480. On the other hand, a minority of jurisdictions rely on specific statutory language to require that a defendant must use or threaten to use even a gun as a weapon. See State v. Befford, 148 Ariz. 508, 510, 715 P.2d 761, 763 (1986) (en banc) (applying Arizona statute linking dangerous weapon to "circumstances in which it is used"); cf. State v. Herkshan, 105 Ariz. 394, 395, 465 P.2d 587, 588 (1970) (holding that a person is "armed" with a deadly weapon when such weapon is within his immediate control and available for use in the crime). We note that Befford has been supplanted by a legislative enactment, made in response to that decision, clarifying its intent that "armed" means to "knowingly possess." See State v. Tabor, 184 Ariz. 119, 120, 907 P.2d 505, 506 (App.1995).

6. We are not inclined to retreat from our holding in Luna. That case has been expressly followed by other jurisdictions and has become an inextricable part of the fabric of the law nationwide on this subject. See Pardue, 571 So.2d at 334-35; Loomis, 857 P.2d at 481; Merritt, 589 A.2d at 650; Britt, 734 P.2d at 982-83. We would need a compelling reason to reverse or limit it at this late date. The New Mexico Legislature has been on notice for almost fifteen years since Luna of how we construe the phrase "arms himself with a deadly weapon," and there have been no reported changes in the statute since then. Luna seems to fit comfortably within legislative intent. If anything, Luna seems more appropriate today than ever before. Nearly fifteen years ago our Court observed: "Crimes involving violence or use of firearms are among those most abhorrent to our society. The rising number of offenses wherein firearms have been used or victims assaulted with deadly weapons was obviously an important factor bringing about the passage of the aggravated burglary statute." 99 N.M. at 78, 653 P.2d at 1224. Can anyone doubt the relevance of these remarks for today's society?

7. Moreover, unlike some other jurisdictions, apparently New Mexico has never restricted the definition of a "deadly weapon" to its actual use, but has relied instead on the kind of weapon and its inherent potential for harm. See NMSA 1978, § 30-1-12(B) (Repl.Pamp.1994) (defining deadly weapon to include "any other weapons with which dangerous wounds can be inflicted"); see also SCRA 1986, 14-1632 (Use Note, No. 3) (Uniform Jury Instruction for aggravated burglary providing alternative definition of deadly weapon to include " 'an instrument or object which, when used as a weapon, could cause death or very serious injury' "). See generally State v. Martinez, 57 N.M. 174, 176, 256 P.2d 791, 792 (1953) (holding that even small knife with two-inch blade could be considered deadly weapon depending on actual use); Territory v. Armijo, 7 N.M. 571, 577-78, 37 P. 1117, 1118 (1894) ("Any knife may be so used as to become a deadly weapon, but all knives are not in law 'deadly weapons[,]' " depending on "the kind and character of the knife."); see also Meadows v. Commonwealth, 551 S.W.2d 253, 256 (Ky.Ct.App.1977) (showing character of weapon as deadly may be question of law, but where its deadly character depends on use, it becomes question of fact for jury).

8. There is no dispute that the knife in question qualifies as a deadly weapon despite its lack of use. We reaffirm our holding in Luna that Defendant became "armed" with that knife the moment he took it regardless of how he may or may not have used it.

9. Defendant further argues that he could not have been "armed" with the knife because it was not on his person; it lay in the plastic trash can in which he carried away other items from the burglary. We recognize that, in the abstract, a person's constructive possession of a weapon might be so remote, for example, in storage at another location, that one could not be "armed" with it under any reasonable interpretation of the term. But that hypothetical is not this case.

10. Many of the opinions previously cited have adopted a working definition of "armed" to include a stolen deadly weapon which is "easily accessible and readily available for use" during the commission of the burglary whether or not it is actually on the person of the accused. See Wesolic, 837 P.2d at 133-34; State v. Romero, 135 Ariz. 102, 105, 659 P.2d 655, 658 (App.1982); Loomis, 857 P.2d at 482; Merritt, 589 A.2d at 650; State v. Speece, 56 Wash.App. 412, 783 P.2d 1108, 1111 (1989), aff'd, 115 Wash.2d 360, 798 P.2d 294 (1990) (en banc); Hall, 732 P.2d at 528; Britt, 734 P.2d at 982. This definition enhances the policy goal of deterring violence in that it discourages having a deadly weapon available for use during a crime. It has a certain pragmatic efficacy in that it avoids the complications of legal terminology like "possession" or "constructive possession." See Merritt, 589 A.2d 648; cf. SCRA 1986, 14-130 (Uniform Jury Instruction defining possession).

11. We adopt this definitional phrase to be used with our aggravated burglary statute. In Luna, the defendant was armed...