State v. Padilla

• Decision Date: 08 June 2006
• Docket Number: No. 25,380.,25,380.
• Citation: 142 P.3d 921,2005 NMCA 107
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Felipe PADILLA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

142 P.3d 921

2005 NMCA 107

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

No. 25,380.

Court of Appeals of New Mexico.

June 8, 2006.

Certiorari Granted, No. 29,947, August 31, 2006.

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

John Bigelow, Chief Public Defender, Catherine A. Begaye, Assistant Appellant Defender, Santa Fe, NM, for Appellant.

OPINION

FRY, Judge.

{1} Defendant Felipe Padilla challenges his conviction for aggravated fleeing a law enforcement officer (aggravated fleeing) under NMSA 1978, § 30-22-1.1 (2003). He claims that the trial court committed error by failing to instruct the jury on an essential element of the crime when it refused to allow the jury to consider whether the pursuit was conducted "in accordance with" the Law Enforcement Safe Pursuit Act (the Act). NMSA 1978, § 29-20-1 to -4 (2003). We agree and remand for a new trial. Further, Defendant argues that he may not be convicted for both (1) resisting, evading, or obstructing an officer (resisting/evading) and (2) aggravated fleeing because this would result in a double jeopardy violation due to the imposition of multiple punishments for the same offense. We agree with Defendant that resisting/evading is a lesser included offense of aggravated fleeing and that conviction for both crimes for unitary conduct would violate principles of double jeopardy.

BACKGROUND

{2} This case involves a high speed chase that began when police attempted to stop Defendant for a vehicle registration violation. We provide context for the facts by first reviewing two laws relating to police pursuits, which were recently enacted, apparently in response to the debate in recent years regarding the risks posed to both the police and the public by high speed police pursuits. See Patrick T. O'Connor & William L. Norse, Jr., Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law, 57 Mercer L.Rev. 511, 511-12 (2006) (describing the "social conundrum" presented by such pursuits and noting the particular concern over whether such pursuits are justified for minor traffic violations); see also State v. Landgraf, 1996-NMCA-024, ¶ 4, 121 N.M. 445, 913 P.2d 252 (describing a high speed pursuit that resulted in the deaths of three bystander children). In 2003 our legislature took action on this issue by imposing requirements governing police initiation and conduct of high speed pursuits and by creating the new felony crime of aggravated fleeing. The pursuit training and policy provisions applicable to police are contained in the Act and were codified at Section 29-20-1 to -4. The crime of aggravated fleeing was incorporated into the criminal code as Section 30-22-1.1, appearing immediately after the existing statute for resisting/evading. Both of these new statutes are central to the issues raised in this appeal.

{3} Historically, fleeing from the police either in a car or on foot would, at minimum, constitute the crime of resisting/evading, which is a misdemeanor. NMSA 1978, § 30-22-1 (1981); see, e.g., State v. Gutierrez, 2005-NMCA-093, ¶¶ 20, 21, 138 N.M. 147, 117 P.3d 953 (affirming a conviction for evading an officer where the defendant refused to obey a command to stop and jumped over a fence), cert. granted, 2005-NMCERT-007, 138 N.M. 146, 117 P.3d 952. Resisting/evading has a subsection specifically targeting the refusal to stop one's car after police have "given a visual or audible signal to stop." § 30-22-1(C). The new crime of aggravated fleeing, which is a fourth degree felony, specifically addresses fleeing from the police in one's car in a manner that endangers others, by stating:

A. Aggravated fleeing a law enforcement officer consists of a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle in pursuit in accordance with the provisions of the Law Enforcement Safe Pursuit Act.

§ 30-22-1.1(A) (emphasis added). Defendant claims that the italicized portion incorporates provisions of the Act and constitutes an essential element of aggravated fleeing.

{4} The Act defines a high speed pursuit as "an attempt by a law enforcement officer in an authorized emergency vehicle to apprehend an occupant of a motor vehicle, the driver of which is actively attempting to avoid apprehension by exceeding the speed limit." § 29-20-2. The Act mandates that police undergo training specific to high speed pursuits both at the academy and through ongoing in-service training. § 29-20-3. The Act contains a section entitled "Pursuit policies," § 29-20-4, which requires that each local police department "shall establish" a written policy for high speed pursuits and defines certain subjects that these policies shall address, such as "the conditions under which a law enforcement officer may" initiate and terminate a high speed pursuit. § 29-20-4(B)(1). The next subsection sets out specific rules for high speed pursuits, stating that each local pursuit policy "shall, at a minimum, require that:"

(1) a law enforcement officer may initiate a high speed pursuit to apprehend a suspect who the officer has reasonable grounds to believe poses a clear and immediate threat of death or serious injury to others or who the officer has probable cause to believe poses a clear and immediate threat to the safety of others that is ongoing and that existed prior to the high speed pursuit;

(2) a law enforcement officer shall not initiate or continue a high speed pursuit when the immediate danger to the officer and the public created by the high speed pursuit exceeds the immediate danger to the public if the occupants of the motor vehicle being pursued remain at large;

(3) when deciding whether to initiate or continue a high speed pursuit, the following factors, at a minimum, shall be taken into consideration:

(a) the seriousness of the offense for which the high speed pursuit was initiated;

(b) whether a suspect poses a clear and immediate threat of death or serious injury to others;

(c) road, weather, environmental and vehicle conditions;

(d) the amount of motor vehicle and pedestrian traffic; and

(e) knowledge of the suspect's identity, possible destination and previous activities that may make apprehension at a later time feasible; and

(4) no more than two law enforcement vehicles shall become actively involved in a high speed pursuit, unless specifically authorized by a supervisor.

§ 29-20-4(C). Defendant claims that because the Act requires each local police department's pursuit policy to contain these rules and because the aggravated fleeing statute requires the police officer to be "in pursuit in accordance with the provisions of the [Act]," compliance with these requirements is an element of the offense of aggravated fleeing. § 30-22-1.1(A).

{5} Against this statutory backdrop, we summarize the events leading to Defendant's convictions for both aggravated fleeing and resisting/evading. In October 2003 at 2 a.m., after the two new laws had gone into effect, a Portales police officer observed Defendant driving a Buick. The officer saw the car turn down an alley and stop, but no one got out of the car. This situation struck the officer as odd, so he called in the license plate; the registration came back as belonging to a Ford, not a Buick. Because of this apparent vehicle registration violation, the officer attempted to stop Defendant by activating his emergency overhead lights. Defendant accelerated his car and ran a stop sign, at which point the officer turned on his siren. Defendant continued to flee, eventually running ten stop signs, and the chase at times reached speeds of eighty miles per hour. Defendant crossed over the center line when making turns, and the officer testified that at one point, when Defendant ran a stop sign while going fifty miles per hour in a twenty-five mile per hour zone, Defendant barely missed colliding with another motorist. Defendant eventually turned his car into a mobile home sales lot and, when his vehicle was blocked by a stairway between two mobile homes, he abandoned it and crawled under a nearby mobile home. After an officer ordered him to come out, Defendant crawled back out and was arrested. The pursuit was videotaped by a dashboard video camera installed in the police car and this tape was shown at Defendant's trial.

{6} Defendant was charged with aggravated fleeing, driving with a suspended or revoked license, failure to have car insurance, resisting/evading, reckless driving, and improper display of a license plate. At trial, Defendant effectively conceded guilt on all but the aggravated fleeing charge, which was the only felony charge. In cross-examination and in his closing, Defendant focused on the officer's failure to comply with the elements of the Portales police department's pursuit policy. (However, the department's pursuit policy was not introduced as evidence and is not in the record.)

{7} Defendant objected to the State's proposed jury instruction on aggravated fleeing because it did not include any mention of compliance with either the Act or the local pursuit policy. Defendant asked the trial court to "add one more line" to the jury instruction in order to put to the jury the question of compliance with the Act. In response, the State argued that the Act "merely requires" that the local department have a pursuit policy in place and that the officer's testimony established this. The trial court declined to add any language to the instruction and concluded that compliance with the Act was a matter of law for the court to decide. Using this approach, the...