State v. Perez

• Decision Date: 17 February 2014
• Docket Number: No. 31,980,31,980
• Court: Court of Appeals of New Mexico
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. RUDY PEREZ, Defendant-Appellant.

STATE OF NEW MEXICO, Plaintiff-Appellee, v. RUDY PEREZ, Defendant-Appellant.

No. 31,980

COURT OF APPEALS OF THE STATE OF NEW MEXICO

February 17, 2014

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Jane Shuler Gray, District Judge

Gary K. King, Attorney General

James W. Grayson, Assistant Attorney General

Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender

Karl Erich Martell, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

ZAMORA, Judge.

{1} Defendant was convicted of two counts of aggravated battery with a deadly weapon. On appeal, Defendant raises four issues, contending that: (1) his requested instruction on self-defense should have been given, (2) the evidence was insufficient to support his convictions, (3) evidence relating to the use of narcotics was improperly excluded, and (4) the charges should have been dismissed in light of the State's spoliation of evidence. For the reasons that follow, we affirm.

BACKGROUND

{2} On the afternoon of July 28, 2010, Defendant sought out Dewayne Bowering at his residence for the specific purpose of initiating a fight. Only moments after entering, Defendant struck both Bowering and Bret Bolch with a short wooden stick or bat-type instrument with which he had armed himself in advance. Bolch sustained relatively superficial injuries; Bowering spent a little over a month in the hospital recovering from the attack.

{3} Defendant claimed that he had previously been threatened by Bowering. In an interview with police, Defendant asserted that three days before the incident at issue they had "gotten into it." Defendant also claimed that he had been warned by an unnamed individual that Bowering was recruiting men to "jump him" at Bowering's residence, where Bowering had stored a baseball bat in the corner, two under the couch and he had a taser. Defendant further claimed that forty-five minutes before the incident at issue, Bowering and three other men had pulled up next to him in a car.

When Defendant asked what they wanted, Bowering had vaguely replied, "You'll see." Defendant claimed that he went to Bowering's residence in response to these threats, because he "was not gonna sit there looking over [his] shoulders." Preferring to face danger head-on, and despite his concerns about being outnumbered, Defendant specifically stated that his intention was not to talk, but to fight "one-on-one." By contrast, both Bowering and Bolch testified at trial that they had no dispute with Defendant, and had no idea why Defendant had attacked them.

{4} All witnesses agreed that Bowering was seated on a couch with his back to Defendant when Defendant entered the residence. Bolch was either standing in the kitchen or seated nearby in the kitchen on a stool. However, Defendant claimed that he saw Bowering put something under his leg when he entered, and that Bolch had an unknown object in his hand. Defendant also claimed that Bowering immediately placed a call on his cell phone, saying "He's here; hurry up, get over here!" Bowering allegedly then told Defendant, "You're fixing to find out!" to which Defendant replied, "You think?" Defendant's niece, who had accompanied Defendant to the residence, claimed that Bowering leaned forward as if reaching for something under the couch, at which point Defendant struck Bowering with his bat. Defendant and his niece contended that Bolch then stood up and advanced. Defendant claimed that he struck Bolch with his bat as Bolch was in the act of swinging at him.

{5} Bowering and Bolch testified to a different series of events. Bowering denied making any phone call, and testified that Defendant had simply entered the residence, walked straight toward Bowering as he sat on the couch with his back to Defendant and struck him in the face with the bat as he turned to look in Defendant's direction. Bolch similarly testified that he had seen Defendant run into the apartment and strike Bowering with a bat. Defendant then advanced on Bolch and swung at his head, but Bolch blocked the blow with his arm. Defendant then ran out.

DISCUSSION

1. The Requested Self-Defense Instruction

{6} At trial Defendant requested that the jury be instructed on self-defense. After argument before the court, the request was denied. Defendant contends that the district court's failure to give his requested instruction was erroneous.

{7} "The propriety of denying a jury instruction is a mixed question of law and fact that we review de novo." State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (internal quotation marks and citation omitted).

{8} Defendant was required to present evidence supporting every element of self-defense in order to warrant the requested jury instructions. State v. Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. The elements of self-defense are: "(1) an appearance of immediate danger of death or great bodily harm to the defendant, (2) the defendant was in fact put in fear by the apparent danger, and (3) areasonable person in the same circumstances would have reacted similarly." State v. Emmons, 2007-NMCA-082, ¶ 12, 141 N.M. 875, 161 P.3d 920 (internal quotation marks and citation omitted). The evidence must be viewed in the light most favorable to giving the requested self-defense instructions. See State v. Ellis, 2008-NMSC-032, ¶¶ 2, 35, 144 N.M. 253, 186 P.3d 245.

{9} The district court rejected Defendant's requested instructions on self-defense principally on grounds that Defendant's conduct was, by his own admission, in the nature of a "preemptive strike." We concur.

{10} It is well-established that self-defense is generally unavailable to a defendant who acted as the aggressor or instigator of the conflict. State v. Lucero, 1998-NMSC-044, ¶ 7, 126 N.M. 552, 972 P.2d 1143. While Defendant now suggests in his briefs to the Court that he went to Bowering's residence "to make peace," we find no evidentiary support for this characterization of Defendant's motives. To the contrary, by his own admission Defendant armed himself, entered the residence for the specific purpose of initiating a fight, and attacked both Bowering and Bolch with a deadly weapon. As such, Defendant was the instigator of the conflict. See, e.g., id. ¶ 8 (holding that a defendant who followed the victims, drew his weapon, and fired into the air was the instigator of the ensuing gunfight); Emmons, 2007-NMCA-082, ¶¶ 12-13 (holding that a defendant who pursued the victims, initiated contact, and threatened them at gunpoint was the instigator, such that his use of deadly force could only becharacterized as offensive, rather than defensive). Defendant's claim that Bowering had threatened him several days previously and forty-five minutes beforehand does not alter our assessment. Insofar as those encounters had concluded, they cannot supply the requisite appearance of immediate danger of death or great bodily harm, particularly in light of Defendant's ensuing conduct. See, e.g., Lucero, 1998-NMSC-044, ¶¶ 2-4, 8 (concluding that the defendant's acts of arming himself with a gun, pursuing the victims, drawing the weapon and firing, made him the aggressor, notwithstanding the fact that one of the victims had challenged the defendant and shot at him earlier that day); Emmons, 2007-NMCA-082, ¶¶ 3-5, 13 (rejecting a claim that the victims had instigated the assaultive episode, on grounds that they had departed and the initial encounter had concluded before the defendant armed himself, pursued them, forced them off the road, and threatened them with a deadly weapon).

{11} We understand Defendant to suggest that Bowering and Bolch's actions immediately prior to the attack could be regarded as sufficiently menacing to create an appearance of immediate danger of death or great bodily harm, such that he might not be regarded as the instigator. He urges that the circumstances presented in this case are analogous to the situation presented in State v. Branchal, 1984-NMCA-063, 101 N.M. 498, 684 P.2d 1163. We disagree. In Branchal, evidence was presented indicating that the defendant had suffered extensive domestic abuse at the victim's hands, who was "belligerent" and "intolerable" when drunk. Id. ¶¶ 13, 22. Evidencewas also presented that on the specific occasion in question the victim was highly intoxicated, he started a fight with the defendant, and he advanced on her in a threatening way, such that she feared for her life and the lives of her children. Id. ¶¶ 9, 14-21, 24. The situation presented in this case is not analogous, even when the evidence is viewed in the light most favorable to the defense. To summarize, after Defendant armed himself with a deadly weapon and specifically sought Bowering out in his own home for the purpose of initiating a fight, Bowering allegedly placed something under his leg, called a third party, commented that Defendant was "fixing to find out" what was up and leaned forward from a seated position on a couch, possibly reaching for some unknown object. Moreover, Defendant approached Bowering from behind while pulling the wooden stick or bat-type instrument from behind Defendant's back and then began hitting Bowering. In light of Defendant's own intentions and conduct, these acts do not transform Bowering into the aggressor, notwithstanding Defendant's subjective concerns about the victims and the context out of which the encounter arose. See, e.g., Emmons, 2007-NMCA-082, ¶ 11 (rejecting a claim of self-defense in light of the defendant's own aggressive conduct, premised on the defendant's anxiety about confronting men whom he believed had just...