State v. Southworth
| Decision Date | 28 June 2002 |
| Docket Number | No. 21,957.,21,957. |
| Citation | 2002 NMCA 91,52 P.3d 987,132 N.M. 615 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Scott SOUTHWORTH, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee.
Phyllis H. Subin, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
Certiorari Denied, No. 27,603, August 12, 2002.
{1} Scott Southworth (Defendant) was convicted of aggravated battery and criminal trespass. Defendant argues first that the trial court erred in its attempt to clarify self-defense instruction UJI 14-5190 NMRA 2002 regarding whether a trespasser is entitled to stand his ground. Next, Defendant argues that the trial court erred in admitting the prior inconsistent statement he made during a custodial interrogation after he invoked his right to counsel. Finally, Defendant argues that the trial court abused its discretion in rejecting a proposed plea agreement and that the prosecutor acted in bad faith by prosecuting crimes that would have been dismissed pursuant to the plea agreement.
{2} We reverse on the first issue and affirm on the remaining two issues.
{3} At approximately 10:00 p.m. on December 18, 1999, Defendant drove onto Rosemary Chase's property. Defendant and Chase had previously been involved in a romantic relationship and it was disputed whether Defendant or Chase was trying to end it. Chase did not have a working vehicle or telephone and earlier in the day she had asked Defendant to come over to fix her truck.
{4} Chase testified that she had been watching out the window when Defendant arrived. Defendant had been drinking and Chase was afraid of him. She came out of her house with a shotgun, yelled for Defendant to leave, and fired a shot over Defendant's head. Defendant testified that Chase shot before yelling. Defendant began to walk forward slowly; it is disputed whether Chase fired another shot at that time or during the subsequent struggle for the gun. Defendant rushed forward, tackled Chase, and took the gun from her. Chase testified that Defendant beat her with the gun and stuck it in her mouth. Defendant maintained that Chase was injured in the struggle for the gun. Defendant threw the gun into the yard and came into the house with Chase.
{5} Defendant spent the night and it is disputed whether Defendant raped Chase the next morning or they had consensual sex. Defendant and Chase stayed together most of the day, but Chase contended that she stayed because Defendant refused to let her leave. The following day, Chase began to collapse and went to a hospital for treatment of her injuries. She told the police that Defendant had beaten her, raped her, and held her against her will in both her home and in his. Defendant was charged with aggravated battery, criminal trespass, criminal sexual penetration (CSP) and false imprisonment.
{6} After a jury trial, Defendant was acquitted of false imprisonment and CSP and convicted of aggravated battery and criminal trespass. Defendant appeals his aggravated battery conviction.
{7} The jury was given instructions based upon Defendant's claim of self-defense. In compliance with the language of UJI 14-5181 NMRA 2002, it was instructed that:
Evidence has been presented that the defendant acted in self defense.
The defendant acted in self defense if:
The jury was also instructed that: See UJI 14-5190.
{8} During deliberations, the jury asked whether a person who is trespassing may be legally entitled to stand his ground for purposes of self-defense. The court issued the following clarifying statement: "[I]f you find that the Defendant was told by Rosemary Chase to leave her property and was given a reasonable time to start leaving, then the Defendant may not `stand his ground,' otherwise he may." The court recognized there was uncertainty regarding whether its answer was proper but issued the statement over Defendant's objection.
{9} Defendant moved for a new trial asserting that he was entitled to stand his ground, even though trespassing, if faced with deadly force because a property owner cannot use deadly force to protect property, and that the State failed to meet its burden to prove that Defendant did not act in self-defense. The State countered with Chase's testimony that she feared Defendant and that she was defending against a potential assailant, not a trespasser. The State argued that the jury had been properly charged with determining whether Defendant's use of force was justified and maintained that the jury's verdict reflected a determination that Defendant was not so justified because he presented a threat to the victim. The court acknowledged that it knew of no New Mexico cases dispositively addressing the interplay between trespass and self-defense, but refused to set the verdict aside based upon a potentially improper instruction.
{10} Whether jury instructions are proper is subject to de novo appeal, "because it is closer to a determination of law than a determination of fact." State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143. When a defendant presents evidence of self-defense, the "jury instructions must inform, `in no uncertain terms,' that the State bears the burden of disproving self-defense." State v. Foxen, 2001-NMCA-061, ¶¶ 9-10, 130 N.M. 670, 29 P.3d 1071; see State v. Acosta, 1997-NMCA-035, ¶ 18, 123 N.M. 273, 939 P.2d 1081
().
{11} The impact of trespass on the right to self-defense is an issue of first impression in New Mexico. As reflected in UJI 14-5190, an individual normally has an unqualified right to stand his ground against attack. However, a person defending his or her home from unwanted entry is allowed great, but not unlimited, leeway in using force-even as an initial aggressor-to prevent intrusion. This case requires us to coordinate and balance these competing interests.
{12} The jury instructions given at trial were inadequate for a number of reasons. First, they simply failed to address the victim's and defendant's competing interests noted above. Second, the trial court's clarifying instruction which predicated Defendant's right to stand his ground on whether he was given a reasonable opportunity to leave, could have been interpreted by the jury as requiring Defendant to retreat even in the face of unlawful deadly force. Third, taken as a whole, the instructions were erroneous because they did not impose on the State the burden of proving that Defendant did not have a right to self-defense. State v. Sosa, 1997-NMSC-032, ¶ 26, 123 N.M. 564, 943 P.2d 1017 (). The court's instructions did not set out the State's burden to prove that Chase's actions were lawful, and thus, that Defendant's response was unlawful.
{13} We determine that an additional jury instruction is needed to properly delineate the circumstances under which a trespasser has a right to stand his ground. A recent Colorado case addressed a similar issue, and its analysis suggests that the proper way to integrate self-defense and trespass is to give two self-defense instructions-one for the defendant and one for the alleged victim. The Colorado Supreme Court, in People v. Toler, 9 P.3d 341 (Colo.2000) (en banc), held that a trespasser need not necessarily retreat to a position of no escape before he can use physical force self-defense, but he must retreat and cannot defend himself against any lawful or justified force exhibited by the owner or occupant. In Toler, the defendant was charged with murder when he shot the victim, allegedly in self-defense, while the defendant was trespassing on a third person's property. The trial court's jury instruction on self-defense included the phrase, "if the Defendant was ... where he had a right to be, he was not required to retreat to a position of no escape in order to claim the right to employ force in his own defense." Id. at 346.
{14} The Colorado Supreme Court determined that this instruction was improper because it might have led the jury to believe that, because the defendant was a trespasser, he could only resort to physical force in self-defense if he demonstrated that he first retreated to a position of no escape. Id. at 346-347. Instead, the court held, trespassers have the right to self-defense "without having to `retreat to the wall'" if an owner or occupant of property confronts the trespasser with unlawful force. Id. at 352 (citations omitted). However, the court also noted that an owner or occupant can lawfully use ...
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