State v. Tabaha, 8909
| Decision Date | 04 February 1986 |
| Docket Number | No. 8909,8909 |
| Citation | 714 P.2d 1010,1986 NMCA 9,103 N.M. 789 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Dino James TABAHA, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
The state appeals from an order quashing an information for failure to charge a crime. Because the facts were not disputed and because the state asked the court to rule on the questions raised by defendant's motion to quash, the trial court was of the view that a legal, not factual, issue was presented. Cf. State v. Mares, 92 N.M. 687, 594 P.2d 347 (Ct.App.1979). The state does not disagree, nor do we.
We affirm.
The information charged battery upon a peace officer, contrary to NMSA 1978, Section 30-22-24 (Repl.Pamp.1984). The defendant is an eighteen-year-old resident at the New Mexico Boys' School at Springer. The alleged victim is an employee of the corrections department, classified as a juvenile correctional officer II. The principal functions of such a correctional officer include exercising custody and care of residents committed to the Springer facility; supervising training, recreation, and work activities of residents; counseling; maintaining shift logs; writing incident and accident reports; censoring mail; and performing related work, all under supervision. If a resident of the Springer facility commits a bad act, the juvenile correctional officer may physically restrain a resident and file a report on the incident. The report is reviewed at several levels and the superintendent must make the final determination of whether to initiate disciplinary or criminal proceedings.
Section 30-22-24 proscribes battery upon a "peace officer while he is in the lawful discharge of his duties." NMSA 1978, Section 30-1-12(C) (Repl.Pamp.1984) defines peace officer as "any public official or public officer vested by law with a duty to maintain public order or to make arrests for crime." (Emphasis added.) The trial judge, after exhaustively reviewing the pertinent statutes and case law, concluded that, while juvenile correctional officers may have the power to maintain order and make arrests in their particular domain, they were not vested by law with a duty to do so. Accordingly, they were not peace officers within the meaning of Section 30-1-12(C) to which the crime of battery upon a peace officer, contrary to Section 30-22-24, would be applicable. We agree.
A duty is that which is required by one's station or occupation. City of Clovis v. Archie, 60 N.M. 239, 290 P.2d 1075 (1955). The critical word is "required." Over the years, the legislature has known how to require certain behavior of certain people and, thus, establish duties. See, e.g., NMSA 1978, Sec. 4-41-2 (Repl.Pamp.1984) (); NMSA 1978, Sec. 4-41-9 (Repl.Pamp.1984) (); NMSA 1978, Sec. 3-13-2 (Repl.Pamp.1985) (); NMSA 1978, Sec. 29-2-18 (Repl.Pamp.1984) (); NMSA 1978, Sec. 29-9-11 (Repl.Pamp.1984) (); NMSA 1978, Sec. 16-2-30 (); NMSA 1978, Sec. 29-1-2 (Repl.Pamp.1984) (); NMSA 1978, Sec. 29-1-1 (Repl.Pamp.1984) ().
In contrast, jailers and correctional officers are simply given powers in certain sections of legislation. NMSA 1978, Section 33-1-10 (Cum.Supp.1985) gives correctional officers, whose duty it is to hold people in custody, the powers of peace officers to arrest and enforce laws on the premises of a correctional facility. It also provides that correctional officers shall not be liable for performing the duties of a peace officer authorized by the section. A parallel section exists for jailers. NMSA 1978, Sec. 33-3-28(A) (Cum.Supp.1985).
Significantly, Section 33-3-28, the section on jailers, contains a subsection C: "Crimes against a jailer * * * shall be deemed the same crimes and shall bear the same penalties as crimes against a peace officer." Section 33-1-10 has no parallel provision.
In other areas of the law, the legislature has consistently treated peace officers differently than correctional officers. In prescribing aggravating circumstances under which the death penalty may be imposed, one such circumstance is that the victim was a peace officer and another such circumstance is that the victim is an employee of the corrections department. NMSA 1978, Sec. 31-20A-5 (Repl.Pamp.1981). See also NMSA 1978, Sec. 30-22-17 (Repl.Pamp.1984) ().
The state contends that, given the similarity between Sections 33-1-10 and 33-3-28(A), the trial court's focus on duty, as opposed to power, is not defensible. This argument, however, misses the point. Peace officer is defined in terms of duty. Sec. 30-1-12(C). Courts are to give legislation effect as written. State v. Russell, 94 N.M. 544, 612 P.2d 1355 (Ct.App.1980). The legislature having used the word "duty" in its definitional section, the trial court was required to focus on the word "duty."
The state contends that the presence of subsection C in Section...
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