State v. Tapia

• Decision Date: 17 May 2000
• Docket Number: No. 20,158.,20,158.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Abe TAPIA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

4 P.3d 37

129 N.M. 209

2000 NMCA 54

STATE of New Mexico, Plaintiff-Appellee, v. Abe TAPIA, Defendant-Appellant.

No. 20,158.

Court of Appeals of New Mexico.

May 17, 2000.

Certiorari Denied June 22, 2000.

Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, for Appellee.

David Henderson, Santa Fe, for Appellant.

Certiorari Denied, No. 26,378, June 22, 2000.

OPINION

WECHSLER, Judge.

{1} Defendant Abe Tapia appeals his conviction for aggravated assault on a peace officer (Officer Keith Mundy). Defendant raises three issues on appeal. First, Defendant argues that the district court erred when it refused to find as a matter of law that Officer Mundy's arrest of Defendant's son was illegal. Second, Defendant argues that the jury instruction addressing lawful discharge was misleading and confusing for the jury. Third, Defendant argues that his conviction is not supported by sufficient evidence because Officer Mundy was not acting in the lawful discharge of his duties at the time of the assault. We determine that a reasonable juror could have been confused by the jury instruction on lawful discharge and therefore reverse.

Facts

{2} The testimony was conflicting, and this Court does not reweigh the evidence on appeal. Rather, all disputed facts are resolved in favor of the prevailing party and all reasonable inferences are made in support of the verdict. See State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988)

. We therefore discuss the facts in the light most favorable to the State, the prevailing party in this case.

{3} Officer Mundy testified that he responded to a call concerning criminal damage to property which occurred at the De Vargas Mall in Santa Fe. The victim, Christopher Yardman, claimed that Eric Gonzales had damaged his truck. Sometime later, while Officer Mundy was investigating the property damage claim, he was again called to the De Vargas Mall regarding a fight. When he arrived, the same victim, Christopher Yardman, was being placed into an ambulance. Officer Mundy interviewed Yardman at the scene and later at the hospital. Yardman identified his assailants as Eric Gonzales and Johnny Tapia (Johnny). Yardman described the vehicle driven by the assailants, gave their addresses, and gave directions to Johnny's residence.

{4} Officer Mundy also testified that he worked on the two cases for approximately two hours without interruption. During that time, Officer Mundy made calls to the on-duty assistant district attorney to keep her informed about his investigation. Officer Mundy testified that he believed, and was also told by the assistant district attorney, that he did not need an arrest warrant to arrest Johnny because he was pursuing an ongoing investigation.

{5} Officer Mundy further testified that after deciding to go to Johnny's home, he secured the assistance of Officer John Howard as back-up. Officer Mundy and Officer Howard drove to Johnny's home at about 11:30 p.m. The officers saw three barking dogs in a fenced yard in front of the home. According to Officer Howard's testimony, one of the dogs, Rocky, ran to the gate and tried to push his head through a space in the fence while baring his teeth and growling.

{6} At trial, Defendant testified that there was enough slack in the fence for a dog to get through the gate. The State offered testimony that Rocky was a difficult dog to control, and Defendant and his wife admitted to Rocky's history of biting people.

{7} Defendant testified that he heard Rocky barking and went outside to investigate. Officer Mundy testified that he told Defendant that he needed to talk to his son, Johnny. Defendant held Rocky and told the officers, "Let's go on in." After entering the home with the officers, Defendant released Rocky into the yard.

{8} Officer Mundy testified that when Johnny came into the living room from his room, Officer Mundy could see that Johnny had been in a fight because his hands were swollen and red. Officer Mundy told Johnny that he was under arrest. At some point, either just before or just after Officer Mundy told Johnny he was under arrest, Defendant's demeanor changed from cordial and cooperative to hostile and agitated. Defendant argued that he needed to see an arrest warrant and instructed his son not to say anything. While Officer Mundy and Defendant were exchanging words, Johnny walked back to his room and shut the door. Officer Mundy testified that he feared that Johnny was going to get a weapon out of his room and that he therefore followed Johnny to his room. Defendant followed after Officer Mundy. Officer Mundy testified that when he and Defendant reached the door of Johnny's room, Defendant pinned him against the door jamb and grabbed his arm. Defendant testified that he merely moved in front of Officer Mundy and told him that he could not go into the room. At this point, Officer Howard stepped in and told Defendant to come to the living room and sit down. Officer Mundy went into the room and saw that Johnny was using a portable or cellular telephone. Officer Mundy took the telephone from Johnny, arrested and handcuffed him, and brought him to the living room.

{9} At this point, Rocky was at the front door, growling and baring his teeth. Officers Mundy and Howard testified that Defendant said something to the effect that he would like to see the officers get by Rocky. Officer Mundy checked his mace canister and found it to be almost empty. He testified that he asked Defendant more than once to restrain the dog but that Defendant refused and that he then told Defendant that he would use his weapon if Rocky came after them. According to Officer Mundy, Defendant threatened to shoot him if he shot Rocky. He partially drew his weapon before Defendant agreed to hold Rocky.

{10} Thereafter, Officer Howard and Johnny left the house followed by Officer Mundy while Defendant held Rocky by the collar. There was conflicting testimony about whether Rocky was lunging at that time. Although Defendant testified to the contrary, Officers Mundy and Howard testified that Defendant told the dog, "Get him" several times as the group attempted to leave the yard. Officer Mundy testified that he backed out of the yard and that when he was approximately one foot away from the gate, Defendant released the dog. Officer Mundy testified that he hit a pole in his attempt to get through the gate before the dog got there. Officer Howard testified that the dog was released as he was about to take Johnny through the gate and Officer Mundy was about eight to ten feet away.

Jury Instructions

Instructions Given

{11} The district court instructed the jury on both aggravated assault on a peace officer and the lesser charge of aggravated assault. The instructions included elements instructions for both crimes. The elements instruction for aggravated assault on a peace officer named the victim as "Officer Keith Mundy". The elements instruction for aggravated assault named the victim as simply "Keith Mundy". The court also instructed the jury on the necessity of exigent circumstances to make an arrest in Instruction No. 12, and the court instructed the jury on lawful discharge in Instruction No. 11. Instruction No. 11 reads in its entirety as follows:

A Defendant does not have the right to assault a police officer, regardless of whether the police officer's conduct is lawful or unlawful, if the officer is acting in good faith within the scope of his duties.

An officer is engaged in the performance of his official duties if he is simply acting within the scope of what the officer is employed to do. The test is whether the officer is within that compass or is engaging in a personal frolic of his own.

Test for Lawful Discharge of Duties

{12} The crime of aggravated assault upon a peace officer is defined as "unlawfully assaulting or striking at a peace officer with a deadly weapon while he is in the lawful discharge of his duties." NMSA 1978, § 30-22-22(A) (1971). At trial, Defendant argued that Officer Mundy did not act within the lawful discharge of his duties when he arrested Defendant's son. Defendant therefore contends that if Officer Mundy was not acting in the lawful discharge of his duties, the State failed to prove all the elements of the crime.

{13} The standard for determining whether an officer was acting within his or her lawful discharge of duties is whether the officer was performing his or her official duties. See State v. Doe, 92 N.M. 100, 103, 583 P.2d 464, 467 (1978)

. According to Doe, even if an officer makes an arrest without probable cause, the officer is performing official duties if the officer is acting in good faith and within the scope of what the officer is employed to do. See id. "`The test is whether the agent is acting within that compass or is engaging in a personal frolic of his own.'" Id. (quoting United States v. Heliczer, 373 F.2d 241, 245 (2d.Cir.1967)).

{14} State v. Frazier, 88 N.M. 103, 104-05, 537 P.2d 711, 712-13 (Ct.App.1975), relied upon by Defendant, does not require a different standard from Doe. Our Supreme Court in Doe considered whether a police officer acted within the "lawful discharge of his duties" when engaging in an unlawful arrest. Doe, 92 N.M. at 103, 583 P.2d at 467 (citations omitted). The Court distinguished Frazier on the basis that the officer in Frazier did not have a "legitimate reason for stopping the defendant," id. at 105, 537 P.2d at 713, the officer was acting in a civil matter, and the officer admitted that "he had no grounds to believe [the] defendant was committing or had committed a criminal offense." Id. at 104-05, 537 P.2d at 712-13. Since Doe, the holding in Frazier has been limited. Frazier does not hold, as Defendant suggests, that an officer's actions must be lawful to fall within the officer's official duties. Under Doe, there is a significant difference between not having a "legitimate reason" to act and acting...