State v. Tijerina, 701

• Decision Date: 22 December 1972
• Docket Number: No. 701,701
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Reies Lopez TIJERINA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 642

504 P.2d 642

84 N.M. 432

STATE of New Mexico, Plaintiff-Appellee, v. Reies Lopez TIJERINA, Defendant-Appellant.

No. 701.

Court of Appeals of New Mexico.

Dec. 22, 1972.

Harold H. Parker, Albuquerque, for appellant.

Mario Obledo, Alan Exelrod, Michael Mendelson, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., amicus curiae.

David L. Norvell, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for appellee.

CERTIFICATION TO THE SUPREME COURT

PER CURIAM.

Pursuant to § 16--7--14(C)(2), N.M.S.A.1953 (Repl.Vol.1970) the Court of Appeals is authorized to certify to the Supreme Court issues of substantial public interest that should be determined by the Supreme Court.

Attached hereto and made a part of this Certification are the three separate opinions of the Court of Appeals. The first attached opinion would affirm the conviction on all counts. The second attached opinion would reverse and remand for a new trial on the issue of venue. The third attached opinion would reverse and remand for discharge on the issue of collateral estoppel.

It appearing that the three proposed opinions, if filed as opinions of the Court of Appeals, would create uncertainty in the law in that although there is a majority for reversal there is no guidance for the future procedure of the case and,

It further appearing that the Court of Appeals may not call in additional judges, see § 16--7--11, N.M.S.A.1953 (Repl.Vol.1970) and,

It further appearing an uncertain state of law should not exist and because of this fact an issue of substantial public interest is created and should be determined by the Supreme Court.

Now, therefore, pursuant to § 16--7--14(C)(2), supra, the above captioned case is hereby certified to the New Mexico Supreme Court for decision.

OPINION

HERNANDEZ, Judge.

Defendant appeals from a judgment and sentence following his conviction of assault with intent to commit a violent felony to-wit: to kill or to commit mayhem, § 40A--3--3, N.M.S.A.1953 (2d Repl.Vol. 6), and false imprisonment, § 40A--4--3, N.M.S.A.1953 (2d Repl.Vol. 6). Trial was held in Bernalillo County on a change of venue. Defendant asserts eighteen points of prejudicial error, hereinafter discussed. The defendant elected to act pro se, however, the trial judge appointed counsel to assist the defendant, who did in fact participate in the trial.

The occurrence out of which the indictment of the defendant arose, which also resulted in charges being filed against several other individuals, took place on June 5, 1967, and started at about 3:00 p.m., in the Courthouse at Tierra Amarilla, New Mexico. The first participants in the drama of that afternoon were the defendant's daughter Rose and his future son-in-law who entered the courthouse and then went from office to office ostensibly looking for the place where some criminal arraignments were supposedly being held. They left and shortly thereafter she returned with three other men. State Police Officer Nick Saiz was standing in the lobby reading an item on the bulletin board. He noticed the four enter and then turned his attention back to the bulletin board. When next he noticed them, they had surrounded him and one of them, at the point of a pistol, ordered him to turn over his weapon. As he started to unstrap it the individual with the pistol shot him and he fell to the floor. Minutes thereafter the defendant carrying an AR--15 (automatic rifle) carbine and three other individuals entered the courthouse. As he reached the top of the stairs leading to the lobby, the door to the sheriff's office opened and the sheriff came out with his pistol in his hand. The defendant disarmed him and knocked him to the floor. The defendant then proceeded into the sheriff's office where he shot Eulogio Salazar, the jailer, in the face as he was trying to escape by jumping out of a window. The jailer was shot a second time but whether by the defendant or some one else it was never determined. At the moment that Officer Saiz was being disarmed and shot, the County Commissioners were holding a meeting in a room which opened off of the lobby. Deputy Sheriff Pete Jaramillo, one of several people in the county commission room testified that he heard a shot and shouting and ran to open the door. As he reached the door it was opened from the outside by Baltazar Martinez, one of the four individuals who had confronted Officer Saiz moments before. Baltazar Martinez pointed the rifle he was carrying at the occupants of the room and told them to lie down on the floor, face down, if they didn't want to be killed. Pete Jaramillo, along with the others, did as he was told. Martinez then ordered Jaramillo to stand up and surrender his gun. Jaramillo turned to show him that his holster was empty. Martinez spotted Jaramillo's pistol close to where he had been lying on the floor and ordered Jaramillo to kick it to him and then he picked it up. During the time that Baltazar Martinez was in the county commission room the defendant together with Juan Valdez and Tobias Leyba went up to the third floor of the courthouse. After firing several shots they entered the jury room where Deputy Sheriff Daniel Rivera was. Juan Valdez struck Rivera on the head with a pistol he was carrying and ordered him to surrender his pistol. Rivera was struck twice more, once on the face and once on the arm but he was not sure which one of the three struck these blows. He was then ordered to go down and release the prisoners from the jail. Here again he did not remember which one gave the order. He went to the first floor and released the prisoners and when he returned to the lobby, Baltazar Martinez ordered him to go into the county commission room. In the meantime the defendant went back down to the lobby. A few moments later, Martinez marched the people from the county commission room into the lobby with their hands raised. Germane to some of the assignments of error claimed by defendant are the following facts, as disclosed by the record. At the time that defendant and his co-participants first entered the courthouse there were five officers in the building: Officer Saiz was in the lobby; Sheriff Naranjo and the Jailer Eulogio Salazar, who was also a deputy sheriff, were in the Sheriff's office; Deputy Sheriff Pete Jaramillo was in the county commission room attending the County Commission meeting, Deputy Sheriff Daniel Rivera was upstairs in the court room. Two other State Police Officers had been at the courthouse earlier but had left to investigate an accident. These Officers later sought to return to the courthouse but were driven off by gunfire from individuals stationed outside. The exact number of defendant's co-participants is not known. Fourteen were identified by witnesses at the trial, but it is evident that there were others. Of the fourteen identified, two were the defendant's son and daughter. Several of the participants had assembled at Canjilon, New Mexico, a small village approximately 20 miles from the courthouse, and had left there in five vehicles. Defendant testified that he had not been with the others at Canjilon but was in Tierra Amarilla, about two blocks from the courthouse, and was called after the affray had started.

The defendant came up behind Jaramillo and stuck a rifle in his ribs and said, 'tell me where Alfonso Sanchez (the district attorney) is, or I'll kill you.' Jaramillo told him that Sanchez wasn't there, that Mr. Neal (assistant district attorney) was the one who had come to take care of the criminal arraignments that day. The defendant then ordered Pete Jaramillo to lie down on the floor behind the water cooler and to quit looking around. A few minutes later the defendant ordered the people all back in the county commission room and Baltazar Martinez and Baltazar Apodaca, another of the four who had confronted Officer Saiz earlier, took command and led them in. The record indicates that there were approximately twenty people being held in the county commission room and that they were detained from shortly after 3:00 p.m. until 7:00 p.m. of the same day, June 5, 1967.

Defendant's first point is that 'the trial court committed prejudicial error by refusing defendant's requested instruction relating to his right to use force in order to suppress a riot.'

The instruction that was submitted to the Jury, No. 24 provided:

'You are instructed that the use of all necessary force is justified when done by any person in any of the following situations:

1. When done in the necessary defense of his life, his family, or his property, or in necessarily defending against any unlawful action directed against himself, his wife, or family; or

2. When done in the lawful defense of himself or of another and when there is a reasonable ground to believe a design exists to commit a felony or to do some great personal injury against some person or another and there is eminent danger that the design will be accomplished.'

Defendant's requested Instruction No. 26, added the additional phrase:

'When necessarily done in attempting, by lawful ways and means, to apprehend any person for any felony committed in his presence, or in lawfully suppressing any riot, or in necessarily and lawfully keeping and preserving the peace.'

It is well established that 'a party is entitled to have an instruction on his theory of the case submitted to the jury if there is evidence reasonably tending to sustain such a theory.' State v. Vasquez, 83 N.M. 388, 492 P.2d 1005 (Ct.App.1971).

There is nothing in the record to indicate that the defendant's wife was at the courthouse at any time on that day or that anyone threatened or tried to attack the defendant. The only persons injuring anyone or threatening anyone were the co-participants of

the defendant. Instruction No. 26 describes three situations in which the use of force is justified:

(1) 'to apprehend any person for any felony committed in his presence';

(2)...