State v. Vargas
| Decision Date | 08 February 2018 |
| Docket Number | No. A-1-CA-34276,A-1-CA-34276 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOSE VARGAS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 OTERO COUNTY
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant Jose Vargas seeks to reverse his convictions following a jury trial for one count of aggravated assault against a household member, pursuant to NMSA 1978, Section 30-3-13(A) (1995), one count of false imprisonment, pursuant to NMSA 1978, Section 30-4-3 (1963), and one count of battery against a household member, pursuant to NMSA 1978, Section 30-3-15 (2008). Unpersuaded by Defendant's arguments, we affirm. Because this is a memorandum opinion and the parties are familiar with the facts and procedural posture of the case, we set forth only such facts and law as are necessary to decide the merits.
{2} Defendant's convictions stem from a domestic dispute that occurred between Defendant and Olga Saucedo (Victim) on Thanksgiving Day, November 22, 2012. Witnesses at Defendant's trial were Victim's neighbors, Joe Ochoa (Mr. Ochoa) and his wife, Cheryl Polizzi (Ms. Polizzi), as well as Alamogordo, New Mexico Police Officers, Troy Thompson (Officer Thompson) and Mark Esquero (Officer Esquero).
{3} The following evidence was presented to the jury. Victim and Defendant had been in a relationship for two years before their Thanksgiving Day 2012 dispute. On the morning of Thanksgiving Day 2012, Defendant and Victim were drinking and arguing in Victim's trailer. Around 9:00 a.m., Victim went to Mr. Ochoa and Ms. Polizzi's trailer in her bathrobe "confused" and "not herself," but only told Mr. Ochoaand Ms. Polizzi "Happy Thanksgiving." Victim left soon after, but later that day returned to Mr. Ochoa and Ms. Polizzi's home and banged on the trailer, saying and "He wants to kill me!" Mr. Ochoa called the police.
{4} Officer Thompson responded to the call, but did not detect any signs of criminal conduct. Officer Thompson therefore concluded his investigation after Victim informed him that Defendant would be leaving and that everything would be okay.
{5} Later that same day, Mr. Ochoa testified to observing Victim's hand trying to open her trailer door and then seeing the door slamming shut. Victim was screaming "help me," "leave me alone," and "stop hitting me," and Defendant could be heard yelling back at her. Victim and Defendant then came out of Victim's trailer and both were holding knives. Mr. Ochoa described this situation as a "fight[]" between Victim and Defendant "with knives[.]" Ms. Polizzi described seeing Victim backing away from her trailer and from Defendant with a knife in her hand as he pursued her with a knife in his hand.
{6} Ms. Polizzi called the police a second time and stated that "the same people that I called about before, now they're outside and they've got weapons." While Ms. Polizzi called the police, Mr. Ochoa went to Victim's trailer to offer help. While at Victim's trailer, Mr. Ochoa managed to grab Victim and tell her to give him her knife. Mr. Ochoa then convinced Defendant to put his knife down. Ms. Polizzi then calledVictim to come into her yard where she observed injuries suffered by Victim including blood coming from her nose, bruises and red marks on her wrists, blood smears on both of her shoulders, a wet face from crying and her hair in disarray. Defendant left the scene before the police arrived.
{7} Officer Thompson responded to the second call with the information that there were two people armed with knives swinging them at each other. After investigating the scene of the altercation and being unable to locate Defendant, Officer Thompson left the trailer park and obtained a warrant for Defendant's arrest. Defendant was subsequently arrested on the warrant.
{8} Defendant raises five arguments on appeal: (1) that the district court erred in refusing to instruct the jury on self-defense by non-deadly force, see UJI 14-5181 NMRA; (2) that the jury instructions on the New Mexico "no-retreat" law, see UJI 14-5190 NMRA, and the definition of "household member," see UJI 14-332 NMRA, as well as statements made by the prosecutor during closing argument constituted fundamental errors that collectively amounted to cumulative error; (3) that Officer Thompson's testimony repeating Victim's out-of-court statements concerning who had hit her and where that individual was violated the Confrontation Clause; (4) that admission of Officer Esquero's testimony describing the arrest of Defendantconstituted plain error; and (5) that sufficient evidence does not support Defendant's convictions. We address these issues in turn.
{9} Defendant tendered a non-deadly force self-defense instruction modeled after UJI 14-5181. The State objected, arguing that based on Victim and Defendant's use of knives in the confrontation, any self-defense instruction submitted to the jury should include the use of deadly force. The district court ruled that a self-defense instruction was warranted because both Victim and Defendant had knives and used them in a way that the jury could infer that Defendant could have perceived Victim as a threat and used his knife for self-defense. The district court also determined that self-defense by deadly force, pursuant to UJI 14-5183 NMRA, was the proper self-defense instruction because the use of the knives as described by the witness constituted the use of deadly force. The instruction given to the jury stated:
Evidence has been presented that [D]efendant acted in self-defense. [D]efendant . . . acted in self-defense if: 1. There was an appearance of immediate danger of death or great bodily harm to [D]efendant as a result of [Victim] arming herself and swinging a knife at [D]efendant; 2. [D]efendant was in fact put in fear of immediate death or great bodily harm and was swinging a knife because of that fear, and 3. The apparent danger would have caused a reasonable person in the same circumstances to act as [D]efendant did. The burden is on the State to prove beyond a reasonable doubt that [D]efendant did not act in self-defense. If you have a reasonable doubt as to whether [D]efendant acted in self-defense, you must find [D]efendant not guilty.
{10} We review a trial court's rejection of proposed jury instructions de novo. See State v. Percival, 2017-NMCA-042, ¶ 8, 394 P.3d 979. "A defendant is only entitled to jury instructions on a self-defense theory if there is evidence presented to support every element of that theory." State v. Baroz, 2017-NMSC-030, ¶ 14, 404 P.3d 769. "Where there is enough evidence to raise a reasonable doubt in the mind of a juror about whether the defendant lawfully acted in self-defense such that reasonable minds could differ, the instruction should be given." Id. ¶ 15 ().
{11} Defendant argues that the district court erred in refusing to instruct the jury on self-defense by non-deadly force. Defendant submits that while "[i]t was undisputed that [he] and [Victim] both had knives during their confrontation, . . . there was no evidence that [he] attempted to use his knife" on Victim. As a result, Defendant contends that his threatening conduct involving the display of a knife, without more, constituted only the use of non-deadly force. In support of this contention, Defendant cites State v. Clisham, 614 A.2d 1297 (Me. 1992) and People v. Pace, 302 N.W.2d 216 (Mich. Ct. App. 1980). In Clisham, upon receiving information that the defendant had killed his wife, police officers attempted to search the home of the defendant without obtaining a warrant. 614 A.2d at 1297. When the defendant refused to allowthe officers to enter his home, the officers told the suspect that if he did not permit them to enter that they would break his door down. Id. at 1298. As a result, the defendant armed himself with two knives, opened the door, and explained to the officers that he would use the knives to prevent them from coming into his home. Id. The defendant eventually relented and permitted the officers to enter his home—at which time he was arrested and charged with "criminal threatening." Id. The Supreme Judicial Court of Maine determined that the facts indicated that by brandishing knives to repel the police from entering his home, the defendant had only Id. Accordingly, the court held that it was an error for the trial court to equate "the mere threat of deadly force with the actual use of deadly force." Id. at 1299.
{12} Similarly in Pace, there was a confrontation between the defendant and victim over a transaction involving a set of speakers that the defendant's wife had purchased from the victim. 302 N.W.2d at 217. During the confrontation, it was alleged that the victim jumped in the face of the defendant. Id. at 217-18. The defendant responded by pulling out a knife that he claimed to have used to defend himself when the victim came toward him with what appeared to be a small baseball bat. Id. At his...
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