STATE V. HERNANDEZ, 2004-NMCA-045, 135
N.M. 416, 89 P.3d 88
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JAVIER HERNANDEZ,
Defendant-Appellant.
COURT OF APPEALS OF THE STATE OF NEW MEXICO
2004-NMCA-045,
135 N.M. 416, 89 P.3d 88
APPEAL FROM THE DISTRICT COURT OF
LINCOLN COUNTY, Karen L. Parsons, District Judge
Certiorari Denied, No. 28,560, March 19, 2004
Patricia A. Madrid, Attorney General,
Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee
John Bigelow, Chief Public Defender,
Sheila Lewis, Theresa M. Duncan, Assistant Appellate Defenders, Santa Fe, NM,
for Appellant
CYNTHIA A. FRY, Judge. WE CONCUR: RODERICK
T. KENNEDY, Judge, MICHAEL E. VIGIL, Judge
{1} Defendant Javier
Hernandez appeals his conviction of battery against a police officer on several
grounds. He argues that his defense attorney had an actual conflict of interest
that impaired his defense in violation of the Sixth Amendment right to counsel.
He further contends that the jury instructions contained reversible error.
Finally, he argues that the trial court abused its discretion in admitting
certain portions of the videotaped arrest underlying his battery conviction.
Because we agree with Defendant that the jury instructions were misleading, we
reverse and remand.
{2} The events leading
to Defendant's arrest were triggered by a radio dispatch informing police that
a person had walked away from the scene of a possible accident or DWI. Soon
after the radio dispatch, Officer Stephen Dobbs saw and followed Defendant, who
matched the description given in the dispatch. Dobbs got out of his patrol car,
turned on his video camera and remote microphone, and approached Defendant
where he stood with several other people on a residential porch. Dobbs spoke
with Defendant and then asked him to turn around and place his hands on his
head. Upon questioning, Defendant admitted that he was carrying a pocketknife.
Dobbs then prepared to handcuff Defendant for officer safety reasons. During
these events, Defendant held a cigarette in his mouth. As Dobbs stood holding
Defendant's hands behind his head in preparation for handcuffing him, Officer
Ken Arthur approached the scene and directed Defendant to spit out his
cigarette.
{3} The parties
disagree about what happened next: Defendant either spit the cigarette directly
at Arthur, or he spit it in the general direction of Arthur. Arthur then
grabbed Defendant and forcefully put him against the hood of the police car to
complete the handcuffing, and a brief struggle ensued. According to both Dobbs
and Arthur, Defendant pushed himself off of the car hood and intentionally hit
the back of his head against Arthur's face. Other eyewitness testimony
indicated that Defendant "bounced" off the hood of the car as a
result of the force used by Arthur. One witness testified that during the
struggle Arthur may have hit his own head on the open police car door. Arthur
testified that Defendant attempted to take his gun. In any event, the struggle
concluded when Arthur successfully handcuffed Defendant and placed him in the
police car. Although the parties dispute how Arthur became injured, they
apparently agree that at some point during the events, Arthur sustained a cut
on his head. The altercation resulted in charges of battery against a peace
officer and attempted disarming of a peace officer.
See NMSA 1978, '' 30-22-24 (1971),
30-22-27(A)(1) (1997).
{4} Defendant's theory
at trial was that Arthur used excessive force and that Defendant's actions
constituted lawful self-defense in response to that force. Because the defense
theory hinged on whether Arthur employed excessive force against Defendant,
whether Arthur had used excessive force in the past became a significant issue.
During a dispute about the admission of such evidence, it came to light that
Defendant's defense counsel had previously represented Arthur in an
administrative hearing held to determine whether Arthur would be fired from a
different law enforcement position for his involvement in an altercation with
school security guards. After this revelation, defense counsel abruptly stopped
pursuing the admission of instances of violence by Arthur, presumably to avoid
divulging communications protected by the attorney-client privilege.
{5} After a two-day
trial, the jury convicted Defendant of battery against a police officer and
acquitted him of attempting to disarm a peace officer. Defendant appeals.
Jury Instruction on Officer Use of Force in an Emergency
{6} The trial court
provided the jury with a total of twenty-one instructions. The following
instruction, number 16, is the source of the dispute on appeal:
So long as the officer acts in good faith and uses no more
force than reasonably necessary to preserve the peace, they [sic] are accorded
reasonable latitude in the use of force, because emergencies may arise wherein
an officer cannot be expected to exercise the same cool and deliberate
judgement of courts and juries in subsequent court proceedings.
As explained below, we conclude that the defects in this
instruction constitute reversible error. State v.
Parish, 118 N.M. 39, 42, 878 P.2d 988, 991 (1994) ("Reversible
error arises if . . . a reasonable juror would have been confused or
misdirected.").
{7} The primary problem
with Instruction 16 is that it presupposes there was an emergency, rather than
putting the question of whether there was an emergency before the jury. The
State argues that the instruction was a correct statement of the applicable
law. While we agree that case law contains the language used in the
instruction, we do not agree that case law supports the use of that instruction
by itself in this case.
{8} In giving
Instruction 16, the trial court relied on language borrowed directly from
State v. Prince,
1999-NMCA-010,
126 N.M. 547,
972 P.2d 859, a factually similar case that was resolved on different legal
grounds.
See id. & 14 (reversing the defendant's
conviction for lack of sufficient evidence). The
Prince
Court had borrowed the language from
State v.
Gonzales,
97 N.M. 607, 610,
642 P.2d 210, 213 (Ct. App. 1982). However,
Gonzales made it clear that "it devolves
upon the jury, under the evidence in the case and
proper instructions of the court, to resolve
these questions" of whether a police officer acts in good faith and
whether an emergency situation exists to justify an officer's actions.
Id. at 610, 642 P.2d at 213 (italics omitted and
emphasis added).
{9} Accordingly, if an
instruction on emergency circumstances was appropriate in the present case, a
"proper instruction" would have clearly indicated to the jury that it
must weigh the evidence to determine whether an emergency existed. In contrast,
Instruction 16 told the jury that an emergency in fact existed, and that the
jury should therefore give Arthur leeway in his conduct.
{10} We observe that the
language borrowed from
Prince originated
in the context of a civil lawsuit against an officer for excessive force,
Mead v. O'Connor,
66 N.M. 170, 173,
344 P.2d
478, 480 (1959), which is quoted in
Prince,
1999-NMCA-010, & 12,
Gonzales, 97 N.M.
at 610, 642 P.2d at 213, and
State v. Manus,
93 N.M. 95, 100,
597 P.2d 280, 285 (1979),
overruled
on other grounds by Sells v. State,
98 N.M. 786, 788,
653 P.2d 162, 164 (1982). When analyzing whether an officer's
actions create liability for tort or civil rights claims, the officer's
perspective is usually the central focus.
See,
e.g.,
Archuleta v. Lacuesta,
1999-NMCA-113, & 8,
128 N.M. 13,
988 P.2d 883 (stating that the
reasonableness of an officer's use of deadly force is measured "from the
perspective of the officer on the scene, with the understanding that officers
must often make split-second decisions in difficult situations");
Baum v. Orosco,
106 N.M. 265, 271,
742 P.2d 1, 7
(Ct. App. 1987) (recognizing the motives of the officer as a critical factor in
determining whether a particular instance of excessive force rises to the level
of a constitutional violation). Here, in contrast, the issue is whether
Defendant acted in self-defense, a question that the jury must analyze through
the lens of "a reasonable person in the same circumstances . . . as the
defendant." UJI
14-5181 NMRA 2004. To do otherwise would criminalize
self-defense any time an officer believes his actions are justified, regardless
of whether the officer's actions would put a reasonable citizen in fear of
immediate danger of bodily harm. For this reason, we recommend that trial
courts exercise caution when borrowing legal propositions pertaining to
excessive force in a civil proceeding and importing them wholesale into the
context of self-defense in a criminal action.
{11} We recognize that
self-defense against a peace officer is sharply limited because officers are
permitted to use necessary force to effect an arrest.
State v. Hill,
2001-NMCA-094, & 8,
131 N.M.
195,
34 P.3d 139;
State v. Kraul,
90 N.M.
314, 318-19,
563 P.2d 108, 112-13 (Ct. App. 1977). In this case, the trial
court's other instructions precisely conveyed the limits on self-defense
against a peace officer, as directed by the committee commentary to UJI
14-5181. That commentary states that when the victim of the assault is a peace
officer, the ordinary self-defense instruction must be modified in keeping with
Kraul. The trial court followed that
directive in Instruction 15, which included the language that "[o]ne does
not have the right to self defense when the officer is using necessary force to
effect an arrest." This language communicated to the jury the essential
legal proposition that citizens must submit to necessary officer force.
However, where a jury instruction crosses the line into suggesting that an
officer's perception of emergency can eliminate a person's right to defend his
bodily integrity, that jury instruction is erroneous.
See Kraul,
90 N.M. at 318, 563 P.2d at 112 ("The right of self-defense is not barred
simply because the other person in the affray is a police officer.").
{12} In conclusion, we
reverse Defendant's conviction as a result of the misleading language in
Instruction 16.
See State v. Montaño,
1999-NMCA-023, &&
16-18,
126 N.M. 609,
973 P.2d 861 (finding error where ambiguous phrasing of
jury instruction might have confused the jury about whether it must make the
factual determination that a brick wall was a deadly weapon);
State v. Bonham,
1998-NMCA-178, &&
25-28,
126 N.M. 382,
970 P.2d 154 (reversing the defendant's conviction of
aggravated battery with a deadly weapon where the grammatical structure of the
jury instruction improperly informed the jury that a trivet is a deadly
weapon),
overruled on other grounds by State v. Traeger,
2001-NMSC-022, & 1,
130
N.M. 618, 29 P. 3d 518.
{13} Because we reverse
Defendant's conviction on the basis of the jury instruction, we need not
address Defendant's arguments regarding defense counsel's apparent conflict of
interest and the purportedly erroneous admission of portions of the videotape.
However, should the issue somehow arise again on retrial, we observe that
events at trial suggest that defense counsel may have had a conflict that
undermined Defendant's right to counsel's undivided loyalty.
See State v.
Martinez,
2001-NMCA-059, & 24,
130 N.M. 744,
31 P.3d 1018
(explaining that the Sixth Amendment guarantees the right to counsel's undivided
loyalty). In particular, because defense counsel had previously represented
Arthur in a matter relating to Arthur's propensity for violence, it appears
that counsel did not elicit certain testimony about Arthur's reputation for
violence out of concern that he might divulge privileged information obtained
during his prior representation of Arthur.
See
Church v. Sullivan, 942 F.2d 1501, 1510-11
(10th Cir. 1991) (stating that the defendant had demonstrated an actual
conflict of interest where defense counsel had previously represented the
prosecution's key witness in a factually related matter);
United States v. Bowie, 892 F.2d 1494, 1501-02
(10th Cir. 1990) (noting the potential for conflicts of interest when defense
counsel has previously represented a major prosecution witness in a factually
related proceeding). At minimum, these facts would demand an evidentiary
proceeding to determine whether a new trial would be required.
Martinez,
2001-NMCA-059, & 37. Because we
reverse on the basis of the erroneous jury instruction, we need not make an
ultimate determination on this matter.
{14} Because of the
erroneous jury instruction, we reverse and remand for a new trial.
RODERICK T. KENNEDY, Judge