STATE V. EMMONS, 2007-NMCA-082, 141 N.M.
875, 161 P.3d 920
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RICKY W. EMMONS,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2007-NMCA-082, 141 N.M. 875, 161 P.3d 920
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY, Karen
L. Parsons, District Judge
Certiorari Denied, No. 30,440, June 25,
2007. Released for publication July 10, 2007.
Gary K. King, Attorney General, Santa Fe,
NM, Steven S Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee
John Bigelow, Chief Public Defender, Karl
Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant
RODERICK T. KENNEDY, Judge. WE CONCUR: A.
JOSEPH ALARID, Judge, MICHAEL D. BUSTAMANTE, Judge
AUTHOR: RODERICK T. KENNEDY
{1} Defendant Ricky
Emmons pleaded no contest to two counts of aggravated assault with a deadly
weapon after the district court refused to issue Defendant's requested jury
instructions, reserving his right to appeal the district court's decision.
{2} Defendant
1 chased down and confronted a pair of
repo men at gunpoint who had repossessed his truck from his yard the night of
October 2, 2003. During the confrontation, he fired a round into the air and
pointed his weapon at the repo men. On appeal, Defendant maintains that the
district court erred by refusing his tendered jury instructions on
self-defense, defense of property, and citizen's arrest. We affirm.
FACTS AND PROCEDURAL HISTORY
{3} About 9:30 on the
night in question, Defendant was watching television with his family when he
noticed headlights in his driveway. When he went out on his porch, he saw his
truck backing down his driveway. Believing his truck was being stolen as had
happened to him once before, he returned to the house, got a pistol, and drove
off after his truck. At no time did Defendant or a member of his family call
the police to report the theft of the truck.
{4} Down the road, he
saw a red car he recognized as having been at his house minutes before. With
his dome light on, he pulled the car aside. Defendant's version varies from the
repo man's version here: Defendant contends that he pointed his finger at the
driver, who then pulled over; and the repo man testified that Defendant ran him
off the road. Defendant continued up the road, eventually overtaking the
repossessed truck. He pulled alongside his truck, forcing the driver to pull
off the road at gunpoint. Defendant then blocked the truck with his vehicle,
got out, and at gunpoint, ordered the driver of his truck out of the cab and to
the roadside. At this time, the driver of the red car pulled up from where it
had stopped earlier. The person occupying the red car testified that he heard
Defendant identify himself as a police officer and repeatedly tell the driver
of the truck "You're going to die." Defendant then pointed his gun at
the person in the red car. When the driver of the truck did not leave from the
truck as ordered, Defendant fired a shot, intending to show the driver he
"was serious"; he testified he fired away from them, neither of the
other men knew where the shot was directed.
{5} Both men told
Defendant that they were repossessing the truck on a few occasions during the
incident. Defendant told the driver of his truck that he would shoot him if he
did not get out of the truck. The driver of the repossessed truck got out, and
Defendant nudged him in the chest with the gun, continuing to threaten him. The
repo men informed Defendant on several occasions that they were effecting a
repossession, but Defendant ordered both repo men to leave, and they left the
scene in the red car. There was no talk of arresting the men, and Defendant did
not contact the police to report the incident. Defendant then drove the truck
in question to his father-in-law's ranch, with his wife's assistance. The repo
men contacted the police immediately, and the police were waiting for Defendant
when he returned home. Defendant gave a statement that does not materially
differ from the facts above, at the end of which he stated, "I have the
right to protect my life, the life of my family, and my property." He was
eventually charged as noted above and went to trial.
{6} At trial, Defendant
offered jury instructions on self-defense, defense of property, and citizen's
arrest. After argument before the court, the instructions were denied.
Defendant conditionally pleaded no contest to the aggravated assault charges,
reserving the jury instruction issue for this appeal.
{7} We review the
refusal of a jury instruction de novo, as a mixed question of law and fact.
State v. Ruiz,
2007-NMCA-014, ¶ 56,
141 N.M. 53,
150 P.3d 1003. Defendant
is entitled to a jury instruction that supports his theory of the case,
see
State v. Romero,
2006-NMCA-045, ¶ 44,
139 N.M. 386,
133 P.3d 842,
cert.
granted, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120, but only when that
theory is supported by the evidence presented at trial.
See Ruiz,
2007-NMCA-014, ¶ 59 (noting that jury instructions are intended to
"describe principals of law, such as the elements of offenses, burdens of
proof, and presumptions for the benefit of the jury"). For the jury
instruction concerning the defense to be given, the evidence must support every
element of that defense.
See Poore v. State, 94 N.M. 172, 175,
608 P.2d
148, 151 (1980);
State v. Trammel,
100 N.M. 479, 481,
672 P.2d 652, 654
(1983) ("[W]hen there is evidence to support a finding of every element of
a defense, an instruction on that defense is required."). "Failure to
instruct a jury on defendant's theory of the case is reversible error."
State
v. Jernigan,
2006-NMSC-003, ¶ 3,
139 N.M. 1,
127 P.3d 537.
{8} The State's brief
begins by acknowledging that a citizen has the right to defend his life, his
family, or his dwelling from attack, including the warranted use of deadly
force. However, NMSA 1978, §
30-2-7 (1963), to which the State cites, says
homicide is justified to protect those interests
plus a citizen's "
property."
Section 30-2-7(A) (emphasis added). The statute, by ostensibly recognizing a
right to use deadly force to defend property, is more expansive than the State
acknowledges. Similarly, Subsection (C) of Section 30-2-7 allows the use of
deadly force by a citizen to "apprehend any person for any felony committed
in his presence." Section 30-2-7(C). It is these provisions with which we
grapple here.
{9} Defendant chased
the men who repossessed his car some minutes after they had left his property,
and held them at gunpoint, firing a warning shot to prove that he was
"serious" until such time as he told them to leave. The trespass, if
any, to Defendant's home and curtilage ceased before he sallied forth to
apprehend the repo men. Indeed, Defendant lost sight of them for some time
before spotting them.
2
It was he who sought them out by pursuing them from his house to the place of
their roadside meeting. This case has nothing to do with self-defense. There is
no dispute in this case that Defendant's pointing his handgun at the repo men
and threatening to use it is the threat of deadly force. There is no dispute
that Defendant told the men he would kill them, which is fairly and objectively
taken to be a manifestation of intent to use deadly force. The use of deadly
force in defending one's chattels against theft is the issue with which we are
concerned here, as we are also concerned with the use of deadly force in the
apprehension of an apparent felon who commits his crime in a person's presence.
{10} "Aggravated
assault consists of . . .
unlawfully assaulting . . . another with a
deadly weapon[.]" NMSA 1978, §
30-3-2(A) (1963) (emphasis added);
see
State v. Johnson,
1996-NMSC-075, ¶ 19,
122 N.M. 696,
930 P.2d 1148
(hereinafter
Johnson I) (internal quotation marks and citation omitted).
"`Unlawful' means `without lawful justification or excuse,'"
State
v. Parish,
118 N.M. 39, 42,
878 P.2d 988, 991 (1994) (citation omitted),
and a defendant claiming that an assault was justified because of his right to
defend his property or make a citizen's arrest is challenging this essential
element of unlawfulness.
See id. Defendant maintains that having
presented evidence that his truck was taken, he had a legal right to act and to
have the jury instructed on this theory.
{11} Defendant's claim
for self-defense apparently stems from two related considerations, both of
which are inadequate to establish a factual basis sufficient to justify giving
the instruction. At trial, Defendant testified that he pointed his gun at the
occupant of his truck because "I could not see where his hands were . . .
[and] I didn't know this person." Additionally, the arrival of the second
man in the car further exacerbated Defendant's unease, as he states in his
brief: "He produced a gun for his own protection B alone as he was on a
dark highway in the country at night, outnumbered by men whom he believed had
just committed a felony against him."
{12} Defendant correctly
points out that the proper elements of self-defense are "(1) an appearance
of immediate danger of death or great bodily harm to the defendant, (2) the
defendant was in fact put in fear by the apparent danger, and (3) a reasonable
person in the same circumstances would have reacted similarly."
State
v. Abeyta,
120 N.M. 233, 239,
901 P.2d 164, 170 (1995). Defendant was on a
mission to retrieve property already gone from his house. He forced his
apparently stolen truck off the road at gunpoint, and initiated contact with
its driver by maintaining his threat of using deadly force.
Abeyta looks
with disdain on situations in which the Defendant was the aggressor or
instigator.
Id. ("[T]he claim of self-defense may fail if the
defendant was the aggressor or the instigator of the conflict[.]"). There
was no appearance of immediate danger or death before Defendant drew his gun on
the repo men.
See State v. Lucero,
1998-NMSC-044, ¶ 8,
126 N.M. 552,
972
P.2d 1143. Defendant's drawing of his pistol precludes him from receiving an
instruction on self-defense.
Id.
{13} Defendant's
statement that he did not "instigate anything" when the repo men
"came up the driveway to start the incident" is not credible. The
repo men were there and gone with his truck before Defendant even went for his
gun. It was Defendant who got a gun, got in a truck, drove off, and seeing no
one on the road, paused on an overpass to determine which road was likely
traveled by the repo men. Seeing no one on the road he was on, he took off
chasing them down another. It was he who was seeking to retrieve property
already gone. We note below that he had no intention of involving the police --
he was going to take his property back himself. This is not defensive, rather,
an offensive use of deadly force which is not justified. The district court
correctly denied the self-defense instruction.
{14} We surmise from
Defendant's brief in chief that he is also appealing the denial of the defense
of property instruction. We need not delve into under what circumstances a
person may employ the threat of deadly force in defense of property here.
Defendant has not sufficiently articulated the facts upon which the instruction
should be based, and mischaracterized his argument in his brief in chief as an
argument for the self-defense instruction. UJI
14-5180 NMRA was the basis for
the jury instruction defendant presented to the court. Defendant's requested
jury instruction read: "It appeared to [Defendant] that Mr. Rodriguez
and/or Mr. Lind [the repo men] was about to steal [Defendant's] vehicle and
that it was necessary to forcibly stop and force Mr. Rodriguez out of such
vehicle in order to stop Mr. Rodriguez and/or Mr. Lind[.]" The evidence
clearly established that Defendant did not pursue the repo men until some
minutes after he had watched them drive away. Instead, Defendant first went to
his bedroom and grabbed his pistol. We hold that Defendant's actions defeat the
second element of the jury instruction, since the action was not taken to
prevent the theft, but rather to recover a truck already stolen.
See State
v. Waggoner,
49 N.M. 399, 404,
165 P.2d 122, 125 (1946) (noting that when
"no trespass [was] being threatened as against [defendant's] habitation,
an attempt to take the life of the trespasser merely to recover property would
not have been justified"). We accordingly do not address the question of
whether Defendant's use of force was reasonable for the defense of his
property, but turn to reasonableness in the context of his attempting to
interpose a defense of citizen's arrest.
The Doctrine of Citizen's Arrest
{15} Citizen's arrest is
a power historically extended only to cases involving the commission of a
felony, though later extended to citizens for a breach of the peace occurring
in their presence.
Inc. County of Los Alamos v. Johnson, 108 N.M. 633,
638,
776 P.2d 1252, 1257 (1989). Noting the latter extension, however, the
Supreme Court specifically declined to favor citizen's arrest for breaches of
the peace, stemming from their concern that such an expansion of citizen power
might likely lead to more breaches of the peace and encourage vigilantism.
Id.
"Vigilantism" is "unreasonable self-help action by citizens that
tends to disrupt the administration of the criminal justice system."
State
v. Johnson,
1998-NMCA-019, ¶ 15,
124 N.M. 647,
954 P.2d 79 (hereinafter
Johnson
II) (internal quotation marks and citation omitted). It is this case upon
which Defendant based his jury instruction.
{16} Defendant points to
Johnson I, for the proposition that a person who has an objectively
defensible belief that a felony was or has been committed, who acts in good
faith in accordance with that belief, and who "act[s] with reasonable
force under the circumstances," would be entitled to a jury instruction on
the defense of citizen's arrest to counter either the criminal intent or
unlawfulness elements of the crime.
Johnson I,
1996-NMSC-075, ¶ 18.
Defendant's view of
Johnson I's language is incomplete. The Supreme
Court uses these criteria to distinguish unreasonable self-help action from
actions undertaken in a "good-faith, objectively-reasonable effort to
assist in law enforcement."
Id.
{17} In
Johnson I,
the Supreme Court held that the defendant was entitled to have the jury
instructed on the defense of citizen's arrest and that it had to find beyond a
reasonable doubt that the defendant was not reasonably attempting to make a
citizen's arrest.
Id. The Supreme Court adopted an
"objective-person" standard in order to "ensure good-faith,
objectively-reasonable behavior."
Id. ¶ 18 n.3. In
Johnson I,
the defendant presented evidence raising the issue of his reasonable belief
that a felony occurred in his presence, like this case.
Id. ¶ 19. Unlike
this case, however, the defendant in
Johnson I raised the issue of his
"good-faith belief in his lawful right to hold the perpetrator until he
could obtain police assistance."
Id. Rather than requiring a felony
to have been committed, the Supreme Court authorized a citizen's arrest based
on probable cause alone because "if the citizen's assistance in
apprehending criminals is considered important for the safety and order of
society, it would seem that the standard for measuring probable cause should be
defined so as to protect the citizen who, in making an arrest, acts like a
reasonable man."
Id. ¶ 17 (internal quotation marks and citation
omitted).
{18} We hold as a matter
of law that Defendant's actions were not reasonable. When Defendant had the
repo men at gunpoint, he informed them that he at least had been a police
officer (they believed he said he was one), but Defendant also admitted that
the other abusive language he was using would not have been tolerated had he
retained his badge. He fired a warning shot into the darkness to reinforce his
position. Having reclaimed his truck, he told the repo men to leave the scene,
which they did.
{19} Furthermore,
Defendant never intended to call the police; he stated he was seeking the
return of his truck when he armed himself and left his house. When Defendant
asserts that he was not required to call the police because when he arrived
home, the police were already there, he misses the mark. By that point the
police were there to investigate him as a criminal not a victim. In fact, when
he returned home to find the police there, he was hostile to them -- not a
hallmark of the person acting to bring persons to the police for further
action. This smacks of the very essence of vigilantism, and precisely runs
afoul of the stated purpose of a citizen's arrest -- holding the offender for
the authorities. It is this last element of reasonableness -- using the power
of citizen's arrest to facilitate lawful process as opposed to pure self-help
that Defendant has ignored, and which now renders his defense incomplete. We
hold that under these circumstances, Defendant was not entitled to an
instruction on citizen's arrest as a defense.
{20} With regard to the
denial of the jury instructions on defense of property, self-defense and
citizen's arrest, we affirm the district court.
RODERICK T. KENNEDY, Judge
MICHAEL D. BUSTAMANTE, Judge