1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 30,332
10 PAEA OTUAFI,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Stephen D. Pfeffer, District Judge
14 Gary K. King, Attorney General
15 Andrew S. Montgomery, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Jacqueline L. Cooper, Acting Chief Public Defender
19 J.K. Theodosia Johnson, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
1 CASTILLO, Chief Judge.
2 Defendant appeals his convictions on charges of battery and assault on a peace
3 officer, arguing that the district court erred in refusing to instruct the jury on
4 Defendant’s theory of self-defense. Having considered the parties’ arguments, we
5 affirm.
6 BACKGROUND
7 On the night of May 25, 2009, Officers Patrick Sanchez and Michael
8 McCluskey were dispatched to an apartment complex in Santa Fe, New Mexico to
9 investigate a domestic disturbance report. Officer Sanchez arrived first and saw
10 Defendant running “in a full sprint” from the building to which the officers had been
11 dispatched. Officer Sanchez gave pursuit in order to question Defendant about his
12 reasons for running from the apparent scene of the disturbance to which the police had
13 been called. Defendant did not stop running despite Officer Sanchez’s repeated
14 identification of himself as a police officer and his demands that Defendant stop and
15 get on the ground. Instead, Defendant ran into a dimly lit park near the apartment
16 complex with Officer Sanchez in pursuit.
17 Finally, Defendant stopped abruptly, turned to face Officer Sanchez, and
18 extracted from his pocket a silver, metallic object and “pointed it right at” Officer
19 Sanchez. Officer Sanchez drew his weapon, but he did not fire because he was
2
1 uncertain that he was, in fact, being threatened with deadly force. When Officer
2 Sanchez drew his gun, Defendant said, “Let me just drink my beer.” Officer Sanchez
3 then heard the sound of a can being opened and reholstered his weapon. Defendant
4 was still standing, however, against Officer Sanchez’s repeated commands, so Officer
5 Sanchez kept telling him, “Get on the ground, get on the ground.” Defendant
6 continued to disobey the officer’s commands.
7 Following Santa Fe Police Department procedures for the control of a
8 noncompliant subject, Officer Sanchez evaluated the options available to him, but
9 determined that no means short of physical force were available. Having no
10 alternative to the use of force, Officer Sanchez grabbed Defendant around the arms
11 and tackled him to the ground. Defendant struggled, continuing to resist Officer
12 Sanchez’s efforts to control him. During the struggle, Officer McCluskey radioed
13 Officer Sanchez, who signaled his location with his flashlight. Officer McCluskey
14 then joined the attempt to subdue Defendant, at which time the officers succeeded in
15 securing a handcuff to one of Defendant’s wrists.
16 As soon as the handcuff locked in place, Defendant “went . . . berserk,”
17 redoubling his efforts to escape, attempting to strike both officers, and punching
18 Officer McCluskey multiple times. Defendant then unfastened the restraining clips
19 on Officer McCluskey’s holster, and attempted to pull the weapon out. As he was
3
1 trying to take Officer McCluskey’s gun, Defendant began threatening to kill the
2 officers. When Officer McCluskey shifted position to prevent Defendant from taking
3 the firearm, Defendant kneed him in the groin. Defendant struck Officer McCluskey
4 in his groin with significant force three times during the altercation. Ultimately, the
5 efforts of five officers, including multiple jolts with a taser stun weapon, were
6 required to subdue Defendant.
7 Defendant was charged with disarming a peace officer, battery upon a peace
8 officer, and assault upon a peace officer. Following a jury trial, Defendant was
9 convicted on the battery and assault charges. On appeal, Defendant argues that his
10 convictions were improper because the district court erred in refusing his tendered
11 jury instruction on self-defense.
12 DISCUSSION
13 Defendant raises several arguments to support the claim that the district court
14 erred in refusing his proffered instruction on self-defense. Preliminarily, we note that
15 because Defendant’s self-defense instruction and the briefing of the issue concern
16 only the amount of force employed by Officer Sanchez in tackling him, our review is
17 limited to the actions of Officer Sanchez and does not include the actions of the other
18 officers ultimately required to compel Defendant’s compliance.
19 Under New Mexico law, the self-defense instruction is available to the
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1 defendant in a case of assault and/or battery on a peace officer if the officer employed
2 excessive force in detaining the defendant. State v. Ellis, 2008-NMSC-032, ¶ 16, 144
3 N.M. 253, 186 P.3d 245. We note that Defendant misstates the applicable standard
4 by citing State v. Lara, 110 N.M. 507, 515, 797 P.2d 296, 304 (Ct. App. 1990), for the
5 proposition that a requested instruction should be given when there exists even slight
6 evidence as to the elements of an affirmative defense. That standard has been
7 expressly abandoned in New Mexico. State v. Rudolfo, 2008-NMSC-036, ¶ 27, 144
8 N.M. 305, 187 P.3d 170. Now, the party requesting the instruction must show
9 “evidence sufficient to justify a reasonable jury determination” on each element of
10 self-defense at issue. Id. (internal quotation marks omitted). In order to justify an
11 instruction on self-defense against a peace officer, a defendant must show that:
12 1. The officer used greater force than reasonable and necessary
13 . . .; and
14 2. There was an appearance of immediate danger of bodily
15 harm to the defendant . . .; and
16 3. The defendant was in fact put in fear of immediate bodily
17 harm . . . because of that fear; and
18 4. The defendant used an amount of force that the defendant
19 believed was reasonable and necessary to prevent the bodily harm; and
20 ....
21 6. The apparent danger would have caused a reasonable person
22 in the same circumstances to act as the defendant did.
23 UJI 14-5185 NMRA. The force used by the officer is evaluated objectively “from the
24 perspective of a reasonable officer on the scene.” Ellis, 2008-NMSC-032, ¶ 26
5
1 (internal quotation marks and citation omitted).
2 Defendant argues that Officer Sanchez failed to inform him that he was not
3 under arrest—a violation of the Santa Fe Police Department’s policy for investigative
4 detentions. However, Defendant does not explain how this violation relates to his
5 claim of self-defense. The district court addressed the justification for the oversight,
6 ruling that it
7 would be too much to assume . . . that an officer is expected to think and
8 say under these circumstances I’m not arresting you . . . and certainly
9 when [Officer] Sanchez screamed to please get on the ground and . . .
10 Defendant ignored him, that he would think to say you’re not under
11 arrest, just an investigation.
12 We find that under the circumstances of this case, Officer Sanchez’s failure to inform
13 Defendant that the detention was initially not an arrest is not a factor in our evaluation
14 of Defendant’s self-defense argument.
15 Defendant argues that the district court erred in ruling that he presented no
16 evidence of fear. Defendant argues that his fear was evident in the fact that he was
17 intoxicated, that when he stopped and opened his beer, “from [his] perspective the
18 situation was resolved,” and that when he was tackled, he resisted. Defendant
19 identifies no evidence in the record to support his arguments that intoxication
20 predisposes a person to fear, or that Defendant considered the situation “resolved” at
21 a time when Officer Sanchez was continuing to demand that he lie on the ground.
6
1 Moreover, as the State notes, the argument that resisting an officer’s authority is per
2 se evidence of fear of injury implies that every instance of resisting detention is
3 motivated by fear, to the exclusion of other motives such as anger or retaliation.
4 Defendant needed to put on “evidence sufficient to justify a reasonable jury
5 determination” that his resistance was motivated by fear of bodily injury. Rudolfo,
6 2008-NMSC-036, ¶ 27 (internal quotation marks omitted). Because he failed to do
7 so, he did not meet this element of self-defense. Similarly, Defendant fails to show
8 that he put on evidence of his subjective belief that the force he used was reasonable
9 and necessary to protect himself from bodily injury. See UJI 14-5185. This element,
10 too, thus remains unmet.
11 Officer Sanchez had a reasonable basis for detaining Defendant for questioning.
12 At the time he was pursuing Defendant, Officer Sanchez did not know what had
13 precipitated the original domestic disturbance call and thus did not know whether
14 Defendant might have committed a serious crime. Officer Sanchez testified that, “if
15 I [had] just let somebody [who] harmed somebody go, then I would think that I failed
16 my Department and the citizens of Santa Fe.”
17 The record makes it clear that Officer Sanchez increased his response
18 “incrementally[,] in proportion to the circumstances with which he was confronted.”
19 Rather than simply tackling Defendant as soon as it was evident that Defendant was
7
1 not threatening him with a firearm, Officer Sanchez continued to demand that
2 Defendant “get on the ground.” Only when Defendant failed to do so and no other
3 means were reasonably available to subdue Defendant and assure he would no longer
4 attempt to resist or flee did the officer resort to physical force. Because the officer’s
5 actions were proportional in response to Defendant’s actions in resisting his authority
6 and no lesser means of assuring Defendant’s compliance were available, we believe
7 that Officer Sanchez employed only the force that was reasonably necessary to the
8 performance of his duties. Because there was no excessive force and for the other
9 reasons discussed above, we conclude that the district court properly refused
10 Defendant’s instruction on self-defense.
11 CONCLUSION
12 For the reasons stated herein, we affirm Defendant’s convictions.
13 IT IS SO ORDERED.
14 __________________________________
15 CELIA FOY CASTILLO, Chief Judge
16 WE CONCUR:
17 __________________________________
18 JONATHAN B. SUTIN, Judge
8
1 __________________________________
2 MICHAEL E. VIGIL, Judge
9