(concurring in part and dissenting in part).
{70} I agree that there is a view of the evidence such that Defendant could construct a defense of justifiable homicide. However, I do not believe that a jury instruction on justifiable homicide would have made a material difference in this case. With that belief, I respectfully dissent from the majority’s holding reversing and remanding for a new trial on the voluntary manslaughter and aggravated assault with a deadly weapon charges.
{71} The defense of justifiable homicide permits a law enforcement officer to use deadly force to arrest a fleeing felon when the officer has probable cause to believe that the officer or another is threatened with serious harm or deadly force. Section 30-2-6. Defendant was trying to stop Abelino Montoya, there was testimony that Mr. Montoya had committed a felony, and Defendant testified that he used deadly force because he believed that Mr. Montoya was attacking Sergeant Marquez and himself. The issue of whether Mr. Montoya was fleeing at the time was an issue of fact for the jury. On this basis, Defendant was entitled to the justifiable homicide instruction. State v. Nieto, 2000-NMSC-031, ¶ 15, 129 N.M. 688, 12 P.3d 442 (stating that a defendant is entitled to have the jury instructed on his theory of the case if supported by the evidence).
{72} However, the failure to give the instruction is not reversible error in the absence of prejudice. State v. Ho‘o, 99 N.M. 140, 145, 654 P.2d 1040, 1045 (Ct.App.1982); State v. Ramos, 116 N.M. 123, 130, 860 P.2d 765, 772 (Ct.App.1993) (stating that a defendant must show prejudice as a result of rejecting proffered instruction to establish error).
{73} Defendant fairly raised the question of whether he acted to protect Sergeant Marquez or himself. He testified at trial that he placed his car in a position to block Mr. Montoya’s truck so that he could execute a “felony-stop.” He was very clear in his testimony that the truck reversed twice toward his car. He testified that he believed that the truck was coming back to hit him once again when he fired his second and third shots to the back of the truck. He was specific in his testimony that he believed at the time that Mr. Montoya was attacking both Sergeant Marquez and him with the truck such that his use of deadly force was justified. Sergeant Marquez testified that he fell out of the car as the truck pushed the car backward. He said that he saw the truck’s tires coming at him and he fired because he feared his life was in danger.
{74} Defendant’s testimony supported instructions on self-defense and defense of another, which the jury received. With these instructions, the jury was instructed that if Defendant believed that he or Sergeant Marquez was in immediate danger of death or great bodily harm, and that Defendant shot Mr. Montoya to prevent the death or great bodily harm and acted as a reasonable person in the same circumstances would have, the jury should find Defendant not guilty. UJI 14-5171, UJI 14-5172 NMRA 2001. Defendant does not contend that there is any significant difference in this case between these requirements and the requirements of justifiable homicide that an officer have probable cause to believe the officer or another is threatened with serious harm or deadly force. Faced squarely with this determination, the jury concluded that Defendant did not act in self-defense or defense of another.
{75} I agree with the majority that the defense of justifiable homicide is broader in the general sense than self-defense or defense of another. It is uniquely available to law enforcement officers who may have to be aggressors in their protection of the public and whom we do not want to handicap in the performance of their lawful duties.
{76} As the majority points out, a justifiable homicide defense embraces more than the immediate situation addressed by self-defense or defense of another. In justifiable homicide, an officer may indeed use deadly force to prevent the escape of a fleeing felon who is a threat of serious harm or deadly force to other persons who are not at the flight scene. But, most significantly, there were no material issues of such threats of harm in this case. Defendant testified that he acted to prevent the immediate harm to himself or Sergeant Marquez. Tom Gillespie, who testified on Defendant’s behalf as an expert on police training, procedure, and the use of force, presented testimony that Defendant acted in accordance with his training when Defendant thought the truck was going to come back to him. But, Mr. Gillespie did not testify that the circumstances justified the use of deadly force to avoid harm to unidentified persons or any person other than Defendant or Sergeant Marquez. Thus, although I agree that the defense of justifiable homicide could, under certain circumstances, permit the use of deadly force for the protection of the public even if an officer was not acting under an immediate threat of harm that could justify self-defense or defense of another, such issues were not material ones in this case.
{77} Moreover, the jury was entitled to consider Defendant’s position as a law enforcement officer. In addition to the elements concerning the reasons for a defendant’s actions, self-defense and defense of another require that a defendant act as would a reasonable person under the same circumstances. UJI 14-5171, 5172. A person under the same circumstances in this case is a law enforcement officer. Defendant presented evidence, including an expert witness, and argued that he acted as a reasonable law enforcement officer under the circumstances. As a result, I do not believe there was prejudice in this case because the self-defense and defense of others defenses required the jury to address all the elements essential to Defendant’s defenses on the evidence adduced at trial, including justifiable homicide.
{78} Defendant contends that he was prejudiced by his inability to counter the State’s statements to the jury about the illegality of shooting a fleeing suspect. However, although Defendant moved for a new trial based on these statements, he did not, as he could have, object to them during argument. See State v. Carmona, 84 N.M. 119, 121, 500 P.2d 204, 206 (Ct.App.1972) (“Objections made after the close of the. district attorney’s argument came too late in the day.”). In addition, Defendant testified that he did not act in any such manner.
{79} Nor does Jury Instruction No. 17 concerning the limitation of self-defense based on who was the aggressor, which was given by the court, indicate prejudice to Defendant. Under Defendant’s theory of the case, he was not the aggressor. Jury Instruction No. 17 did not limit self-defense, even if Defendant was the aggressor, if (1) Defendant “was using force which would not ordinarily create a substantial risk of death or great bodily harm; and” (2) “Abelino Montoya responded with force which would ordinarily create a substantial risk of death or great bodily harm.” The first element was not an issue in this case. The State did not argue that Defendant used force as an aggressor that would ordinarily create a risk of death or great bodily harm. The second element of the instruction was not a factor because, under Defendant’s theory, it was necessary that the jury find that Mr. Montoya acted essentially with the same force required under the second element to support a justifiable homicide defense. Therefore, while it is true, as the majority states, that a justifiable homicide defense is broader than self-defense because it enables an officer to argue, as a private citizen may not, that the officer was initially the aggressor, but then acted in self-defense, there is no inconsistency when the defense of justifiable homicide is applied to the facts as argued in this case.
{80} Defendant is entitled to a fair trial, not a perfect one. State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728. Defendant raised a defense based upon protecting Sergeant Marquez and himself. He was entitled to raise this defense by self-defense and defense of another as well as justifiable homicide. Generally, the justifiable homicide instruction states the defense for a law enforcement officer in a broader manner such that arguments are available to an officer that are not permissible for an ordinary citizen. However, in the circumstances of this case, in which the essential issues involved Defendant’s actions in response to the immediacy of a threat to himself and Sergeant Marquez, the broader arguments available under the justifiable homicide defense were immaterial. I do not believe that Defendant was prejudiced by the failure of the court to provide a justifiable homicide instruction.
{81} I concur in all other aspects of the majority’s opinion and would, therefore, affirm Defendant’s conviction of voluntary manslaughter and aggravated assault with a deadly weapon and address Defendant’s argument concerning his conviction of shooting at a motor vehicle resulting in injury.