State v. Tardy, A-1-CA-35115

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JASON TARDY, Defendant-Appellant.

No. A-1-CA-35115

COURT OF APPEALS OF THE STATE OF NEW MEXICO

June 27, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY

Freddie J. Romero, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Meryl E. Francolini, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kimberly Chavez Cook, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VANZI, Judge.

{1} Defendant Jason Tardy appeals his conviction for felony battery on a peace officer, in violation of NMSA 1978, Section 30-22-24 (1971). We affirm.

BACKGROUND

{2} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we briefly set out the following undisputed facts taken from testimony presented at trial and reserve discussion of additional facts as necessary for our analysis. The events leading to Defendant's conviction began when Marion Lopez agreed to sell Defendant a truck, for which Defendant would make an initial payment later the same week, with subsequent monthly payments. Three weeks later, after Lopez attempted to contact Defendant numerous times to collect payment, Lopez reported the truck stolen. Shortly after Lopez reported the truck stolen, Lopez's son-in-law found the truck in a hotel parking lot and called Chaves County Sheriff's Deputy Albert Padilla, with whom he was familiar. Deputy Padilla went to the hotel to investigate after receiving permission from his supervisor and informing the dispatcher. Upon arriving at the scene, Defendant told Deputy Padilla that he "had no business" being there because the truck purchase was a "civil matter" and that Lopez should take Defendant to court. After talking to Lopez and consulting with the on-call district attorney, Deputy Padilla arrested Defendant and transported him to the sheriff's office for booking. At the sheriff's office, another deputy led Defendant to the booking cell. When he reached the entryway to the cell, Defendant stopped walking and refused to enter. When Defendant refused to comply with the deputy's requests to enter the cell, Deputy Padilla grabbed Defendant to force him into the cell. At that point, Defendant pulled away and kneed Deputy Padilla, which led to a scuffle between the two.

{3} Defendant was charged with embezzlement of a motor vehicle, in violation of NMSA 1978, Section 30-16D-2 (2009), and felony battery on a peace officer for kneeing Deputy Padilla. At trial, the district court granted Defendant's motion for a directed verdict on the embezzlement of a motor vehicle charge. The jury found Defendant guilty of battery on a peace officer. This appeal followed.

DISCUSSION

{4} Defendant appeals his conviction on several grounds. First, Defendant argues that the district court failed to instruct the jury (1) that Deputy Padilla must have been lawfully discharging his duties at the time of the battery; and (2) on the lesser-included offense of simple battery. Next, Defendant contends that there was insufficient evidence to support his conviction. Finally, Defendant claims that the district court erred in limiting defense counsel's closing argument. We address each argument in turn.

I. The District Court Properly Instructed the Jury

{5} Because Defendant did not preserve his arguments with respect to the jury instructions, we review them only for fundamental error. See Rule 12-321 NMRA; State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. When this Court reviews jury instructions for fundamental error, we will only reverse the jury verdict if doing so is "necessary to prevent a miscarriage of justice." State v. Sandoval, 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d 1016 (internal quotation marks and citation omitted). Generally, the failure to instruct on an essential element of a crime constitutes fundamental error. State v. Lopez, 1996-NMSC-036, ¶ 10, 122 N.M. 63, 920 P.2d 1017.

A. Battery on a Peace Officer

{6} Section 30-22-24(A) defines "battery on a peace officer" as "the unlawful, intentional touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner." (Emphasis added.) Consistent with UJI 14-2211 NMRA, the jury was instructed, in relevant part, "For you to find [D]efendant guilty of [b]attery on a [p]eace [o]fficer, the [S]tate must prove to your satisfaction beyond a reasonable doubt . . . [that a]t the time [of the battery], [Deputy] Padilla was a peace officer and was performing the duties of a peace officer[.]" (Emphasis added.) Defendant claims that Deputy Padilla was not lawfully discharging his duties because he did not have probable cause to arrest Defendant for embezzlement of a motor vehicle¹ and argues that the district court should therefore have instructed the jury to determine whether Deputy Padilla was lawfully discharging his duties rather than merely "performing the duties of a peace officer." As we explain, Deputy Padilla's purported lack of probable cause is not relevant to the jury's decision.

{7} Our Supreme Court addressed the meaning of a peace officer acting in "lawful discharge of his duties" in State v. Doe, 1978-NMSC-072, ¶ 14, 92 N.M. 100, 583 P.2d 464. In Doe, the defendant was charged with battery on a peace officer for a battery he committed after being arrested for disorderly conduct. Id. ¶¶ 1-2. On appeal, our Supreme Court held that the underlying arrest was illegal because it was not supported by probable cause. Id. ¶ 7. Nonetheless, the Court stated that "[a]n arrest undertaken without probable cause does not vitiate all the authority of the arresting officer." Id. ¶ 14. In answering the question of "whether the use of force in resisting a search pursuant to an illegal arrest constitutes a battery upon a police officer acting in the 'lawful discharge of his duties,' " id. ¶ 11, the Court announced the following standard:

Even if an arrest is effected without probable cause, a police officer is engaged in the performance of his official duties if he is simply acting within the scope of what the agent is employed to do. The test is whether the agent is acting within that compass or is engaging in a personal frolic of his own.

Id. ¶ 14 (alteration, internal quotation marks, and citation omitted).

{8} This Court has relied on the Doe standard in subsequent cases. See, e.g., State v. Nemeth, 2001-NMCA-029, ¶ 51, 130 N.M. 261, 23 P.3d 936, overruled on other grounds by State v. Ryon, 2005-NMSC-005, ¶ 28, 137 N.M. 174, 108 P.3d 1032; State v. Tapia, 2000-NMCA-054, ¶ 13, 129 N.M. 209, 4 P.3d 37; State v. Gonzales, 1982-NMCA-043, ¶ 7, 97 N.M. 607, 642 P.2d 210; see also State v. Ellis, 2008-NMSC-032, ¶ 37 n.3, 144 N.M. 253, 186 P.3d 245 (reaffirming Doe and stating "[the d]efendant was not entitled to resist what appeared to him to be an unlawful arrest"). Indeed, in Nemeth, we relied on this standard in rejecting the same argument Defendant now makes. In that case, the defendant claimed that the district court committed reversible error by usingUJI 14-2211 instead of her tendered instruction, which provided that the state must prove the officer-victim "was in the lawful discharge of her duties at the time of the alleged offense." Nemeth, 2001-NMCA-029, ¶¶ 52-53. In rejecting this argument, this Court reiterated that "[t]he standard for determining whether an officer was acting within his or her lawful discharge of duties is whether the officer was performing his or her official duties." Id. ¶ 54 (quoting Tapia, 2000-NMCA-054, ¶ 13). Consequently, we concluded it was not necessary to use the word "lawful" in the instructions and that "our Supreme Court merely replaced the words 'lawful discharge of his duties' with a definition of those words, namely, 'performing his or her official duties.' " Id. ¶¶ 54, 57 (quoting Section 30-22-24 and UJI 14-2211).

{9} Defendant contends that our holding in Nemeth is no longer controlling in light of State v. Phillips, 2009-NMCA-021, 145 N.M. 615, 203 P.3d 146, in which this Court stated that "whether an officer is acting lawfully is measured by his actual legal authority, including common-law, statutory, or constitutional limitations on the officer's authority[.]" Id. ¶ 16. Although we acknowledge that Phillips supports Defendant's argument, we do not view it as controlling authority. In Phillips, the defendant argued that he could not be convicted of battery on a peace officer because the officer-victim arrested him without probable cause and was, therefore, acting without lawful authority at the time of the battery. Id. ¶ 9. Despite holding that the officer had probable cause to detain the defendant, see id. ¶ 23, the Phillips Court dedicated a lengthy discussion to addressing whether a defendant could be convicted of battery on a peace officer when the defendant was unlawfully arrested, see id. ¶¶ 10-19. However, this discussion—on which Defendant relies—is dictum and has no binding force of law because it was not necessary to the Court's decision. See Ruggles v. Ruggles, 1993-NMSC-043, ¶ 22 n.8, 116 N.M. 52, 860 P.2d 182 (stating that language unnecessary to the decision of the issues before the court is dicta "no matter how deliberately or emphatically phrased"). Furthermore, the Phillips Court's discussion is contrary to the Supreme Court's enunciation of the meaning of "lawful discharge of his duties" in Doe, which we view as controlling authority. See Phillips, 2009-NMCA-021, ¶ 26 (Castillo, J. specially concurring in result) (citing Doe and concluding...