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State v. Mantelli1/29/2002
was entitled to the instruction. State v. Rubio, 1999-NMCA-018, 18, 126 N.M. 579, 973 P.2d 256. There is also an arguable view of the evidence which supports the argument that in this particular case the correct instruction would not add anything material to the defense. However, we cannot say as a matter of law that the evidence could not support a jury finding of justifiable homicide. See State v. Orosco, 113 N.M. 780, 783-84, 833 P.2d 1146, 1149-51 (1992) (failing to instruct on an element of a case is not reversible error if there was no dispute that the element was established by the evidence). Thus, we cannot say the error was harmless beyond a reasonable doubt. Cf. State v. Pettigrew, 116 N.M. 135, 142, 860 P.2d 777, 784 (Ct. App. 1993) (even constitutional error does not require reversal if it was harmless beyond a reasonable doubt). In such close circumstances, where the error involves the central issue in the case, it is the better policy to require a new trial under the correct instruction. Requiring a new trial obviates any need or opportunity for us to speculate as to how the jury might have resolved-or will resolve-the case under the correct instruction. Reversal also honors prior authorities requiring reversal for error in jury instructions where there is the slightest evidence of prejudice. Kennedy v. Dexter Consol. Sch., 2000-NMSC-025, 27, 129 N.M. 436, 10 P.3d 115; Bachicha v. Lewis, 105 N.M. 726, 729, 737 P.2d 85, 88 (Ct. App. 1987).
In reaching our conclusion, we do not retreat from our holding in Johnson. In Johnson, the defendant submitted no evidence that he acted in self-defense or that he or anyone else was in any way physically threatened by the victim in that case. The circumstances in Johnson would not have supported an instruction on justifiable homicide if the shooting had been done by a police officer. Id. 2. Defendant has presented evidence that at a certain point the suspect presented a real threat to him and others. Whether that threat had dissipated sufficiently by the time he fired the fatal rounds to make his use of deadly force unreasonable was for the jury to decide.
Finally, we note that UJI 14-5173 has not been modified to meet the requirements of Section 30-2-6(B) as amended in 1989, and does not reflect the current law of New Mexico on justifiable homicide by a public officer or public employee. State v. Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994) (holding that this Court "has authority to question uniform jury instructions" that have been adopted by the Supreme Court, and may "amend, modify, or abolish [an erroneous] instruction" if the instruction has not been previously challenged). As a service to the bar and a suggestion to the parties, UJI 14-5173 could be modified as follows:
14-5173. Justifiable homicide; public officer or employee.
Evidence has been presented that the killing of __________ (name of victim) was justifiable homicide. A homicide is justifiable when it is necessarily committed by a public officer or public employee while
[overcoming the actual resistance of __________ (name of victim) to the execution of __________ (describe legal process)]
[overcoming the actual resistance of __________ (name of victim) to the discharge of __________ (describe other legal duty)]
[retaking __________ (name of victim) (name of person), who committed __________ (name felony) and who had (been rescued) (escaped)]
[arresting __________ (name of victim) (name of person) who committed __________ (name felony) and was fleeing from justice]
[attempting to prevent the escape from __________ (name place of lawful custody or confinement) by _
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