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State v. Mantelli1/29/2002
stating that a defendant is entitled to have the jury instructed on his theory of the case if supported by the evidence).
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).
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.
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.
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.
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 w
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