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State v. Mantelli1/29/2002
as 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.
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.
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.
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.
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 prejudice
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