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State v. Mantelli1/29/2002
n and possibly run over and killed or injured. In response, standing an arm's length away from the truck, Defendant testified he fired one round into the truck. After he fired the first round, believing that the truck was coming back to ram them again, he testified he fired two more rounds into the back of the truck. Sgt. Marquez also fired a single shot at the truck.
Defendant testified his belief at the time was that the truck was being used as a deadly weapon to attack him and Sgt. Marquez, that their lives were in danger, and that he was therefore justified in using deadly force. He also testified that his training taught him to use deadly force if necessary in this situation. Sgt. Marquez testified similarly.
Tom Gillespie testified on behalf of Defendant and was qualified as an expert witness in the area of police training, procedures, and the use of deadly force. Mr. Gillespie testified that Defendant's actions in firing his weapon to stop the alleged attack was consistent with his training and the policies and procedures of the LVPD. He also opined that the ramming of the police cruiser by Montoya constituted an aggravated battery on the police officers, a felony under New Mexico law. NMSA 1978, ยง 30-22-25 (1971)
We hold that Defendant submitted sufficient evidence to warrant a jury instruction on justifiable homicide by a police officer. A reasonable jury, if it believed Defendant's version of the facts, could have concluded that Defendant was justified in using deadly force to protect himself and his partner. It is important to note that this entire incident began and ended very rapidly and the testimony contains many factual disputes that turn on the credibility accorded the witnesses. In our view, the reasonableness of Defendant's actions in using deadly force was for the jury to decide under instructions reflecting the provision of Section 30-2-6(B). Archuleta, 1999-NMCA-113, 14.
The State reminds us that the jury was given UJI 14-5171, the general self-defense instruction and argues that it adequately addressed Defendant's concerns, so that refusing the justifiable homicide instruction was harmless error. We believe that Section 30-2-6(B) is intended to provide police officers a wider scope of privilege than the general public with regard to the use of deadly force. Garner and Section 30-2-6(B) do not work to make police officer justifiable homicide equal to or indistinguishable from normal self-defense. As detailed in Section 30-2-6(A), a police officer may be legally justified in using deadly force in a variety of situations that would not apply to self-defense and the ordinary citizen. Police officer justifiable homicide is sufficiently different from self-defense or defense of others that giving UJI 14-5171 does not render harmless the refusal to give Defendant's instruction.
To support an instruction on ordinary self-defense, there must be evidence that defendant was put in fear by an apparent danger of immediate death or great bodily harm, that the killing resulted from that fear, and that defendant acted as a reasonable person would act under those circumstances. UJI 14-5171. The requirement for the immediacy of the threat that is necessary for self-defense or defense of others does not appear in Section 30-2-6. Further, Section 30-2-6(B) states that the public officer may use deadly force if he has "probable cause to believe he or another is threatened with serious harm" and differs from the requirement under UJI 14-5171 that an individual face "apparent danger of immediate death or great bodily harm." It is unclear how temporally proximate and severe the suspect's threatening actions must be to justify the use of deadly fo
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