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State v. Johnson11/6/1997
Certiorari denied No. 24,830, January 6, 1998
Filing Date: November 6, 1997
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY W. John Brennan, District Judge
{1} This case involves the fatal shooting of Abel Gallegos, who broke into a vehicle, stole a car stereo, and was in the process of driving away when he was shot and killed by Aaron Johnson, a friend of the owner of the vehicle. Johnson was refused a jury instruction on the defense of justifiable homicide when stopping a fleeing felon, and he appeals on that sole issue. We affirm the ruling of the district court. We hold as an issue of first impression under New Mexico law that deadly force by a private citizen in apprehending a suspected fleeing felon is subject to standards of reasonableness that were not present in this case.
FACTUAL AND PROCEDURAL BACKGROUND
{2} On April 20, 1995, Steve Haddox and Aaron Johnson, along with Matt Neel and others, were at a party at an apartment complex located in a residential area of Albuquerque. At around 10:30 or 11:30 p.m. a friend told Haddox and Johnson that someone was breaking into Neel's Suzuki automobile. Haddox, Johnson, and Neel went to the parking lot of the apartment complex and saw someonelater identified as Abel Gallegosrun from the Suzuki, get into a waiting car, and start to speed off. The window of the Suzuki had been broken, and the car stereo was missing. Haddox and Johnson then each produced handguns and fired eleven shots at the car, fatally wounding Abel Gallegos. Haddox and Johnson returned to the party, and Haddox told people there that he may have hit someone. Two officers of the Albuquerque Police Department were nearby, heard shots, and saw the Gallegos car speeding away with its lights off. The officers stopped the car and found Gallegos shot through the heart. Another bullet was also found lodged in the car. No weapons were found in the car or on any of the occupants. The officers questioned Haddox and Johnson, who admitted to the shooting and gave their weapons to the police. Neither Haddox nor Johnson asserted that he had acted in self- defense. The bullet that killed Gallegos was fired from Johnson's gun, and the bullet found lodged in the car was from Haddox's gun.
{3} Defendants were charged with second degree murder and various other crimes in indictments returned by the Bernalillo County Grand Jury. They each entered pleas of guilty to the lesser included offense of involuntary manslaughter, NMSA 1978, 30-2-3(B) (1994), pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). Each reserved the right to appeal the district court's refusal to give a justifiable homicide instruction, which would have permitted the jury to find that the death of Abel Gallegos was justified if Defendants were attempting to make a citizen's arrest of a fleeing felon. While on appeal, but after oral argument, Haddox dismissed his appeal, and therefore this opinion specifically applies only to Defendant Johnson.
ANALYSIS
{4} New Mexico's statute on justifiable homicide in a case of a citizen's arrest has remained essentially unchanged since Territorial times. See Kearney Code, art. II, 1 (1846); NMSA 1915, 1469 (1907); NMSA 1915, 1471 (1897); NMSA 1941, 41-2413 (1929); NMSA 1953, 40A-2-8 (1963). This statute, currently at NMSA 1978, Section 30-2-7(C) (1963) (emphasis added), provides that homicide by a private citizen is justifiable "when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed in his presence, or in lawfully suppressing any riot, or in necessarily and lawfully keeping and preserving the peace."
{5} Defendant interpre
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