February 4, 2019- State of New Mexico v. David Carter, No. A-1-CA-37556

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	v. 	NO. A-1-CA-37556
5 DAVID CARTER,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Brad Dalley, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 	Bennett J. Baur, Chief Public Defender
13 	Gregory B. Dawkins, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 V ANZI, Judge.
18 	{1} 	Defendant appeals his conviction ofbattery upon a peace officer following the
19 	entry of a conditional plea agreement. [DS 2; RP 94] In his docketing statement,
20 Defendant challenged the denial of his motion to suppress evidence and suggested
21 	that he was acting in self defense when he hit a deputy. [DS 2, 4] This Court issued
Court of Appeals of New Mexico
Filed 2/4/2019 10:47 AM
Mark Reynolds

1 a notice of proposed summary disposition, proposing to affirm with regard to the
2 district court's denial of his motion to suppress evidence based upon the "new crime"
3 exception to the exclusionary rule. See State v. Tapia, 2018-NMSC-017, ~ 19,414
4 P.3d 332 (describing New Mexico's adoption of the "new crime exception" to the
5 exclusionary rule); see also, e.g., State v. Travison B., 2006-NMCA-146, ~ 9, 140
6 N.M. 783, 149 P.3d 99 (noting that "societal interests dictate the protection of the
7 officer from attack by someone who may question, albeit reasonably, the legality of
8 the officer's actions"). Similarly, we proposed that the question of whether he could
9 have viably asserted self defense had no bearing upon the district court's denial of his
10 	motion to suppress evidence and therefore provided no basis for reversal. [CN 2, 3]
11 	Defendant has filed a memorandum in opposition to that proposed disposition.
12 	{2} 	In that memorandum, Defendant continues to assert that evidence should have
13 	been suppressed because he was illegally stopped and that he was acting in self
14 	defense 	when 	he 	hit 	the 	deputy. 	[MIO 	2-5] 	Having 	duly 	considered 	that
15 	memorandum, we are unpersuaded. State v. Mondragon, 1988-NMCA-027, ~ 10,107
16 N.M. 421, 759 P.2d 1003 (explaining that the repetition of earlier arguments does not
17 	meet a party's burden to come forward and specifically point out errors oflaw or fact
18 	in a notice of proposed summary disposition).
2

1 {3} 	Regardless of the legality of the deputy's actions, Defendant did not have a
2 license 	to 	physically 	attack 	a 	law 	enforcement 	officer. 	See 	State 	v. 	Doe,
3 	1978-NMSC-072, ,-r 11, 92 N.M. 100, 583 P.2d 464 (holding that "a private citizen
4 may not use force to resist a search by an authorized police officer engaged in the
5 performance 	of his 	duties whether or not the 	arrest 	is 	illegal"). 	Under such
6 circumstances, the vindication of Defendant's constitutional rights would "lie in a
7 civil action, not in a physical attack." Travison B., 2006-NMCA-146, ,-r 9. And, more
8 directly to the point, such an attack constitutes "new criminal activity that is not
9 subject to the exclusionary rule." Id.
10 	{4} 	With 	regard 	to 	any 	evidence 	that would have justified a 	self defense
11 	instruction, we reiterate that the district court' s ruling on the motion to suppress
12 	evidence was not based upon any assessment of his self defense argument. To the
13 	extent that Defendant now asserts that the district court should have directed a verdict
14 	in his favor on the basis of self defense, we note that he would have borne the burden
15 	of persuading a jury that the deputy used excessive force "measured from the
16 perspective of an objectively reasonable officer." See State v. Ellis, 2008-NMSC-032,
17 ,-r 24, 144 N.M. 253, 186 P.3d 245. Based upon the facts summarized in Defendant' s
18 	docketing statement and memorandum in opposition to summary disposition, it does
19 	not appear that Defendant would have been entitled to a directed verdict on the
3

1 question of self defense. And, in any event, the sole question placed before this Court
2 by Defendant's conditional plea is whether the district court properly denied his
3 motion to suppress evidence. [RP 94]
4 	{5} 	Thus, for the reasons stated here and in our notice of proposed summary
5 disposition, we affirm the judgment and sentence of the district court.
6 	{6}
7
8
IT IS SO ORDERED.
9 WE CONCUR:
12 	~~I 	"'
13 	JEN 	~ATTREP, Judge
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