June 26, 2019- State of New Mexico v. Zachary Cadena, No. A-1-CA-36780

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Court of Appeals of New Mexico
Filed 6/26/2019 11:24 AM

ae
IN THE COURT OF APPEALS OF THE STATE OF NEW sand i a
Mark Reynolds

STATE OF NEW MEXICO,
Plaintiff-Appellee,
v. No. A-1-CA-36780
ZACHARY CADENA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY

Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General

Emily Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM

for Appellant

MEMORANDUM OPINION
B. ZAMORA, Judge.
433 Defendant Zachary Cadena appeals his convictions for battery upon a peace

officer, contrary to NMSA 1978, Section 30-22-24 (1971), and resisting, evading,

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or obstructing an officer, contrary to NMSA 1978, Section 30-22-1 (1981), arguing
that the district court erred in denying his request for a self-defense jury instruction.
We affirm.

BACKGROUND

{2} This case arises from a physical altercation that ensued between Defendant
and Deputy Brandon Switzer on a dark night in September 2015. At trial, the State
introduced a dash camera video and Deputy Switzer’s testimony, which established
the following facts.

3} | Deputy Switzer was dispatched to a residence in the small community of
Chamberino, New Mexico in response to complaints of a “disorderly subject, a
drunken, intoxicated person.” According to dispatch, the suspect was described as
wearing black shorts and no shirt. As Deputy Switzer looked for the suspect, he
noticed Defendant, who matched the description from the dispatch, walking on an
otherwise unoccupied road.

(4, Deputy Switzer stopped and got out of his patrol vehicle, identified himself,
and told Defendant that he needed to speak with him. Defendant continued walking
and yelled profanities at Deputy Switzer. After a few more failed attempts at
speaking with Defendant, Deputy Switzer turned his patrol vehicle around so that it
was facing Defendant. Deputy Switzer again got out of his vehicle and began

speaking with Defendant. At this point, Deputy Switzer’s dash camera video began

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recording. The video captured much of the initial encounter between Deputy Switzer
and Defendant but did not capture the entirety of the altercation that followed.

{5} Deputy Switzer asked Defendant his name and Defendant responded, “You
ain’t gotta worry about my name homie.” Defendant refused to provide his name
after being asked a second time. Deputy Switzer told Defendant he could be arrested
for concealing his identity to which Defendant responded, “I can resist you for
assaulting me.” Defendant continued to yell at the deputy and exhibited what Deputy
Switzer described as “pre-attack indicators”—flailing his hands, clenching his jaw,
hitting his hands, swaying around, and altogether failing to comply with Deputy
Switzer’s commands.

6} Defendant repeatedly failed to comply with Deputy Switzer’s requests for
Defendant to stop raising his hands at him. Despite Deputy Switzer’s attempts to
deescalate the situation, Defendant continued displaying pre-attack indicators. As a
result, Deputy Switzer attempted to detain Defendant because he felt threatened, he
feared he would “receive an immediate battery[,]” and he believed Defendant had
concealed his identity in violation of the law. Deputy Switzer was also uncertain as
to whether Defendant had any weapons.

{} In an effort to handcuff Defendant, the deputy asked Defendant to turn around
several times, but Defendant did not comply. Deputy Switzer explained, “At that

point I reached out and grabbed [Defendant’s] left arm to put a hand restraint on him

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and gave him the opportunity to turn around. At which point he leaned back against
my vehicle and refused to do so.” When Deputy Switzer told Defendant to “turn
around,” Defendant responded, “I'll take you to ride, homie.” Deputy Switzer then
attempted a “cuff throw,” which he described as pulling a suspect “with [his] left
hand and... . with [his] right arm [attempting] to bring [the suspect] to the ground
so [he could] successfully put restraints on [the suspect].” Deputy Switzer, realizing
that his verbal skills were not working and “[feeling] like [he] was going to receive
an immediate battery[,]” tried to make a “ten-code” call—a dispatch for an officer
in distress. However, the call never went through.

{83} The two then slid off the hood of the vehicle and ended up on the ground.
Deputy Switzer used his forearm to hit Defendant somewhere near his back. The
two got to their feet and Deputy Switzer again called for officer in distress.
Defendant, who still had handcuffs on his left wrist, advanced towards Deputy
Switzer attempting to punch him. Deputy Switzer was afraid Defendant might use
the handcuffs as a weapon and although he successfully blocked a number of
punches, Defendant eventually struck Deputy Switzer in the eye and ear. Deputy
Switzer was then able to strike Defendant two to four times and kneed him in the
upper torso, at which point Defendant stumbled back towards the deputy’s vehicle.
The scuffle briefly continued until Deputy Switzer gained some distance from

Defendant and was able to deploy his Taser, effectively ending the altercation.

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{9} At the close of evidence, Defendant requested a self-defense jury instruction,
which the district court denied. The jury found Defendant guilty of battery on a peace
officer and resisting, evading or obstructing an officer. Defendant now appeals.
DISCUSSION

{10} The issue before us is whether there was sufficient evidence to instruct the
jury on self-defense. Defendant argues he was entitled to the instruction because
Deputy Switzer initiated the altercation, and, therefore, reasonable minds could
differ over whether Deputy Switzer used excessive force. The State contends the
only force used was necessary force, and, consequently, the district court properly
denied Defendant’s request for a self-defense jury instruction. For the reasons that
follow, we agree with the State.

{11}. We review the district court’s denial of Defendant’s requested self-defense
jury instruction for reversible error. State v. Ellis, 2008-NMSC-032, 7 14, 144 N.M.
253, 186 P.3d 245. “The propriety of jury instructions given or denied is a mixed
question of law and fact,” which we review de novo. State v. Salazar, 1997-NMSC-
044, 7 49, 123 N.M. 778, 945 P.2d 996. “We view the evidence in the light most
favorable to giving the requested instruction.” State v. Hill, 2001-NMCA-094, ¢ 5,
131 N.M. 195, 34 P.3d 139. “When there is evidence to support a finding of every
element of a defense, an instruction on that defense is required.” State v. Emmons,

2007-NMCA-082, {| 7.

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{12} For Defendant to be entitled to a self-defense jury instruction there must have

been evidence presented at trial that:
1. The officer used greater force than reasonable and necessary . . . ;
and
2. There was an appearance of immediate danger of bodily harm to

the defendant as a result of [the officer’s use of force]; and

3. The defendant was in fact put in fear of immediate bodily harm
and [the defendant battered the officer] because of that fear; and

4. The defendant used an amount of force that the defendant
believed was reasonable and necessary to prevent the bodily harm; and

6. The apparent danger would have caused a reasonable person in
the same circumstances to act as the defendant did.

UJI 14-5185 NMRA. The basis for Defendant’s proposed jury instruction was that
the deputy used excessive force by “twisting [D]efendant’s arm, throwing
[D]Jefendant on the ground, punching [D]efendant in the face, striking [D]efendant
with his knee, and shooting [D]efendant with a Taser[,]” and, as a result,
“{D]efendant was in fact put in fear of immediate bodily harm and struck [Deputy]
Switzer in the face because of that fear[.]” We note that Defendant’s requested
instruction was not limited to the alleged force Deputy Switzer used before
Defendant punched the deputy in the eye and ear. Instead, Defendant alleged facts
that occurred after he hit Deputy Switzer—i.e., punching Defendant in the face,

striking Defendant with his knee, and shooting Defendant with a Taser. To the extent

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Defendant’s requested self-defense instruction is based on facts that occurred after
he struck the deputy, we do not consider them. See UJI 14-5185 NMRA (requiring
that prior to the defendant using force he or she “was in fact put in fear of immediate
bodily harm” because of the officer’s conduct). Thus, we limit our analysis to Deputy
Switzer’s use of force prior to Defendant hitting the deputy.

{13} State v. Ellis is instructive. In that case, our Supreme Court held that, as a
matter of law, the defendant was not entitled to a self-defense jury instruction even
though the deputy had pointed a gun at the defendant after the defendant continually
defied the deputy’s commands, “threatened the deputy, he actively resisted the
deputy’s attempts to regain control of the situation, [and] flaunted the deputy’s
authority[.]” 2008-NMSC-032, J 40. The Court recognized that the underlying
crime, a seatbelt violation, was minor, but concluded, “it is . . . clear that the
encounter between the deputy and [the d]efendant quickly escalated from a
cooperative discussion to an outright, hostile refusal to obey the deputy’s
commands.” Jd. However, because the deputy “increased his use of force
incrementally and in proportion to the circumstances with which he was
confronted[,]” the Court reasoned that as a matter of law “reasonable minds could
not differ” that the deputy only used necessary force to protect himself. Jd. ¥ 41.
{144 In sum, E//is instructs that a defendant only has a limited right to defend

himself against an officer and may only assert self-defense when the officer’s use of

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force during the encounter is unreasonable. See id. J§ 15-16. A defendant cannot
assert self-defense when an officer used “necessary force to overcome resistance to
an arrest, or [used] proper force to prevent an escape[.]” State v. Kraul, 1977-
NMCA-032, § 26, 90 N.M. 314 (internal quotation marks and citation omitted).
“(T]he police officer’s privilege of using necessary force implies that the necessity
of the force should be measured from the perspective of an objectively reasonable
officer and not from what an arrestee might think would be reasonable.” Ellis, 2008-
NMSC-032, 24.

{15}. Ultimately, we “must determine whether, under the evidence presented,
reasonable minds could differ with respect to whether [Deputy Switzer] used
excessive force.” Id. J 17. If we conclude “that reasonable minds could differ,” then
Defendant was entitled to a self-defense jury instruction. Jd. However, if we
conclude “that reasonable minds could not find that [Deputy Switzer] used excessive
force, the matter ends there,” and, as a matter of law, Defendant was not entitled to
have the jury instructed on self-defense. Jd. While we agree with Defendant that he
was not required to testify to establish that he was entitled to an instruction, there
nevertheless needed to be some evidence in the record sufficient to allow reasonable
minds to differ as to all elements of the defense. See State v. Lopez, 2000-NMSC-
003, § 23, 128 N.M. 410, 993 P.2d 727 (“[A] self[-]defense instruction is required

whenever a defendant presents evidence sufficient to allow reasonable minds to

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differ as to all elements of the defense.” (internal quotation marks and citation
omitted)); see also State v. Romero, 2005-NMCA-060, 8, 137 N.M. 456, 112 P.3d
1113 (“In the case of self-defense, there must be some evidence, even if slight, to
support the defense.”).

{16} Similar to the deputy in Ellis, who drew his weapon on a non-compliant
suspect, Deputy Switzer used force “in an effort to control the situation and to subdue
a hostile, aggressive [d]efendant.” E//is, 2008-NMSC-032, J 41. Here, the situation
escalated because Defendant was non-compliant and continually displayed what was
described as pre-attack indicators. Defendant was angry, yelling, pointing at Deputy
Switzer, swaying, flailing his arms, clinching his jaw, and repeatedly disobeying the
deputy’s commands. Notwithstanding Deputy Switzer’s repeated attempts to
deescalate the situation with verbal commands, Defendant remained non-compliant.
Only then did Deputy Switzer grab Defendant’s arm and ultimately force him to the
ground while struggling to handcuff him. And moments later, Deputy Switzer hit
Defendant on the back but only after grappling with Defendant and being pushed
into his patrol vehicle.

{17} Deputy Switzer was alone with Defendant at night, unaware of whether
Defendant possessed any weapons, and in fear Defendant would batter him.
Moreover, immediately before Deputy Switzer detained Defendant, Defendant

threatened the deputy by stating “I’ll take you to ride, homie.” Given the

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circumstances and viewing them “from the perspective of an objectively reasonable
officer[,]” we cannot say that Deputy Switzer’s forcing Defendant to the ground and
hitting Defendant in the back in an effort to handcuff him was excessive force. Jd.
q 24.

{18} Defendant was being investigated for a relatively minor charge, but
nonetheless, Defendant “repeatedly disobeyed the deputy’s commands, he
threatened the deputy, he actively resisted the deputy’s attempts to regain control of
the situation, [and] he flaunted the deputy’s authority[.]” Jd. § 40. Based on the
evidence before us, reasonable minds could not differ with respect to whether
Deputy Switzer used excessive force. Thus, we hold, as a matter of law, Defendant
was not entitled to a self-defense jury instruction.

CONCLUSION

419} For the foregoing reasons, we affirm Defendant’s convictions for battery upon
a peace officer and resisting, evading, or obstructing an officer.

20} ITISSO ORDERED.

~~BRIANA H. ZAMO Judge

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WE CONCUR:

vi

mt L. ATTREP, Judge

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