June 27, 2019- State of New Mexico v. Jason Tardy, No. A-1-CA-35115

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-35115
5 JASON TARDY,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 Freddie J. Romero, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 	Meryl E. Francolini, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 Bennett J. Baur, Chief Public Defender
15 	Kimberly Chavez Cook, Assistant Appellate Defender
16 	Santa Fe, NM
17 for Appellant
18 	MEMORANDUM OPINION
19 V ANZI, Judge.
20 	{t} 	Defendant Jason Tardy appeals his conviction for felony battery on a peace
21 	officer, in violation ofNMSA 1978, Section 30-22-24 (1971). We affirm.
Court of Appeals of New Mexico
Filed 6/27/2019 11:18 AM

1 BACKGROUND
2 	{2} 	Because this is a memorandum opinion and the parties are familiar with the
3 facts and procedural history of this case, we briefly set out the following undisputed
4 facts taken from testimony presented at trial and reserve discussion of additional
5 facts as necessary for our analysis. The events leading to Defendant's conviction
6 began when Marion Lopez agreed to sell Defendant a truck, for which Defendant
7 would make an initial payment later the same week, with subsequent monthly
8 payments. Three weeks later, after Lopez attempted to contact Defendant numerous
9 times to collect payment, Lopez reported the truck stolen. Shortly after Lopez
10 reported the truck stolen, Lopez's son-in-law found the truck in a hotel parking lot
11 	and called Chaves County Sheriffs Deputy Albert Padilla, with whom he was
12 	familiar. Deputy Padilla went to the hotel to investigate after receiving permission
13 	from his supervisor and informing the dispatcher. Upon arriving at the scene,
14 Defendant told Deputy Padilla that he "had no business" being there because the
15 	truck purchase was a "civil matter" and that Lopez should take Defendant to court.
16 After talking to Lopez and consulting with the on-call district attorney, Deputy
17 Padilla arrested Defendant and transported him to the sheriffs office for booking.
18 	At the sheriffs office, another deputy led Defendant to the booking cell. When he
19 reached the entryway to the cell, Defendant stopped walking and refused to enter.
20 When Defendant refused to comply with the deputy's requests to enter the cell,
2

1 Deputy Padilla grabbed Defendant to force him into the cell. At that point, Defendant
2 pulled away and kneed Deputy Padilla, which led to a scuffle between the two.
3 	{3} 	Defendant was charged with embezzlement of a motor vehicle, in violation of
4 NMSA 1978, Section 30-16D-2 (2009), and felony battery on a peace officer for
5 kneeing Deputy Padilla. At trial, the district court granted Defendant's motion for a
6 directed verdict on the embezzlement of a motor vehicle charge. The jury found
7 Defendant guilty of battery on a peace officer. This appeal followed.
8 DISCUSSION
9 	{4} 	Defendant appeals his conviction on several grounds. First, Defendant argues
10 that the district court failed to instruct the jury ( 1) that Deputy Padilla must have
11 	been lawfully discharging his duties at the time of the battery; and (2) on the lesser-
12 included 	offense 	of simple battery. 	Next, 	Defendant contends that there 	was
13 	insufficient evidence to support his conviction. Finally, Defendant claims that the
14 	district court erred in limiting defense counsel's closing argument. We address each
15 	argument in tum.
16 I. 	The District Court Properly Instructed the Jury
17 	{5} 	Because Defendant did not preserve his arguments with respect to the jury
18 	instructions, we review them only for fundamental error. See Rule 12-321 NMRA;
19 State v. Barber, 2004-NMSC-019,, 8, 135 N.M. 621, 92 P.3d 633. When this Court
20 reviews jury instructions for fundamental error, we will only reverse the jury verdict
3

1 if doing so is "necessary to prevent a miscarriage of justice." State v. Sandoval, 2011-
2 NMSC-022, 113, 150 N.M. 224, 258 P.3d 1016 (internal quotation marks and
3 citation omitted). Generally, the failure to instruct on an essential element of a crime
4 constitutes fundamental error. State v. Lopez, 1996-NMSC-036, 110, 122 N.M. 63,
5 920 P.2d 1017.
6 A. 	Battery on a Peace Officer
7 	{6} 	Section 30-22-24(A) defines "battery on a peace officer" as "the unlawful,
8 intentional touching or application of force to the person of a peace officer while he
9 	is in the lawful discharge of his duties, when done in a rude, insolent ·or angry
10 manner." (Emphasis added.) Consistent with UJI 14-2211 NMRA, the jury was
11 	instructed, in relevant part, "For you to find [D]efendant guilty of [b]attery on a
12 	[p]eace [o]fficer, the [S]tate must prove to your satisfaction beyond a reasonable
13 	doubt ... [that a]t the time [of the battery], [Deputy] Padilla was a peace officer and
14 was performing the duties ofa peace officer[.]" (Emphasis added.) Defendant claims
15 	that Deputy Padilla was not lawfully discharging his duties because he did not have
16 probable cause to arrest Defendant for embezzlement of a motor vehicle1 and argues
17 that the district court should therefore have instructed the jury to determine whether
1The district court did not make a determination as to whether Deputy Padilla
had probable cause to arrest Defendant. However, for purposes 	of addressing
Defendant's 	argument, 	we 	assume, 	without deciding, 	that the 	arrest was 	not
supported by probable cause.
4.

1 Deputy Padilla was lawfully discharging his duties rather than merely "performing
2 the duties of a peace officer." As we explain, Deputy Padilla's purported lack of
3 probable cause is not relevant to the jury's decision.
4 {7} 	Our Supreme Court addressed the meaning of a peace officer acting in "lawful
5 discharge of his duties" in State v. Doe, 1978-NMSC-072, 114, 92 N.M. 100, 583
6 P .2d 464. In Doe, the defendant was charged with battery on a peace officer for a
7 battery he committed after being arrested for disorderly conduct. Id. 1, 1-2. On
8 appeal, our Supreme Court held that the underlying arrest was illegal because it was
9 not supported by probable cause. Id. , 7. Nonetheless, the Court stated that "[a]n
10 arrest undertaken without probable cause does not vitiate all the authority of the
11 	arresting officer." Id., 14. In answering the question of"whether the use of force in
12 resisting a search pursuant to an illegal arrest constitutes a battery upon a police
13 	officer acting in the 'lawful discharge of his duties,'" id., 11, the Court announced
14 the following standard:
15
16
17
18
19
Even if an arrest is effected without probable cause, a police officer is
engaged in the performance of his official duties if he is simply acting
within the scope of what the agent is employed to do. The test is
whether the agent is acting within that compass or is engaging in a
personal frolic of his own.
20 Id., 14 (alteration, internal quotation marks, and citation omitted).
21 	{8} 	This Court has relied on the Doe standard in subsequent cases. See, e.g., State
22 	v. Nemeth, 2001-NMCA-029,, 51, 130 N.M. 261, 23 P.3d 936, overruled on other
5

1 grounds by State v. Ryon, 2005-NMSC-005, 128, 137 N.M. 174, 108 P.3d 1032;
2 State v. Tapia, 2000-NMCA-054, 113, 129 N.M.·209, 4 P.3d 37; State v. Gonzales,
3 1982-NMCA-043, 17, 97 N.M. 607, 642 P.2d 210; see also State v. Ellis, 2008-
4 NMSC-032, 137 n.3, 144 N.M. 253, 186 P.3d 245 (reaffirming Doe and stating "[the
5 d]efendant was not entitled to resist what appeared to him to be an unlawful arrest").
6 Indeed, in Nemeth, 	we relied on this standard in rejecting the same argument
7 Defendant now makes. In that case, the defendant claimed that the district court
8 committed reversible error by using UJI 14-2211 instead of her tendered instruction,
9 which provided that the state must prove the officer-victim "was in the lawful
10 discharge of her duties at the time of the alleged offense." Nemeth, 2001-NMCA-
11 	029, 1152-53. In rejecting this argument, this Court reiterated that "[t]he standard
12 	for determining whether an officer was acting within his or her lawful discharge of
13 	duties is whether the officer was performing his. or her official duties." Id. 154
14 (quoting Tapia, 2000-NMCA-054, 113). Consequently, we concluded it was not
15 	necessary to use the word "lawful" in the instructions and that "our Supreme Court
16 merely replaced the words 'lawful discharge of his duties' with a definition of those
17 words, namely, 'performing his or her official duties.' " Id. 1154, 57 (quoting
18 	Section 30-22-24 and UJI 14-2211).
19 	{9} 	Defendant contends that our holding in Nemeth is no longer controlling in
20 light of State v. Phillips, 2009-NMCA-021, 145 N.M. 615, 203 P.3d 146, in which
6

1 this Court stated that "whether an officer is acting lawfully is measured by his actual
2 legal authority, including common-law, statutory, or constitutional limitations on the
3 officer's authority[.]" Id. ,-r 16. Although we acknowledge that Phillips supports
4 Defendant's argument, we do not view it as controlling authority. In Phillips, the
5 defendant argued that he could not be convicted of battery on a peace officer because
6 the officer-victim arrested him without probable cause and was, therefore, acting
7 without lawful authority at the time of the battery. Id. ,-r 9. Despite holding that the
8 officer had probable cause to detain the defendant, see id. ,-r 23, the Phillips Court
9 dedicated a lengthy discussion to addressing whether a defendant could be convicted
10 	of battery on a peace officer when the defendant was unlawfully arrested, see id.
11 	,-r,-r 10-19. However, this discussion-on which Defendant relies-is dictum and has
12 no binding force of law because it was not necessary to the Court's decision. See
13 	Ruggles v. Ruggles, 1993-NMSC-043, ,-r 22 n.8, 116 N.M. 52, 860 P.2d 182 (stating
14 that language unnecessary to the decision of the issues before the court is dicta "no
15 	matter how deliberately or emphatically phrased"). Furthermore, the Phillips Court's
16 discussion is contrary to the Supreme Court's enunciation of the meaning of"lawful
17 discharge ofhis duties" in Doe, which we view as controlling authority. See Phillips,
18 	2009-NMCA-021, ,-r 26 (Castillo, J. specially concurring in result) (citing Doe and
19 concluding that "the phrase 'lawful discharge of his duties' refers to the discharge
20 	of an officer's duties as authorized by law and not to whether an officer mistakenly
7

1 believed he had probable cause or reasonable suspicion"); see also Dalton v.
2 Santander Consumer USA, Inc., 2015-NMCA-030, 130,345 P.3d 1086 (stating that
3 "[a]ppeals in this Court are governed by the decisions of the New Mexico Supreme
4 Court"), rev'd on other grounds, 2016-NMSC-035, 124,385 P.3d 619. We therefore
5 decline to follow Phillips, and hold, as we did in Nemeth, that the district court did
6 not commit fundamental error in failing to instruct the jury to determine whether
7 Deputy Padilla was lawfully discharging his duties.
8 B. 	Lesser-Included Offense
9 	{10} 	Defendant next contends that the district court committed fundamental error
10 by failing to instruct the jury on the lesser-included offense of simple battery sua
11 	sponte. See NMSA 1978, § 30-3-4 (1963). Defendant's argument here again is based
12 on the premise that Deputy Padilla lacked probable cause and, as such, was not in
13 	the lawful discharge of his duties-thus, Defendant contends a simple battery
14 	instruction was warranted. Regardless, even assuming that Defendant was entitled
15 	to an instruction on simple battery, Defendant's failure to request the instruction is
16 determinative of this issue. See Nemeth, 2001-NMCA-029, 158 ("Given evidence
17 to support it, the offense of battery is a lesser offense within the offense of battery
18 upon a peace officer.").
19 	{11} 	Our courts have generally declined to apply the doctrine of fundamental error
20 to a defendant's failure to request an instruction on a lesser-included offense because
8

1 the decision implicates trial strategy. See State v. Boeglin, 1987-NMSC-002,, 15,
2 	105 N.M. 247, 731 P.2d 943 ("We hold that, consistent with the constitutional
3 guarantees of a fair trial, the defendant . . . may take his chances with the jury by
4 waiving instructions on lesser included offenses and cannot be heard to complain on
5 appeal ifhe has gambled and lost."); see also State v. Villa, 2004-NMSC-03 l,, 14,
6 	136 N.M. 367, 98 P.3d 1017 (stating that "[o]n appeal, we do not second-guess the
7 tactical decisions of litigants"); State v. Foster, 1999-NMSC-007, , 54, 126 N.M.
8 646, 974 P.2d 140 (noting that our courts "have declined to apply the doctrine of
9 fundamental error to a defendant's choice of whether to have the jury instructed on
10 	lesser included offenses"), abrogated on other grounds by Kersey v. Hatch, 2010-
11 	NMSC-020,, 17, 148 N.M. 381,237 P.3d 683.
12 	{12} 	While Defendant acknowledges this line of reasoning, he argues that cases
13 	like Boeglin are distinguishable because the defendants either invited the error or
14 knowingly waived the giving of the lesser-included instruction, unlike the instant
15 	case, where "there is no evidence of a valid waiver." We, however, have not read
16 Boeglin to require on-the-record waiver of an applicable lesser-included instruction.
17 See State v. Archuleta, 1989-NMCA-022,, 5, 108 N.M. 397, 772 P.2d 1320 ("We
18 	do not read Boeglin as holding that [the] defendant has a right to waive a lesser[-
19 ]included offense instruction but rather that he has the right to have a lesser[-
20 ]included offense instruction given where the evidence supports it."). Indeed, "we
9

1 consistently have imposed upon the defendant the duty to make the tactical decision
2 whether or not to seek jury instructions on [lesser-included offenses] supported by
3 the evidence, and we repeatedly have held that the defendant cannot be heard to
4 complain if the trial court instructed the jury as he desired." Boeglin, 1987-NMSC-
5 002,, 10. The failure to request the lesser-included instruction may very well have
6 been the result of trial strategy in this case, as defense counsel, when asked by the
7 district court ifhe had any objections to the State's tendered instructions, stated that
8 he 	had 	none. 	Under these 	circumstances, 	and 	given 	Defendant's 	burden 	to
9 demonstrate error, we find no basis to determine that fundamental error occurred
10 because the district court did not sua sponte instruct the jury on simple battery. -
11 	II. 	Sufficient Evidence Supported Defendant's Conviction
12 {13} 	Defendant claims the State did not present sufficient evidence that Deputy
13 	Padilla was lawfully discharging his duties. Defendant predicates his sufficiency
14 argument on his contention that Deputy Padilla was not in the lawful discharge of
15 	his duties because he lacked probable cause to arrest Defendant. Having rejected
16 Defendant's argument that the jury should have determined whether Deputy Padilla
17 was lawfully discharging his duties, the basis for Defendant's sufficiency argument
18 	fails. The district court properly instructed the jury to determine, inter alia, that
19 Deputy Padilla "was a peace officer and was performing the duties of a peace
20 officer[.]" UJI 14-2211. As discussed above, whether Defendant's arrest was illegal
10

1 for want of probable cause is irrelevant to this inquiry. It is axiomatic that a
2 defendant cannot claim error for the State's failure to present evidence of a matter
3 irrelevant to the jury's determination of guilt or innocence. See State v. Largo, 2012-
4 NMSC-015, 130,278 P.3d 532 ("The test for sufficiency of the evidence is whether
5 substantial evidence . . . exists to support a verdict of guilty beyond a reasonable
6 doubt with respect to every element essential to a conviction." (emphasis added)
7 (internal quotation marks and citation omitted)). As Defendant does not argue there
8 was 	insufficient evidence that Deputy Padilla "was a peace officer and was
9 performing the duties of a peace officer" or any other element, we hold that sufficient
10 	evidence supported his conviction for battery on a peace officer.
11 	m.
12
13 	{14}
The District Court Did Not Abuse its Discretion in Limiting Defense
Counsel's Closing Argument
Lastly, Defendant argues the district court abused its discretion by limiting
14 defense counsel's ability to discuss "police .misconduct" or the circumstances
15 	surrounding the embezzlement charge. We address each limitation in tum.
16 	{15} 	Defendant bases his first argument regarding the limitation on discussing
17 "police misconduct" on the following exchange. Before closing argument, defense
18 	counsel asked the district court for "leeway to talk about police misconduct." The
19 district court replied, "I think you can argue from the evidence presented in court
20 whatever you want to with regard to the appropriateness or inappropriateness of what
21 	[Deputy] Padilla did." However, the district court stated that it was concerned about
11

1 the use of the term "police misconduct" because the term was often associated with
2 civil rights cases. After the district court told defense counsel that "you can argue
3 whatever you want ... but I don't think you can use the term 'police misconduct,'"
4 defense counsel responded, "That's all I wanted to do ahead of time, is make sure
5 that it was clear."
6 	{16} 	We question whether Defendant preserved this argument, as he did not object
7 to the district court's decision or explain why he wanted to use the term "police
8 misconduct." See Rule 12-321(A) ("To preserve an issue for review, it must appear
9 that a ruling or decision by the trial court was fairly invoked."); Gonzales v. Shaw,
10 2018-NMCA-059, 114, 428 P.3d 280 ("In order to preserve an issue for review, a
11 	party must have made a timely and specific objection that apprised the district court
12 	of the nature of the claimed error and that allows the district court to make an
13 	intelligent ruling thereon." (internal quotation marks and citation omitted)). In any
14 event, we fail to see how the district court abused its discretion by prohibiting
15 	defense counsel from using the term "police misconduct." "Because trial judges are
16 	in the best position to assess the impact of any questionable comment, [appellate
17 courts] afford them broad discretion in managing closing argument." State v. Sosa,
18 	2009-NMSC-056, 125, 147 N.M. 351,223 P.3d 348; see also State v. Chamberlain,
19 	1991-NMSC-094, 126, 112 N.M. 723, 819 P.2d 673 ("The district court has wide
20 discretion to control closing argument, and there is no error absent an abuse of
12

1 discretion or prejudice to [the] defendant."). In exercising this discretion, the district
2 court prohibited defense counsel from using a specific term but allowed defense
3 counsel to argue "whatever [he] want[ ed] to with regard to the appropriateness or.
4 inappropriateness of what [Deputy] Padilla did." Defendant fails to show how the
5 district court's ruling was "clearly against the logic and effect of the facts and
6 circumstances of the case." State v. Rojo, 1999-NMSC-001,, 41, 126 N.M. 438,971
7 P.2d 829 (internal quotation marks and citation omitted). Nor does Defendant
8 demonstrate how not being able to use the term "police misconduct" prevented him
9 from effectively conveying his theory of the case to the jury. See State v. Fish, 1985-
10 NMCA-036,, 28, 102 N.M. 775, 701 P.2d 374 (examining whether the district court
11 	abused its discretion by limiting the time for closing argument and stating that
12 "[b]efore an appellate court will interfere, however, the abuse must be clearly shown
13 	and must result in a denial of the accused's constitutional right to be heard").
14 Therefore, the district court did not abuse its discretion.
15 	{17} 	Additionally, we see no abuse of discretion in prohibiting defense counsel
16 	from discussing the circumstances of the embezzlement charge. Before closing
17 argument, defense counsel asked the district court, "The embezzlement [of] a motor
18 vehicle [charge] was directed out ... so I cannot go into any of those things at all?"
19 	The district court responded, "No .... it's irrelevant." W_e agree. Defendant contends
20 that it was necessary to discuss the circumstances of the embezzlement charge
13

1 because Deputy Padilla was not lawfully discharging his duties when he arrested
2 Defendant without probable cause. However, as discussed earlier, the issue of
3 whether Deputy Padilla arrested Defendant without probable cause is not relevant to
4 the jury's determination of guilt or innocence for battery on a peace officer.
5 Discussing the circumstances of the embezzlement charge and whether Deputy
6 Padilla had probable cause only would have only served to confuse the jury. Thus,
7 the district court did not abuse its discretion in limiting defense counse.l' s closing
8 argument.
9 CONCLUSION
10 {18} 	For the foregoing reasons, we affirm Defendant's conviction.
11 	{19} 	IT IS SO ORDERED.
12
13 	L
14 WE CONCUR:
15 	~,lfgL-
16 JE~i:ATTREP,
,1 	11&w 12D~18 MEGNP.DUFFY,J ~
14