June 17, 2019- State of New Mexico v. Joe Anderson, No. A-1-CA-35876

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Court of Appeals of New Mexico
Filed 6/17/2019 12:22 PM

‘ ae
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Nar ——y-

STATE OF NEW MEXICO,
Plaintiff-Appellee,
v. . | No. A-1-CA-35876
JOE ANDERSON,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

David N. Williams, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Margaret Jayne Crabb, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
B. ZAMORA, Judge.
{1} Defendant Joe Anderson appeals his conviction for voluntary manslaughter,

contrary to NMSA 1978, § 30-2-3(A) (1994), arguing that the district court erred in

refusing to instruct the jury on defense of another. We affirm.

1 BACKGROUND
2 	{2} 	In the early morning hours ofNovember· 2010 Defendant and Vicente Sanchez
3 (Victim) were at a family housewarming party for two of Defendant's cousins. Both
4 Defendant and Victim were armed. Victim arrived at the party with his girlfriend,
5 Janessa Trujillo, and a group 	of their friends. 	Prior to 	arriving, Victim used
6 painkillers, heroin, cocaine, and consuined alcohol. While most of the guests were
7 Defendant's relatives, Defendant did not know Victim or anyone in his group. The
8 atmosphere at the party was friendly until Victim and his friends decided to leave
9 and an altercation ensued between Victim and Defendant. What happened next was
10 disputed at trial but it was undisputed that Defendant shot and killed Victim.
11 	A. 	Defendant's Testimony
12 {3} 	At trial, Defendant ·began his testimony by describing his initial encounter
13 	with Victim. According to Defendant, Victim appeared intoxicated and stared at him
14 "like he was all mad or ... didn't like [him]." Defendant then approached Victim
. 15 	and said, "[N]obody [is] trying to cause no problems." Victim initiated the physical
16 altercation by punching Defendant and causing him to fall backwards onto a glass
17 table in the living room. The glass table shattered. While Defendant was lying on the
18 	table, someone pulled Defendant's shirt over his head, and others began hitting him.
19 Eventually the hitting stopped and Defendant got up off the table and pulled his shirt
20 from his face.
2·

1 {4} 	After he got up from the table, Defendant saw Trujillo point the gun directly
2 at him and she said to him, "Don't ... move or I'll shoot you." As Defendant ducked
3 to avoid being shot, Defendant heard Victim tell Trujillo "to pass him the gun."
4 Defendant testified that he observed Victim reach for the gun and point it at him. In
5 response, Defendant retrieved his gun from his back pocket and started shooting as
6 he ran across _the living room toward Victim. Defendant testified that he stood by the
7 doorway to the kitchen when he pulled out his gun, but was only steps away from
8 Victim when he began shooting. De(endant acknowledged that he did not stop
9 shooting until his "gun ran out of bullets."
10 {5} 	When Trujillo pointed the gun at Defendant, Defendant testified that he was
11 	in fear for his life and was concerned for his family's safety, all of whom were in the
12 kitchen area and not the living room where Defendant and Victim were located.
13 	Defendant conceded that Victim did not point a gun at any of his family members
14 and that there was a wall 	separating the kitchen from the dining room, 	and
15 	consequently, separating Victim and his family. Nonetheless he stated, "[A]ll my
16 family was right there, so ... if he started shooting, he was going to hit somebody
17 in my family or me."
18 	B.
19 	{6}
State's Testimony
The 	State presented the 	testimony 	of several 	eyewitnesses that largely
20 conflicted with Defendant's version of the facts. Three of the State's witnesses-
3

1 Trujillo, Jesus Arvisu, and Franchesca Cadena-testified that Defendant and Victim
2 were in the kitchen having an argument, which ultimately led to an altercation that
3 ended in the living room. 	Arvisu testified that, while in the living room, he,
4 	Defendant's cousin Richard, and possibly one other unidentified person, became
5 involved in the altercation between Victim and Defendant. Trujillo explained that
6 she stood between Victim and Defendant in an attempt to get Victim to leave, but
7 Defendant pushed . her 	aside. 	Trujillo 	then 	saw Defendant push 	Victim, 	who
8 responded by punching Defendant, causing him to fall into the living room on top of
9 a glass table.
10 {7} 	According to Trujillo, the fighting ceased after she grabbed Victim's gun from
11 his waistband, pointed it at Defendant's cousin Richard, who she believed had a gun
12 as well, and said, "Everyone back the ... up." Trujillo testified that after a couple of
13 	seconds, the fighting resumed. Two witnesses, Arvisu and Trujillo, testified that as
14 Trujillo was swinging the gun an older man, who Trujillo believed was Richard's
15 	father, .took the gun away from her. Almost at the same time, according to four State
16 witnesses, Defendant went into the kitchen, retrieved a gun, and came back into the
17 living room. Trujillo testified that Richard and Victim were fighting on the couch
18 when Defendant returned to the living room.
19 	{8} 	When Defendant came from the kitchen armed with a gun, Trujillo saw
20 Victim huddle into a ball at which point Defendant shot Victim multiple times.
4

1 Consistent with this testimony, Victim received three gunshot wounds to the back of
2 his head and one to the right cheek. Not a single State's eyewitness testified that they
3 	saw Victim holding a gun· after Trujillo grabbed the gun from him at the outset of
4 the altercation.
5 {9} 	At the close of trial, the district court instructed the jury on second degree
6 murder- and voluntary manslaughter. The court also instructed the jury on self-
7 defense but denied Defendant's request on a defense of another instruction. 1 The
8 jury 	found 	Defendant 	guilty 	of 	the 	lesser 	included 	offense 	of 	voluntary
9 manslaughter. This appeal followed.
10 DISCUSSION
11 	{to} 	Defendant argues that there was sufficient evidence to instruct the jury on
12 defense of another based on his testimony that he feared Victim might shoot his
13 	family members. The State contends that there was no evidence that Defendant shot
14 Victim while defending another person and thus, he was not entitled to a defense of
·15 	another jury instruction. We agree with the State.
1
Defendant requested a defense of another jury instruction, pursuant to both
UJI · 14-5172 NMRA Gustifiable homicide; defense of another) and UJI 14-5184
NMRA (defense of another; deadly force by defendant). UJI 14-5184 use npte 1 is
,"[t]or use in nonhomicide cases when the defense theory is based on a reasonable
ground to believe a design exists to commit a felony [or] a reasonable ground to
believe a design exists to do great bodily harm[.]" The only charge submitted to the
jury was 	second degree 	murder and the 	lesser included offense 	of voluntary
manslaughter. Because this was a homicide case, we solely address UJI 14-5172 in
our analysis.
5

1 {11} 	"The propriety of denying a jury instruction.is a mixed question of law and
2 fact that we review de novo." State v. Torrez, 2013.:.NMSC-034, 124, 305 P.3d 944
3 (internal quotation marks and citation omitted). "[W]e review the evidence in the
4 light most favorable [toward] giving ... the requested instruction." State v. Boyett,
5 2008-NMSC-030, 1 12, 144 N.M. 184, 185 P.3d 355. "When a defendant raises
6 defense of another as a justification for his actions, an instruction on the defense
7 should be given if there is any evidence, even_ slight evidence, to support the claim."
8 State v. 	Mann, 	2000-NMCA-088, 1 	17, 	129 N.M. 600, 	11 	P.3d 564 (internal
9 quotation marks and citation omitted). "Our Supreme Court has interpreted this
10 	standard to require evidence that is sufficient to allow reasonable minds to differ as
11 	to all elements of the defense." Id. (internal quotation marks and citation omitted).
12 	It is reversible error to fail to instruct the jury on a defendant's theory of the case
13 	only if the evidence at trial supported giving the instruction. Boyett, 2008-NMSC-
14 030, 112. We analyze the need to give the defense of another instruction in the same
15 	manner as we would a request for a self-defense instruction. State v. Sandoval,.2011-
16 NMSC-022, 116, 150 N.M. 224,258 P.3d 1016.
17 	{12} 	A defense of another jury instruction should be given when:
18 	(1) there was an appearance of death or great bodily harm to a person;
19 	(2) the defendant believed the person was in immediate danger of death
20 	or great bodily harm from the victim and killed the victim to prevent
21 	the death or great bodily harm; and (3) the apparent danger would have
22 	caused a reasonable person in the same circumstances to act as the
23 	defendant did.
6

1 Id. 1 17 (internal quotation marks and citation omitted); see UJI 14-5172 Gustifiable
2 homicide; defense of another). "The burden is on the state to prove beyond a
3 reasonable doubt that the defendant did not act in defense of another." UJI 14-5172.
4 "A defendant is not entitled to a; [defense of another] instruction unless it is justified
5 by sufficient evidence on every element of [the] defense." State v. Rudolfo, 2008-
6 NMSC-036, 1 17, 144 N.M. 305, 187 P.3d 170.
7 {13} 	In State v. 	Jernigan, our Supreme Court held that there was insufficient .
8 evidence to instruct the jury on defense of another even though the evidence showed
9 that the defendant's girlfriend "was clearly at risk of some injury." 2006-NMSC-
10 	003, 115, 7, 139 N.M. 1, 127 P.3d 537. Initially, the defendant intervened because
11 	the victim was attacking his girlfriend. Id. 1 5. However, when the defendant shot
12 the victim, the victim was approaching him and reached into his waistband, leading
13 	the defendant to believe he was reaching for a gun. Id. The Court reasoned that the
14 evidence did "not support the view that [the d]efendant believed [the girlfriend] was
15 	in imminent danger of death or great bodily harm" because when the defendant shot
16 the victim he did so because the victim was approaching him. Id.
17 {14} 	Like in Jernigan, the evidence does not support Defendant's contention that
18 merely because of the proximity between his family and Victim, his family:was in
19 immediate danger of death or great bodily harm. Defendant admitted he was in a
20 different room than his family when the events preceding the shooting occurred. ·
7
\
/

1 While Trujillo testified that Richard was on the couch during the shooting, there was
2 no testimony suggesting that Victim threatened Richard in any way.
3 	{15} 	Similar to the circumstances in Jernigan, there is nothing in the record to
4 indicate that Victim was about to inflict great bodily harm or death on Defendant's
5 family members at the time of the shooting. Indeed, the record is devoid of any
6 evidence that Victim pointed the gun at or otherwise threatened Defendant's family,
7 a fact that Defendant' himself agreed with in his testimony. Thus, the evidence
8 established that the only person Defendant conceivably could have been trying to
9 protect by s:\looting Victim was himself. See State v. Torrez, 2013-NMSC-034, 137,
10 305 P.3d 944 (holding that there was insufficient evidence to support a defense of
11 	another instruction because although the defendant's friends were in a nearby
12 vehicle, the evidence only established that the defendant shot the victim to protect
13 	himself).
14 	{16} 	Similar to our Supreme Court's conclusion that there was no immediate threat
15 	of great bodily harm to the defendant's girlfriend in Jernigan, 2006-NMSC-003, 1 6,
16 we cannot say that under these facts, Defendant's family was in imminent danger.
17 Therefore, we hold that here was insufficient evidence to warrant instructing the jury
18 on defense of another.
19 CONCLUSION
20 	{17} 	For the aforesaid reasons, we affirm.
8

al

ON

18} ITISSO ORDERED.

WE CONCUR:

(oat Boy

KINDA M. VANZI, Judge

JENMIFER L. ATTREP, Judge