State v. Diaz ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. NO. 32,996
5 DANIEL DIAZ,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
8 Grant L. Foutz, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellant
12 Jorge A. Alvarado, Chief Public Defender
13 Santa Fe, NM
14 J.K. Theodosia Johnson, Assistant Public Defender
15 Albuquerque, NM
16 for Appellee
17 MEMORANDUM OPINION
18 GARCIA, Judge.
1 {1} The State appeals from a district court order dismissing the charge of battery
2 upon a peace officer. We issued a calendar notice proposing to reverse. Defendant has
3 filed a timely memorandum in opposition. We reverse.
4 {2} In this case, Defendant had been charged with driving while intoxicated (DWI)
5 and battery upon a peace officer. [RP 1] The State stipulated that the officer lacked
6 probable cause to make the arrest, and the DWI charge was dismissed. [DS 4]
7 Defendant then argued that the battery charge also should be dismissed because the
8 officer was not acting lawfully when he was effectuating the arrest because he did not
9 have probable cause. [DS 4] The district court agreed and dismissed the charge. [RP
10 124]
11 {3} Our calendar notice indicated that this case is controlled by our Supreme Court's
12 analysis in State v. Doe, 1978-NMSC-072, ¶ 8, 92 N.M. 100, 583 P.2d 464. In Doe,
13 the issue was whether a person who uses force against an officer to resist a search
14 after an illegal arrest may be convicted of battery on a police officer. Id. Battery upon
15 a peace officer consists of “the unlawful, intentional touching or application of force
16 to the person of a peace officer while he is in the lawful discharge of his duties, when
17 done in a rude, insolent or angry manner.” NMSA 1978, § 30-22-24(A) (1971). The
18 defendant in Doe had attacked officers who were searching him at the police station
19 after he had been illegally arrested. 1978-NMSC-072, ¶ 2.
2
1 {4} The Supreme Court in Doe concluded that “a private citizen may not use force
2 to resist a search by an authorized police officer engaged in the performance of his
3 duties whether or not the arrest is illegal.” Id. ¶ 11. Our Supreme Court then addressed
4 the element of the crime that the officers were acting within the “lawful discharge of
5 [their] duties.” Id. (internal quotation marks omitted). It concluded that they were
6 within the lawful discharge of their duties because they were still acting within their
7 authority, even though there was no probable cause for the arrest. Id. ¶ 14. In
8 determining that the defendant committed a battery upon a peace officer, the Court
9 held that the officers were acting within their authority as long as they were acting
10 “within the scope of what [they were] employed to do.” Id. ¶ 15.
11 {5} The facts of this case are identical to Doe in that the alleged battery occurred
12 while the officer was acting within his authority, even though the arrest itself was not
13 supported by probable cause. To the extent that Defendant believes [MIO 4-6] that
14 there is some Court of Appeals case law that may be read to be in conflict with Doe,
15 we are bound by our Supreme Court precedent. See State ex rel. Martinez v. City of
16 Las Vegas, 2004-NMSC-009, ¶ 20, 135 N.M. 375, 89 P.3d 47 (stating that this Court
17 is bound by Supreme Court precedent).
18 {6} Alternatively, Defendant argues that the facts of this case only support simple
19 battery under our case law. See State v. Padilla, 1997-NMSC-022, ¶¶ 5-7, 123 N.M.
20 216, 937 P.2d 492. However, the facts relating to this argument have not been
3
1 developed below, and we do not believe that it would be fair to deny the State an
2 opportunity for further factual development. See State v. Franks, 1994-NMCA-097,
3 ¶ 8, 119 N.M. 174, 889 P.2d 209 (stating that this Court may “affirm a district court
4 ruling on a ground not relied upon by the district court, [but] will not do so if reliance
5 on the new ground would be unfair to appellant.”)
6 {7} For the reasons set forth above, we reverse.
7 {8} IT IS SO ORDERED.
8
9 TIMOTHY L. GARCIA, Judge
10 WE CONCUR:
11
12 JAMES J. WECHSLER, Judge
13
14 JONATHAN B. SUTIN, Judge
4