Reese v. State ( 1987 )

OPINION

SOSA, Senior Justice.

Petitioner Kenneth Reese (Reese) was found guilty by a jury of aggravated assault on a peace officer (count one), and of battery on a peace officer (count two). Judgment and sentence were filed July 7, 1986. In a memorandum opinion the court of appeals affirmed the trial court’s judgment. On October 14, 1986 Reese filed his petition for writ of certiorari to the court of appeals. We granted certiorari and, upon review of the petition and record from the court of appeals’ file, we reverse the court of appeals.

FACTS

Reese’s alleged victim was Officer Troy Grant (Grant) of the Roswell Police Department. Grant had been summoned on his radio by another officer to lend assistance in the apprehension of one Lee Webb (Webb), who had been spotted fleeing from the scene of a stake-out. Both officers were dressed in plain clothes. Officer Grant pursued Webb into a residential backyard where Webb met Reese and handed him a folding pocket knife. When Officer Grant arrived, an altercation ensued in which Grant struck Reese with his fist, whereupon Grant found himself faced by Reese holding the pocket knife, now open. At that moment the other officer arrived on the scene, and Reese was placed under arrest. Grant later testified that while he was pursuing Webb, he (Grant) identified himself as a police officer. Grant testified that he likewise identified himself as a police officer to Reese before Reese threatened him with the open knife. Reese denied that he knew Grant was a police officer, and further testified that he had tried to put the knife into his pants pocket in order to defend himself with his fists, and that the knife snagged on his pants and opened spontaneously.

The jury was not allowed by the court to hear Reese’s proffered instructions, patterned on NMSA 1978, UJI Crim. 41.15 (Repl.Pamp.1982 & Repl.Pamp.1985), superseded by SCRA 1986, 14-5120 (Repl.Pamp. 1986), and reading as follows:

Evidence has been presented that the defendant believed that Troy Grant was an ordinary citizen, not acting under col- or of law. If the defendant acted under an honest and reasonable belief in the existence of this fact, you must find him not guilty of Aggravated Assault on a Peace Officer. The burden is on the State to prove beyond a reasonable doubt that the defendant did not act under such belief.

A similar instruction was proffered by Reese as to the second count of the indictment.

The Issue of Scienter

In affirming the trial court, the court of appeals correctly applied the controlling law, as stated in our opinion in Rutledge v. Fort, 104 N.M. 7, 715 P.2d 455 (1986), in which we stated, in construing the case of United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), “We believe that our Legislature, like Congress, meant to extend maximum protection to peace officers, and did not intend to undercut that protection by imposing an unexpressed requirement of knowledge that the victim was a peace officer.” 104 N.M. at 9, 715 P.2d at 457. Thus the court of appeals accurately ruled, in reliance on Rutledge v. Fort, that the question of scienter was properly withheld from the jury and that defendant’s proffered jury instructions were properly rejected.

Now, however, we have had opportunity to reconsider our holding in Rutledge and conclude that our reliance in that case on United States v. Feola was misplaced. Consequently, we explicitly overrule our holding in Rutledge insofar as it holds that a defendant’s knowledge as to the identity of the peace officer assaulted is not a necessary element of the crimes defined in NMSA 1978, Sections 30-22-22 and 30-22-24 (Repl.Pamp.1984 & Cum. Supp.1987). Although those sections do not require knowledge of the victim’s identity as an element of the respective crimes, we nonetheless conclude that scienter is a necessary element of these crimes, and thus indispensable to the jury’s consideration of the case. We base this conclusion not on our reading of the pertinent statutes, but on requirements of constitutionally mandated due process.

Since our holding in Rutledge was largely predicated upon the holding in Feola, we must here define the error in judgment which first led us to rely on that ease in reaching our decision in Rutledge. Feola was initially understood by most commentators as holding that in the case of any prosecution involving assault upon a federal officer in violation of 18 U.S.C. § 111 (1948), the defendant’s knowledge as to the identity of the victim was neither necessary nor relevant. Gradually, however, as the federal circuits began to apply the Feola ruling to further prosecutions under 18 U.S.C. § 111, the courts began to find nuances in Feola that had originally not been recognized.

Thus, for example, in United States v. Williams, 604 F.2d 277 (4th Cir.), cert. denied, 444 U.S. 967, 100 S.Ct. 457, 62 L.Ed.2d 381 (1979), the court addressed itself to the Feola rule by stating:

As a general rule, knowledge as to the identity of the victim is unnecessary for a conviction under 18 U.S.C. § 111 [citations omitted]. In certain circumstances, however, knowledge may be a relevant consideration if it goes to disproving the necessary element of mens rea. The Court in Feola stated:

We are not to be understood as implying that the defendant’s state of mind is never a relevant consideration under § 111. The statute does require a criminal intent and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might reasonably be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent.

604 F.2d at 279 (citation omitted) (quoting Feola, 420 U.S. at 686, 95 S.Ct. at 1264-65).

In making distinctions between the Feola rule as it was originally understood and the interpretation that is now commonly accepted, other courts have stressed the language quoted above. For example, in United States v. Manelli, 667 F.2d 695 (8th Cir.1981), the Feola rule was cited as support for the proposition that “[sjpecific intent is an essential element of the crime of assaulting a federal officer in the performance of his duties.” 667 F.2d at 696 (citations omitted).

By the time the issue was considered again, in United States v. Danehy, 680 F.2d 1311 (11th Cir.1982), Feola was cited as support for the very proposition which the ruling had originally been understood to oppose — namely, that the question of scienter is a proper element in a jury instruction requested by the defendant in a prosecution under 18 U.S.C. § 111. 680 F.2d at 1315. In United States v. Danehy, where the defendant was on trial for forcibly interfering with coastguardsmen while they were engaged in the performance of their duties, the trial judge was held to have improperly instructed the jury in stating that it was unnecessary to show that defendant knew people boarding his vessel were federal officers carrying out an official duty. The court in Danehy quoted the same passage from Feola that had been quoted three years earlier by the court in United States v. Williams. The court in Danehy also based its ruling on two circuit court cases relevant to our discussion, United States v. Ochoa, 526 F.2d 1278 (5th Cir.1976), and United States v. Young, 464 F.2d 160 (5th Cir.1972), which, according to Danehy, stand for the proposition “that a defendant may not be held absolutely liable for assaulting a government officer when the defendant acts from a mistaken belief that he himself is threatened with an intentional tort by a private citizen.” Danehy, 680 F.2d at 1315. Thus the Eleventh Circuit has committed itself to reading the Feola rule so as to allow the issue of scienter to be presented to a jury in such cases as the one before us.

Nor have the federal circuits been the only courts contributing to the majority interpretation of the Feola rule. In State v. Morey, 427 A.2d 479 (Me.1981), the court interpreted the Feola rule as follows:

The [Feola ] Court * * * recognized that the federal statute had two purposes. One was to protect federal officials by granting federal jurisdiction over assaults on them. This jurisdictional purpose, the Court concluded, would best be met by imposing liability without knowledge. In contrast, the other purpose, preventing obstruction of officials, alone would require knowledge, [citations omitted] * * * [T]he reasoning of both the majority and dissent in Feola further persuades us that our statute was intended to require knowledge of the official status of the person assaulted.

427 A.2d at 483-84.

Further opinions from various states support the reading of Feola that we advance here: (1) Celmer v. Quarberg, 56 Wis.2d 581, 203 N.W.2d 45 (1973), holding: “a private citizen who commits a battery upon a police officer does not incur the additional penalty [imposed under the Wisconsin statute] unless he knows or has reason to know that the person confronting him is, in fact, a peace officer and not another private citizen.” Id. at 589, 203 N.W.2d at 50. (2) Dotson v. State, 358 So.2d 1321 (Miss.1978), holding:

When there is no doubt of the defendant’s unlawful intention, knowledge of the official capacity of the victim is invariably unnecessary; the assailant takes his victim as he finds him. But if the defendant asserts a lack of intention or wilfulness based upon ignorance of the identity of the victim and ignorance of the victim’s official privilege to interfere with defendant’s person or freedom of movement, the jury must be allowed to consider the defendant’s evidence tending to show that he was ignorant of the official capacity of the victim.

358 So.2d at 1323.

See Guevara v. State, 585 S.W.2d 744 (Tex.Cr.App.1979); People v. Saiz, 660 P.2d 2 (Colo.App.1982); State v. Skinner, 118 Ariz. 517, 578 P.2d 196 (App.1978); State v. Bailey, 360 So.2d 772 (Fla.1978); Lee v. State, 368 So.2d 395 (Fla.App.) cert. denied 378 So.2d 349 (1979); Evans v. State, 452 So.2d 1093 (Fla.App.1984).

We hold then that petitioner Reese was improperly denied the right to have the jury instructed as he had requested. To deny him this right was to deny him the right to have the jury fully apprised of a necessary element of the crime for which he was charged, and thus the court’s rejection of the instruction amounted to the deprivation of Reese’s right to due process of law as guaranteed by the United States Constitution, art. XIV, and by the New Mexico Constitution, art. II, Section 18.

The judgments of the court of appeals and of the trial court are reversed, and this case is remanded to the trial court for a new trial consistent with this opinion.

IT IS SO ORDERED.

WALTERS, J., concurring. RANSOM, J., specially concurring. SCARBOROUGH, C.J., and STOWERS, J., dissent.