A self defense law review from John Tate.

A note on my “law reviews.” Usually I review actual court decisions; but occasionally I publish some sort of exercise, either formal or informal such as this one.

Just recognize my “reviews” are aimed at the street policeman. Oh sure, I include a lot of legal esoterica, but “street cops” will benefit by being well versed in LAW. And, such things are fun for me – like knowing NM no longer recognizes the killing of a perpetrator by a victim as felony murder for a co-perp. If you think about it, the logic that NM abandoned is consistent with the law of conspiracy and accomplice: you’re on the
hook for all foreseeable crimes committed, whether initially planned or not and no matter which member of the conspiracy who commits such crimes.

– John Tate

MMA and Self Defense

Take these Associated Press reported facts as true and representative:

January 06, 2014, LAS CRUCES, N.M.: Trained MMA fighter fends off 4 attackers, 1 killed

Authorities say a resident who is a trained mixed martial artist killed a man suspected of taking part in a New Mexico home invasion.

Dona Ana County sheriff’s officials say 25-year-old Sal Garces died this week from stab wounds after he and three other men broke into Joseph Torrez’s home north of Las Cruces on Wednesday.

Deputies say Torrez, his fiancee and a toddler were at home at the time of the invasion. Authorities say the fiancee tried to use her body against the front door to keep the men from entering.

Deputies say Torrez was able to fight off the four men — two of whom have been arrested and another hospitalized with unknown injuries.

Officials say Torrez may face charges in the death, but what charges aren’t known.

1. What crimes are certain?

For Mr. Garces and his associates:

Aggravated burglary, 30-16-4.C NMSA: “Aggravated burglary consists of the unauthorized entry of any [ … ] dwelling [ … ] with intent to commit any felony or theft therein and the person [ … ] commits a battery upon any person while in such place, or in entering or leaving such place.” Aggravated burglary is a 2nd degree felony. ((Regardless of whether these men committed separate batteries against Mr. Torrez, his fianceé or the toddler, forcing the door against the fianceé satisfies 30-3-4 NMSA.))
Battery 30-3-4 NMSA.
Conspiracy (30-28-2.A NMSA) to commit aggravated burglary.

2. There are lots of other potential crimes involving both the four intruders and Mr. Torrez. For the moment, look at the last line of the news report: “Officials say Torrez may face charges in the death, but what charges aren’t known.” What are salient factors to be investigated?

Garces died of a stab wound. Inflicted by whom? By one of his associates during the chaos? By Torrez? By Torrez’ fianceé? Or even by Garces himself (e.g., by accident of falling)?

If by Torrez’ or his fianceé, was it in self defense or defense of others? If so, could it be justified by Garces or one of his associates launching an armed attack? Or, does the sheer numbers of unarmed attackers against one man justify an armed response? ((See 30-2-7.A .or B. NMSA.)) Or was the stabbing an accident?

Was Garces or any of his associated armed on entry or armed after entry? (Cf. agg burglary 30-16-4.A.)

Is there any evidence that Garces was in full retreat or some other non-threatening posture and Torrez stabbed him regardless of the threat being past?

Note: In some jurisdictions, once including New Mexico, if the victim of a felonious assault (e.g., armed robbery), killed one of the co-perpetrators of the assault, the other co-perpetrator(s) could be charged with felony murder. In Jackson v. State, 92 N.M. 461 (NMSC 1979) (see also State v. O’Kelly, 135 N.M. 40, para 24 (NMCA 2003)), this doctrine was abandoned by NM. From the case overview: “The sole question presented by the petition for writ of certiorari was whether a co-perpetrator of a felony could be charged with the felony murder of a co-felon when the killing was committed by the intended robbery victim while resisting the commission of the offense. The court held that he could not. The court did not subscribe to the court of appeals’ reasoning, a reasoning that the court felt would thrust the state backward to the unenlightened era of criminal responsibility. Instead the court adopted the majority and best-reasoned view, namely, that the felony-murder doctrine should not be expanded to cover the situation where the victim of the crime killed a perpetrator. The court held that, under the facts of the case, a co-perpetrator of a felony could not be charged under the felony-murder statute with the felony murder of his co-felon when the killing was committed by the intended victim while resisting the commission of the offense.”

Follow the case for real life answers.

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