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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-37556

5 DAVID CARTER,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

8 Brad Dalley, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM 

11 for Appellee

12 Bennett J. Baur, Chief Public Defender

13 Gregory B. Dawkins, Assistant Appellate Defender

14 Santa Fe, NM 

15 for Appellant

16 MEMORANDUM OPINION

17 VANZI, Judge.

18 {1} Defendant appeals his conviction of battery upon a peace officer following the

19 entry of a conditional plea agreement. [DS 2; RP 94] In his docketing statement,
2

1 Defendant challenged the denial of his motion to suppress evidence and suggested that

2 he was acting in self defense when he hit a deputy. [DS 2, 4] This Court issued a

3 notice of proposed summary disposition, proposing to affirm with regard to the district

4 court’s denial of his motion to suppress evidence based upon the “new crime”

5 exception to the exclusionary rule. See State v. Tapia, 2018-NMSC-017, ¶ 19, 414

6 P.3d 332 (describing New Mexico’s adoption of the “new crime exception” to the

7 exclusionary rule); see also, e.g., State v. Travison B., 2006-NMCA-146, ¶ 9, 140

8 N.M. 783, 149 P.3d 99 (noting that “societal interests dictate the protection of the

9 officer from attack by someone who may question, albeit reasonably, the legality of

10 the officer’s actions”). Similarly, we proposed that the question of whether he could

11 have viably asserted self defense had no bearing upon the district court’s denial of his

12 motion to suppress evidence and therefore provided no basis for reversal. [CN 2, 3]

13 Defendant has filed a memorandum in opposition to that proposed disposition.

14 {2} In that memorandum, Defendant continues to assert that evidence should have

15 been suppressed because he was illegally stopped and that he was acting in self

16 defense when he hit the deputy. [MIO 2-5] Having duly considered that memorandum,

17 we are unpersuaded. State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759

18 P.2d 1003 (explaining that the repetition of earlier arguments does not meet a party’s

19 burden to come forward and specifically point out errors of law or fact in a notice of

20 proposed summary disposition).
3

1 {3} Regardless of the legality of the deputy’s actions, Defendant did not have a

2 license to physically attack a law enforcement officer. See State v. Doe,

3 1978-NMSC-072, ¶ 11, 92 N.M. 100, 583 P.2d 464 (holding that “a private citizen

4 may not use force to resist a search by an authorized police officer engaged in the

5 performance of his duties whether or not the arrest is illegal”). Under such

6 circumstances, the vindication of Defendant’s constitutional rights would “lie in a

7 civil action, not in a physical attack.” Travison B., 2006-NMCA-146, ¶ 9. And, more

8 directly to the point, such an attack constitutes “new criminal activity that is not

9 subject to the exclusionary rule.” Id.

10 {4} With regard to any evidence that would have justified a self defense instruction,

11 we reiterate that the district court’s ruling on the motion to suppress evidence was not

12 based upon any assessment of his self defense argument. To the extent that Defendant

13 now asserts that the district court should have directed a verdict in his favor on the

14 basis of self defense, we note that he would have borne the burden of persuading a

15 jury that the deputy used excessive force “measured from the perspective of an

16 objectively reasonable officer.” See State v. Ellis, 2008-NMSC-032, ¶ 24, 144 N.M.

17 253, 186 P.3d 245. Based upon the facts summarized in Defendant’s docketing

18 statement and memorandum in opposition to summary disposition, it does not appear

19 that Defendant would have been entitled to a directed verdict on the question of self

20 defense. And, in any event, the sole question placed before this Court by Defendant’s
4

1 conditional plea is whether the district court properly denied his motion to suppress

2 evidence. [RP 94] 

3 {5} Thus, for the reasons stated here and in our notice of proposed summary

4 disposition, we affirm the judgment and sentence of the district court.

5 {6} IT IS SO ORDERED.

6 __________________________________

7 LINDA M. VANZI, Judge

8 WE CONCUR:

9 _________________________________

10 M. MONICA ZAMORA, Chief Judge

11 _________________________________

12 JENNIFER L. ATTREP, Judge