42 P.3d 272 (2002) 131 N.M. 692 2002-NMCA-033

STATE of New Mexico, Plaintiff-Appellee,
v.
Joseph Lucas MANTELLI, Defendant-Appellant.

No. 21,464.

Court of Appeals of New Mexico.

January 29, 2002. Certiorari Denied March 7, 2002.

*273 Patricia A. Madrid, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Appellee.

Gerald E. Baca, Las Vegas, NM, Joe M. Romero, Jr., Scott D. Johnson, Albuquerque, NM, for Appellant.

Certiorari Denied, No. 27,368, March 7, 2002.

OPINION

BUSTAMANTE, Judge.

{1} Joseph Mantelli (Defendant), a police officer, appeals his conviction for voluntary manslaughter, aggravated assault with a deadly weapon (a firearm), and shooting at a motor vehicle resulting in injury. Defendant argues the trial court erred by: (1) refusing to change venue, (2) refusing to honor Defendant's peremptory notice of excusal of the trial judge, (3) denying Defendant's motion to exclude certain expert testimony offered by the State, (4) failing to instruct the jury on an essential element of shooting at a motor vehicle, (5) refusing to instruct the jury on justifiable homicide by a police officer, and (6) sustaining Defendant's conviction for voluntary manslaughter and aggravated assault *274 because insufficient evidence supported the convictions.

{2} Concluding that Defendant was entitled to have the jury instructed on justifiable homicide by a police officer in accordance with NMSA 1978, § 30-2-6 (1989), we reverse Defendant's convictions and take this opportunity to discuss the use of deadly force by police officers in New Mexico. We also address the remaining issues—with the exception of Defendant's motion to exclude certain expert testimony which is unlikely to recur—and remand for a new trial.

I. FACTS

{3} Defendant, a uniformed officer with the Las Vegas, New Mexico Police Department (LVPD), shot and killed Abelino Montoya, an eighteen-year-old Robertson High School senior, in the early morning hours of February 14, 1998. At trial Defendant testified that while on duty, wearing his uniform and patrolling in a marked police unit with Sergeant Steve Marquez (Sgt. Marquez), the officers spotted a white Toyota truck near the Las Vegas City Plaza. They believed this was the same vehicle that earlier that night was going the wrong way on a one-way street, causing Sgt. Marquez to swerve to avoid a collision. The truck, driven by Montoya, had in fact eluded Sgt. Marquez after a brief chase that ended when Sgt. Marquez's marked police unit became disabled.

{4} Defendant activated the overhead lights and wig-wag lights on the police unit and moved to get behind the truck. Defendant testified that Montoya reacted to the lights by increasing his speed, and proceeding through an intersection without stopping for a stop signal. During the course of the pursuit, Montoya ran through six or seven stop signs, eventually reaching a dead-end at Valley and Chavez Streets.

{5} What occurred next was disputed at trial. Gabriel Rubio, a passenger in Montoya's truck throughout the evening, testified for the State. Rubio testified that Montoya, in an attempt to avoid being stopped, drove north on Valley Street, which dead-ends at Chavez Street. Montoya apparently was not aware that Valley Street came to a dead-end until he was in the intersection of Valley and Chavez Streets. Once in the intersection Montoya slammed on his brakes and the truck skidded at least a car length past the intersection. Rubio was watching the police car coming at them. Meanwhile, Montoya had put the truck in reverse and was backing up trying to position the truck to avoid a rock wall at the intersection as he attempted to turn the truck onto Chavez Street. Rubio testified the two vehicles collided in the middle of the intersection of Valley and Chavez.

{6} Once the two vehicles collided, Rubio testified that Defendant seemed to immediately be at the driver's side window trying to break the window with the butt of his handgun. At the same time Montoya was shifting the manual transmission of the truck out of reverse and turning the wheel to the right in a continuing attempt to turn down Chavez Street. While they were still in the middle of the intersection, Defendant succeeded in breaking the driver's side window. Montoya put the truck into first gear and began to drive away, going up and over the curb. He had to drive slowly as he turned right down Chavez Street to avoid the rock wall at the intersection. After clearing the wall, Montoya drove the truck fast down Chavez Street. As they were driving away, Rubio heard two shots. With one shot Rubio felt something graze his head and he ducked. He also told Montoya to stop. Rubio described the shots as coming one right after the other. After the shots rang out, the truck went out of control and hit the side of a house some distance down Chavez Street. Montoya suffered one shot in the back and a second in the head, killing him almost instantly. Rubio testified that he did not think that he and Montoya had ever put any officer's life in danger.

{7} The dispatcher tape-recorded Sgt. Marquez's calls as the second chase proceeded. The tape included the sound of the crash at the intersection of Valley and Chavez, and fifteen seconds later Sgt. Marquez saying "shots fired," and forty-one seconds from the crash Sgt. Marquez announcing that there was a death.

{8} The State's theory at trial was that Defendant shot Montoya to prevent him from *275 escaping. The State also presented testimony from Defendant's roommate, Adrian Crispin, a fellow LVPD officer, that Defendant told him right after the shooting that he had shot at the truck as it was moving away because it was about to get away.

{9} At trial Defendant testified to a different reason for the shooting. Defendant testified he believed at the time of the shooting that the truck was being used as a deadly weapon to attack him and Sgt. Marquez, that their lives were in danger, and that he was therefore justified in using deadly force in self-defense and defense of another.

{10} Defendant testified that he positioned his police car to try to "block-in" the truck so that it could not escape. On cross-examination, Defendant also admitted that he was aware of department policy that an officer was not to use his patrol car as a roadblock without ensuring the pursued vehicle had a way out of the roadblock. Defendant testified that he was shocked and scared when Montoya began to back up the truck. Defendant believed that Sgt. Marquez had exited the police car and then had been knocked down and possibly run over and killed or injured. Thus, standing an arm's length away from the truck, Defendant fired one round into the truck because he believed that his partner was in danger. He fired two more shots to the back of the truck because he thought the truck was backing up a second time to ram them again, and not because Montoya was trying to escape by negotiating the rock wall at the corner of Chavez and Valley. Sgt. Marquez also fired a single shot at the truck.

II. JURY INSTRUCTION ON JUSTIFIABLE HOMICIDE BY A POLICE OFFICER

a. Background

{11} Defendant argues that it was reversible error for the trial court to refuse to instruct the jury on justifiable homicide by a police officer in accordance with Section 30-2-6. Defendant requested one modified uniform jury instruction, based on UJI 14-5173 NMRA 2001, and three non-uniform instructions premised upon the United States Supreme Court decision in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), which related to justifiable homicide by a police officer. The State does not argue that the requested instructions were incorrect statements of the law.

{12} Defendant asserted that as a commissioned police officer in the line of duty for the LVPD, he was authorized to use deadly force under Section 30-2-6 to apprehend a fleeing felon who had threatened him and Sgt. Marquez with serious harm or deadly force and the jury should have been allowed to consider this defense under proper instructions. Defendant asserts that instructions on this theory specifically applicable to police officers would have allowed him to argue additional and alternative theories of justification for the shooting which went beyond the normal self-defense and defense-of-others theories applicable to the public at large.

{13} The State has never disputed that Defendant was a commissioned police officer and on-duty for the LVPD at the time of the shooting, and that he was justified in pursuing and attempting to apprehend Montoya. However, it argues that State v. Johnson, 1998-NMCA-019, 124 N.M. 647, 954 P.2d 79, requires a defendant requesting a justifiable homicide instruction to establish that his conduct satisfied a standard of "objective reasonableness" for the use of the deadly force prior to receiving such an instruction. Id. ¶ 13. The State contends that Defendant's actions in shooting at Montoya as he fled, exceeded Defendant's authority under Section 30-2-6 to use deadly force and cannot be considered reasonable as a matter of law. The State dramatized this point to the jury in its closing argument by repeatedly stating that police officers in New Mexico are not allowed to "shoot at a fleeing suspect."

{14} The State also argues that Defendant did not present evidence that he shot Montoya in an attempt to arrest him for committing a felony per Section 30-2-6. Instead, it argues that under Defendant's version of events, the proper instruction was that the killing was justified as occurring in self-defense or defense of another and not "necessarily committed" in order to prevent the escape of a felon. Defendant was granted *276 the UJI 14-5171 NMRA 2001 self-defense instruction.

{15} The trial judge, persuaded by the State's arguments, refused to instruct the jury on justifiable homicide because sufficient evidence was not presented by Defendant for the court to believe that Defendant's actions could be considered objectively reasonable. At the hearing on Defendant's motion for a new trial, the trial judge also explained that he believed Defendant's theory was self-defense and defense of another and that he had not argued that the killing of Montoya was justifiable homicide.

b. Standard of Review

{16} The trial court's rejection of Defendant's submitted jury instructions is reviewed by this Court de novo. State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143. A "defendant is entitled to a jury instruction on the theory of his case as long as the evidence exists to support it" which is sufficient to allow reasonable minds to differ with respect to all elements of the defense. State v. Arias, 115 N.M. 93, 96, 847 P.2d 327, 330 (Ct.App.1993). This is true whether the evidence raising the defense is adduced by the State or by defendant. State v. Akin, 75 N.M. 308, 310, 404 P.2d 134, 136 (1965); State v. Heisler, 58 N.M. 446, 454, 272 P.2d 660, 665 (1954). "The adequacy of a jury instruction is evaluated in the context of all the instructions given to the jury, in order to determine whether the instruction accurately states the law." State v. Sosa, 1997-NMSC-032, ¶ 25, 123 N.M. 564, 943 P.2d 1017.

c. Use of Deadly Force and Tennessee v. Garner

{17} The use of deadly force by police officers to prevent the escape of a felony suspect originated in the common law. The common law rule "allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant." Garner, 471 U.S. at 12, 105 S.Ct. 1694. Under the common law rule, which New Mexico accepted for much of its history, the reasonableness and necessity of the officer's resort to deadly force was frequently judged solely on the basis of whether the officer could have arrested the suspect without shooting him. Alaniz v. Funk, 69 N.M. 164, 166-67, 364 P.2d 1033, 1034 (1961). Under this approach, it made no difference that the felon was nonviolent or that the felon posed no danger to the safety of others.

{18} In Garner, the father of Edward Garner, a fifteen-year-old boy who was shot and killed by a police officer while fleeing from the burglary of an unoccupied house, brought a wrongful death action under the Federal Civil Rights Act, 42 U.S.C. § 1983, against the police officer who fired the shot, the police department, as well as others. Garner, 471 U.S. at 5, 105 S.Ct. 1694. The shooting occurred after the officer responded to a report of a nighttime burglary and saw Garner running across the backyard of the house to a six-foot-high chain-link fence. Id. at 3, 105 S.Ct. 1694. The officer, using a flashlight, saw Garner's face and hands, but saw no sign of a weapon. Id. When Garner began to climb over the fence after the officer's warning to halt, the officer shot and mortally wounded him. Id. at 4, 105 S.Ct. 1694. The officer testified that if Garner would have successfully scaled the fence he would have escaped capture. Id. at 4 n. 3, 105 S.Ct. 1694.

{19} In using deadly force, the officer acted in accordance with a Tennessee statute permitting the use of deadly force to effect the arrest of a felon fleeing from or resisting arrest. Id. at 4, 105 S.Ct. 1694. The statute reflected the common law fleeing-felon doctrine. However, the Supreme Court in Garner held that a police officer may not use deadly force to apprehend a fleeing felon who does not pose a "significant threat of death or serious physical injury to the officer or others." Id. at 3, 105 S.Ct. 1694. The Supreme Court reasoned that apprehension using deadly force is a "seizure" subject to the reasonableness requirement of the Fourth Amendment of the United States Constitution, and that the indiscriminate use of deadly force to prevent escape of all felony suspects is constitutionally impermissible. Id. at 7, 105 S.Ct. 1694. Almost all of the states have modified their police deadly force laws and policies in response to Garner. See generally *277 "Police Use of Deadly Force: How Courts and Policy-Makers Have Misapplied Tennessee v. Garner." 7 Kan. J.L. & Pub. Pol'y 100 (1998).

{20} The Court explained that in determining whether a deadly-force seizure is reasonable, the suspect's rights under the Fourth Amendment had to be balanced against the government's interests in effective law enforcement. Garner, 471 U.S. at 9, 105 S.Ct. 1694. The factors that weigh heavily against the use of deadly force are "[t]he suspect's fundamental interest in his own life," the unmatched "intrusiveness of a seizure by means of deadly force," and "the interest of the individual, and of society, in judicial determination of guilt and punishment," which is frustrated by the use of deadly force. Id. The Supreme Court found that these factors outweigh the government's interest in the use or threat of use of deadly force to encourage suspects to submit peacefully to arrest. Thus, "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Id. at 11, 105 S.Ct. 1694. The Court framed the inquiry as one designed to determine "whether the totality of the circumstances justified a particular sort of search or seizure." Id. at 8-9, 105 S.Ct. 1694.

{21} While the Court held that "[t]he Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such [unarmed and non-dangerous] fleeing suspects," the Court also held that the statute was not unconstitutional on its face. Id. at 11, 105 S.Ct. 1694. The Court stated "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not unconstitutionally unreasonable to prevent escape by using deadly force." Id. Thus, it should be clear that under Garner the constitutionality of deadly force statutes should not be considered in the abstract; instead, courts should focus on the constitutionality of specific applications of a challenged statute to specific factual circumstances. Finally, Garner rejected the felony-misdemeanor distinction as a guide for deciding when deadly force may be used.

{22} In Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court clarified its holding in Garner and ruled that excessive force claims brought against police officers are to be analyzed under the "objective reasonableness" standard of the Fourth Amendment. The Court cautioned that the "proper application" of this reasonableness standard "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865. With these facts and circumstances in mind, "[t]he `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. The Court emphasized that this is an objective standard "without regard to [the actual officer's] underlying intent or motivation." Id. at 387, 109 S.Ct. 1865.

d. Section 30-2-6

{23} Section 30-2-6, "Justifiable homicide by public officer or public employee," has evolved in response to the Supreme Court's pronouncements on the use of deadly force by law enforcement officers. (Emphasis omitted.) Specifically, the Legislature added Section 30-2-6(B), in response to Garner. Johnson, 1998-NMCA-019, ¶ 11, 124 N.M. 647, 954 P.2d 79. Section 30-2-6 provides in pertinent part:

A. Homicide is justifiable when committed by a public officer or public employee or those acting by their command and in their aid and assistance:

. . . .

(2) when necessarily committed in overcoming actual resistance to the execution of some legal process or to the discharge of any other legal duty;

(3) when necessarily committed in retaking felons who have been rescued or who have escaped or when necessarily committed in arresting felons fleeing from justice; or

*278 (4) when necessarily committed in order to prevent the escape of a felon from any place of lawful custody or confinement.

B. For the purposes of this section, homicide is necessarily committed when a public officer or public employee has probable cause to believe he or another is threatened with serious harm or deadly force while performing those lawful duties described in this section. Whenever feasible, a public officer or employee should give warning prior to using deadly force.

Section 30-2-6(B) requirement that a homicide be "necessarily committed" places a limit on the use of deadly force by law enforcement officers in New Mexico that was envisioned in Garner.^[1]

{24} In remarkably similar language, the Garner court stated:

Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Garner, 471 U.S. at 11-12, 105 S.Ct. 1694.

{25} Under Section 30-2-6, the crucial consideration is the conduct and dangerousness of the suspect, not the classification of the crime that he or she has committed or is alleged to have committed. It is also apparent, through the inclusion of "probable cause" in Section 30-2-6(B), that the reasonableness of an individual police officer's actions is an objective analysis evaluated from his perspective at the time of the incident and is necessarily a factual inquiry.

{26} We discussed extensively the use of deadly force under Section 30-2-6 in Johnson, even though Johnson itself involved New Mexico's statute on justifiable homicide by a private citizen, NMSA 1978, § 30-2-7(C) (1963). In Johnson, the defendant—a private citizen—shot and killed a man he had observed fleeing from a parking lot where a vehicle had just been burglarized. The defendant never asserted he acted in self-defense. Johnson, 1998-NMCA-019, ¶ 2, 124 N.M. 647, 954 P.2d 79. The defendant pled guilty to involuntary manslaughter reserving the right to appeal the district court's refusal to give a justifiable homicide instruction. The instruction would have permitted the jury to consider whether the death of the victim was justified if the defendant was attempting to make a citizen's arrest of a fleeing felon. Id. ¶ 3.

{27} This Court upheld the trial judge's denial of the jury instruction on justifiable homicide on the grounds that there was no evidence the defendant could have satisfied the reasonableness standard for use of deadly force by a citizen in the apprehension of a fleeing felon. Id. ¶ 28. We noted that the "reasonableness in the use of force is generally, [but not always], a matter for the jury," id. ¶ 16, by analogizing the statute in question with Section 30-2-6, and stated that "Defendant's actions, if performed by a police officer, would never be tolerated." Id. ¶ 12. We observed that the Garner decision had wrought a change in New Mexico law on the use of deadly force, noting that the Supreme Court "required that officers have probable cause to believe that they or others are threatened with serious harm before the use of deadly force could be constitutionally reasonable under the Fourth Amendment." Johnson, 1998-NMCA-019, ¶ 8, 124 N.M. 647, 954 P.2d 79.

{28} Similarly, in Archuleta v. LaCuesta, 1999-NMCA-113, 128 N.M. 13, 988 P.2d 883, we discussed the issue of the use of deadly force by police officers in the context of a tort action. The case involved a suit for wrongful death, brought under 42 U.S.C. § 1983 (1994) and the State Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976 as amended through 2001), by the estate of a domestic violence suspect who was shot and killed by a state police officer. Archuleta, *279 1999-NMCA-113, ¶ 2, 128 N.M. 13, 988 P.2d 883.

{29} In Archuleta, this Court stated:

Whether an officer's [use of deadly force] was reasonable is heavily fact dependent. The reasonableness of the use of deadly force in any particular situation is an objective test from the perspective of the officer on the scene, with the understanding that officers must often make split-second decisions in difficult situations about what force is necessary.

Id. ¶ 8 (citations omitted). We held that the "reasonableness" of the force used in the case involved a factual dispute "surrounding the circumstances immediately connected to the shooting which includes passing on the credibility of witnesses," and should therefore be decided by the jury. Id. ¶ 14.

{30} The Johnson Court's discussion of Section 30-2-6, despite being dicta, and the Archuleta Court's announcements on the use of deadly force provide a framework to evaluate the issue presented in this case.

e. Discussion

{31} The crux of this issue is whether a jury could find that Defendant had probable cause to believe Montoya posed a threat of serious harm or deadly force to him or Sgt. Marquez, and that the use of deadly force was necessary to avert the threat. In order to be entitled to a jury instruction on justifiable homicide, Defendant was required to introduce or identify evidence that would support an argument that he reasonably and objectively believed that Montoya threatened him or Sgt. Marquez with serious physical harm or deadly force. If such evidence was present it was for the jury to decide if Defendant's use of deadly force was reasonable, considering the totality of the circumstances, and therefore constituted justifiable homicide. See Johnson, 1998-NMCA-019, ¶ 16, 124 N.M. 647, 954 P.2d 79.

{32} In State v. Lopez, 2000-NMSC-003, ¶ 23, 128 N.M. 410, 993 P.2d 727, (quoting State v. Duarte, 121 N.M. 553, 556, 915 P.2d 309, 312 (Ct.App.1996)), our Supreme Court clearly stated the standard to be applied by the trial court in ruling whether a request for an instruction on a claim of self-defense or defense of another should be granted. The Court stated:

"[W]here self-defense is involved in a criminal case and there is any evidence, although slight, to establish [such defense], it is not only proper for the court, but its duty as well, to instruct the jury fully and clearly on all phases of the law on [that] issue." . . . However, we interpret this standard to require evidence that is "sufficient to allow reasonable minds to differ as to all elements of the defense." We affirm [State v.] Branchal [101 N.M. 498, 684 P.2d 1163 (Ct.App.1984) ]: a self defense instruction is required "whenever a defendant presents evidence sufficient to allow reasonable minds to differ as to all elements of the defense."

Id. (citations omitted). This is also the standard that should be applied when determining if the jury should be instructed on justifiable homicide by a police officer in accordance with Section 30-2-6. We also note that the identity of the party introducing the evidence, Defendant or the State, is irrelevant. Akin, 75 N.M. at 310, 404 P.2d at 136; Heisler, 58 N.M. at 454, 272 P.2d at 665. What is important is that the evidence was presented to the jury.

{33} Defendant, a commissioned police officer on duty for the LVPD, was pursuing Montoya with Sgt. Marquez. The prosecution's case, as discussed above, was premised on the theory that Montoya was fleeing the scene in order to evade capture. In fact, the State's closing argument began with the assertion that "[w]e do not shoot at a fleeing suspect" because to do so would be against the law. The State argued that if the physical evidence showed Montoya was not in the process of backing up the Toyota in the direction of Defendant and Sgt. Marquez at the time of the shooting, the jury must convict because under such a scenario Defendant could not have acted in self-defense or defense of another. The State characterized Defendant's theory of self-defense and defense of another as a "backward attack theory" which was not supported by the physical evidence that suggested that Montoya had *280 cleared the rock wall and had begun to flee down Chavez Street.

{34} Defendant testified that, upon arrival at the intersection of Valley and Chavez Streets, he positioned his police cruiser to execute a "felony stop." He also testified that the Toyota truck began to accelerate in reverse toward the officers and that there was an impact between the two vehicles.

{35} Defendant testified that he was shocked and scared by the driver's actions. Defendant then testified that he drew his weapon, ran up to the side of the truck on the driver's side door, planning to pull the driver out of the truck. Sgt. Marquez instructed Defendant to "stop him, stop him" multiple times. Defendant testified that during this time he lost sight of Sgt. Marquez and that he thought Marquez had exited the police cruiser, had been knocked down and possibly run over and killed or injured. In response, standing an arm's length away from the truck, Defendant testified he fired one round into the truck. After he fired the first round, believing that the truck was coming back to ram them again, he testified he fired two more rounds into the back of the truck. Sgt. Marquez also fired a single shot at the truck.

{36} Defendant testified his belief at the time was that the truck was being used as a deadly weapon to attack him and Sgt. Marquez, that their lives were in danger, and that he was therefore justified in using deadly force. He also testified that his training taught him to use deadly force if necessary in this situation. Sgt. Marquez testified similarly.

{37} Tom Gillespie testified on behalf of Defendant and was qualified as an expert witness in the area of police training, procedures, and the use of deadly force. Mr. Gillespie testified that Defendant's actions in firing his weapon to stop the alleged attack was consistent with his training and the policies and procedures of the LVPD. He also opined that the ramming of the police cruiser by Montoya constituted an aggravated battery on the police officers, a felony under New Mexico law. NMSA 1978, § 30-22-25 (1971)

{38} We hold that Defendant submitted sufficient evidence to warrant a jury instruction on justifiable homicide by a police officer. A reasonable jury, if it believed Defendant's version of the facts, could have concluded that Defendant was justified in using deadly force to protect himself and his partner. It is important to note that this entire incident began and ended very rapidly and the testimony contains many factual disputes that turn on the credibility accorded the witnesses. In our view, the reasonableness of Defendant's actions in using deadly force was for the jury to decide under instructions reflecting the provision of Section 30-2-6(B). Archuleta, 1999 NMCA 113, ¶ 14, 128 N.M. 13, 988 P.2d 883.

{39} The State reminds us that the jury was given UJI 14-5171, the general self-defense instruction and argues that it adequately addressed Defendant's concerns, so that refusing the justifiable homicide instruction was harmless error. We believe that Section 30-2-6(B) is intended to provide police officers a wider scope of privilege than the general public with regard to the use of deadly force. Garner and Section 30-2-6(B) do not work to make police officer justifiable homicide equal to or indistinguishable from normal self-defense. As detailed in Section 30-2-6(A), a police officer may be legally justified in using deadly force in a variety of situations that would not apply to self-defense and the ordinary citizen. Police officer justifiable homicide is sufficiently different from self-defense or defense of others that giving UJI 14-5171 does not render harmless the refusal to give Defendant's instruction.

{40} To support an instruction on ordinary self-defense, there must be evidence that defendant was put in fear by an apparent danger of immediate death or great bodily harm, that the killing resulted from that fear, and that defendant acted as a reasonable person would act under those circumstances. UJI 14-5171. The requirement for the immediacy of the threat that is necessary for self-defense or defense of others does not appear in Section 30-2-6. Further, Section 30-2-6(B) states that the public officer may use deadly force if he has "probable cause to believe he or another is threatened with serious *281 harm" and differs from the requirement under UJI 14-5171 that an individual face "apparent danger of immediate death or great bodily harm." It is unclear how temporally proximate and severe the suspect's threatening actions must be to justify the use of deadly force by a police officer. And, as previously stated, this factual and situational inquiry explores the definition of "reasonableness" under the Fourth Amendment and is generally, but not always, a matter for the jury. Johnson, 1998-NMCA-019, ¶ 16, 124 N.M. 647, 954 P.2d 79.

{41} For example, one could foresee situations in which a police officer, even though not himself in immediate danger, might be justified in using deadly force to prevent a dangerous felon from evading capture and threatening serious harm to others outside the immediate scope of activity. A police officer shoulders that responsibility as part of his duty to protect the public. A private citizen's privilege, on the other hand, would be more narrowly contained to the immediate threat posed to the citizen and others in the immediate vicinity. This is one way in which the ordinary self-def