Office of the District Attorney Officer Involved Shooting Review on DA File Number

Transcription

1 Office of the District Attorney Officer Involved Shooting Review on DA File Number Person Injured: Ramona Maestas Officer Involved: Deputy Jermal Jackson, BCSO Date of Incident: 8 June 2009 Location: 3005 Donna Maria S.W., Albuquerque, N.M. BCSO Report # The Second Judicial District Attorney s Office has completed its review of the investigation by the multi-agency task force headed by the Bernalillo County Sheriff s Office in the above non-fatal Officer-Involved Shooting that occurred on June 8, 2009 at 3005 Donna Maria, S.W. The District Attorney finds there is no probable cause to criminally charge Deputy Jermal Jackson with any crime under the laws of the State of New Mexico, and will not present the case to a charging grand jury or preliminary hearing. The investigation of this officer-involved shooting was conducted in accordance with the Memorandum of Understanding between the Albuquerque Police Department, Bernalillo County Sheriff s Office, New Mexico State Police and the Second Judicial District Attorney s Office. All three police agencies participated in the investigation, and Chief Deputy District Attorney Deborah B. DePalo was called out to the scene and present for briefings and the walk-through at the scene. The following materials were used in our review of this case: the complete police report, crime scene report, photographs taken at the scene, audio recordings and transcripts of witness interviews. The Supp Out on this case was received from BCSO on November 5, 2012, and the transcriptions and recordings of interviews were received at various dates thereafter. Efforts were made by BCSO Detective Hix and later, by DA investigators, to locate and interview Ms. Maestas, but those efforts were not successful. On May 15, 2013, the District Attorney s Office called and sent correspondence to attorney Jennifer Wernersbach, who was Ms. Maestas attorney on new state criminal charges. They were to submit any additional information for our consideration in this matter. (See Attachment 20) As of the date of this report, nothing has been received by the District Attorney s Office. 1

2 BRIEF SUMMARY: On June 8, 2009, at 10:15 p.m., BCSO Dispatch received a 911 call from 3005 Donna Maria S.W. The caller was clearly upset and reported that a woman had just beaten up a young woman and attempted to run over other persons with a vehicle. Deputies John McCauley, Jr. and Jermal Jackson responded to the call. As soon as they arrived on scene, they encountered several people who were excited and all attempted to talk at the same time. They had to ask them to speak one at a time, and learned the basics of what had happened before their arrival. They were told a woman responsible for the battery on a young girl had tried to run family members over. This woman had appeared to be under the influence of drugs or alcohol, and had fled the scene just before the deputies arrival. As they attempted to get more information from witnesses at the house, people began to shout out that they could see the offender driving a black truck, and pointed out the vehicle to the deputies. Both deputies got into their respective police vehicles, turned on their lights and sirens, and started driving toward the truck, which was headed eastward toward the house and the family members present at the home. Deputy Jackson was just ahead of Deputy McCauley as they both traveled westward on Donna Maria S.W. Deputy Jackson saw the truck approach his vehicle, and saw the driver (later identified as Ramona Maestas) and one passenger in the cab of the truck. Deputy Jackson later reported that the female driver appeared to have honed in on him, because she revved her engine, and picked up speed as she drove directly toward his vehicle. He realized it would be impossible to avoid a collision, and turned his vehicle to the left to mitigate any injury to him. The truck hit his patrol car hard, on the right front of his car. Ms. Maestas then backed up rapidly, and Deputy Jackson believed she would hit his car again, so he got out of the car and drew his weapon. As Maestas began to quickly drive forward again, Jackson realized that Deputy McCauley was now the target of her actions. Deputy Jackson screamed out orders to stop, and when the truck continued to speed forward he fired numerous shots toward the driver s side of the truck cab, to stop Maestas. It was later determined that he fired 11 times. Deputy McCauley did not fire any shots, but drew his handgun and reported being in fear of the driver s actions. Deputy Jackson later stated that he stopped firing when he saw that the truck was no longer speeding forward. Deputies immediately called out over the radio that shots had been fired and requested an ambulance. They then removed the passenger (later identified as Carl Hedlund) from the truck and helped get Ms. Maestas out of the truck. Deputy Jackson then administered first aid until paramedics arrived. Mr. Hedlund sustained no wounds, but Ms. Maestas was shot once in her upper back, with no exit wound. She was transported to the hospital where she underwent surgery to remove the projectile (bullet) from her body. It appears that she was partially paralyzed as a result of this injury. A search warrant was issued to obtain Ms. Maestas blood for analysis. Blood taken more than 6 hours after the 2

3 incident showed a blood alcohol level of 0.08, the per se standard for DWI under New Mexico law. Her blood alcohol level at the time of the incident was undoubtedly much higher. I-INVESTIGATIVE FINDINGS: Interviews of the BCSO Deputies: Deputy Jermal Jackson (BCSO) (Deputy who shot Ramona Maestas): On June 11, 2009, Deputy Jermal Jackson gave a formal, recorded statement to Detective Tim Hix (BCSO) and Detective Darcy McDermeit (APD). Fred Mowrer, Deputy Jackson s union attorney, was also present. He stated he was working in the South Area Command on June 8, 2009, and had just cleared a call at 5090 Coors S.W. He had worked that call with Deputy John McCauley, Jr. At 10:20 p.m., he and Deputy J. Moya were dispatched to a domestic dispute at 3005 Donna Maria S.W., but Deputy McCauley told dispatch that he would take the call instead of Moya, and they proceeded to the call in their respective patrol cars. He said that dispatch advised them that a female subject was at the residence fighting with other subjects and attempting to run them over with a vehicle. They proceeded to the call with their emergency equipment engaged. They parked just west of the residence upon arrival, and made contact with four people in the yard of the house. Everyone was talking at the same time and they had to calm everyone down. A male subject began to give them information when he heard squealing tires behind them. He turned and saw a vehicle to the west, and the people they were talking with told them that the vehicle contained the offender. They quickly got into their marked patrol cars, again turned on their lights and sirens, and drove west toward the truck. At that point, Deputy Jackson said that the truck began to accelerate and started coming directly toward him. He said he tried to veer left to avoid a collision, but the female driver steered toward him. He could see her face and she appeared to be focused straight at him. The truck hit the right front of his car, and then began to back up. He said he was afraid that the driver would hit him again and push him into the nearby ditch. He got out of his car, drew his handgun, and began to give the driver commands to stop her vehicle. Deputy Jackson said he could see a male passenger (who appeared to be yelling) inside the truck, banging on the dashboard. He could also see Deputy McCauley s vehicle in front of the truck and the truck began to move forward again, with its engine racing. He stated that he began to move behind the vehicle and observed it come to an abrupt stop and he heard a crash as if it had struck something. He stated that the truck then began to back up and he engaged the driver with one round. The truck then began to move forward slowly, but with the engine still racing. He feared that Deputy McCauley was now 3

4 the focus of the driver and that she was now trying to hit him. He again fired on the driver s side of the truck and continued to fire until the truck stopped. In his estimation, he had fired 5 to 7 rounds. Deputy Jackson said that he then heard Deputy McCauley announce, Shots fired, on the radio as he moved to the driver s side of the truck. He opened the door and saw the female driver slumped over. He directed Deputy McCauley to take custody of the passenger while he covered the driver. Blood was visible on the back of the driver s head and he advised dispatch that there was a gunshot wound to the driver s head. Once Deputy McCauley was able to assist him in removing the female driver from the truck he was able to see an apparent gunshot wound to the woman s right shoulder blade. He went to his patrol car, got his medical kit, and began to apply a trauma dressing to her wound. After that, he helped direct responding units to set up a perimeter around the scene, and assisted rescue with placing the driver on a gurney for transport to the hospital. (To read a complete transcript of Deputy Jackson s statement to investigators, see Attachment 15.) Deputy John McCauley, Jr. (BCSO): Deputy John McCauley, Jr. gave a formal recorded statement to Detective Tim Hix (BCSO) and Detective Darcy McDermeit on June 11, Union attorney, Fred Mowrer, was present to represent Deputy McCauley, as is standard procedure. Deputy McCauley stated he and Deputy Jackson had been working in the South Area Command on June 8, 2009, and had just cleared a call at 5090 Coors S.W. At about 10:20 p.m. Deputy Jackson and Deputy J. Moya were dispatched to a domestic dispute at 3005 Donna Maria S.W. Deputy McCauley stated he cancelled Deputy Moya and advised dispatch that he would respond to that call with Deputy Jackson. Dispatch told them that a female subject was at the residence fighting with other subjects and attempting to run them over with a vehicle. When they arrived, he and Deputy Jackson parked just west of 3005 Donna Maria S.W. He noted that the gate at the property had been damaged. As they got out of their vehicles, Deputy McCauley started his belt recorder. They made contact with residents of the house, who were very excited, and had to be calmed down in order to obtain any information. He heard tires screeching, and the subjects pointed out a vehicle to the west of the residence, and told them the vehicle contained the offender. He and Deputy Jackson got back into their vehicles immediately, and drove westward, with their emergency equipment (lights and sirens) engaged. Deputy McCauley stated that as they approached the suspect s truck, it started to drive straight at Deputy Jackson s patrol car, hitting it nearly head-on. Deputy McCauley stated he drove around the two vehicles after that initial crash, and stopped. He stated that the offender then backed into his vehicle, and blocked him from being able to get out of his car. He said that he was concerned for his own safety because of his proximity to the driver and her aggressive actions. He feared that one of the 4

5 people in the vehicle might shoot at him, and he drew out his handgun and yelled to the driver to, Stop the fucking car. The driver then pulled forward and Deputy McCauley heard 5 to 7 shots. He didn t know where Deputy Jackson was at the time and did not know who was firing the shots. Deputy McCauley managed to get out of his vehicle, contact Dispatch, and report shots fired. He then went to the passenger side of the suspect s vehicle, ordered the passenger (later identified as Carl Hedlund) out, patted him down, and handcuffed him. He next began to assist Deputy Jackson as he rendered first aid to the female driver (later identified as Ramona Maestas). At that point, they ordered the occupants of the original residence to go back to the house, and helped responding units set up a perimeter around the scene. Rescue arrived and transported both Ramona Maestas and Carl Hedlund to the University of New Mexico Hospital. Deputy McCauley stated he did not fire any rounds during the incident. (To read a complete transcript of Deputy McCauley s statement to investigators, see Attachment 16.) Interviews of civilian witnesses: Carl Hedlund: Carl Hedlund went to 3005 Donna Maria S.W. with Ramona Maestas on the night of June 8, He was examined by medical personnel at UNMH, and then released and interviewed by detectives. He gave a recorded statement to Detective Edward Martinez (BCSO) and Detective Darcy McDermeit (APD) about four hours after the incident. He said that he and Ramona had been together for about four months, and had been staying at a hotel room for the last week or so. He told investigators that the truck involved in the incident was his, and that he had driven Ramona to 3005 Donna Maria S.W. to see her children. He said he had left the truck keys in the ignition after they got to the house. He said they arrived around 10:00 p.m. When they arrived, Ramona began talking with her children outside the residence, and the situation was calm. At some point, however, he noticed their voices start to rise, and a fight began between Ramona and one of the children. One of the children went inside to get Israel (whom Carl referred to as the children s father). Carl said that at one point he tried to pull Ramona off of her daughter during the fight, and tried to get her back into the vehicle. Once Ramona went back to the truck, she got into the driver s seat and rammed the house with the truck and backed into the gate. He remembered hearing her make some sort of threat at they left, but didn t remember exactly what she said. She then drove away from the residence at approximately 20 to 25 miles per hour. She then looped around, and doubled back toward the house at about twice that speed. Carl said he tried to stop her, but was unable to do anything about the circumstances due to the speed of the vehicle and Ramona s anger. When 5

6 Ramona initially passed Donna Maria S.W., she quickly reversed and turned onto Donna Maria in response to seeing the deputies lights and vehicles. Carl stated, I don t know what was going through her mind, to do all that, I have no clue. Carl told detectives that Ramona crashed the vehicle into the deputy s vehicle, and that he then heard gunshots. He stated he didn t know why shots were fired and didn t know who was hit. He was then ordered out of the vehicle and taken into custody. Ramona was pulled out of the vehicle and paramedics arrived. Upon further questioning, Carl stated that Ramona accelerated and, headed right for them, when she rammed the deputies vehicles. He then described her as putting the truck into reverse after initially hitting the deputy s car, and that she only stopped because of the shooting. He heard Ramona yell, Fuck off, but could not tell who Ramona was talking to. He stated that Ramona had consumed a sixpack in the late afternoon, but stated that she had a high tolerance. He mentioned that Ramona was bi-polar and he was unsure if she had taken her medication. (To read a complete transcript of Carl Hedlund s interview, see Attachment 17.) Family Members at 3005 Donna Maria S.W.: The Children: Cassandra Maestas (15), Esmeralda Maestas (14), and Jesus Maestas (9) all gave recorded interviews to detectives immediately after the incident. Ramona Maestas is the mother of all three children, but she did not have custody of the children and had not seen them for approximately one year. The children live in Las Lunas with their aunt. They were visiting for the weekend with their grandparents at 3005 Donna Maria S.W. All three told detectives that their mother had come to their grandparent s house to visit them on the evening of June 8, They reported that she was either drunk or high and became combative towards the eldest daughter, Cassandra. They said their mother hit Cassandra and physically fought with her until other people broke up the fight. When the two were separated, they said that their mother got into the driver s seat of her fiancé, Carl s, truck, and tried to run over people at the house, then broke down the gate at the house as she left. Once out on the street, she tried to back the truck over their uncle and shouted that she would come back to kill them. (To listen to a complete recording of the children s statements, go to Attachment 24.) The 14 year old girl, Esmeralda, gave quite a bit of detail in her statement to investigators. In addition to describing the physical fight in some detail, she said that Ramona tried to hit her uncle, Israel Rivas, with the truck when she first got into the truck, and then crashed into the house with the truck. She said that her grandfather then told everyone to get into the house and the police were called. She said that her grandfather had previously instructed them to close the gate behind the truck, and when her mother put the truck into reverse to leave, she crashed into 6

7 the gate and got stuck there temporarily. She then backed into the street and before leaving the scene, her mother threatened to kill family members. Esmeralda stated, (S)he said she was going to kill us and kill my uncle. Esmeralda further stated that she saw her mother s vehicle stop as the deputies ran toward their vehicles to try to stop her. She stated that she said, (W)atch out cause she ll hit them. Esmeralda advised that her mother rammed into one of the cars, and after her mother struck the deputy s vehicle she, reversed and hit the other police car. She said she saw a deputy get out of his vehicle and point his gun at the truck her mother was driving. She also heard the deputy tell her mother to stop, but her mother refused to do that and the deputy began shooting. Esmeralda said she then screamed and dropped to the ground. Cassandra, the 15 year old who was in the physical fight with her mother, had visible bruises on her face. She told detectives that she warned the deputies as they left to go after her mother, saying, (W)atch out, she s gonna hit you, because she knew her mother would try to run them over. She said she then saw her mother drive fast toward them and crash into one of the cars. She said she could still hear the engine of the truck revving, and thought that her mother was trying to back up after the crash. She heard 5-7 gunshots after that, but said she couldn t see the shooting because it was too dark. Israel Rivas: The children s uncle, Israel Rivas, gave detectives a recorded statement. (The children referred to him as Uncle Chuckie. ) In his statement Mr. Rivas said Ramona Maestas arrived at the residence to talk to the children at about 9:30 p.m. He answered the door and told Cassandra that her mother was at the house to see her. Cassandra went outside to speak to her mother and he returned to his room inside the house. After a bit, he heard yelling from outside and went out to see what was going on. He found Ramona outside holding and hitting Cassandra in the face. He described Ramona as holding her daughter in a headlock. There was a male subject with Ramona (later identified as Carl Hedlund) watching the fight, but not doing anything to break it up. Israel said he tried to intervene, and asked the male to help, but he still did not participate. Israel tried to push Ramona away from Cassandra, but was struck by Ramona, knocking off his glasses. While he was retrieving his glasses, he asked the male again for help. Mr. Rivas described Ramona Maestas as crazy and said she was yelling throughout the physical fight. As the fight ended, Ms. Maestas went to the vehicle that she and the male had arrived in, and got into the driver s seat. She then drove forward, hitting a brick support pillar on the house. Then she backed up and ran over a gate and the vehicle was briefly stuck to the gate. He said she managed to free the vehicle and continued to go into the street in front of the house, heading 7

8 away from the house. Before she departed however, she yelled back, I m going to kill you, to Cassandra before she drove away. Mr. Rivas said that he called the Sheriff s Department and was trying to give the dispatcher the license plate of the truck Ramona was driving. Shortly after Ramona drove off, deputies arrived at the scene. They started giving the deputies information about what had happened when they heard a vehicle approaching down the street. Mr. Rivas said that they all said, (T)hat s her! and the deputies jumped into their vehicles. Mr. Rivas went on to say that Ramona turned onto Donna Maria S.W. as the deputies approached, and hit one of the deputies cars. He said the deputies got out of their vehicles and he heard gunshots. His nieces then started to cry and he took the family back into the house. Mr. Rivas repeated that Ramona was violent with him during the incident at the house. He said she was not upset when she first arrived, but looked like she was under the influence, and characterized her as crazy. He advised detectives that Ramona had a history of drug abuse and that the state had taken away her custody of the children. He described that she had rammed the Deputy when he described her contact with the deputy s vehicle. He said he heard the deputy yelling something, but could not understand what he said. He watched the incident from the front yard of the residence at 3005 Donna Maria S.W. (To listen to a complete recording of the statement given by Israel Rivas, go to Attachment 23.) Criminalistics Report: Detective Lori Carrillo prepared the criminalistics report. Four other trained detectives and field investigators assisted her in documenting all aspects of the scene. The scene was thoroughly secured, photographed, measured and diagramed. Involved deputies were photographed, Deputy Jackson s firearm was processed, and vehicles were searched pursuant to search warrants. All physical evidence was consistent with the statements given by civilian witnesses and the deputies directly involved in this incident. (A number of photographs and diagrams are attached to this report. The full Criminalistics Report may be found at Attachment 2.) Ramona Maestas Criminal History and Pending Charges: Ramona Maestas has prior convictions for two separate felonies related to substance abuse and shoplifting from 2004 and 2005, respectfully. She had her probation revoked in both cases, and in 2007 she was sentenced to serve 346 days in jail. 8

9 She is presently facing a charge of Possession of a Controlled Substance from Valencia County (2008), a felony shoplifting charge in Bernalillo County, originating on March 17, 2013, and various charges arising from this incident, which are pending in Bernalillo County. (See her Rap Evaluation at Attachment 18, and copies of her Bernalillo County Indictments at Attachment 19 for additional details.) Factual Conclusions by District Attorney s Office: Based upon available evidence, the District Attorney s Office has concluded that Ramona Maestas and her boyfriend, Carl Hedlund, arrived at 3005 Donna Maria S.W. sometime between 9:30 and 10:00 on the night of June 8, Carl Hedlund drove Maestas to the residence in his truck, and was not actively involved in interacting with the children during the visit. Ms. Maestas was highly intoxicated when she arrived at the home, and her oldest daughter didn t want her to hug and kiss her, and Ms. Maestas became upset at her daughter s attitude. They began to exchange words and Ms. Maestas struck her daughter, and then tried to hit her while holding her in a choke hold. The children s uncle, Israel Rivas, came out and tried to break up the scuffle. Ms. Maestas hit him, sending his glasses flying. She then got into the truck in the driver s seat and started the engine. Carl Hedlund got into the passenger seat of his own truck and Ms. Maestas then tried to run over family members, hitting and destroying a brick support pillar on the porch of the home. Family members called 911 for help. Ms. Maestas was angry and drunk, and backed into the metal gate that was closed behind the truck. The truck was initially caught up on the gate, but then broke free and Ms. Maestas backed up onto the roadway. Before departing, she shouted out threats to kill her family members, and then drove off down the street. Deputies McCauley and Jackson responded to 3005 Donna Maria S.W. shortly after Ms. Maestas departure. Family members quickly told them what had been happening, and they already had information about the situation from dispatch. When members of the family saw the truck in the area again, they pointed it out to the deputies, who headed straight to their marked police cars and drove toward the described truck with lights and sirens on. The area is not densely populated, and aside from the vehicles lights, it was very dark. Deputy Jackson was in the lead as he drove towards the approaching truck. He noticed the truck picking up speed, and heading straight for him. When he recognized that a collision was unavoidable, he turned his vehicle to the left, so the unoccupied passenger side of his vehicle would absorb the majority of the collision. He then got out of his vehicle to avoid greater problems should Ms. Maestas again ram his vehicle and possibly push it into a nearby ditch. After the collision between Maestas and Deputy Jackson s car, Deputy McCauley maneuvered his car around the other two vehicles and stopped. When Deputy Jackson saw and heard Maestas revving her engine and going into reverse, he feared for Deputy McCauley s safety, and commanded her to stop. He knew that Deputy McCauley was in an area of 9

10 danger as Maestas accelerated backward. When she continued, he fired shots toward the driver s side of the truck cab, until her movement slowed. Since Deputy Jackson was shooting at a moving target and it was dark, he moved closer to the back of the truck as he fired, to achieve greater accuracy. The casings were located on the ground in a pattern that is consistent with this movement. Ms. Maestas was hit once in the upper back area, and the passenger, Carl Hedlund was not injured. While Deputy Jackson thought he had fired between five and seven shots, evidence later showed he had fired eleven times. It is not unusual for someone in a high-stress situation to not accurately know how many shots have been fired. Carl Hedlund confirmed that Ramona Maestas continued her actions until she was shot. Deputies immediately reported the shooting to dispatch, and secured emergency help for Ms. Maestas. Deputy Jackson applied an emergency dressing to her wound to help her until paramedics arrived. In light of Ms. Maestas high level of intoxication, irrational and violent behavior, which was known to Deputy Jackson even before Maestas intentionally rammed his vehicle, his fear for his partner s safety was both real and reasonable under the circumstances. His use of deadly force to protect another from great bodily injury or death was permissible under the laws of the State of New Mexico. II-LEGAL ANALYSIS AND CONCLUSION Applicable law: In New Mexico, criminal liability is established only if it is proved beyond a reasonable doubt that someone has committed all the elements of an offense defined by New Mexico Statute, and that the offense was committed without any statutorily defined justification or excuse. While knowingly or intentionally shooting and causing injury or death to another human being is generally prohibited as aggravated battery or murder in New Mexico, the New Mexico Statutes specify certain circumstances in which the use of physical force or deadly physical force is justified. As there is generally no dispute that the officer in an Officer-Involved Shooting intended to shoot at the person who is wounded or killed, the determination of whether the conduct was criminal is primarily a question of whether there was legal justification for the officer s actions. The New Mexico statutes provide that the use of deadly force is justified by anyone, including peace officers, in the following situations: NMSA, Section Justifiable homicide by citizen. Homicide is justifiable when committed by any person in any of the following cases: 10

11 A. when committed in the necessary defense of his life, his family or his property, or in necessarily defending against any unlawful action directed against himself, his wife or family; B. when committed in the lawful defense of himself or of another and when there is a reasonable ground to believe a design exists to commit a felony or to do some great personal injury against such person or another, and there is imminent danger that the design will be accomplished; or C. when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed in his presence, or in lawfully suppressing any riot, or in necessarily and lawfully keeping and preserving the peace. The question presented in cases where self defense or defense of another are raised is whether, at the instant the person fired the shot(s) that wounded or killed another, the person reasonably believed, and actually believed that he or another person was in imminent danger of great bodily harm or death from the actions of the person who was shot. In order to establish criminal responsibility for knowingly or intentionally shooting another, the state must prove beyond a reasonable doubt that the person doing the shooting either did not really believe he or another was in imminent danger, or, if he did hold such belief, that belief was, in light of the circumstances, unreasonable. In addition to the above statute, New Mexico law also states that homicide by a peace officer is legally justified under the following circumstances: NMSA, Section Justifiable homicide by public officer or public employee. 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; (1) in obedience to any judgment of a competent court; (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 (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. New Mexico courts have found that Section (B) is intended to provide a police officer a wider scope of privilege than the general public with regard to use 11

12 of deadly force. A police officer may be legally justified in using deadly force in a variety of situations that would not necessarily apply to self-defense and the ordinary citizen. Police officer justifiable homicide is sufficiently different from self defense or defense of others that is unavailable to ordinary citizens. For example private citizens ordinarily may not be the aggressor and then claim self-defense. A police officer, however, sometimes may have a lawful duty to be the aggressor in the course of fulfilling his or her responsibilities to the public. This is another reason that justifiable homicide is different from simple self-defense by citizen. State v. Mantelli, 2002-NMCA-033, 22, 131 N.M. 692, 697, 42 P.3d 272,277. In determining whether a police officer s use of force was reasonable is heavily fact dependent. According to the United States Supreme Court, the standard for a police officer is a reasonable standard that 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 v. Connor, 490 U.S. 389, 396, 109 S. Ct. 1865, L.Ed. 2d 443 (1989). The 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. It also must be remembered that the decision of the officer is often made in a splitsecond under difficult conditions. Archuleta v LaCuesta, 1999-NMCA-113, 8, 128 N.M. 13, 988 P. 2d 883. Justifiable homicide is necessarily committed when a public officer has probable cause to believe he or another is threatened with serious harm or deadly force while performing lawful duties. State v. Mantelli, Supra. For there to be probable cause, the facts must be such as would warrant a belief by a reasonable officer based upon the expertise and experience of the officer. State v. Mantelli, Id. "Probable cause" means the evidence presented would cause a reasonable person to believe that an offense has been committed and that the accused committed the offense. Probable cause does not require proof beyond a reasonable doubt. New Mexico Jury Instruction Legal Analysis: Under the facts of the present case, the question to be answered is whether Deputy Jackson s action in using deadly force against Ramona Maestas was justified under either NMSA Section , Justifiable homicide by citizen or Section , Justifiable homicide by public officer or public employee. It appears clear that Deputy Jackson was performing the lawful duties of a peace officer at the time of this shooting, and he fired his gun at Ramona Maestas as he attempted to lawfully arrest Maestas. Section , Justifiable homicide by public officer or public employee is most applicable to these facts. The questions to be answered therefore, are: 1) Was Deputy Jackson s action in shooting Ramona Maestas based upon the 12

13 deputy s actual belief that he and/or another were in danger of imminent death or great bodily harm as a result of what he saw Ramona Maestas do? 2) Was Deputy Jackson s fear of imminent death or great bodily harm to himself, or another, reasonable in light of all the circumstances of this event? This is therefore both a subjective and objective analysis of the situation and Deputy Jackson s actions. CONCLUSION: For the reasons discussed in detail above in the section entitled, Factual Conclusions by District Attorney s Office, we have determined that there is no probable cause to charge Deputy Jamal Jackson with any crime in connection with the shooting of Ramona Maestas. Thorough analysis of available evidence indicates that Deputy Jackson shot Ms. Maestas in defense of another person, namely, Deputy John McCauley, Jr. According to his statement to police detectives, Deputy Jackson actually and reasonably feared great bodily injury or death to Deputy McCauley when Ms. Maestas disobeyed his orders to stop, and instead drove her vehicle toward Deputy McCauley and in the direction of her family s home where she had previously tried to run over family members. Deputy Jackson had to make a splitsecond decision and his decision was to use deadly force in defense of the life of Deputy McCauley. We conclude that it was reasonable for someone in Deputy Jackson s situation to act as he did in order to meet this perceived threat under the circumstances. The District Attorney therefore finds that there is no probable cause under New Mexico law to pursue criminal charges against Deputy Jermal Jackson for the non-fatal shooting of Ramona Maestas on June 8,

14 Report Attachments 1. Supp Out report prepared by Detective Timothy Hix, BCSO 2. Criminalistics Report prepared by XXX 3. Overall Diagram of Scene at 3005 Donna Maria, SW 4. Three (3) Close-Up Diagrams of scene near 3005 Donna Maria, SW 5. Photograph of 3005 Donna Maria S.W. with collapsed porch pillar 6. Photograph of 3005 Donna Maria S.W. with damaged gate 7. Photograph of damaged gate (close-up) 8. Photograph of both Sheriff s vehicles with damaged truck 9. Photograph of damaged front of Sheriff s vehicle with truck 10. Photograph of damaged truck and Sheriff s vehicle during daylight 11. Photograph of right-rear side of Sheriff s vehicle during daylight 12. Photograph of open truck passenger door against Sheriff s vehicle 13. Photograph of evidence markers for casings near Sheriff s vehicle 14. Photograph of back of truck window with trajectory poles 15. Transcribed statement of Deputy Jermal Jackson 16. Transcribed statement of Deputy John McCauley, Jr. 17. Transcribed statement of Carl Hedlund 18. Rap Eval prepared by DA s Office regarding Maestas criminal history 19. Pending state indictments against Ramona Maestas 20. Correspondence from the District Attorney s Office to Jennifer Wernersbach 21. CADS printout showing 911 calls and radio transmissions relevant to this case 14

15 22. Audio recording of 911 call 23. Audio recording of interview with Israel Rivas 24. Audio recording of interviews with children 25. Audio recording from Deputy John McCauley, Jr. s belt tape 26. Audio recording from Deputy Kimbrough s belt tape. 15