OPINION
Defendant appeals his conviction of second degree murder. There are three issues: (1) informing the prospective jurors, immediately prior to voir dire, that the death penalty was not involved; (2) sufficiency of the evidence; and (3) the trial court’s nondisclosure of information obtained by the trial court in camera during a proceeding under Evidenсe Rule 510.
Informing Prospective Jurors that the Death Penalty was not Involved
The indictment charged defendant with first degree murder, a capital felony. Section 30-2-1, N.M.S.A.1978 (Cum.Supp.1980). However, the aggravating circumstances set forth in § 31-20A-5, N.M.S.A.1978 (Cum.Supp.1980), were not involved. If convicted of first degree murder, defendant would not have been exposed to a sentence of deаth, § 31-20A-2, N.M.S.A.1978 (Cum. Supp.1980).
Immediately prior to the voir dire of prospective jurors, the trial court stated:
Before the State will inquire on voir dire examination, the Court will make this announcemеnt to people in the jury box and all the jurors here. This is a first degree murder case. However, ladies and gentlemen, I would advise you that the death penalty is not involved in this casе.
U.J.I.Crim. 50.06 states: “You must not concern yourself with the consequences of your verdict.” The Use Note to this instruction states that it “is a proper instruction to be given in every case.” The instruction was given in this case. Defendant claims that the trial court’s announcement that the death penalty was not involved was improper because it was contrary to U.J.I.Crim. 50.06. Defеndant also claims an inconsistency between the announcement and U.J.I.Crim. 50.06.
We agree with defendant to this extent; the announcement concerning no death penalty and thе giving of U.J.I.Crim. 50.06 were inconsistent. Inasmuch as the jury was not to fix the penalty in this case, compare U.J.I.Crim. 39.10 to 39.24, N.M.S. A.1978 (Cum.Supp.1980) and State v. Sanchez,
We recognize that noncompliance with U.J.I.Crim. is reversible error if there is the slightest evidence of prejudice. State v. Sanders,
Defendant asserts he was “arguably prejudiced” by the trial court’s announcement “because such remarks permitted the jury to infer that a conviction in this case would be less serious in that it would not subject appellant to the death penalty.” We disagree.
In Bumper v. State of North Carolina,
The jury did not react to the death penalty remаrk by convicting of “any” offense less serious than an offense for which the penalty was death. The jury did not return a verdict of first degree murder; defendant was convicted of second degree murder. Under the instruction, see U.J.I.Crim. 2.40, the jury was not to consider second degree murder unless and until the jury disagreed as to guilt of first degree murder. The jury followed this instruction. See State v. King,
There being nothing showing the slightest prejudice to defendant by thе trial court’s announcement, defendant’s contention is without merit.
Sufficiency of the Evidence
Contrary to defendant’s contention, there was sufficient evidence for the jury to convict defendant either аs a principal or as an accessory.
There was evidence that defendant, the victim, and Rudy Cardenas first partied at a park, then went to the house of Jerry Ortiz where the party continued. There were several fights at Ortiz’s house; one of the fights involved Cardenas, defendant and the victim. During this fight, defendant had a steak knife. The victim was told to leave, and did so. Cardenas and defendant followed the victim down the stairs.
The victim was stabbed to death with a knife. The victim’s body was found lying in the median of a street. Given a tip to look for Ortiz and “Rudy”, officers went to a residence and found defendant lying on a bed. When getting out of the bed, defendant stepped on a knife and shuffled around with his foot as if he was trying to conceal the knifе. Defendant attempted to escape. The knife was a steak knife. The knife had blood on it; human blood, Type B. The victim’s blood was Type B. Ortiz’s residence was checked fоr blood; the blood found there was Type A, not Type B. Defendant’s own statements place him at the scene of the killing, and defendant admitted leaving the scene with the knife with Type B blood on it.
From the foregoing, the jury could determine that defendant was the killer.
Defendant’s statements were to the effect that Rudy Cardenas did the killing and that defendant removed thе knife from the scene of the crime because of panic. Even if this should be true, defendant was with Cardenas before and after the killing, he participated in Cardenas’ fight with the viсtim and, with Cardenas, followed the victim when the victim was told to leave. Defendant had in his possession a knife with blood of the victim’s type, and defendant had the same type of knife рrior to the killing. From the evidence, the jury could determine that defendant was an accessory to a killing by Cardenas. U.J.I.Crim. 28.39.
The evidence for conviction was substantial and sufficient for a rational juror to find the essential elements of the crime beyond a reasonable doubt. State v. Carter,
Trial Court’s Nondisclosure of Information Obtained at an In Camera Hearing
We have previously pointed out that a tip directed officers to the residence where defendant was located. The police report listed the informеr as unknown. Testimony at trial developed that the identity of the informer was known to the officer who was testifying, however, the officer preferred not to disclose the informer’s name.
Defendant asked that the informer’s name be disclosed. The trial court proceeded under Evidence Rule 510(c)(2). It first reviewed an affidavit from the informer, then took testimony frоm the informer. The trial court ruled that the informer’s identity would not be disclosed. Defendant claims this ruling was an abuse of discretion.
We have reviewed the affidavit and a transcription оf the informer’s testimony. The contents of these documents show nothing that would be relevant or helpful to the defense of the accused, and nothing necessary to a fair determination of guilt or innocence. The trial court did not abuse its discretion in refusing to require that the informer’s identity be disclosed. State v. Robinson,
Although the informer’s identity is not to be disclosed, the matter does not end at that point in this case. The affidavit and the transcription of testimony were sealed and submitted, sealed, to this Court in accordance with Evidence Rule 510(c)(2). Counsel, not knowing the contents of the sealed documents, could not raise the issue which we now discuss.
The informer’s testimony revealed to the trial court that the informer’s information was hearsay, and that the hearsay information came from a person who was a possible eyewitness. The trial court did not disclose the name of the possible еyewitness; the question is what the trial court should do in this situation.
Although this situation is not covered by a precise rule, the combination of Evidence Rule 510 and Rules of Crim.Proc. 27 and 30 provides thе answer.
The possible eyewitness, who supplied information to the informer, is also an informer; the policy involved in Evidence Rule 510, State v. Robinson, supra, applies in determining whether the identity of this possible eyewitness should be disclosed.
Rule of Crim.Proc. 27 provides for disclosure to the defendant, and disclosures provided for by that rule should be made becаuse the purpose of discovery is to ascertain the truth. State v. Manus,
Rule of Crim.Proc. 30 places a continuing duty of disclosure on the parties.
When the trial court, rather than the parties, obtains information which raises the question of whether the infоrmation should be disclosed, the disclosure requirements should also apply to the trial court’s information.
We hold that the trial court should conduct an in camera hearing and dеtermine whether the possible eyewitness would “be able to give testimony that is relevant and helpful to the defense of an accused, or is necessary to a fair determinаtion of” defendant’s guilt or innocence. Evidence Rule 510(c)(2). The trial court should also determine whether disclosure would subject the possible eyewitness to a substantial risk under R.Crim.Proс. 27(e)(2) which outweighs any usefulness- of the disclosure to defense counsel. These two rulings are subject to review for abuse of discretion. State v. Robinson, supra.
We affirm the judgment and sentence on the issues raised. However, we remand the matter to the trial court for a hearing and rulings as discussed in this opinion. Those rulings are subject to further appeal.
IT IS SO ORDERED.