Lead Opinion
OPINION
Dеfendant appeals his conviction for second degree murder. The issues raised on appeal are addressed in the sequence presented by defendant. The issues raised in defendant’s docketing statement, but not briefed, are deemed abandoned. State v. Romero,
In March 1986, defendant was stopped on Interstate 40 in Quay County by New Mexico State Police Officer Sherman Toler (Toler). Defendant’s car was loaded with personal possessions because he was moving from California to Missouri; he was accompanied by his common-law wife. Toler issued a warning ticket for speeding and proceeded to sеarch the car. Although the circumstances are in dispute, it is clear that a fight developed, and Toler was fatally injured. Defendant turned himself in to authorities and was charged with first-degree murder, contrary to NMSA 1978, Section 30-2-1 (Repl.Pamp.1984).
After a jury trial in November 1986, the state filed a supplemental criminal information alleging that defendant had two prior felony convictions. Finding these allegations to be true and also finding aggravating circumstances “in that the defendant used excessive force and needless brutality,” defendant was sentenced to a basic term of twelve years, together with a one-year enhancement pursuant to the jury finding thаt defendant used a firearm in committing the offense, and a four-year enhancement pursuant to the habitual offender statute, for a total of seventeen years.
Defendant contends on appeal that late production of certain evidence, as well as non-disclosure of other evidence, denied defendant due process, a fair trial, and effective assistance of counsel. Defendant also contends that the prosecutor’s exercise of peremptory challenges to exclude Hispanic venire members denied him equal protection, due process, a fair trial, and effective assistance of counsel. Defendant further contends that the admission of testimony concerning the circumstances of that conviction deprived him of due process and a fair trial. Finally, defendant contends that the trial court erred in enhancing his sentence for use of a firearm after having aggravated the basic sentence by the maximum amount. Defendant also argues the existence of cumulative error. For the reasons that follow, we hold that there has been no reversible error.
A. Whether the prosecutor’s nondisclosure of defendant’s personal papers until several days prior to trial, in violation оf specific orders to produce, denied him due process, a fair trial, and effective assistance of counsel.
At the time of his arrest, defendant had numerous personal papers in his vehicle. Despite several attempts and court orders to have the prosecutor produce those papers, they were not returned to defendant until several days before trial. Defendant claims these papers were essential to help him identify and secure witnesses as to his good character and character for peacefulness, and because of the untimely production of his papers, defendant was not able to do so.
Defendant has cited State v. Lovato,
During voir dire, defendant moved for a continuance to make use of his personal papers. In denying the motion, the trial court stated that it would consider a several day recess if, during trial, good cause was presented by defendant. Defendant did not seek a recess during trial. We view this inaction as a cure of any prejudice that may have resulted from the untimely production. See id. We also view defendаnt’s inaction as a waiver of any claim that the trial court abused its discretion in not granting a continuance. Cf. State v. Johnson,
In his reply brief, defendant claims that he made sufficient offers of proof of the testimony of material witnesses he was unable to call at trial. However, this testimony related to the character of the victim rather than to defendant’s character, and thus is not related to the production of defendant’s personal papers. Secondly, defendant's reference to the complex procedural requirements of NMSA 1978, Section 31-8-2 (Repl.Pamp.1984) applies to summoning witnesses from this state to apрear in another state and does not apply to the converse situation found here.
Furthermore, defendant claimed that he was deprived of a fair trial, in part, on the ground that the lack of access to this material precluded him from locating “the names, current addresses and telephone numbers of * * * good character witnesses.” The prejudice part of the test enunciated in State v. Sandoval requires the court to assess whether the omitted evidence created a reasonable doubt that otherwise did not exist. Defendant’s claim did not create such a doubt, in the absence of evidence that рarticular witnesses as to character could not be located without access to the exhibit. Until defendant indicated with greater specificity what might have been proved, the trial court was not in a position to evaluate the relevance and import of the nonproduction. Cf. State v. Quintana,
B. Whether the prosecutor’s nonproduction of Officer Toler’s daily logs until several weeks prior to trial, in violation of specific orders to рroduce, denied defendant due process, a fair trial, and effective assistance of counsel.
Defendant sought to obtain Toler’s daily logs to determine whether he could discover witnesses regarding Toler’s character for violence during routine traffic stops. After several attempts and court orders to have the prosecutor produce these logs, they were delivered to defendant approximately three weeks prior to trial. Defendant asserts that this delay prevented him from securing the presence at trial of at least four out-of-state witnesses regarding Toler’s character.
The recоrd discloses the following. Approximately two weeks before trial, defendant filed his list of intended trial witnesses. The names and addresses of three of those four out-of-state witnesses were set forth on that list. One of these three witnesses was contacted by defendant approximately five months before trial. Defendant supplemented his witness list several days before trial. The supplement contained the name and address of the fourth witness. The trial court ordered payment of the expenses of all of defendant’s witnesses several days prior to trial. A subpoena for at least one of these character witnesses was issued by the court clerk two weeks before trial.
Prior to trial, defendant sought a continuance because of the late production of the daily logs. In denying the motion, the trial court stated that defendant had sufficient time to utilize the logs. Following trial, defendant sought a new trial, claiming an inability to secure the appearance of the out-of-state witnesses as to Toler’s character because of the late production of the logs. Defendant does not assign error to the denial of his motion for continuance. Rather, defendant maintains he was prejudiced by the late production of the logs because he wаs therefore unable to obtain the presence of these character witnesses.
We observe that in seeking a continuance to secure the appearance of an absent witness, a party must show that it has used due diligence to obtain the witness' testimony. See State v. Case,
We recognize that under some circumstances no more prejudice need be shown than that a line of defense was frustrated by court order. See State v. Orona,
C. Whether the intentional nondisclosure by the prosecutor of a conversation between defendant and an escorting officer, in violation of trial court orders, denied defendant due process, a fair trial, and effective assistance of counsel.
While being transported to court several days before trial, defendant discussed his training and experience in karate with his escorting officer. The officer reiterated this conversation to the prosecutor, who did not disclose the conversation to defendant’s counsel. Questions relating to the context of this conversation were asked of defendant during his cross-examination at trial by the prosecutor. As defendant did not object to those questions, and did not alert the trial court that his objection would have been based on the prosecutor’s nondisclosure of the conversation that provided the source of those questions, this issue cannot be considered when raised for the first time on appeal; nor may defendant complain on appeal that he was prejudiced by testimony which he allowed to be interjected into the case. See State v. Gutierrez,
D. Whether racial discrimination, as inferred by the prosecutor’s exercise of peremptory challenges to exclude Hispanic members of the venire from serving on the jury, denied defendant equal protection, due process, a fair trial, and effective assistance of counsel.
Prior to trial, defendant moved to require the prosecutor to state reasons for exercising peremptory challenges in a racially discriminatory fashion against Hispanic venire members. The motion was denied. During jury selection, defendant renewed the motion following the prosecutor’s exercise of his first peremptory challenge against a Hispanic-surnamed member of the venire. The renewed motion was denied. The prosecutor then exercised five more peremptory challenges against Hispanic-surnamed members of the venire. The final trial jury panel, including the alternates, did have several members with Hispanic surnames.
Defendant, who is black, contends that the prosecutor’s exercise of peremptory challenges to remove most Hispanic-surnamed members of the venire denied him certain rights, requiring reversal of his conviction.
In State v. Sandoval,
Defendant further argues that the prosecutor’s peremptory challenges of most Hispanic members of the venire deprived him of his sixth amendment right to a jury comprised of a fair cross section of the community where his trial was held. Defendant cites Fields v. People,
Without deciding whether Fields is applicable in this state, we note that under Fields, a defendant can establish the prima facie case of a sixth amendment claim “by showing that the persons excluded are members of a cognizable group for purposes of the fair cross-section requirement and that considering all the circumstances of the case there is a strong likelihood that the jurors were excused solely because of their membership in the group.”
In the present case, had defendant been convicted of committing murder in the first degree, the crime with which he was charged, the jurors wpuld have had to vote on whether to impose the death penalty. On voir dire, each Hispanic-surnamed individual who was excused by the prosecutor’s peremptory challenge expressed a reservation, to some degree, about his or her ability to vote for that penalty. Defendant contends, however, that several non-Hispanics who expressed similar reservations were not excused by the prosecutor. Even so, because of the existence of these other factors, defendant has failed to demonstrate that the Hispanic-surnamed venire members were excused solely because of their membership in that group as required by Fields. Therefore, defendant’s reliance on Fields is misplaced.
E. Whether the admission of defendant’s prior 1974 conviction denied him due process and a fair trial.
1. Probative value versus prejudicial effect.
In 1974, defendant was convicted of assault with a deadly weapon upon a peace officer. Defendant moved to exclude all testimony regarding this conviction. The trial court denied the motion and ruled that it would permit testimony only as to the fact and date of the conviction and the title of the underlying crime. It further ruled that this limited testimony would be admitted only in the event defendant did testify and, in that event, for the sole purpose of impeaching defendant. See SCRA 1986, UJI 14-5022.
Defendant makes several arguments as to why the admission of this conviction denied him due process and a fair trial. Inherent in each argument is defendant’s further argument that the probative value of this evidence was outweighed by its prejudicial effect, and thus the evidence should have been excluded.
Defendant first contends that as dishonesty was not an element of the 1974 crime, it was not appropriate for the purpose of impeachment. Even so, SCRA 1986, 11-609(A)(1) permits the introduction of a prior felony conviction to attack credibility, regardless of whether dishonesty was an element of that felony. State v. Lucero,
Secondly, defendant contends that because of the similarity between the 1974 crime and the offense in this cáse, there is a clear danger that the earlier crime will prejudice or confuse the jury. However, Rule 11-609 does not prohibit evidence of a prior offense on the basis of its similarity with the presently charged offense. Rather, the question relating to the admissibility of a prior similar offense is whether the decision of the trial court was an abuse of its discretion. Id. This question will be addressed below.
Defendant then argues that the 1974 crime should have been excluded because he also had been previously convicted of three dissimilar crimes and they were admissible for impeachment purposes. Again, Rule 11-609 does not prohibit evidence of a prior conviction for a similar crime when evidence of prior convictions for dissimilar crimes is also available, and again, in such a situation, the question relating to the admissibility of the prior similar crime is whether the trial court abused its discretion when ruling on the admissibility. See State v. Day,
We now turn to the question of whether the trial court abused its discretion in allowing the admission of evidence of defendant’s 1974 conviction. The focus of this question is whether the trial court properly determined that the probative value of the prior conviction outweighed its prejudicial effect against defendant. See SCRA 1986, 11-403 and -609(A)(1). See also State v. Day (discussing the rеlationship between former Evidence Rules 403 and 609). If the trial court’s ruling is clearly against the logic and effect of the facts and circumstances of the case, its exercise of discretion in admitting the evidence was abused. See State v. Lucero.
The fact that the admission of evidence of a prior conviction may prejudice a defendant to some extent does not mean that the probative value of the evidence has been outweighed. See State v. Hogervorst,
In deciding whether the probative value of evidence of defendant’s 1974 crime, admissible under Rule 11-609(A)(1) for impeachment purposes, outweighed its potential for unduly prejudicing the defendant, the trial cоurt did evaluate the various factors set forth in State v. Lucero as they apply to the circumstances of the case. Our own evaluation of these factors follows.
There is a certain similarity between the crime of assault with a deadly weapon upon a peace officer and the crime of murdering a peace officer with a firearm. Because of the similarity, the possibility does exist that the introduction of evidence of that prior crime will have at least some prejudicial impact against defendant. However, Rule 11-609 inherently recognizes that evidence of a defendant’s criminal history has the potential for creating prejudice, but this potential, by itself, does not render the evidence inadmissible. State v. Garcia,
Defendant’s testimony regarding the events which led to his shooting of Officer Toler was crucial to his defense. Defendant’s version conflicted with that of the state’s witnesses. Thus, defendant’s credibility as a witness was placed in issue and subject to impeachment. Cf. State v. Duran,
The trial court conducted a careful review of the Lucero guidelines as they applied to defendant’s case. The trial court then determined that the probative value of defendant’s 1974 conviction, for impeachment purposes only, outweighed its prejudicial effect and permitted its narrowly limited admission. Based upon our review, we cannot say that the trial court’s decision was contrary to the logic and effect of the facts and circumstances of this case. See, e.g., United States v. Givens,
Because of the foregoing, we hold that the trial court did not abuse its discretion in admitting evidence of defendant’s 1974 conviction.
2. Remoteness in time.
Defendant also contends that his 1974 conviction was not admissible because of the time limitation set forth in Rule 11-609(B). This rule does prohibit the admission of evidence of a conviction “if a period of more than ten (10) years has elapsed since the date of the * * * release of the witness from the confinement imposed for that conviction.”
Defendant was confined in the Central Institute for Men in California because of his 1974 conviction. On September 13, 1976, he was transferred to the Central City Community Center, which defendant describes as a halfway house. On November 20, 1976, defendant was released on parole. Trial in this cause commenced November 5,1986, and defendant testified two days later.
Defendant asserts that his release on September 13, 1976, to the halfway house constituted a release from confinement for the 1974 conviction. Defendant thus contends that the ten-year period of admissibility elapsеd about two months prior to his trial and, therefore, proof of the earlier conviction was barred.
In California, a “person is deemed confined in a ‘state prison’ if he is confined in any of the prisons and institutions specified in Section 5003.” Cal.Penal Code § 4504(a) (West 1982). The provisions of Section 5003 include “(q) Such other institutions and prison facilities as ... the Director of Corrections may be authorized by law to establish.” Cal.Penal Code § 5003(q) (West 1982). The Director is authorized to “establish and operate facilities to be known as community correctional centers.” Cal.Penal Code § 6250(a) (West Cum.P.P. 1987).
It appears reasonable to conclude thаt the Central City Community Center is a community correctional center. Since defendant was not released from that center until November 20, 1976, the ten-year period of admissibility of his 1974 conviction pursuant to Rule 11-609(B) had not expired as of the date defendant testified in this trial.
Defendant’s arguments regarding Cal. Penal Code § 2900.5 (West 1982) are not germane because that section relates only to the award of credit for time spent in custody prior to the commencement of a sentence rather than to the meaning of “confinement.”
F. Whether the trial court erred in allowing testimony concerning the circumstances behind defendant’s 1974 conviction, thereby depriving him of due process and a fair trial.
Defendant shot Officer Toler with the officer’s own service revolver. As part of his defense, defendant presented a witness who testified about and demonstrated the difficulty of removing a revolver from Officer Toler’s service holster. The state later presented the testimony of Officer Owens as rebuttal.
Officer Owens was involved in the incident that led to defendant’s 1974 conviction. While he did not mention the fact of that conviction, Owens testified that defendant had obtained the revolver of Owens’ police partner, who was also involved in the incident. Owens did not know how defendant had obtainеd the weapon, but stated that his partner’s holster was similar to Toler's. Owens also testified that defendant had pointed that revolver at his head.
Defendant sought to exclude Owens’ testimony, claiming that it would create unfair prejudice against him. See Rule 11-403, which permits the exclusion of relevant evidence when it is found to be more prejudicial than probative. The trial court determined that the testimony was relevant with regard to defendant’s prior knowledge and use of a holster similar to Toler’s, as well as to defendant’s opportunity and motive, and that the testimony had more probative weight than prejudicial effect. Thus, Owens was allowеd to testify.
Under some circumstances, relevant evidence of other wrongs or acts to prove knowledge, opportunity, and motive is admissible. See State v. Ross,
The fact that Owens’ testimony may have had some prejudicial effect does not require its exclusion. See State v. Hogervorst. The testimony was relevant and probative of the issues stated by the trial court and initially raised by defendant. The similarity between the 1974 incident and the incident in this case does not justify a finding that the trial court abused its discretion in admitting Owens’ testimony, see State v. Allen,
G. Whether the trial court exceeded its statutory authority and deprived defendant of due process by imposing a special “use of firearm” alteration of the basic sentence, consecutive to the maximum general alteration for aggravating circumstances.
Defendant was sentenced to a term of nine years for his conviction of second-degree murder. Upon determining that aggravating circumstances existed in the commission of the crime, the trial court enhanced that term by one-third, or three years, pursuant to NMSA 1978, Section 31-18-15.1(C) (Repl.Pamp.1987), and then imposed a one-year consecutive sentence for defendant’s use of a firearm in the commission of a felony, pursuant to NMSA 1978, Section 31-18-16 (Repl.Pamp.1987).
Defendant argues that the trial court exceeded its sentencing authority by imposing the one-year sentence for firearm use. becаuse Section 31-18-15.1(0) provides that “in no case shall the alteration exceed one-third of the basic sentence.” We read the words “the alteration” as applying to the alteration of the basic sentence only where mitigating or aggravating circumstances surround the offense or concern the offender. This statute specifically precludes the fact that a firearm was used from the trial court’s determination that aggravating circumstances exist.
Defendant was charged with the use of a firearm in the murder of Officer Toler, and the jury found that he did use a firearm in committing that crime. In this regard, we read Section 31-18-16 as providing a separate and distinct basis for further altering defendant’s basic sentence in addition to the alteration permitted by Section 31-18-15.1; the language and requirements of each statute are totally independent of the other. See, e.g., State v. Reaves,
As the sentences required by each of these statutes are mandatory upon the trial court, see State v. Mayberry,
H. Whether cumulative error denied defendant equal protection, due process, a fair trial, and effective assistance of counsel.
Defendant argues that, in the aggregate, the assignment of errors he has raised on appeal denied him his right to a fair trial. We have addressed his claims on appeal and have found either that no errors were committed or that insufficient prejudice was established at trial or on appeal to support a conclusion that he was denied a fair trial. See State v. Martin,
Defendant’s conviction, judgment and sentence are affirmed.
IT IS SO ORDERED.
Notes
. In so holding, Batson modified the earlier ruling in Swain v. Alabama,
Concurrence Opinion
concurring specially.
I concur in the majority opinion, except as to its discussion of defendant’s fair trial argument based on Fields v. People,
In the present case, a sixth amendment claim raised at trial and in the docketing statement was a claim based on Witherspoon v. Illinois,