State v. HoveyState v. Hovey
WALTERS, Justice.
Defendant John Hovey was sixteen years old at the time his parents were shot and
The initial challenge concerns defendant‘s having been originally charged in children‘s court, and thence transferred to district court to be tried as an adult. Notice of appeal of the transfer was filed on August 13, 1984 at 9:13 a.m., a week after the order of transfer. On that same afternoon, the grand jury returned an indictment against defendant. Defendant disputes the grand jury‘s power to indict him during the pendency of his appeal of the transfer order.
Defendant failed to seek a stay at the time his notice of appeal was filed, as required by
As a second issue, defendant attacks the grant of permission to televise defendant in the courtroom while he was testifying. He relies heavily on Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), where it was held that the use of television cameras denied the defendant a fair trial, requiring reversal of the conviction there obtained. Estes, however, has been limited by the more recent case of Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1984), which held that the filming of a trial is not per se unconstitutional.
The Supreme Court rule grants to trial judges the discretion to limit or deny television coverage for good cause.
“[T]he trial judge [before excluding media coverage of a particular participant in a trial] should require evidence sufficient to support a finding that such coverage will have a substantial effect upon [the] particular individual which would be qualitatively different
from the effect on the members of the public in general and that such effect will be qualitatively different from coverage by other types of media.”
Defendant alleged in a pre-trial motion, unsupported by any affidavits, that because the television cameras made him nervous, his credibility would be damaged when he testified. In a trial such as this, credibility and courtroom demeanor of the defendant are crucial. The tendency of television cameras in the courtroom to make a defendant nervous or rattled is certainly a likely effect to be considered. Modification of the Supreme Court Rules may be necessary to emphasize that danger of intimidation and attendant unfairness should be fully recognized when opposed requests for television coverage are decided. In this case, however, defendant failed to present any evidence in support of his assertion that televising portions of the proceedings would prejudice the presentation of his testimony. He is overruled on this challenge.
Defendant‘s third point is that the trial court abused its discretion in limiting the number of entries from the defendant‘s diaries which could be read to the jury and explained by the defendant. We affirm the trial court‘s ruling. There were over 1600 entries in the diaries of defendant; all of the diaries were admitted into evidence and available to the jury. Whether specific entries were read and explained or not, and contrary to defendant‘s claimed error on appeal, defendant was not deprived of the opportunity to present his defense, and he was able to argue that the diary entries, taken in context, showed normal teenage behavior.
Defendant next argues that extensive and sensational pre-trial media coverage of this case warranted a change of venue. Request for change of venue is also directed to the discretion of the trial court, State v. Sierra, 90 N.M. 680, 682, 568 P.2d 206, 208 (Ct.App.), cert. denied, 91 N.M. 4, 569 P.2d 414 (1977), and the court‘s ruling will not be disturbed unless discretion was abused. Id. Considerable documentary evidence was produced to show broad coverage of defendant‘s arrest and the circumstances of the murders, but almost all of the publications were made two years prior to trial. See Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969), regarding lack of prejudice when publicity is remote in time.
A careful voir dire of prospective jurors was conducted by the court and the attorneys over three full days, members of the panels being examined in small groups as well as individually. There was simply no showing of media-induced prejudice to compel a change of venue ruling.
Defendant‘s fifth challenge goes to an alleged violation by the State of
Although we have listened to the record at the reference point provided us, we heard no motion for mistrial, so the argument here for mistrial was not preserved below and will not be heard.
Defendant asserts next that an alleged jury taint required a mistrial,1 but his argument on that point is so brief that the gist of “taint” must almost be guessed at. When a juror becomes disqualified by reason of his apparent bias during trial, the proper remedy is to excuse and replace that juror with an alternate if the rest of the jury panel has not been tainted. State v. Padilla, 91 N.M. 451, 575 P.2d 960 (Ct.App. 1978). Defendant‘s only intimation that the entire jury was tainted appears in a statement that the trial court “never asked the other jurors if they were aware of the note.” The evidence discloses that when questioned by the court, the juror denied he had shown the note to any other jurors, denied he had discussed his concern with any other jurors, and denied that any other juror had made similar comments to him. In his brief, defendant did not alert us to any portion of the record that would show his request at that time for examination of any other member of the jury. However, we have listened to the tape sections referred to us by the State, and it is clear that the defense was first aware of the note in the morning before the trial resumed. Defendant requested that the juror be replaced, but did not ask the court at that time to allow voir dire of that juror or of the jury panel. The court allowed the trial to continue. Following the noon recess, defendant moved for mistrial, and alternatively asked for examination of the juror and other panel members.
It has been held that a mistrial motion will be considered untimely unless it is made at the earliest opportunity. State v. Olivares, 95 N.M. 222, 620 P.2d 380 (Ct. App. 1980). The untimeliness of the motion that ultimately was made, in addition to the untimeliness of a request for any other corrective action that might have been proper had a timely effort been made to show jury taint, leads us to the conclusion that no claim of error was preserved by defendant on the issue of jury taint.
The trial court‘s limitation of the testimony of a witness who was inadvertently present in the courtroom during the testimony of another defense witness is the basis of defendant‘s seventh point. As the trial court noted, the situation that occurred was precisely the evil the rule of exclusion from the courtroom,
Defendant urges also that misconduct by the prosecutor requires reversal. He refers to the point during trial when the State objected to a comment by defense counsel during his extensive questioning of defendant about the diaries, and the prosecutor said in front of the jury that it was not the prosecution that was forcing the jury to sit through “hour after hour” of diary testimony. Although in our view, that was fair comment in response to defendant‘s remark during witness examination, no objection to the prosecutor‘s comment was made. Consequently, that challenge here is likewise not reviewable. State v. Ruffino, 94 N.M. 500, 502, 612 P.2d 1311, 1313 (1980).
The final issue is whether defendant‘s privilege against self-incrimination was violated by the use of court-ordered handwriting exemplars. According to State v. Archuleta, 82 N.M. 378, 482 P.2d 242 (Ct.App. 1970), cert. denied, 82 N.M. 377, 482 P.2d 241 (1971), compelled handwriting
We AFFIRM defendant‘s conviction.
SCARBOROUGH, C.J., and RANSOM, J., concur.