*1 Grace, disability. Ensley (1966).
No. Appeals Court of of New Mexico. 30, 1974.
Oct. Rehearing 30, 1974. Denied Oct. Certiorari Denied 1974. Nov. *2 Walter, Jr., H. Chief Public
Chester De- fender, Herr, Appellate Bruce L. Defend- Klein, er, Jr., Appellate Associate Donald Fe, Defender, defendant-appel- for Santa lant. Norvell, Gen., Atty. George
David L. A. Morrison, Gen., Atty. Sp. Albuquer- Asst. Andrews, Gen., Atty. que, Leila Asst. San- Fe, plaintiff-appellee. ta
OPINION
SUTIN, Judge.
Defendant was convicted of second de- murder, gree 40A-2-l(B), N.M.S.A.1953 § battery, Repl.Vol. 6), aggravated (2d § Repl.Vol. 40A-3-5(A), (2d 6). appeals. He We affirm. eight grounds of
Defendant raises error points. four are reduced to which Facts made to the allegedly brother or made to Fourth the friends drove On June rear of the Street, was up Northwest, sitting in the car. Defendant carried defendant and Alameda in Albuquerque. left Bar on seat three in a buttal ? *3 that witness back or use him for surre- THE [******] brother COURT: Do the deceased. want to call a there were gun right in his boot because MR. STRIBLING: We want to use age him and young of men of his after lot him for surrebuttal. protect gun he to himself. needed the Defendant never called the witness for stopped get at bar to persons These the surrebuttal. The claimed error was beer, got the quart no one but out waived. purchased the beer defendant car. After (b) Defendant contends the trial window, defendant called decedent from a court erred specific in excluding acts of the car talk to Tafoya over to Jesse by decedent, misconduct involving the use friends,” my de- two are them. “These by decedent deadly weapons in fights. They talked for two fendant said. about The record support does not this conten- Then friendly conversation. in
minutes tion. “Que traes?” the What’s defendant said put through his court arm allowed one state witness matter? Decedent testify window, by by defendant the hair grabbed the cross-examination defendant pull that decedent fight him car with was seen with a knife and he out of opened, got somebody; fights had cut that he seen him. The door was defendant had places. toward of decedent at out went defendant to two and decedent gun had the in his hand fight. Defendant examination, direct defendant was pointed who it at decedent was about permitted to decedent’s testify about as- away. his swung three feet Decedent arm knives, people saulting with sticks and away try gun take the at defendant to weapons; reputation was bad. his defendant, from and defendant shot dece- brother, Defendant’s witness for de- which he dent in the chest from later died. fendant, repu- was asked about decedent’s defendant, Tafoya aiming at his kicked given, After the answer was tation. where was kick toward the defendant objection of made and sus- the state was holding Tafoya Defendant shot in the it. not stricken. tained. The answer was Tafoya face from which recovered. Defend- remained a evidence. he saw de- testified that ant’s brother also car, in which decedent was When at weapon at dances two cedent use scene, defendant riding, left the shot twice objections to places. The court sustained more. specific acts. testimony on any further evi- (1) and admittance Exchtsion testimony wanted only defendant other o not error. dence were by dece- threat made was the introduce This was to defendant’s brother. dent contends trial (a) Defendant waived as above. shown excluding in erred against by threat made decedent defendant the admis The determination which to defendant. was not communicated decedent, a col of violent acts of sion After had tendered issue, discretion in the rests lateral decedent, threat the court said: made of discre abuse was no court. There trial 750, 487 Moraga, 82 N.M. for the De- tion. State v. I advised counsel Alder (Ct.App.1971); P.2d 178 morning the Court (Ct.App. P.2d 194 ette, of the De- would allow the concerning 1974). threat fendant’s brother exceptions. This defendant failed to admissibility of governing the rules do. in Alder ette mentioned
such evidence following: premised as The defense is 20-4-404, (Repl. Section Tafoya sertion that the deceased and part: Supp.) reads Vol. aggressors and that the defendant had There were several person’s shot self-defense. character (a) Evidence eyewitnesses to the The state incident. is not admissi- character trait them; lady young was a called two of one proving purpose ble for the defendant, the car par- who was in with on a conformity therewith acted testi and the other was occasion, except: ticular Jesse mony young lady, which coincided victim was character victim offered fered homicide tion to rebut character [*] (2) Evidence by [*] an case to rebut evidence of trait of the first accused, [*] by of victim same, aggressor; peacefulness of a [*] or *4 pertinent prosecution or evidence of by the the crime [*] prosecu- trait [*] in a of a of- of argument is that which dence tradict or that the deceased gressors. Tafoya’s lished, could be introduced. ; therefore, the additional this. there was no other aggressors question as who was rule trial court has Tafoya having permits defendant’s defendant, of were the did not purpose for been misconduct such no al estab con evi sole ag crimes, wrongs, He is other ternative but to allow it. mistaken. (b) Evidence of circumstantial, prove the This evidence was collateral or is not admissible acts such, merely cumulative; to show and and as its person of in order character a conformity therewith. within the discre acted in admission rested sound that he Moraga, ev- not exclude the tion trial court. State subdivision does This Alderette, supra. There supra; other purposes, when idence offered Furthermore, motive, in- no abuse of proof opportunity, such as of may provides: knowledge, iden- “Error tent,, plan, 20-4-103(a) Rule preparation, predicated upon ruling which ad or accident. not be tity, or absence mistake or unless a substan mits excludes evidence [Emphasis added.] is right party affected tial supra, fol- reads as Section 20-4^105. evidence, .” Exclusion of this : lows event, a sub any would have affected right of the stantial defendant. in which evidence all (a) In cases of character of or a trait character the trial court (c)Defendant contends admissible, proof may be made person is by excluding wit- erred in evidence offered by reputation or testi- by as to regarding character. nesses decedent’s opinion. mony in the form an error. There is merit this claim of allowed cross-examination, inquiry is court (d) Defendant contends the of con- specific instances into relevant plain allowing error in examina committed duct. prior concerning state tion of witness a ments. or in which character (b) In cases is es- person an character trait of 103(d) of Rules of Evidence Rule [§ claim, or de- charge, sential element (Repl. 20-4-103(d), Vol. specif- fense, also be made may states: Supp.)] of his conduct.
ic instances
taking
precludes
Nothing in this rule
affecting substan-
plain
error
notice
trait evidence
or
character
Before
they were
introduced,
rights although
tial
can be
of decedent
judge.
brought
the attention
stated
bring
within one
must
himself
is
wording
of this rule
taken from drunk. On
ques-
cross-examination he was
Federal Rules
tioned about
52(b) of the
of Crimi-
an incident which occurred
nal
nights
Procedure.
two
shooting.
before the fatal
defendant had gotten
quarrel
into a
with
“Plain error” has been characterized in
some carnival workers and had fired six
ways
“grave
such as
errors
various
which
shots
them,
into the ground near one of
us-
seriously
rights
affect
substantial
pistol
the same
with which he shot the
accused,”
that result in a
“errors
clear mis-
deceased.
carriage
justice,” errors that
ob-
“are
* * *
20-4-607,
Section
supra, provides: “The
vious
seriously
or
otherwise
af-
credibility
of a witness
be attacked by
fairness, integrity,
public repu-
fect the
any party, including
party calling
him.”
judicial proceedings.”
tation of
United
As
was stated
State v.
Campbell,
States v.
F.2d 1144 (5th
Cir.
Hargrove,
Evidence, explains 608(b), its mean- eral Mexico, rule in New subject to excep- ing. quote, part, We the following: tions, was that evidence of collateral of- fenses, though character, similar in conduct,
Particular
instances
inadmissible in a
prosecution
criminal
though
subject
not the
of criminal con-
crime,
specific
establish a
viction,
during
even
inquired
be
into on cross-
cross-examination of a witness. State v.
principle
examination of
witness
Velarde,
224,
67 N.M.
(1960),
P.2d 522
himself
.
Effective cross-ex-
approval
cited with
Mason,
State v.
amination demands that some allowance
663,
N.M.
probative value the evidence in view availability of the of other means of We have held that the “[admis appropriate for and other factors sion or of evidence is a mat exclusion making decisions of this kind under Rule ter the discretion of the trial within court not be [Emphasis 403. and the court’s determination will added.]
gg appeal disturbed in the absence of circumstances show a killing clear abuse that discretion.” v. wicked and malignant [Emphasis State heart. Valdez, 632, 637, 1079, 83 495 P.2d added.] (Ct.App.1972), 1084 aff’d other together, challenge When read 720,
grounds, 83 N.M.
this rule. See United States v.
Defendant
liminary hearing.
468
(3rd
F.2d 238
1972);
Cir.
United
Gornick,
States v.
(7th
court’s order. you ted on them? re- What are Affirmed. ferring to there? is so ordered. Protecting myself, “A. and I was they
scared going were to kill me HERNANDEZ, they my because specially concurring. they told brother J., going every- me and kill ” HENDLEY, J., dissenting. thing. “A. ... Tony I know that Gutier- HERNANDEZ, Judge, specially concur- rez long for a time and we didn’t ring. get together But, along good. by my I concur the result reached anyway, before, you he’s this done Sutin, myself brother but I in dis- find know. agreement with reasoning under “Q. He’s done I, what? paragraph part (e), finds wherein he the challenged admissible un- people. “A. Assaulting der Rule 404(b), show A intent. review “Q. Like how? defendant’s relating Fights. “A. his claim of necessary self-defense is “Q. it What did do with ? an understanding issue. direct Knives, sticks, find, “A. what he could examination, the defendant testified in know, you weapons. as follows: “Q. you Are familiar with Mr. Gutier-
“Q. you Did have gun at that reputation community? rez’ time? Yes, sir. “A. Yes, “A. I did. “Q. reputation sort of does Mr. What “Q. kind of was it ? What have? Gutierrez “A. A .22 caliber. *8 with, begin is real nice to “A. not “Q. you When did get it? gets he kind of drunk because once got day. I it that “A. same It was a fight everybody. I he wants to Friday. ” it, you . . . didn’t like know.
“Q. Why you get it ? did by prosecutor cross-examination the myself. “A. To protect responded as follows: “Q. Why? “Q. then'you really had reason And guys going fight to to “A. From that were to believe that he wanted you, you, come after did on the 29th of me. June? Well, kicking question so came at me state defendant about a shoot- he “A. got At is when I him. I incident. the end of cross-examina-
that shot know, scared, you they were defendant’s motion a mistrial that tion for say, I me. I denied. Just, to kill like going they if have had a
wouldn’t chance that, The cross-examination disclosed got ground. the have me on would nights two before shooting question, the carrying defendant attended a carnival the “Q. you actually did that You iadmit same used in shooting the of decedent Tony shoot Gutierrez? manager and The carnival made Yes, sir, self-defense, know. “A. attack, threats of pushed cursed and de- against car. testified he “Specific injure did not have an part: intent to or kill 608(b) provides witness, manager for he for shot “four or five feet the conduct instances of credibility away ground” keep in the the manager attacking purpose away. probative of Defendant and a friend then ran ... may away re- and tried to bridge. and not hide under a untruthfulness truthfulness or manager caught The time, cross-ex- others defend- inquired into on mote in be ” ant’s up. friend and beat him my opinion . In amination section right under this had the 20-4-607, by Section relied on the ma- position credibility of defendant’s probe the jority question. does answer the Cer- inquiring that acted in self-defense credibility tainly of a witness be only nights into two before his conduct impeached. However, I fail to see how the same when several shots from he fired the carnival incident had to do anything pistol person. The committee at another credibility. with part: *9 sons. objection, allowed over defendant’s notes this section recite in commentary In federal 20-4- § “Effective cross-examination demands 404(b), it states determination to going be made allowance some by the be made is “whether the trial court kind, possi- into matters but danger outweighs of undue prejudice Conse- bilities of abuse substantial. probative value of evidence.” See also in the safeguards are quently erected is 20-4-^403. Our review to determine § specific requirements that the form of trial whether the abused its discre- inquired probative into instances Valdez, 49S tion. State v. P. its not re- opposite truthfulness or hold the 2d I would (Ct.App.1972). mote in time.” its trial court abused prior questions The and answers about probative of truthfulness incident were prejudice in is this case obvious. of defendant’s claim self-defense carnival incident the defendant casts remote in time. guy” is com- in the role of “bad who gun. probative with pletely reckless HENDLEY, Judge dissenting. in the instant is non-existent. value case respectfully I dissent from nothing to admitted has do opinion, relating majority (1) (e), go credibility. does it Neither regarding the admission intent, motive, prep- “proof opportunity, grant mo- I would carnival incident. aration, knowledge, identity, ab- plan, my rehearing. repeat will views tion for I mistake Section sence of or accident.” previously expressed in first opinion as (b). 20-4-404 majority which the have withdrawn. foregoing rea- reverse for the cross-examination, I would the trial court During