State v. Ortiz

Mexico, Plaintiff-Appellee, STATE of New ORTIZ, Defendant-Appellant.

Michael J.

No. 1751. Appeals

Court of of New Mexico.

Sept. 10, 1975. Walter, Public De- Jr., Chief

Chester H. Herr, Appellate fender, Defend- Bruce L. Appellate er, Singleton, Asst. M. Sarah defendant-appel- Fe, Defender, for Santa lant. Gen., Anaya, Atty. Jay F. Rosen-

Toney Shoesmith, thal, Roybal, Mark G. Charles Fe, plaintiff- Gen., for Attys. Santa Asst. appellee.

OPINION LOPEZ, Judge. grand indicted defendant was County the murder

jury of Bernalillo firearm, by means Duran of Arthur 40A-2-3, 40A-2-1, 40A-29- contrary to §§ 3.1, Repl.Vol. and for test (2d 6) taken on a rebuttal witness of the de- aggravated battery Abeyta of Tim fendant. itsOn face the defendant’s chal- firearm, contrary lenge means of a 40A- stip- is curious because the defendant §§ 40A-29-3.1, (2d qualifications 3-5 ulated to the of the examiner Repl.Vol. 6). Following trial the object and did not to the introduction of voluntary guilty defendant was found of the evidence. The defendant’s on claim manslaughter battery; appeal aggravated and judge is the trial nonetheless both found in admitting offenses were to have been erred because there results judg- committed awith firearm. After was insufficient evidence that the examin- imposed, qualified ment and sentence the de- ers were were and the tests were relia- appealed. fendant We affirm. ble. The defendant challenge bases this on Supreme in the opinion dicta Court’s in presents points defendant The five for Lucero, State v. 86 N.M. 526 P.2d reversal: (1) polygraph admission of evi- (1974), poly- where it was said that dence; (2) jurors exclusion of who would graph only results were admissible when: guilty not return a degree verdict for first (1) stipulated the tests were both murder; (3) restriction of the defendant’s parties, made, (2) objections no cross-examination, were and witness; juvenile (3) procedure general the entire satisfied prior admission of evidence of a crime (4) reliability. Dorsey, criteria of In State v. defendant; (5) of the testi- admission (1975), 88 N.M. decided mony a in present of witness who was case, after oral in this the Su- exclusionary courtroom in violation of preme was faced with a where Court case rule. contested, reliability test was not 4, 1974,Penny evening On the March yet objection there was to its introduction. Apodaca, years Marie Lisa age, and in Dorsey The situation was the converse year runaway a 14 old from Ore- Supreme of the situation before The us. gon, driving were around with the defend- opinion instructive, however, Court’s ant, Ortiz, Michael who was at that reversing prior their stance in Lucero years They stopped in old. front of the ad- the court indicated that henceforth the Albuquerque. Alibi Inn on Fourth Street missibility polygraph evidence would be differ. The accounts of what followed governed by Ev- the New Mexico Rules of testimony The of the two women was Therefore, idence. we have no reason ap- got out of the car and parties appeal suppose that who wish to Duran, proached men, Abeyta two and who admissibility polygraph evidence are standing Inn. de- were outside the The challenging excused from admission at its money. fendant asked the two men for the Rules of Evidence trial. 103 of men, Abeyta, gun a One of the (§ 20-4-103, away. put the defendant asked him to Supp.1973)). Abeyta and gave gun defendant (2) Exclusion Jurors Abeyta proceeded shoot the women The defendant and Duran. point The defendant’s of er second the de- then drove back to the motel where allowing is that the trial ror erred police fendant The arrived living. prosecutor prospective to voir dire the theory after hours. The advanced several capital jurors feelings regarding on their that the defend- the defense at trial was punishment excusing those for cause ant remained in the car and one capital punish jurors opposed who were women had shot the victims. ment. Polygraph Evidence (1) indicted, presum- The defendant was tried, point ably degree a first charge first

The defendant’s murder, mandatory death challenge judge’s order admit which carries a to the trial 40A-29-2, polygraph ting the results of a Section evidence of sentence. ju- U.S.App.D.C. All Repl.Vol. Supp.1973). those F.2d

(2d (1962), excused for cause stated where the court said: rors who were during voir examination that dire “The at which an accused is en- guilty of return a verdict of first could not titled to fair cross-section of the com- murder, degree regardless of what munity is when the names are in the put contests the facts showed. panels box from which the drawn. are grounds. on two jurors exclusion these rights re- of an accused in first is that exclusion of the spect panel jury (1) and final opposed de- systematic, that there be intentional right to trial prived the defendant of his exclusion of section of the communi- community. The by a cross-section of the ty (2) that there be left as fitted for these re- is that exclusion of second person.” prejudiced service no biased or composed of in a which was sulted argument The defendant’s cross-section prosecu- the persons who tended to favor is stage addressed the at the final to which tion. chosen, jury stage not at the is the which argument the defendant was chosen, panel is and therefore must fail. by a right to cross-sec- a denied of community the exclusion tion of the The second of the defend prong reasoning that jurors on the these is based argument jurors ant’s is that left for those an and identifiable those excluded form jury scrupled jurors after are service the class, therefore, and, be ex- cannot distinct excused, prejudiced are in the sense that compelling except there are cluded where they likely prosecu more to are favor the Taylor g., e. grounds of state interest. See Support tion those are than who excused. Louisiana, 692, 42 522, 95 S.Ct. v. 419 U.S. general proposition in for this is found Texas, (1975); v. 690 studies, L.Ed.2d Hernandez discussed several recent which are 667, 475, 866 98 L.Ed. 74 S.Ct. White, 347 U.S. Invalidity in The Constitutional (1954). Imposed by Death-Qualified Convictions Juries, (1973). 58 Cornell L.Rev. 1176 is difficulty with this Louisiana, supra at Taylor voiced in v. hand, jurors if On the other who stated 702: they which could return a verdict mandatory penalty were al- carried a emphasized that “It should also be jury, lowed the to remain on drawn petit juries must be holding that appear state’s to constitute a denial of the fairly representative from a source right juror preju- has to eliminate a who require- community impose no the we “ ** * prevent him from dices which actually juries chosen petit ment that govern- standing indifferent between reflect community mirror the and must accused, trying from and and ment pop- groups in the various distinctive according to the law and the evidence case a not entitled to Defendants are ulation. * * * States, Logan v. 144 U. United composition, jury any particular 617, 628, 298, 429 263, * * L.Ed. 12 S.Ct. 36 S. wheels, pools of jury but Alabama, 380 (1891). also Swain v. names, from panels or venires 824, 219-20, 202, 13 L.Ed.2d U.S. S.Ct. systematically

juries are drawn must Missouri, Hayes 120 U.S. (1964); v. in the commu- groups exclude distinctive (1887); 30 L.Ed. 578 S.Ct. reasonably thereby fail be nity to (1969). Pace, 456 P.2d 197 N.M. omit- representative thereof.” [Citations ted] is by this conflict generated issue “ * * * in sub- argument with whether State’s This same cross-section interest capable jury a issue to respect mitting penalty elimination of may punishment be capital raised and capital punishment was opposed imposing States, expense at the in Turberville vindicated rejected v. United statute, present im- completely fair determination discretion in interest in a posing penalty. *Wither the death no guilt innocence We cited or are Illinois, supporting proposition cases spoon 520 n. 391 U.S. 1770, 1776, questioned they L.Ed.2d 784 cannot be as to whether 88 S.Ct. will follow the law the case and would merely impar- observe right that the to an us, the case before unlike case “ * * * jury tial carries with it the con- option using a Witherspoon, there is right steps comitant to to take reasonable bifurcated trial as device to be fair impartial.” that the insure is Ham v. White, to both sides. See The Con- Carolina, 524, 532, South 409 U.S. 93 S.Ct. Invalidity stitutional Im- of Convictions 848, 853, (separate 46 (1972) 35 L.Ed.2d posed by Death-Qualified supra Juries, Marshall, opinion dissenting of Mr. 1217 n. 218. Justice part concurring part). One attempt Before we would want re- important the most securing methods of the'very questions solve difficult raised yet this right right challenge, is the rights, this clash of we would more want “ * * * right challenge has little analysis information than available meaning unaccompanied by if it Thus, surveys to us now. that have been right questions to ask relevant on voir dire concerning “oppose” made those who upon challenge which the for cause can be “favor” death must be evaluated predicated.” applicable determine whether jurors qualified post-Witherspoon under a Finally, we are not insensitive to the standard; that is those who state danger improperly the state will circum- there are some conceivable charge defendants with a carrying crimes they stances under which could return a mandatory penalty, so to take ad- verdict guilty degree of first murder. vantage greater challenges of the for cause Another area of interest is whether there thereby allowed. This issue was not any excusing jurors means of who “fa- briefed in this case and we will until wait prosecution, by vor” the re- as shown .their appropriate a presented more case is to sponses penalty, about to the death so as confront it. re- jury arrive at a which is neutral with (3) Cross-examination a Juvenile gard guilt. gaps Other in the state of knowledge public’s current about the atti- by The third raised the de tude towards are indicat- the death right fendant is that his of cross-examina Ellsworth, Opin- ed in Vidmar and Public unconstitutionally tion was restricted. The Penalty, ion Death and the 26 Stan.L.Rev. during arose the cross-examination of issue Reese, was, Ms. as the defendant importance Given the extreme and com- argues, a crucial witness the state. plexity involved, of the issue we are unable question The defendant contends that his agree data the defendant that the ing as to certain tatoos the witness longer is no in fragmen- the “tentative and surrounding the details in the witness’ tary” Supreme in condition which the juvenile have carceration in a home should Witherspoon. Court found it in There- been allowed. We are unable to reach the fore, neither the basis on studies cit- arguments merits of either of be these ed to us the defendant nor on the basis preserve cause of the defendant’s failure to judicial notice can we conclude that the his claimed errors. defendant denied a was im- was challenges the refusal of The defendant partial guilt on the issue of or innocence. judge the trial to allow an answer to got question, “Lisa, you have argues The defendant that it was I notice your Would improper to voir dire a number of tatoos on potential arm. have, you tell us about those ?” this issue because do not under guess that we are argues unwilling ques- as to what In his brief prevented were tions the the witness bore defendant was from the tatoos which asking. explain result self-inflicted, therefore evidence We will this summary an of the various theories under of conduct relevant to assessment of have credibility. might 608 of the Rules the evidence been of- witness’ Rule fered. 20-4-608, (§ Evidence N.M.S.A.1953 (Repl.Vol. Supp.l973)). Whatever Before we determine if can evidence of there is no indica- merits juvenile adjudication have been trial judge that the was tion the record admissible under Rule 609 of Rules of “ * * ever informed that the believed Evidence, we must know if con self-inflicted, nor tatoos were viction of the offense would be admissible can- proffer there to that effect. We credibility to attack the of an adult.” (§ was error for not hold it 20-4-609, (Repl.Vol. question given objection sustain an Supp.1973)). For evidence of wit purpose asking it. knowledge ness’ bad character have been admissible (§ 20- the Rules 103 of Evidence, under Rule 608 of the Rules of 4, Supp. 4-103, it would had to have have been evidence of “ * * * 1973)). specific pro conduct which was bative of truthfulness or untruthfulness Ms. the exclusion of The issue of and not remote Since compli is a more juvenile Reese’s record we do not the juve know of what offense time of cated Ms. one. convicted, nile was what nor conduct the Hillcrest, from murder, runaway was a expose, intended to we cannot de Oregon. juvenile institution rule on whether evidence of the conviction her attempted at trial to discuss fendant have should been admitted ex these background: ceptions general rule of inadmissibil Now, you long had been “Q. how ity of character evidence. The defendant Hillcrest, long you how or . Alaska, also relies Davis v 415 U.S. away? you ran there before been (1974) 39 L.Ed.2d 347 S.Ct. just before? Altogether “A. or proof as questions wrongly that their were “Q. Altogether. compounds excluded. use Davis The ' “A. months. problems Ten our lack of caused our knowl edge questions. excluded Davis put there because “Q. you And were juvenile’s the record was ordered admitted incorrigible, that you were might to show that the witness have been ? right parole biased because of a fear that his drug Yeah, I because had a “A. and would be revoked. The Court’s decision problem.” particular reflects a finding that the evi objected any fur- At this the state bearing dence offered had a on the wit line” the this questioning ther “on credibility. Again, ness’ in the absence of objection. de- The the sustained rejected speculate questions the we cannot as proffer to what fendant made on how defendant would have the called been, questions have and what would next credibility. question into the witness’ the Rule expected he to show. Prior (4) Crimes that is not states error Rules Evidence excluding preserved ruling predicates in the case of error on or proffer was made the court’s failure to exclude testimo unless a evidence “ * * * ny by evidence substance of the witness that contained references the * * * prior from context to a apparent the crime of the defendant. was questions surrounding within were asked.” circumstances the contested prob- Apodaca, evidence the evidentiary were that Because of the difficult Ms. witness, questioning describing lems in this sort of first involved state’s was the ac- she, tions that Ms. and the defend- shooting a short time before. State ant had taken after shooting incident Borrego, 52 N.M. 195 P.2d upon prose- their return to the motel. dispute We not that it have do cutor asked her about improper been state have intro- laughter and she said : separately prior duced this evidence cooking sitting robbery

“While we were he was that armed and to extent chair, in the cooking agreement we with about he was laughing saying meaning 404(b). he had that of Rule gotten away Ross, robbery (Ct.App.) May be- with an armed decided fore, or something.” 1975. When evidence is for one admissible

After further questioning, unrelated purpose (to establish subject was resumed: knowingly gun had used a earlier “Q. Now, you after mac- up cooked evening) but not another admissible for aroni, you do What what did ? purpose (to show that the defendant had did do. Mike prior crimes) committed how is the deci- just Then “A. we ate and he tell- sion made whether or ? to admit it ing us about the trouble he Rule 106 (§ Evidence 20- Rules gotten in rob- before with armed 4-106, Supp. bery.” general 1973)) states the rule: interjected The defendant his unsuccessful “When evidence which is admissible as objection questioning and then the contin- party purpose one or for one but not ued: party admissible to another or for an- admitted, other purpose judge, “Q. Okay, things what Mike other did upon request, shall restrict evidence say you Ortiz while proper its scope and instruct the you eating were sitting down ? accordingly.” he us “A. had friends and for Just upon This rule does not a naive faith rest say anything, he and that instructions; many in curative there are away gotten it before.” instances when dangers prejudice, argues exchange The defendant drawn into consideration Rule and, prior reveals crime evidence might dictate the evidence exclusion of therefore, have should been excluded See, otherwise admissible under Rule 105. (§ Rules 404(b) Advisory Proposed Committee Notes for 20-4-404, 4, (Repl.Vol. Rules of Evidence for United States Courts Supp.1973)). argues this The state that Magistrates; Denno, Jackson v. 378 exchange is ex- admissible under various 368, 908, 1774, 12 1 U.S. 84 S.Ct. L.Ed.2d ceptions hearsay to the rule. (1964). A.L.R.3d 1205 In the case before exchange view this an admission the previous as us mention of the armed rob We bery casual, just partici- that was off-handed whereas the defendant he pated evidentiary robbery. in an armed The defendant the of the ex value entire robbery change Therefore, he compelling. we are was not tried for armed but was aggravated bat- willing was tried for murder and the not to conclude here that tery gun enhancement statute not have instruc limiting the followed tions, requested, prejudicial and this admission is therefore relevant if so the exchange could this entire effect of this could been offense. The evidence have de- Spencer a statement the also be viewed as of minimized. v. Tex State as, 648, 385 existing fendant's then mental condition. 87 U.S. S.Ct. 17 L.Ed.2d States, (§ (Repl.Vol. (1967); Michelson v. 20-4-803(3), N.M.S.A.1953 606 United de- 16 Supp.1973)), is 335 U.S. 93 L.Ed. relevant the S.Ct. the (1948). fendant’s mind the time state of at timony conform to

(5) Witness Exclusion that of Ms. or to Reese Apodaca; of Ms. since he did not is fifth of error The defendant’s hear the testimony, defendant’s he would permitting erred in the the trial court have been unaware of which version would testimony rebuttal witness for the exposed have the testimony defendant’s dur- state who had been the courtroom inaccurate. There danger was no Mr. testimony vio- ing the of other witnesses adopting Cordova story elaborate rule. lation of the exclusion of witnesses the episode trailer court Apoda- from Ms. takes excluding The rule witnesses ca, since she related details no at all about upon request any party. Rule effect the Therefore, it. particular in this because 20-4—615, (§ the 615 of Rules of Evidence situation exclusionary the reasons for the 4, Supp.1973)). involved, rule were not it was abuse not an remedy appro is The decision as to what judge’s of the trial discretion to allow the priate in the is violated is event rule testify. witness to v. judge, the discretion of trial State Barboa, (Ct. 84 N.M. Finally, is con cpnsidera App.1973); controlling cerned the suggestion with State made in prejudice complaining party. tion is Barboa, supra, it that would be advisable Romero, Barboa, supra; State v. the trial to determine whether N.M. P.2d 58 the counsel condoned the witness’ violation find that the trial court’s this case we suggestion rule. That sub properly discretion was exercised. The stantially complied is with evinced rule, Albert Cor- violated witness judge’s questioning prosecutor dova, a heated confrontation testified about judge’s subsequent statement that that had occurred at prosecutor was unaware that he would evening the shoot- court in the trailer be calling the witness. witnesses, ing. prosecution Ms. One The judgment and af- sentence are no that there had been ar- testified firmed. pros- park; gument the other at the trailer isIt so ordered. witness, Apodaca, testified Ms. ecution Apodaca said she hadn’t there Ms. had. SUTIN, J., concurs. gave the incident and details witnessed that there had denied of it. WOOD, specially J., concurring. C. trailer court. been present during the two Mr. Cordova was concur- WOOD, (specially Judge Chief present testimony; he was womens’ ring). testimony. during only, the extended in the I result concur excluding purpose of the rule unnecessary. discussion party an give the adverse witnesses “ * qualifications stipulated to the Defendant expose inconsist opportunity ob- and did examiner polygraph testimony.” 3 Weinstein’s encies their results. the test introduction of ject (1975); and & n. [[615[01] “ ** concerning the examina- His contentions possibility of prevent the one on for the first are raised tion results testimony to shaping his match witness under considered should not be appeal and given by other witnesses Chavez, * * *>< v. Rule 11. State Appellate Leggett, v. 326 United States Cir.1964), 238, (Ct.App.1970). 566 denied, 82 N.M. 377 (4th rt. 613 F.2d ce 12 L.Ed.2d 499 84 S.Ct. cause U.S. jurors excused prospective (1964). a verdict return could stated regardless degree murder first guilty of In Cordova this case Mr. excused. properly They the facts. make tes- whether to have had chose 378 Pace, P.2d N.M. 456

See State v. 80 argument At counsel con-

197 oral the record does not show

ceded that sat in case were representative

fact a cross-section Gonzales, community. v. See State (Ct.App.1971).

N.M. P.2d diring prospective voir concerning to their beliefs rep- deprived defendant of support no factual

resentative has

the record.

There is no basis for claim juvenile concerning a

cross-examination unduly Defendant

record was restricted. Evidence

made under Rule of no tender

103(a)(2). shortly testimony a witness that he stated that

after the crime defendant away robbery was gotten armed 803(3)

admissible Rule of testimony showed

because

existing state of mind. re permitting the witness who testify re

mained in the courtroom complied

buttal, substantially trial court procedure suggested

with the (Ct.

Barboa, 84 N.M. P.2d

App.1973). P.2d Mexico, Plaintiff-Appellee,

STATE of New Defendant-Appellant. SANCHEZ,

Clarence

No. 1685. Appeals New Mexico.

Court 25, 1975.

June July 1975. Granted

Certiorari

Case Details

Case Name: State v. Ortiz

Court Name: New Mexico Court of Appeals

Date Published: Sep 10, 1975

Citation: 540 P.2d 850

Docket Number: 1751

Court Abbreviation: N.M. Ct. App.