1998 -NMSC- 34, State v. McDonald

• Decision Date: 23 September 1998
• Docket Number: No. 23,946,23,946
• Citation: 126 N.M. 44,966 P.2d 752,1998 NMSC 34
• Parties: , 1998 -NMSC- 34 STATE of New Mexico, Plaintiff-Appellee, v. Wesley McDONALD, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 752

966 P.2d 752

126 N.M. 44, 1998 -NMSC- 34

STATE of New Mexico, Plaintiff-Appellee, v. Wesley McDONALD, Defendant-Appellant.

No. 23,946.

Supreme Court of New Mexico.

Sept. 23, 1998.

Phyllis H. Subin, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Appellant.

Tom Udall, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

FRANCHINI, Chief Justice.

¶1 Wesley McDonald was convicted of, among other crimes, first degree murder under NMSA 1978, § 30-2-1(A) (1994) and sentenced to life in prison. The issues in this appeal concern four events at trial. We affirm.

I. FACTS AND ISSUES

¶2 McDonald and his girlfriend, Julie Stanfill, met the victim, Ernesto Garcia, at the latter's home on Friday evening, September 29, 1995. They had come to collect forty dollars owed to Stanfill for cleaning Garcia's house. When they arrived, Garcia was in his car, and they got in with him. They drove around Alamogordo for a time and stopped near a golf course. McDonald and Garcia started arguing. According to Stanfill's eyewitness testimony, McDonald, who was in the back seat, hit Garcia over the head with a bottle, then pulled him into the back and strangled him with his hands. McDonald and Stanfill then drove to El Paso, Texas, where they buried the body.

¶3 The first trial event involves the testimony of a man who was a cell mate of McDonald while the latter was awaiting trial (Cell Mate One). For four or five days, a second cell mate (Cell Mate Two) was incarcerated with McDonald and Cell Mate One. McDonald and Cell Mate One were both Anglo; Cell Mate Two was Hispanic. According to a pre-trial statement by Cell Mate One, McDonald was silent about his crime until the departure of Cell Mate Two from the cell, whereupon McDonald confessed to the crime in detail, at one point referring to Garcia with foul, anti-Hispanic comments. A motion in limine to delete the anti-Hispanic segments of the statement was denied because the trial judge saw anti-Hispanic animus as a factor in the motive for the killing. The denial of the motion is not in issue here.

¶4 Cell Mate One testified at trial, and, when he was initially asked why he thought McDonald had remained quiet about his acts until Cell Mate Two was removed, Cell Mate One was hesitant to offer an opinion. There was a bench conference, where it became plain that the reason for McDonald's initial failure to speak was relevant, since defense counsel had asserted that Cell Mate One had fabricated the whole story. The judge ruled that what was bound to ensue--a statement including further anti-Hispanic references on the part of McDonald--would be more probative than prejudicial. The prosecutor reasoned that the evidence would explain McDonald's initial failure to speak. The prosecutor was cautioned to go no further than required and, in fact, the prosecutor elicited the statement that McDonald had confided only in Cell Mate One because they "were the same race."

¶5 The second event at trial concerned lengthy testimony by the State's forensic expert on blood splatter patterns. The expert testified extensively on two types of blood stains found on a T-shirt and boots belonging to McDonald. Medium velocity stains on the two items were said to be consistent with blood splatter stains caused when an individual is hit hard enough to cause blood to fly from the wound. In this case, transfer stains occurred when the items came into contact with blood fresh enough to be absorbed. The State's DNA expert testified that the blood found on the items matched the blood of the victim.

¶6 Defense counsel then questioned the forensic analyst to show that the blood patterns were not indicative that McDonald was the killer--that the patterns would be the same if he were merely in the car at the time of the murder, for example. Defense counsel was also apparently trying to show, through questions on coagulation, that the transfer stains could have resulted from contact with the body hours later, under the theory that McDonald was not the murderer, but merely helped the true murderer, his girlfriend, dispose of the body.

¶7 On redirect examination, the prosecutor asked the witness how much blood would be on the car seats five-and-one-half hours after the murder and whether it would be dried or absorbed by the seats by then. The expert stated that this would depend on the initial thickness of the blood on the seats. He was then asked how long it would take for the blood to solidify, and he responded that it would depend on the volume of blood present, and he also noted that blood coagulates at different rates for different people.

¶8 At this point, the judge read a question from a juror relating to the effect, if any, that being a diabetic would have on clotting time (the victim having been supposed to be a diabetic). The expert responded that he was not qualified to answer the question. The court then asked, "when we are talking about variations in clotting time, are we talking about variations of seconds, minutes, hours, or days?" The expert answered that it was a matter of seconds or minutes, whereupon defense counsel asked how he could answer that question if the victim may have been a diabetic.

¶9 The judge then asked the question objected to herein: "Do you know enough to tell me if it took three hours for my blood to clot whether I would be here today or not?" The expert answered, "Depending on the size of the wound, you may not be here." McDonald now claims that the judge's statement indicated that the defense theory--that the blood was capable of being transferred for a long while after the initial wound--was weak, and that this was a reinterpretation of the evidence. From all appearances, the judge's question was asked in earnest, although it provoked a snicker from the prosecutor.

¶10 There is, thirdly, an objection to the admissibility of testimony given by the State expert on the identification, analysis, and typing of DNA. Specifically, his qualifications are compared to those of DNA experts called in the case of State v. Anderson, 118 N.M. 284, 292-95, 881 P.2d 29, 37-40 (1994), where the experts held doctoral degrees in various relevant sciences. The expert in the instant case held a bachelor of science degree in biology and was the DNA analyst for the New Mexico Department of Public Safety. His training consisted of a specialized course in molecular biology at the University of New Mexico and a course in DNA analysis with the FBI.

¶11 The last issue raised by McDonald concerns the admission into evidence of the fact that he, at one point, had smoked marijuana. A hitchhiker, who was picked up by McDonald on his trip back from El Paso, testified that, on the way, they drank beer and threw the bottles out the window of the car. Once back in Alamogordo, according to the testimony, the hitchhiker "did sit down and smoke a joint with him and he relaxed."

II. DISCUSSION

A. Sensitive Testimony

¶12 The improper and unnecessary interjection of racial or ethnic issues into a criminal trial is one of the most seriously prejudicial events that can transpire in a court of law. There is no place for irrelevant racial or ethnic material in the courtroom, and the non-probative introduction of such evidence is treated by the leading authorities almost always as harmful error.

¶13 There are, nonetheless, instances when references to race or ethnicity may be legitimate during trial. This is true when the motive for a crime is racial hatred. In such a case, evidence of such hatred is relevant and admissible in spite of its potential prejudicial effect. United States v. Beasley, 72 F.3d 1518, 1528 (11th Cir.1996). Furthermore, " '[r]acist proceedings,' in the context of a jury trial, are those where the issue of race so permeates the trial in a discriminatory manner that justice could not possibly be done." State v. Bowles, 530 N.W.2d 521, 536 n. 21 (Minn.1995) (emphasis added). Finally, it is well-established that where the racially tinged evidence is relevant to an issue in the case and not prejudicial to the defendant, there is no error. United States v. Hoyte, 51 F.3d 1239, 1244 (4th Cir .1995); Mallory v. State, 261 Ga. 625, 409 S.E.2d 839, 842 (Ga.1991).

¶14 We review the admission of the questioned testimony under an abuse of discretion standard to see whether the probative value of the evidence was outweighed by any prejudicial effect. State v. Meadors, 121 N.M. 38, 48, 908 P.2d 731, 741 (1995). In the instant case, after listening to the statement of Cell Mate One, the trial judge apparently concluded that McDonald's anti-Hispanic comments about the victim and others could be put before the jury on the issue of motive. We cannot say on such facts that it was an abuse of discretion for her to do so. It was also proper to introduce McDonald's comments after Cell Mate Two departed, because the evidence was probative of the State's claim that McDonald actually had confessed to the crime in detail. McDonald had asserted that the witness made up the story.

¶15 It has not been suggested that evidence touching on ethnic, racial, linguistic, or cultural background is per se prejudicial. McDonald has pointed out that the issue of anti-Hispanic animus entered into this trial in the specific contexts discussed above. McDonald has not shown that there was any tendency for the matter to become at all inflamed beyond its legal validity in the minds of the jury; the issue of anti-Hispanic animus was in no way utilized argumentatively for its own sake by the prosecutor. Since we detect no aspect of the testimony that was prejudicial and not probative, we find no abuse of discretion in the admission of the testimony.

B. Judge's Comment on the Clotting of Blood

¶16 A trial judge " 'must be careful not to say or do anything which would add to a party's burden of proof, or detract from the presumption to which a person charged...