Tapia v. Rodriguez

• Decision Date: 16 August 1971
• Docket Number: No. 702-70.,702-70.
• Citation: 446 F.2d 410
• Parties: Pete TAPIA, No. 21097, Appellant, v. Felix RODRIGUEZ, Warden, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

446 F.2d 410 (1971)

Pete TAPIA, No. 21097, Appellant, v. Felix RODRIGUEZ, Warden, Appellee.

No. 702-70.

United States Court of Appeals, Tenth Circuit.

August 16, 1971.

Burton L. Cawthorne, Denver, Colo., for appellant.

Joseph F. Baca, Sp. Asst. Atty. Gen., Albuquerque, N. M. (James A. Maloney, Atty. Gen., Santa Fe, N. M., with him on the brief), for appellee.

Before HILL, SETH and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

This is an appeal from denial of habeas corpus relief wherein Pete Tapia, a prisoner of the State of New Mexico, seeks to collaterally attack his 1967 conviction, following trial by jury, for commission of the crime of armed robbery.

Tapia was found guilty of having robbed one Louis Quintana, an employee of Foodway Store, Albuquerque, at a liquor drive-in window section of the store at about 9:40 p. m. on the evening of April 28, 1967.

Quintana testified: Two men, each armed with guns, approached the well-lighted drive-in window; he was able only to identify Tapia, who was standing directly facing him holding a long barrel gun; Tapia was wearing a baseball cap pulled down over his head; Tapia bore a distinct scar below his mouth; Tapia said to him "Give me all the money or I will come in and get it."; he handed Tapia about $297.00 in bills; he watched the two men run toward Sunset Drive. The following day Quintana identified Tapia as one of the two gunmen from the police "mug book" containing some 350 photographs. About a week after the robbery, Quintana again identified Tapia from a police line-up. Quintana made an in-court identification of Tapia during trial.

Janice Morrison, then 19, testified that on the evening of the robbery she was horseback riding on a ditch bank within view of the Foodway Store. She saw three men running toward her. They came very close to her as she observed them. That same evening she was contacted by a policeman as she was viewing a fire in the area. She was asked by the policeman if she had seen three men in the area of the Foodway Store earlier that evening. She replied that she had seen three men there at about 9:30 p. m. or 10:00 p. m. Soon thereafter she looked through a "whole bunch" of pictures which she later estimated at about twenty at the Sheriff's office, from which she identified Tapia as one of the men she had seen that evening. She acknowledged that she had not noted the scar on Tapia's chin that evening. When asked whether there was any particular feature about the person which she identified from the photographs she responded that "he had a scar on his chin". On May 1 or 2, 1967, she attended a line-up involving about six men, including Tapia. She identified Tapia at the line-up as one of the three men she saw on the evening of April 28th. She, too, made an in-court identification of Tapia during trial.

Detective Torres testified that after the armed robbery incident he spoke with Quintana. He displayed the "mug book" to Quintana, containing about 350 photos of persons including that of Tapia. He testified that "the mug book is a large book containing photographs of suspects we have in Bernalillo County. This refers to burglary, armed robbery, narcotic addicts." No objection was made to this testimony. The trial court did not instruct the jury to disregard it.

Tapia testified that he had gone out with a friend, one Charles Romero, on the evening of April 28th, to do some nightclubbing. He stated that he and Romero arrived at the Bondsman Lounge at about 6:30 o'clock p. m. and remained there until about 11:00 o'clock p. m. Tapia testified that he had had the scar on his chin since childhood when he fell on a tin can. Tapia's testimony concerning the evening spent at the Bondsman Lounge was corroborated by Charles Romero.

Tapia called Eliseo Cuellar as an alibi witness. Cuellar worked during the evening of April 28th for the Duke City Merchant Police, stationed at the Bondsman Lounge. He testified that he had seen Tapia there before and that he saw him there on the evening of April 28th. Cuellar stated that he went on duty about 8:30 p. m. that evening and that he recalled seeing Tapia at that time. He testified that Tapia remained in the Bondsman Lounge for about two or three hours. On cross-examination Cuellar testified that he saw Tapia at the Bondsman Lounge every Friday and Saturday evening. He stated that between April 28th and September 27th that he had no occasion to recollect Tapia's presence at the Lounge on the evening of April 28th. When asked on re-direct examination what called his attention to Tapia's presence in the Lounge on the evening of April 28th, Cuellar replied "I don't know. I figure wearing sunglasses, I figure he was a dope addict. That is what I notice wearing glasses." Cuellar stated that Tapia was the only person who wore dark sunglasses in the Bondsman Lounge. On re-cross-examination, Cuellar acknowledged that he may have been mistaken about seeing Tapia at the Bondsman Lounge on the evening of April 28th and that it may have been July 28th instead, and that it probably was the latter date. He had previously testified that he did not work at the Bondsman after April 28th. His wife, Emma Cuellar, testified that he worked at the Bondsman April 28th and 29th, that he worked there three days in June and six days in July, including July 28th. She said that a riot occurred at the Bondsman Lounge on the evening of July 28th when about twenty men attacked Cuellar. On re-direct, Cuellar said that a riot did occur at the bar on the evening of July 28th but that he could not remember whether Tapia was there that evening.

Delbert Manzanares testified that he was working at the Bondsman Lounge on the evening of April 28, 1967. He knew Pete Tapia previously and recalled serving him some drinks there that evening. He said that Tapia was in the Lounge between 7 o'clock p. m. and 11 o'clock p. m. He acknowledged that he had only recently been contacted to testify on behalf of Tapia and that he did not reflect on the evening of April 28th until then — a lapse of about four months. He said that Tapia came to the Lounge about every Friday and Saturday nights, but could not remember when Tapia was last there.

Tapia moved for a directed verdict which was denied. Following sentence he appealed to the Court of Appeals of New Mexico. There the Court found that the evidence was, viewed in the light most favorable to the prosecution, sufficient to support the jury verdict. With respect to the appellant's contentions concerning testimony and remarks about the police "mug book" the Court noted that Tapia's counsel neither objected nor moved to strike or suppress. The Court did not find reference to, and testimony concerning, the extra-judicial identification of Tapia from the "mug book" to constitute plain or fundamental error. The Court held that the fundamental error rule is to be applied only to prevent a miscarriage of justice and that it is not to be applied to excuse failure to make proper objections at trial. The Court affirmed. State v. Tapia, 79 N.M. 344, 443 P.2d 514 (1968). The same Court denied post-conviction relief. Tapia contended that his court appointed counsel was incompetent and inadequate in that (a) he failed to use compulsory process to subpoena a fourth alibi witness; (b) he failed to object to extra-judicial identification of Tapia by prosecuting witnesses; and (c) he failed to invoke the fundmental error rule during his trial. The Court held that none of the contentions amounted to a showing that Tapia's counsel rendered his trial a sham, farce or mockery. State v. Tapia, 80 N.M. 477, 457 P.2d 996 (1969).

An evidentiary hearing was held upon Tapia's petition for habeas corpus relief in the court below. He claimed denial of due process by reason of (a) his attorney's inadequacy to object to the "mug book" testimony; (b) the admission of the "mug book" testimony without objection; and (c) the detrimental effect of (a) and (b) in light of the fact they were not considered on direct appeal for failure to object. Tapia's trial counsel testified that he had been admitted to the New Mexico Bar only about nine months prior to Tapia's trial; that he had not been trial counsel in a felony case before; that he had been assisted throughout trial by another lawyer who had practiced for a little over one year. He recalled that he did not object to the "mug book" testimony and that he did not move for mistrial. On October 19, 1970, the court below dismissed the habeas petition. The Court separately found that trial counsel did not object to the "mug book" trial testimony. The Court concluded that Tapia was represented by adequate and effective counsel and was not denied due process of law. This appeal followed.

We hold that the "mug book" testimony and remarks relative thereto, though improper, did not constitute plain or fundamental error within the purview of Rule 52(b), Fed.R.Crim.P. Such error has been by this court described as "serious prejudicial error" in the conduct of the trial affecting life or liberty requiring notice and corrective action by the appellate court, notwithstanding that it was not called to the attention of the trial court. Whaley v. United States, 394 F.2d 399 (10th Cir. 1968); Cleaver v. United States, 238 F.2d 766 (10th Cir. 1956). In Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), the Supreme Court said that the test is whether the error did not influence the jury, or had but very slight effect. In determining whether the "plain error" rule should be invoked the appellate court must consider the whole record. Adams v. United States, 375 F. 2d 635 (10th Cir. 1967), cert. denied 389 U.S. 880, 88 S.Ct. 117, 19 L.Ed.2d 173 (1967).

This court follows the rule that when a defendant testifies in a criminal proceeding his credibility may be impeached by limited reference to prior convictions. United States v. Perea, 413 F. 2d 65 (10th Cir. 1969), cert....