State v. Vigil

• Decision Date: 21 March 1975
• Docket Number: No. 9953,9953
• Citation: 87 N.M. 345,533 P.2d 578,1975 NMSC 13
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David G. VIGIL, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 578

533 P.2d 578

87 N.M. 345

STATE of New Mexico, Plaintiff-Appellee, v. David G. VIGIL, Defendant-Appellant.

No. 9953.

Supreme Court of New Mexico.

March 21, 1975.

Jones, Gallegos, Snead & Wertheim, John Wentworth, Santa Fe, for defendant-appellant

David L. Norvell, Atty. Gen., George A. Morrison, Sp. Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

MONTOYA, Justice.

On February 13, 1973, the Rio Arriba County grand jury returned an indictment against defendant David G. Vigil, charging him with murder in violation of § 40A--2--1, N.M.S.A., 1953 (2d Repl. Vol. 6, 1972). The case was heard before a jury in the District Court of Rio Arriba County. The jury found defendant guilty of murder in the first degree and, on August 20, 1973, judgment and sentence were entered.

On appeal the initial point asserted by defendant is that the trial court committed reversible error when, at the time of cross-examination, it refused defendant the right to inspect Police Officer Martinez' prior written statements. From the record, it appears that there were three police reports prepared. The first was produced after commencement of cross-examination of Officer Martinez during the State's case in chief. The second report was prepared specially for the grand jury. It was sealed by the trial judge and was never made available to defendant. The third, or 'supplementary report,' was not produced until after both parties had rested and Officer Martinez was recalled by the State as a rebuttal witness. Thus, defendant is contending that the failure to make available the report 'prepared for the grand jury' and the 'supplementary report,' which was not produced for defendant until rebuttal by the State and not for cross-examination during the State's case in chief, was reversible error. We agree with defendant.

The law in New Mexico as to the duty of supplying the defendant with prior written statements of a witness was presented in State v. Herrera, 84 N.M. 365, 366, 503 P.2d 648, 649 (Ct.App.1972), where the Court of Appeals stated:

'* * *. When a witness has made a prior written statement about that which he is called to testify, the accused is entitled to an order directing the prosecutor to produce the statement for inspection of the defendant. Any other result denies the defendant the right to confront the witnesses against him. Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969).'

This procedure involves a fundamental right preserved to criminal defendants by both the U.S.Const. Amend. VI and the N.M.Const Art. II, § 14. It should be obvious that:

"* * *. The state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and, in particular, the state should have no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as throughly impeached as the evidence permits.' State v. Morgan, supra, at 67 N.M. 292, 354 P.2d 1006; * * *.'

State v. Vigil, 85 N.M. 735, 735--736, 516 P.2d 1118, 1118--1119 (1973).

The State contends that these written statements contain no contradictions, inconsistencies or omissions in respect to Officer Martinez' oral testimony, and thus would be of no assistance to defendant; but it is the prerogative of defense counsel to examine a witness' prior statement and determine for himself the use to be made of it on cross-examination.

In relation to the written statement 'prepared for the grand jury,' it was ruled below that it should be withheld from defendant on the basis of maintaining the secrecy of the grand jury. But, in the recent case of State v. Felter, 85 N.M. 619, 620, 515 P.2d 138, 139 (1973), we stated that:

'* * *. We agree with the decision of the Court of Appeals under the particular facts of that case, and agree with the statement in its opinion that 'once the witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness' grand jury testimony relating to the crime for which defendant is charged."

This position was reaffirmed and clarified in State v. Vigil, supra.

We perceive no reason why this principle should not be extended to include written statements prepared for the grand jury and submitted to it for its consideration. To do otherwise would be to deprive defendant of his right to fully confront and cross-examine the witnesses against him. Thus, once a witness has testified at trial concerning matters which were included in a written statement prepared for the grand jury, the defendant is entitled to a copy of the written statement submitted to the grand jury relating to the crime with which defendant is charged.

An examination of the contents of the sealed report contains matters not testified to by one of the officers preparing and signing the police report. It also contains expression of opinions and conclusions of the officers preparing the report, and contains information relative to the alleged results of a lie detector test administered to the defendant by a third party. It expressed the opinion of the officers that defendant killed the deceased, and included their appraisal of the defendant's reputation as being that of a cold blooded and ruthless individual.

We would be less than candid if we did not express our strong disapproval of the practice which permits the submission of this type of a report to a grand jury considering the possible indictment of a defendant who is the subject matter of such a report. We trust that this was a single and isolated incident, and that extreme care will be exercised to prevent its recurrence. Fairness and simple justice demand no other course. We, therefore, hold that counsel for defendant was entitled to a copy of such report in order to properly cross-examine the testifying officer who signed the report.

In order to properly evaluate the other contentions advanced by defendant in support of reversal, it is necessary to consider the evidence introduced at the trial. A summary of the pertinent evidence, when viewed in a light most favorable to the State, is to the effect that defendant, two other companions and the deceased were drinking beer together in at least two bars in the Espanola area and in the defendant's automobile on the night of January 18 1973. There is testimony that the deceased became involved in fights with the other companions, and that the defendant sought to stop at least one of those fights and to protect the deceased. The defendant, after the bars closed, gave deceased and the other companions a ride, was heard to say to the deceased that the other companions would not hurt him. After dropping off the other two companions at their respective homes, he drove the deceased in the direction of Abiquiu, but only took him as far as the intersection of Highways 84--285, about fifteen miles south of his home. There is testimony that both deceased and defendant were drinking Schlitz beer out of bottles in the defendant's automobile. The evidence also reveals that the body of the deceased was found on the morning of January 19, 1973, at a rest stop on Highway U.S. 84, south of Ghost Ranch, over twenty-five miles north of the intersection where defendant claims he dropped him off. It was testified that the deceased, or victim, died as a result of three frontal .38 caliber bullet wounds. Defendant admitted he had purchased some .38 caliber ammunition in April of 1972 for a Mr. Lloyd Maestas. The testimony is undisputed that a finger-pring of the defendant was found on a Schlitz beer bottle, which was located near the body of the deceased.

Defendant also contends that it was reversible error for the court to refuse defendant's requested instruction No. 30, which provided as follows:

'When the evidence fails to show, on the part of the accused, any motive to commit a crime, such lack of motive is a circumstance in favor of the innocence of the party accused, and in this case, if the Jury finds, upon a careful examination of all the evidence, that it fails to show any motive on the part of the Defendant to commit the crime charged in the Indictment, then such failure to show motive should be considered by the Jury as a circumstance in favor of the accused.'

As long ago as Territory v. McGinnis, 10 N.M. 269, 277--278, 61 P. 208, 211 (1900), this court recognized the significance of motive.

'* * *. The question whether the defendant himself did or did not commit the crime for which he was under indictment being in issue, the fact of the existence or non-existence of the motive for such an act was a relevant and very important inquiry. * * *'

In State v. Orfanakis, 22 N.M. 107, 159 P. 674 (1916), the court stated that, in the situation where some proof of motive is presented, an instruction as to the effect of the absence of motive is improper and should be refused; while in State v. Romero, 34 N.M. 494, 498, 285 P. 497, 498 (1930), the court rejected an instruction which stated that the absence of evidence as to motive 'affords a presumption of the...