State v. Herrera, 3238

Citation1978 NMCA 48,92 N.M. 7,582 P.2d 384
Decision Date25 April 1978
Docket NumberNo. 3238,3238
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Timothy Jerome HERRERA, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Lynn Pickard, Pickard & Singleton, Santa Fe, for defendant-appellant.

Toney Anaya, Atty. Gen., Don Montoya, Asst. Atty. Gen., C. Richard Baker, Deputy Dist. Atty., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Defendant was convicted of kidnapping in the second degree, four counts of criminal sexual penetration in the second degree (two of sexual intercourse, one of anal intercourse and one of fellatio) and robbery. We answer two of the appellate issues summarily. We discuss § 40A-9-26, N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1975) and how it was applied in this case. This discussion involves the constitutionality of § 40A-9-26, supra, limitation upon discovery, and cross-examination concerning past sexual conduct. We also discuss the trial court's refusal to permit defendant to inspect and the refusal of the trial court to inspect, in camera, the notes of a physician.

Issues Answered Summarily

These two issues involve jury instructions.

( a) The indictment charged the kidnapping was by holding the victim to service against her will. Defendant claims the instruction setting forth the elements of kidnapping failed to instruct the jury on the required intent. The elements instruction can properly be viewed as ambiguous as to the intent required; however, this ambiguity was cleared up in the immediately following instruction which told the jury how the intent to hold to service may be proved. Accordingly, we do not consider the fact that the instruction complained of on appeal was given at defendant's request.

( b) Each of the four CSP offenses were submitted to the jury in the alternative by use of force or coercion which resulted in personal injury or was perpetrated in the commission of another felony. Section 40A-9-21(B)(2) and (4), N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1975). Defendant objected that "instructing the jury that they can select from either one of two ways within the same count is confusing to the jury". There was no confusion in the instructions given. On appeal defendant claims the alternative instructions denied him due process, right to trial by jury and his right to proof beyond a reasonable doubt as to each element of the crimes charged. Defendant speculates that six jurors could have found CSP by personal injury and six jurors could have found CSP in the commission of another felony. No such speculation was presented to the trial court. It will not be considered for the first time on appeal. N.M.Crim.App. 308.

Section 40A-9-26, supra, and its Application

The statute reads:

40A-9-26. Testimony Limitations In camera hearing A. As a matter of substantive right, in prosecutions under sections 2 through 6 of this act (40A-9-21 to 40A-9-25), evidence of the victim's past sexual conduct, opinion evidence thereof, or of reputation for past sexual conduct, shall not be admitted unless, and only to the extent that the court finds, that evidence of the victim's past sexual conduct is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

B. If such evidence is proposed to be offered, the defendant must file a written motion prior to trial. The court shall hear such pretrial motion prior to trial at an in camera hearing to determine whether such evidence is admissible under subsection A of this section. If new information, which the defendant proposes to offer under subsection A of this section, is discovered prior to or during the trial, the judge shall order an in camera hearing to determine whether the proposed evidence is admissible under subsection A of this section. If such proposed evidence is deemed admissible, the court shall issue a written order stating what evidence may be introduced by the defendant and stating the specific questions to be permitted.

1) Defendant asserts the statute is unconstitutional on its face.

Defendant points out that the power to regulate pleading, practice and procedure in the district court is vested in the Supreme Court. State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1 (1936). See N.M.Const., Art. III, § 1; Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976); State ex rel. Anaya v. McBride, 88 N.M. 244, 539 P.2d 1006 (1975).

The State asserts the statute does not involve pleading, practice and procedure; rather, that the statute involves substantive rights. The State refers us to the phrase, "(a)s a matter of substantive right," appearing in § 40A-9-26(A), supra. The word "substantive" does not provide an answer. The Legislature intended to regulate the admission of evidence pertaining to the victim's past sexual conduct. The manner of regulation goes to practice and procedure and, thus, pertains to matters within the control of the Supreme Court. Ammerman, supra.

The fact that the Legislature has attempted to regulate practice and procedure in regard to the victim's past sexual conduct does not mean that the legislation is unconstitutional in that it violates the provisions for separation of governmental power. See N.M.Const., Art. III, § 1. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973) states: "This court has no quarrel with the statutory arrangements which seem reasonable and workable and has not seen fit to change it by rule." While a statute regulating practice and procedure is not binding on the Supreme Court, it nevertheless is given effect until there is a conflict between the statute and a rule adopted by the Supreme Court. See Ammerman v. Hubbard Broadcasting, Inc., supra; State ex rel. Anaya v. McBride, supra. Thus, in Alexander v. Delgado, supra, the Supreme Court applied the statutory provision for review of Court of Appeals decisions by writ of certiorari (there being no contrary rule), while pointing out that it had such power of review regardless of the statute.

Defendant asserts that § 40A-9-26, supra, not only conflicts with evidentiary rules but changes the rules. We disagree.

Section 40A-9-26, supra, permits evidence of the victim's past sexual conduct, opinion evidence thereof, or of reputation for past sexual conduct only to the extent the court finds that such evidence is material to the case and that its inflammatory and prejudicial nature does not outweigh its probative value. Section 40A-9-26, supra, was enacted by Laws 1975, ch. 109, § 7. The Supreme Court adopted the Rules of Evidence, effective July 1, 1973. Evidence Rule 403 provides that "(a)lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice". The balancing approach in Evidence Rule 403 did not state new law. See State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App. decided February 7, 1978). The balancing approach to be applied in admitting evidence concerning past sexual conduct under § 40A-9-26, supra, does not conflict with, rather it is consistent with, Evidence Rule 403.

Defendant's argument that § 40A-9-26, supra, not only conflicts, but changes evidentiary rules, and our answers, follow:

( a) State v. Ulmer, 37 N.M. 222, 20 P.2d 934 (1933) dealt with the admissibility of the "bad character of the prosecutrix for chastity" and states that "proof of specific acts of unchastity is excluded." Evidence Rule 405 permits proof of specific instances of conduct in certain situations. Defendant states: "To the extent that § 40A-9-26, Supra, provides otherwise, it is in conflict and unconstitutional." Defendant infers a conflict between State v. Ulmer supra, and Evidence Rule 405, but does not attempt to demonstrate a conflict between the statute and Evidence Rule 405. There is no conflict between the statute and the rule because the balancing approach of Evidence Rule 403 is applicable to evidence admissible under Evidence Rule 405. See State v. Day, supra.

( b) Defendant asserts, without citation of authority which supports the claim, that in New Mexico the burden is on the opponent to exclude inadmissible evidence. "To the extent that § 40A-9-26, Supra, places the burden of demonstrating admissibility on the proponent of the evidence and prior to trial, it is in conflict and hence unconstitutional." Rule of Crim.Proc. 36 gives the trial court authority to conduct pretrial hearings to consider "matters as may aid in the disposition of the trial." The procedures in § 40A-9-26(B), supra, do not conflict with, but are consistent with, Rule of Crim.Proc. 36. See Proper v. Mowry, 90 N.M. 710, 568 P.2d 236 (Ct.App.1977).

( c) Defendant contends that "if the constitutional Power is vested exclusively in the Supreme Court, all attempts at rule making by the legislature, regardless of conflict, would be ineffectual." This is contrary to the approach taken by the Supreme Court. See Alexander v. Delgado, supra. The legislation may not be binding upon the Supreme Court but, nevertheless, is to be given effect until a conflict exists. Generally, the Rules of Evidence apply to the trial of criminal cases. Rule of Crim.Proc. 48(b). Evidence Rule 402 provides that relevant evidence is admissible "except as otherwise provided . . . by statute". Thus, the Supreme Court, by rule, has recognized statutory provisions concerning evidence, absent a conflict. In civil cases, see United Nuclear Corp. v. General Atomic Co., 90 N.M. 97, 560 P.2d 161 (1976).

( d) "The State's basic assertion, however, is that there is no conflict between § 40A-9-26, Supra, and various rules . . . . The short answer to this contention is that this Court can do none other than to construe the statute to be conflicting because that is what the Court below did." This claim is frivolous; the trial court ruled there was no conflict. In addition, the Court of Appeals is a court of review. N.M.Const., Art. VI, § 29; §...

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