642 P.2d 1129 (N.M.App. 1982), 5280, State v. Casteneda

Docket Nº:5280.
Citation:642 P.2d 1129, 97 N.M. 670, 1982 -NMCA- 046
Opinion Judge:[10] Donnelly
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Carlos CASTENEDA, Defendant-Appellant.
Attorney:Chris Lucero, Jr., Albuquerque, for defendant-appellant., Jeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. [7] JEFF BINGAMAN, Attorney General, MARCIA E. WHITE, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for Appellee. [8] CHRIS LUCE...
Judge Panel:WALTERS, C. J., and WOOD, J., concur.
Case Date:February 25, 1982
Court:Court of Appeals of New Mexico

Page 1129

642 P.2d 1129 (N.M.App. 1982)

97 N.M. 670, 1982 -NMCA- 046

STATE of New Mexico, Plaintiff-Appellee,

v.

Carlos CASTENEDA, Defendant-Appellant.

No. 5280.

Court of Appeals of New Mexico

February 25, 1982

Page 1130

[Copyrighted Material Omitted]

Page 1131

[Copyrighted Material Omitted]

Page 1132

[97 N.M. 673] Chris Lucero, Jr., Albuquerque, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

DONNELLY, Judge.

Defendant, Carlos Casteneda, seeks reversal of his convictions of three felony counts: filing a false public voucher; paying or receiving public money for services not rendered, and criminal solicitation. The charges for which defendant was convicted, stemmed from his alleged use of public materials, tools and equipment in building a home for himself in the Sandia Mountains, near Albuquerque.

On appeal, defendant asserts nine claims of error; that the court erred (1) in its refusal to grant a continuance, (2) in allowing evidence of extrinsic acts of alleged wrongdoing, (3) in receiving into evidence documentary exhibits unrelated to any of the charges against defendant, that (4) Count VI of the indictment was unconstitutionally vague and overbroad, (5) that the court erred in allowing the State to call a witness not listed in the pre-trial order, (6) in refusing to dismiss Counts IV and V of the indictment, (7) in refusing defendant's requested jury instructions as to lesser included offenses, (8) in not granting a new trial because of perjury of a prosecution witness, and (9) in not dismissing Count VII (criminal solicitation). We affirm.

(1) Denial of Continuance :

Defendant claims error due to the refusal of the trial court to grant a continuance. Defendant's trial was originally scheduled on a trailing docket beginning June 16, 1981. At a pre-trial conference on June 8, 1981, counsel were advised that defendant's trial would be moved to June 10, 1981. On June 9, 1981, defense counsel moved for a continuance and informed the court that they were not prepared to go to trial. The trial court denied defendant's motion and observed that counsel had been aware of the advanced setting for several days and that no motion for continuance was made previously. The court further noted that during the pre-trial conference, defense counsel had moved for a continuance and the trial date was moved back a day at that time.

Defendant also claims the refusal to grant a continuance, resulted in his surprise as to the testimony of the State's witness, Betty Jane Maurino. At the time of the witness' testimony, defendant did not alert the court to any claim of surprise, nor did defendant move for a mistrial, renew the motion for a continuance, or request any relief from the court.

The necessity for a continuance depends entirely upon the particular facts of each case and for that reason, a motion for continuance is addressed to the trial court's discretion. State v. Perez, 95 N.M. 262, 620 P.2d 1287 (1980); Howell v. State, 632 P.2d 1223 (Okl.Cr.1981).

A review of the record fails to affirmatively show the existence of any demonstrable prejudice to defendant resulting from the trial court's denial of the motion for a continuance.

(2) Evidence of Other Acts :

Defendant contends the trial court erred in admitting into evidence testimony of other alleged acts of wrongdoing by defendant.

Defendant first claims as error, the admission of the testimony of Carl Bonella, a senior internal auditor for the City of Albuquerque. Bonella testified that he conducted an audit of the municipal department that defendant directed after defendant had been suspended from his job, that he was unable to account for certain materials and that defendant had abused certain purchasing procedures. This testimony was received without objection. Thereafter, counsel for the State asked the witness which audit conducted by him of a city agency revealed the greatest laxity of administrative controls. Defendant objected on the lack of relevancy.

[97 N.M. 674]

Page 1133

Defendant contends that the testimony of Bonella amounted to the presentation of evidence concerning defendant's character and evidence of other crimes, wrongs or acts, contrary to the provisions of N.M.R.Evid. 404, N.M.S.A. 1978. At trial, defendant's stated grounds for objection were not that the testimony was improper character evidence of other crimes or acts of wrongdoing, but that it was not relevant. The trial court correctly ruled the testimony relevant since it related to questions concerning defendant's opportunity to commit the offense of filing false public vouchers.

In objecting to evidence, it is the duty of counsel to advise the court specifically of the ground of objection, so that it may rule intelligently. Malczewski v. McReynolds Construction Co., 96 N.M. 333, 630 P.2d 285 (Ct.App.1981). Even though testimony may have been properly excluded on one ground, it is not error to admit testimony where no proper or timely objection is asserted in the trial court. Malczewski v. McReynolds Construction Co., supra; see Ash v. H. G. Reiter Co., 78 N.M. 194, 429 P.2d 653 (1967). See also N.M.R.Evid. 103, and 401, N.M.S.A. 1978.

Defendant also alleges as error the admission of testimony by prosecution witness Robert Arnold, Director of the City Purchasing Office. On direct examination, the witness was asked about the practice of "splitting" purchases into several small orders to avoid a provision in the purchasing law requiring public bids for purchases in excess of $500.00. He also testified that certain documents, admitted as State's exhibits 53 and 55 indicated a possibility of purchase splitting. No objection was made to this testimony. Thereafter, Mr. Arnold was then asked by the State whether he ever recalled reviewing any requisitions from Building Maintenance that intrigued him.

Defense counsel objected generally and requested a bench conference prior to any response being made by the witness. After a lengthy bench conference, wherein defendant objected to the question on the grounds that it sought to inquire about extraneous acts of alleged wrongdoing, lack of showing of any proper time-frame, and lack of relevancy, the court expressed concern as to whether the possible prejudicial effect of answering the question might outweigh any relevancy. As a result, counsel for the prosecution did not ask the witness to answer the question and ended his direct examination of that witness. Defendant did not ask the court to strike the question or to admonish the jury to disregard the inquiry. Since the question was not answered and there was no request that the jury be admonished to disregard the inquiry, no error existed. State v. Sandoval, 88 N.M. 267, 539 P.2d 1029 (Ct.App.1975).

A review of the record indicates no substantive basis for defendant's other claims of error advanced under his...

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