State v. Fish

Decision Date25 May 1984
Docket NumberNo. 15001,15001
PartiesSTATE of New Mexico, Petitioner, v. Mark Douglas FISH, Respondent.
CourtNew Mexico Supreme Court
Paul Bardacke, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for petitioner
OPINION

STOWERS, Justice.

The State of New Mexico petitioned this Court on a writ of certiorari to review the judgment of the Court of Appeals in State v. Fish, Ct.App. No. 6000, (Filed May 24, 1983). The Court of Appeals reversed the respondent's convictions of second degree criminal sexual penetration, attempted first degree murder, and kidnapping and remanded for a new trial on the ground that the record is insufficient to properly review the issues asserted by the respondent on appeal.

The issues raised on certiorari are:

(1) Whether the reconstructed record of a pre-trial hearing in this case is adequate for purposes of review; and

(2) Whether the State must suffer reversal and a new trial because of the lack of an actual record of the pre-trial hearing and one set of trial exhibits consisting of photographs of the victim.

Although this matter is before this Court on a petition for writ of certiorari raising the primary issue of the sufficiency of the record, in the interest of disposing of the critical issues, we have also considered the relevancy of the victim's prior sexual history and the evidentiary importance of the lost exhibits as a basis for our opinion. We hold that the record is sufficient, and reverse the Court of Appeals.

The respondent was charged with criminal sexual penetration, kidnapping, attempted murder, armed robbery, and aggravated battery. Before trial, the respondent filed a motion for production and use of evidence of prior sexual conduct. The respondent sought evidence of a prior rape of the victim, as well as a ruling allowing the use at trial of that evidence. The victim was raped by another individual several years earlier in Maryland. At the pre-trial hearing, the respondent also attempted to delve into other sexual conduct of the victim. However, the trial court did not permit questions regarding the victim's prior sexual conduct. Following the pre-trial hearing on the motion, the trial court ruled that evidence of the prior rape would not be admissible at trial. Following a jury trial, the respondent was found guilty of second degree criminal sexual penetration, kidnapping, and second degree attempted murder. From these convictions, the respondent appealed.

After the Court of Appeals received the record on appeal, it was discovered that the record of the pre-trial hearing and certain trial exhibits were missing. A series of hearings was held by the Court of Appeals to determine whether the record and the exhibits could be reconstructed. The State tendered reconstructed testimony of the pre-trial hearing as well as reconstructed exhibits. The State was unable to reconstruct an exhibit consisting of photographs taken by the bank camera when the victim withdrew funds from the automatic teller machine. Following these hearings, the Court of Appeals issued its memorandum opinion reversing the respondent's conviction and ordering a new trial on the basis that the reconstructed record was insufficient for the purposes of appeal. In addition to granting certiorari to review the ruling of the Court of Appeals, this Court requested that the parties brief the issues raised in the respondent's docketing statement.

The basic interest at stake in a situation where a transcript or evidence is lost or missing is the assurance that justice is done, both to the defendant as well as the public. State v. Pedroncelli, 97 N.M. 190, 637 P.2d 1245 (Ct.App.1981) (quoting State v. Chouinard, 96 N.M. 658, 662, 634 P.2d 680, 684 (1981)). However, in deciding whether there is a sufficient record for the purpose of proceeding with an appeal, a verbatim transcript is not necessary. State v. Wildenstein, 91 N.M. 550, 577 P.2d 448 (Ct.App.1978); State v. Herrera, 84 N.M. 46, 499 P.2d 364 (Ct.App.), cert. denied, 84 N.M. 37, 499 P.2d 355 (1972), cert. denied, 409 U.S. 1110, 93 S.Ct. 918, 34 L.Ed.2d 692 (1973). The Court of Appeals in Wildenstein held that a partial transcript is sufficient for appeal purposes:

Here the showing is that a partial transcript could be produced which would follow the "gist of the proceedings." Thus the material parts, the essence, of the trial proceedings were available.

Wildenstein 91 N.M. at 553, 577 P.2d at 451.

The record relevant to the issue of the victim's prior sexual history is the reconstructed record of the pre-trial hearing held on the respondent's motion. The State argues that the reconstructed record is sufficient for the purposes of appeal. On appeal, the respondent contends that it was error for the trial court to deny the respondent's motion to inquire into the victim's prior sexual history. Missing is the verbatim record of that hearing. The reconstructed record of the hearing consists of affidavits of those present recalling the content of the hearing. In addition, the reconstructed record includes the list of questions which was submitted by defense counsel to be asked of the victim as well as the respondent's motion which states the purpose of the hearing. The admissibility of a victim's past sexual conduct is governed by NMSA 1978, Evid.Rule 413(a) (Repl.Pamp.1983) which provides that:

In prosecutions under Sections 30-9-11 to 30-9-15 NMSA 1978, 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 and relevant to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

In the present case, two aspects of the victim's prior sexual history were at issue. First, the respondent requested information regarding the prior rape of the victim in Maryland. Secondly, the reconstructed record indicates that the respondent raised the issue of frequent sexual intercourse with a man from Los Lunas to establish possible propensities for extramarital sexual relations on the part of the victim as the respondent's theory of the case was voluntary intercourse.

Regarding the prior rape, the affidavit of respondent's trial counsel which is part of the reconstructed record of the hearing states:

Defendant attempted to show the similarity of the prior allegation to the allegations at trial, to wit: (1) acquaintance with perpetrator (both were boyfriends), (2) both "rapes" occurred after drinking moderate to large quantities of alcohol, (3) both "rapes" involved attempted fellatio. The victim denied that both rapes involved violence and a weapon. The victim did not prosecute the Maryland incident.

The respondent claimed that the prior rape was similar to the present allegations and that there was a possibility that the victim fabricated the present charge. The theory of the defense was that of consensual intercourse and fabrication of the rape. In order for a review to be meaningful, there must be a sufficiently complete record to allow proper consideration of the issues on appeal. State v. Herrera, 84 N.M. 46, 47-48, 499 P.2d 364, 365-366. In light of the three alleged similarities raised by the respondent, we have reviewed the reconstructed record in this case and determine that it provides a sound basis for evaluating the trial court's decision to exclude evidence of the victim's prior rape.

Regarding the first alleged similarity, the testimony at trial showed that the respondent and his family were friends of the victim. In contrast, the reconstructed testimony of the victim given at the pre-trial hearing was that she went out with her prior assailant only once, the night of the rape. Moreover, the similarity that...

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14 cases
  • State v. Schoonmaker
    • United States
    • New Mexico Supreme Court
    • January 23, 2008
    ...evidence is lost or missing is the assurance that justice is done, both to the defendant as well as the public." State v. Fish, 101 N.M. 329, 331, 681 P.2d 1106, 1108 (1984). {17} Viewing the record on the motion to reconstruct along with the record of the other pre-trial proceedings, a few......
  • Allen v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 4, 1985
    ...subjecting that evidence to a balancing test by weighing its probative value against prejudicial effect: State v. Fish, 101 N.M. 329, 681 P.2d 1106, 1110 (S.Ct.1984); State v. Gillette, 102 N.M. 695, 699 P.2d 626, 632 (Ct.App.1985); State v. Romero, 94 N.M. 22, 606 P.2d 1116, 1120 (Ct.App.1......
  • State v. DeSantis
    • United States
    • Wisconsin Supreme Court
    • June 25, 1990
    ...value of comparing the two incidents and drawing conclusions regarding the complainant's credibility or her consent. State v. Fish, 101 N.M. 329, 681 P.2d 1106 (1984); State v. Johnson, 102 N.M. 110, 692 P.2d 35 While the circuit court did not rule on materiality, it did characterize the ev......
  • State v. Johnson
    • United States
    • Court of Appeals of New Mexico
    • September 11, 1984
    ... ... The same reasoning regarding the similarity of prior complaints to the incident in question was employed by the New Mexico Supreme Court when ruling on the relevance of prior complaints in State v. Fish, 101 N.M. 329, 681 P.2d 1106 (1984) ...         We agree with the reasoning of the Hughes, Little and Demos cases, and apply the standard that to pass the initial relevancy test of Rule 413 and Section 30-9-16, the prior complaints must be demonstrably false. To allow evidence of ... ...
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