Manlove v. Sullivan
| Decision Date | 16 May 1989 |
| Docket Number | No. 17788,17788 |
| Citation | 1989 NMSC 29,108 N.M. 471,775 P.2d 237 |
| Parties | Lonnie K. MANLOVE, Petitioner-Appellee, v. George W. SULLIVAN, Warden, Respondent-Appellant. |
| Court | New Mexico Supreme Court |
A petition for writ of habeas corpus was filed with this Court in 1986 by Lonnie K. Manlove. We remanded to the district court to conduct hearings on allegations that the transcript of his original trial had been altered and that this denied Manlove an adequate record on appeal. The State appeals from the district court's order granting a new trial for Manlove. We reverse the district court and deny the petition for writ of habeas corpus.
In 1979, Manlove was tried and convicted of aggravated assault, kidnapping, and criminal sexual penetration. At his trial, the chief evidence against him was the testimony of the prosecutrix, along with circumstantial evidence that his car and a handgun in his possession were similar to those said to have been used in the commission of the crime. In his defense, petitioner presented alibi testimony by family and friends. On Friday afternoon, July 6, Tom Cherryhomes, Manlove's defense attorney, announced that a witness who had previously agreed to testify on behalf of his client had left town, and he was unable to serve her with a subpoena. He requested a continuance over the weekend to serve her.
The witness, Elizabeth Pike, had been mentioned in a preliminary hearing in February, at which time Manlove was represented by the public defender's office. Cherryhomes took over the defense a little more than a month before trial and apparently did not learn of the existence of Pike until late June, when the transcript of the preliminary hearing was transcribed by his office. After interviewing Pike on July 3, Cherryhomes discovered that her testimony was potentially crucial to his client's defense. Pike, a former roommate of the prosecutrix, was expected to testify that the prosecutrix had concocted stories of abduction and molestation several times in the past, that these stories resembled the facts alleged in the present case, that she had once been forced to recant such a story, and that, in Pike's opinion, the prosecutrix was the type of person who would not hesitate to see an innocent person convicted of a crime.
The trial judge, the Honorable Harvey Fort, criticized Cherryhomes for failing to subpoena Pike earlier. He noted that under the local rules of procedure, unless a witness was subpoenaed within ten days after notice of the trial date, the trial court at its discretion could refuse to grant a continuance to allow time to obtain the witness' presence. He also noted that although Cherryhomes knew on July 3 he intended to call Pike as a witness, he had mailed notice to the district attorney's office rather than placing a phone call. This, Judge Fort believed, had prejudiced the prosecution by depriving it of the opportunity to examine the witness prior to trial.
The trial court denied the request for a continuance, despite repeated attempts by Cherryhomes to persuade the court that Pike's testimony was crucial to his client's defense. Cherryhomes placed a criminal investigator from the district attorney's office on the stand to establish that the prosecution was aware of the existence of Pike and her relationship with the prosecutrix, and that Pike's testimony might cause problems for the State's case. Cherryhomes also presented testimony by Charles Wyman, an attorney with the public defender's office who knew Pike personally and had talked with her before she left town. Wyman testified that Pike left town out of fear the prosecutrix would harm her family or one of her animals if she testified for the defense.
In spite of Cherryhomes' continued requests for a continuance and the testimony of these witnesses, Judge Fort adhered to his denial of the motion. The jury was held over late Friday evening to complete presentation of testimony and reconvened on Saturday to deliberate. It found Manlove guilty as charged.
Manlove appealed, and the court of appeals affirmed the conviction in a 1980 memorandum opinion. His appellate attorney had not participated at the trial; and, before the court of appeals' decision was handed down, Manlove filed a pro se motion to amend the docketing statement, alleging the transcript of his trial failed to show that Judge Fort had denied the requested continuance because the judge was planning to go on vacation. This pro se motion was denied.
Subsequent to his unsuccessful appeal, Manlove has pursued a number of claims for postconviction relief. In 1982, he brought a habeas corpus action in Santa Fe District Court before Judge Scarborough, alleging with questionable logic that denial of the continuance for improper personal reasons unconstitutionally deprived him of effective assistance of counsel. During the course of the habeas corpus proceeding, Cherryhomes was called to the stand and presented uncontroverted testimony that Judge Fort gave as one of his reasons for denial of the requested continuance that he planned to go fishing. After hearing evidence and argument of counsel, Judge Scarborough filed detailed findings and conclusions. Included in his findings were that Judge Fort denied the requested continuance because he was going fishing, but that the testimony of Pike would have been inadmissible under the New Mexico rape shield law. See NMSA 1978, Section 30-9-16 (Repl.Pamp.1984). Judge Scarborough concluded Manlove had effective assistance of counsel in 1979.
Posture of case on appeal. In 1986, Manlove filed his present habeas corpus application directly with this Court, alleging the fishing trip comment found by Judge Scarborough in 1982 was not contained in the original trial transcript filed before the court of appeals in 1980, and that the alteration of the record denied him an adequate record for a full and fair appeal. He also renewed allegations of error in the denial of the continuance and ineffective assistance of counsel. We remanded his claim to the district court for a hearing on the allegation that the record had been altered and to determine whether he had been denied an adequate record for appeal. All other claims were dismissed. Judge Sandra Grisham was eventually designated to hear the case on remand. On September 24, 1987, she held a hearing attended by Manlove, his attorney, another inmate called as a witness for Manlove, and counsel for the State. On January 15, 1988, a second informal conference was held; however, a transcript of those proceedings is not in the appellate record for our review. On February 17, the State filed a motion for an additional evidentiary hearing, attaching affidavits by Judge Fort, his court reporter, and the court clerk of Roswell. This motion and the attached affidavits were not accepted for filing because they violated a local rule of procedure, and the motion for an additional hearing was denied by operation of law when thirty days passed without action by the court.
On May 27, 1988, Judge Grisham entered her findings and conclusions. Based on the evidence before her, Judge Grisham concluded the 1982 findings of Judge Scarborough were binding on the parties and found the statement reflecting that Judge Fort refused to grant the requested continuance because he was going fishing appeared nowhere in the record.1 Judge Grisham concluded that Manlove had been denied an adequate record for appeal, reversed his conviction, and ordered a new trial. (We do not reach the question of whether the grant of a new trial was beyond the fact finding mandate of this Court.)
On appeal, the State argues that Judge Grisham abused her discretion in refusing to hold an additional evidentiary hearing, and that her findings are internally inconsistent and unsupported by substantial evidence. Our analysis differs from that of the State; we conclude Judge Grisham's decision is based upon an erroneous application of the doctrine of issue preclusion, and we must decide the petition for writ of habeas corpus de novo on its merits.
Issue preclusion from 1982 habeas corpus proceeding. In its docketing statement, the State raises as an issue whether Judge Grisham abused her discretion in accepting Judge Scarborough's finding relating to the fishing trip comment, while at the same time refusing to accept Judge Scarborough's conclusion that the evidence of witness Pike was inadmissible. In the State's brief-in-chief this issue is reframed in terms of alleged inconsistency between Judge Grisham's conclusion that the 1982 habeas corpus findings are binding (and not subject to review or rehearing) and her conclusion that Manlove was denied an adequate record for appeal. If Pike's testimony was inadmissible, as Judge Scarborough concluded, then Manlove was not entitled to any relief from the denial of a continuance to secure her presence, and deletion of the fishing trip comment did not prejudice the merits of his subsequent appeal.2
At least against the state, we believe collateral estoppel principles may, at the discretion of a subsequent habeas corpus court, prevent relitigation of issues argued and decided on a previous habeas corpus petition if the resolution of such issues was necessary to the previous decision.3 Yet, the findings and conclusions of Judge Grisham give us no clue as to whether she exercised any discretion in stating that the fishing trip finding of the previous habeas corpus court was binding and not subject to review or rehearing. In any event, she made no findings as to the applicability of the doctrine of preclusion or the countervailing equities. See Silva v. State, 106 N.M. 472, 476, 745 P.2d...
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