Perea v. Stout

• Decision Date: 29 May 1980
• Docket Number: No. 4151,4151
• Citation: 613 P.2d 1034,1980 NMCA 77,94 N.M. 595
• Parties: Eliseo Max PEREA, Jr., Plaintiff-Appellant, v. Bruce STOUT, Mel Sedillo, Danny Julian, Larry Fagan, Lawrence Romero as Sheriff of Valencia County, J. Michael Alexander, Ray Anaya and Larry Standard, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1034

613 P.2d 1034

94 N.M. 595

Eliseo Max PEREA, Jr., Plaintiff-Appellant, v. Bruce STOUT, Mel Sedillo, Danny Julian, Larry Fagan, Lawrence Romero as Sheriff of Valencia County, J.

Michael Alexander, Ray Anaya and Larry

Standard,

Defendants-Appellees.

No. 4151.

Court of Appeals of New Mexico.

May 29, 1980.

Writ of Certiorari Denied June 26, 1980.

Alfred M. Carvajal, Pedro P. Palacios, Albuquerque, for plaintiff-appellant

Carlos G. Martinez, Shaffer, Butt, Thornton & Baehr, Albuquerque, for defendants-appellees Sedillo, Fagan, Alexander and Julian.

Robert G. McCorkle, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for appellees Stout, Romero, Anaya and Standard.

OPINION

WOOD, Chief Judge.

This lawsuit involves both action and inaction on the part of eight defendants in connection with matters which resulted in plaintiff being jailed. After reviewing the facts in a light most favorable to the results in the trial court, we discuss: (1) alleged misconduct of defense attorneys; (2) a directed verdict; and (3) five issues concerning instructions, the most important of which is the fifth one a law officer's defense to a false imprisonment claim.

Stout, an officer of the Game and Fish Department, was patrolling a mesa east of Belen, New Mexico. He observed a pickup, without license plates, being used to cut calves away from the mothers. He saw two calves dogged, tied and loaded into the pickup. This was not a normal ranching operation; "They had cruelly overdriven these calves." Stout, having observed the cruelty and being suspicious of rustling, started working his way toward the pickup with the purpose of investigating the situation. The pickup "took off". Stout followed, using his emergency equipment (red light, siren) in an effort to stop the pickup. The chase ended when the pickup stopped near some trailer houses; the two people in the pickup jumped out and ran. Stout disabled the pickup and apprehended the two people before assistance arrived.

The assistance that arrived consisted of Captain Standard and Lt. Anaya of the sheriff's office, and Officer Fagan, identified as a "brand inspector".

Three calves were found in the pickup. The officers, by use of the radio, were informed that the pickup belonged to plaintiff, and that plaintiff had, that morning, turned in a stolen pickup report to the sheriff's office. The two occupants of the pickup had in their possession checks made out to plaintiff. Stout and Fagan found a cow that would mother one of the calves. The cow was on property of Rancher Burris. The two occupants of the pickup Sosa and Hernandez were taken to jail. The four officers Standard, Anaya, Stout and Fagan went to plaintiff's property to investigate the matter.

Plaintiff signed a permission to search for "Possibly Stolen Cattle", and a search was conducted. There is no claim that this search was without plaintiff's consent. During the search, questions were raised about plaintiff raising pheasants without a license and about deer hides. Two other items, however, raised definite suspicions. There were nine freshly branded calves and plaintiff did not have a bill of sale for the calves. See § 77-9-21, N.M.S.A. 1978. There was an unbranded calf with a broken leg. Plaintiff said he had the calf for a week and that the calf was injured when he got it; however, the wounds were fresh and the calf was still bleeding. These items, together with the stolen vehicle report, caused the officers to believe they should investigate further.

Plaintiff was asked to "come down and give us a statement at the Sheriff's office and he said he would." At the sheriff's office, plaintiff gave a written statement to Stout. Captain Standard telephoned the district attorney and advised the district attorney of what had happened "up to this time." This telephone call was made because the situation involved possible felony charges and the practice was to clear felony charges with the district attorney. The district attorney advised that "we didn't have enough evidence to hold" plaintiff, but to go ahead and charge the illegal aliens (Sosa and Hernandez). The district attorney also advised that he would not be available later on.

Thereafter, plaintiff admitted to Officer Youngblood (not a defendant) and Captain Standard that he had lied in his written statement to Stout. There were at least two lies. One was the stolen vehicle report; plaintiff had loaned his pickup to Sosa and Hernandez, who worked for plaintiff. Another was when plaintiff got the broken-leg calf; the aliens had brought it in about daylight of that day. Plaintiff stated that "he hadn't paid anything for the calf yet. He also stated it doesn't pay to buy those things."

After these admissions by plaintiff, Captain Standard reviewed matters with Mike Alexander, an investigator for the district attorney's office. Standard discussed matters with Alexander because neither the district attorney nor his assistants were available. "(W)e always did our business with Mike Alexander, because he was always available and he had always given us the right way to go in the past."

Standard asked Alexander "if we could hold him (plaintiff) for investigation. We still had some work to do on the other cattle that were at the Perea residence that he could not produce a bill of sale for. I knew that the Cattle Inspector would want to do that." Standard stated that the investigation would be completed by Sedillo, an investigator for the Livestock Board, and Standard anticipated that it would be "(t)he cattle people" who, ultimately, would be bringing charges.

Alexander "advised Captain Standard that they could hold him up to 72 hours, at the very most, to continue their investigation. Just as soon as they could get a Magistrate, the next work day, to go ahead and file a Complaint."

Standard made the decision to put plaintiff in a cell. This occurred at 5:00 p.m. on Saturday, January 28, 1978. No criminal charges were filed before plaintiff was released at 9:55 a.m. on the following Monday, January 30, 1978. We are not concerned, in this appeal, with the subsequent criminal and civil proceedings involving plaintiff and the various calves.

Plaintiff sought damages from Stout, Standard, Anaya, Fagan and Alexander. Also named as defendants were (a) Sheriff Romero, who was not present at any of the incidents of January 28th; (b) Julian, also a cattle inspector, who arrived at the sheriff's office at some unspecified time during the afternoon of January 28th; and (c) Mel Sedillo, an inspector for the Livestock Board and the supervisor of Fagan and Julian. Sedillo arrived at the sheriff's office after plaintiff had been placed in a cell. The trial court directed a verdict for Julian at the close of plaintiff's case. The jury verdict was in favor of the other seven defendants. Plaintiff appeals.

Alleged Misconduct of Defense Attorneys

Plaintiff claims the trial court erred in failing and refusing to restrict the improper conduct and argument of defense counsel. Plaintiff contends that the two defense counsel deliberately and repeatedly misled the jury to plaintiff's prejudice and characterized plaintiff as a criminal; that the trial court refused to restrict defense counsel to matters properly in evidence and, in addition, permitted defense counsel to instruct the jury as to the law. These claims are not supported by the record.

(a) Plaintiff objected to evidence concerning the cattle rustling activity of the aliens, Sosa and Hernandez, claiming the evidence was irrelevant. The theft of the calves was the starting point for the events of the day. This evidence was relevant to the question of why the officers went to plaintiff's property and searched.

(b) Plaintiff seemed to claim, at oral argument, that the search and events on plaintiff's property were also irrelevant because the lawsuit involved plaintiff's false imprisonment, and what occurred on plaintiff's property was not relevant to the imprisonment. There are at least two answers to this: 1. The search and events at plaintiff's residence were relevant to why plaintiff was at the sheriff's office that Saturday afternoon and to why plaintiff was ultimately jailed. 2. The amended complaint, on which this matter was tried, set forth three general theories of liability false arrest, false imprisonment and the violation of various civil rights, constitutional and statutory. During trial, plaintiff did refer to the case as a false imprisonment claim, but he introduced evidence on all three theories and argued all three theories of liability to the jury. The case was not tried solely as a false imprisonment case.

(c) In cross-examining plaintiff's witnesses, the defense asked questions concerning plaintiff's knowledge that Sosa and Hernandez were illegal aliens. Plaintiff argues that this questioning falsely accused plaintiff of a crime, and it is no crime to hire Mexican aliens. The difference in words is to be noted; defendant's emphasis was upon the aliens being "illegal", not upon their being "Mexicans". Plaintiff was the employer of Sosa and Hernandez and they lived on plaintiff's premises. Plaintiff, as part of his case-in-chief, introduced evidence of his honesty and good character. Defendant asked the witnesses if their good opinion would change if they knew that plaintiff employed illegal aliens. Such questioning did not accuse plaintiff of a crime.

(d) Evidence was introduced about plaintiff's possession of the calves and plaintiff's various statements concerning the calves. A permissible inference from this evidence, particularly the evidence concerning the broken-legged calf, was that plaintiff had knowingly possessed stolen property, which is a crime. This permissible inference did not make the evidence improper or inadmissible because the evidence was relevant in explaining the officers' action and their good faith in doing so.

(e) The claim that defense counsel instructed the jury...