State v. Aguirre, 9490

• Decision Date: 08 December 1972
• Docket Number: No. 9490,9490
• Citation: 1972 NMSC 81,84 N.M. 376,503 P.2d 1154
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Raymond AGUIRRE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1154

503 P.2d 1154

84 N.M. 376

STATE of New Mexico, Plaintiff-Appellee, v. Raymond AGUIRRE, Defendant-Appellant.

No. 9490.

Supreme Court of New Mexico.

Dec. 8, 1972.

R. M. Higginbotham, Roswell, for defendant-appellant

David L. Norvell, Atty. Gen., Victor Moss, Frank N. Chavez, Jr., Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

OMAN, Justice.

Defendant has appealed from his convictions of kidnapping, rape and assault with intent to commit a violent felony. We affirm.

Briefly the facts are: At about 8:00 p.m. on the evening of October 27, 1971, defendant stopped a fifteen-year-old girl who was driving a pickup truck on a city street. He drove along side the truck and called to the girl that the truck's tires were on fire and she should take it to a service station. She answered, 'Okay. Thank you.' She continued on her way. Shortly thereafter he was still following her and was flashing the headlights on his vehicle. She stopped and both of them stepped out of their vehicles. He told her it must be the brakes and to take the pickup to a gas station. She again thanked him and got back into the pickup to drive off. At that time he ordered her to 'scoot over,' and out of fear she moved to the extreme right side of the cab. He got in the driver's seat and ordered her to 'scoot to the middle.' When she refused, he placed some object against her side and ordered her to 'scoot to the middle or I'll put this through you.'

He drove for some distance out of the city and into the country, where he stopped at a dump ground. He got out, ordered her out, and proceeded to rape her. At that time he had a knife which he placed on the ground close by.

After raping her, he stabbed her twelve times with the knife. He also endeavored to strangle her with his hands and with a piece of rope.

He then covered her body with rocks and a piece of metal, and this is where she was when she regained consciousness. She removed herself from under the rocks and metal and walked until she reached the highway where she was picked up by some motorists and was taken back to town. She was then taken to a hospital.

Defendant first contends the trial court abused its discretion in denying his motion for a change of venue. In support of his motion, he submitted five newspaper articles published in the daily newspaper between October 28, 1971 and November 16, 1971 concerning the incident, and also a number of letters to the editor which had been published in the daily newspaper. The State offered the testimony of thirteen witnesses from different parts of the city and from different walks of life. Only one of these thirteen testified that in her opinion defendant could not get a fair trial in the county. Another witness, who operated a bar, said he had heard the case discussed by some people in the bar and had heard them say '* * * if the defendant was found guilty, he should be punished. * * *' This same witness also expressed a positive opinion that defendant could get a fair trial in the county. Another witness testified she had some doubt as to whether she personally could sit as a fair and impartial juror in the case, but she also testified she felt defendant could get a fair and impartial trial in the county. The remaining ten witnesses all testified they knew of no reason why defendant could not get a fair and impartial trial in the county and were of the opinion that he could.

The trial court ruled the evidence failed to show a substantial reason to believe a fair and impartial jury could not be obtained in the county and entered an order denying the motion for change of venue. The trial court's finding and order are supported by substantial evidence. Therefore, it was within the trial court's discretion to deny the motion. State v. Vaughn, 82 N.M. 310, 481 P.2d 98 (1971); McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968); State v. Jones, 52 N.M. 118, 192 P.2d 559 (1948); State v. Atwood, 83 N.M. 416, 492 P.2d 1279 (Ct.App.1971). Defendant next claims error on the part of the trial court in allowing two other young women to testify concerning being followed at night by a man in an automobile who claimed the brakes on the vehicles the women were driving were on fire. One of these young women was nineteen years of age and was stopped by defendant on October 25, 1971. After both had gotten out of their cars and defendant had told her, 'your brakes are on fire,' he grabbed her by the arm and ordered her to get in his car. He was holding a knife in his right hand. She grabbed his right arm and held it. Shortly thereafter they both backed off and she returned to her automobile. She took the license number of the other vehicle, which turned out to be defendant's. She also positively identified the defendant in court as the man who had stopped her and grabbed her by the arm.

The other young woman was twenty years of age. On October 27, 1971, she was driving from a parking lot when she noticed a man drive up behind her in a vehicle which she described as looking similar to defendant's automobile. Shortly after leaving the parking lot she noticed the man following her and flashing his lights by turning them from bright to dim and back to bright. He did this several times. She kept driving and he endeavored to pass her, but she speeded up, reached her parent's home and pulled into the driveway before stopping. He pulled up in the driveway and said, 'You better have your brakes checked, there is fire coming out of the back of your car.' She proceeded immediately into the house. A check of her car later revealed nothing wrong.

She was unable to positively identify the defendant, but she did state the man who followed her was wearing a hat similar to the defendant's hat, and, as already stated, identified the car he was driving as being similar to the defendant's.

The trial court instructed the jury as follows concerning the testimony of these two witnesses: 'You are instructed that evidence of these collateral transactions is to be considered by you as bearing solely on the issue of identity of the Defendant, and not for the purpose of establishing the truth of the collateral transaction.'

Evidence of collateral offenses is generally inadmissible to prove the guilt of a defendant of a specific crime. State v. Garcia, 80 N.M. 21, 450 P.2d 621 (1969); State v. Velarde, 67 N.M. 224, 354 P.2d 522 (1960); State v. Nelson, 65 N.M. 403, 338 P.2d 301 (1959); State v. Garcia, 83 N.M. 51, 487 P.2d 1356 (Ct.App.1971). However, one of the recognized exceptions to this general rule is that evidence of collateral offenses is admissible to prove the identity of the defendant as the person who committed the crime with which he is charged and for which he is being tried. State v. Lord, 42 N.M. 638, 84 P.2d 80 (1938); State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.App.1969). We agree with the trial court that the testimony of these two witnesses did tend to prove the identity of defendant. See State v. Lopez, supra.

Defendant next asserts error on the part of the trial court in admitting into evidence two photographs of defendant which had been identified by the victim while in the hospital, and in admitting into evidence the testimony of the police detective who had shown the photographs to the victim.

Defendant claims the testimony of the detective and the identification of the defendant by the victim from the photographs raised an issue as to the validity of her in-court identification of defendant. He claims this issue should have been resolved in an evidentiary proceeding before the trial court outside the hearing of the jury. He relies upon Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971; State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App. 1970). In the Crump case an evidentiary hearing was held outside the presence of the jury. In the Turner case no such hearing was held. However, there was no issue of 'illegal taint' presented. In neither of these cases was it held that because the victim has previously identified the defendant from photographs this raises a question as to the validity of a subsequent in-court identification. Even assuming, as we did in the Crump case, the applicability of the rationale of Gilbert v. California, supra, and United States v. Wade, supra, to the factual situation here, the trial court did not err in failing to conduct an evidentiary hearing in the absence of the jury. There were ten photographs of nine different persons, including two of defendant, shown to the victim one at a time. The two of defendant were shown to her as numbers 3 and 7. She immediately and without hesitation identified him when the number 3 photograph was shown to her and again when the number 7 photograph was shown. There is no claim that the procedures followed in showing the photographs were improper or suggestive in any way other than the fact that the officer did show the victim two photographs of defendant and only one of each of the other eight persons. However, the views of the defendant in the two photographs of him were different, and, as already stated, the victim promptly identified both pictures as they were shown to her as being of the man who had kidnapped, raped, stabbed and undertaken to strangle her. Had she not immediately recognized him in both photographs, there might be some reason to think the presence of two photographs of one person and only one photograph of each of the other persons was suggestive, but under the circumstances the suggestion is just the opposite, to wit, that there was not the slightest doubt in her mind that these were both photographs of her assailant.

There was no objection to the testimony of the officer as to the procedures followed in showing the photographs, and, when they were offered into evidence, defendant's attorney...