State v. Alderette

• Decision Date: 03 July 1974
• Docket Number: No. 1366,1366
• Citation: 86 N.M. 600,1974 NMCA 66,526 P.2d 194
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ricardo A. ALDERETTE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 194

526 P.2d 194

86 N.M. 600

STATE of New Mexico, Plaintiff-Appellee, v. Ricardo A. ALDERETTE, Defendant-Appellant.

No. 1366.

Court of Appeals of New Mexico.

July 3, 1974.

Rehearing Denied July 26, 1974.

Certiorari Denied Sept. 4, 1974.

[86 N.M. 602] Louis G. Stewart, Jr., Albuquerque, for defendant-appellant.

David L. Norvell, Atty. Gen., Prentis Reid Griffith, Jr., Special Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Joe Pat Romero was shot and died from his wounds. Convicted of murder in the second degree, defendant appeals. Section 40A--2--1, N.M.S.A.1953 (2d Repl.Vol. 6). The issues concern: (1) a fair and impartial jury; (2) evidence of the character of the deceased in the State's case-in-chief; (3) exclusion of evidence concerning the character of deceased; (4) questions concerning threats; and (5) cumulative error.

Fair and impartial jury.

There are three parts to the claim that defendant was denied a fair and impartial jury.

The first part concerns a conversation Assistant District Attorney Schiff had with some members of the jury panel prior to impaneling the jury. He testified the discussion was about grand jury procedure, juror concern with a lesser included offense in a prior trial not involving defendant and defense tactics in the prior trial. His testimony is not contradicted. He was not the prosecutor in this case.

The trial court informed the jury panel that the conversation between Schiff and some members of the panel was an impropriety and asked that during voir dire the panel members who engaged in the conversation identify themselves. This was done.

Approximately 12 prospective jurors identified themselves as having participated in or overheard some of the conversation with Schiff. All answered that nothing in the conversation would influence their verdict and that they could be impartial if selected as a juror. Four were ultimately selected as jurors and one as the alternate juror.

Defendant's claim is that unauthorized contact with jurors is presumptively prejudicial. We agree. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967). The foregoing not only overcame the presumption of prejudice, State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.App.1969), cert. denied, 398 U.S. 942, 90 S.Ct. 1860, 26 L.Ed.2d 279 (1970), it affirmatively established an absence of prejudice. State v. Brugger, 84 N.M. 135, 500 P.2d 420 (Ct.App.1972).

The second part concern a conversation, during trial, between the wife of a juror and a prosecution witness. Later, the wife had lunch with her juror husband. On the basis of these two facts, defendant raises a spector of improper influence upon the juror. The husband testified there had been no conversation with his wife about any witness or of any matter pertaining to the trial. This second part fails because of lack of a factual basis for the claim of improper communication with a juror.

The third part concerns the juror Gaines. During voir dire she indicated that she knew Ivan Smith, who had been identified as a witness. Upon questioning by the trial court, Mrs. Gaines stated that her acquaintanceship with Smith would not affect her ability to be completely fair and impartial with regard to Smith's testimony. During questioning by defense counsel, Mrs. Gaines stated that she thought she would trust Smith and 'would think that what he said was true.'

Defendant challenged Mrs. Gaines for cause, relying on her answers on voir dire. In denying the motion, the trial court pointed out that Mrs. Gaines had not said she would believe Smith more than anyone else. 'She just believed him to be truthful, but that she would be fair and impartial.' In ruling, the trial court also pointed out that it had been indicated that Smith's testimony did not go to the substance of the charge against defendant.

In contending denial of the challenge for cause was error, defendant misstates Mrs. Gaines' testimony. She did not state she would give more weight to the testimony of Smith than to others. She did state she believed Smith would be truthful. The question is whether the trial court abused its discretion in failing to excuse Mrs. Gaines as a juror in the light of this answer. See State v. Valdez, 83 N.M. 632, 495 P.2d 1079 (Ct.App.1972).

We do not have a fact situation such as in Mares v. State, 83 N.M. 225, 490 P.2d 667 (1971). Ivan Smith, a police officer, testified that upon notification of the shooting he went to the scene; that other officers had preceded him to the scene (Michael's Lounge) and roped off the area; that he took three photographs of the scene (which were admitted without objection); that after taking the photographs, he assisted in taking measurements and preparing a diagram; that in doing this he picked up some cigarettes, a cigarette lighter and a dollar bill from the floor. Smith testified that other than the above he did no investigative work, talked to no witnesses and did no interviewing.

Smith's testimony went no further than to depict the scene where the shooting occurred, and this scene was not disputed. If Mrs. Gaines believed Smith was truthful in photogaphing and diagraming the scene and in picking up some items from the floor, so did the other jurors. We cannot say that Mrs. Gaines' opinion that Smith would be truthful in his testimony requires us to hold, as a matter of law, that the trial court erred in denying defendant's challenge for cause. Our view is that if error did occur in denying the challenge, the error was harmless. See State v. Deats, 82 N.M. 711, 487 P.2d 139 (Ct.App.1971).

Evidence of the character of the deceased in State's case-in-chief.

The defense made an opening statement to the jury prior to the reception of any evidence. This statement included remarks that there had been difficulties between deceased and defendant and some of those difficulties led up to the fatal shooting. 'We will present witnesses to show that Mr. Joe Romero, the deceased, was a person of violent character.'

During cross-examination of the State's witness, Donna Wasilowski, the defense asked if, in April, 1972, the witness had seen the defendant when his eyes or face appeared to be wounded. The witness did not remember.

Without objection on defendant's part, the State introduced evidence that: 'Joe Romero was the friendliest man I ever met in my life.' Without objection, the State introduced evidence of a fight between deceased and defendant in April, 1972 outside a cocktail lounge referred to as La Anita. Also without objection, the State introduced evidence of a fight between defendant and a friend of deceased in June, 1972 outside the Penguin Lounge.

In its case-in-chief, the State asked a witness whether other than the La Anita incident, he had ever seen Joe Romero get into a fight. The witness answered in the negative. Defendant objected on the basis 'that question is not in issue at this point.' The trial court overruled the objection on the basis that the question was relevant.

The foregoing shows the State introduced evidence, as part of its case-in-chief, concerning the asserted nonviolent disposition of the deceased. Defendant asserts this was error. The rule, stated in State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969), is that evidence of the good reputation of decedent is not admissible in the first instance. However, 'when defendant in his defense undertook to question decedent's character in any respect, the State on rebuttal could then offer proof of reputation that would cast doubt that decedent would have acted in the manner claimed.' See State v. McFerran, 80 N.M. 622, 459 P.2d 148 (Ct.App.1969). Although not applicable to this case, compare evidence rule 404 compiled as § 20--4--404, N.M.S.A.1953 (Repl.Vol. 4, Supp.1973).

We do not consider whether defendant had opened up the question of deceased's character by his opening statement and his cross-examination of Wasilowski. Rather, we consider the fact that the defense case introduced detailed evidence to the effect that deceased had a violent temper.

If evidence of the deceased's character was improperly admitted in the State's case-in-chief, the error was in anticipating evidence which the defense, in the opening statement, had declared would be introduced. When the defense proceeded to do so, any error in admission of character evidence in the case-in-chief was harmless. See State v. Barnett, 85 N.M. 301, 512 P.2d 61 (1973); State v. Cummings, 63 N.M. 337, 319 P.2d 946 (1957); State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct.App.1972); State v. Vasquez, 83 N.M. 388, 492 P.2d 1005 (Ct.App.1971); State v. Carlton, 82 N.M. 537, 484 P.2d 757 (Ct.App.1971). State v. Alberts, 80 N.M. 472, 457 P.2d 991 (Ct.App.1969) is distinguishable because there the defense did not present character evidence as a part of the defense case.

Exclusion of evidence concerning the character of deceased.

At trial, defendant attempted to introduce a 'booking slip' through an Albuquerque police officer. This slip indicates a Joe Pat Romero was arrested in 1966 after being identified as the person striking another person across the face with a gun.

Defendant asserts the trial court erred in excluding the booking slip. It did not. There was no evidence that the Joe Pat Romero named on the slip was the deceased. The trial court stated defendant could present additional material on the question of identity and on the question of whether the Romero named on the booking slip 'in fact did what he was charged with doing.' The matter was not raised again during trial.

Defendant's motion for a new trial again asserted error in excluding evidence concerning the asserted violent character of deceased. An affidavit in support of this motion refers to a subpoena duces tecum served on the custodian of records of the Albuquerque Police Department in advance of trial; that the response to the subpoena was only the booking slip; that a copy of the offense...