State v. Allison

• Decision Date: 05 September 2000
• Docket Number: No. 25,726.,25,726.
• Citation: 129 N.M. 566,11 P.3d 141,2000 NMSC 27
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charlie ALLISON, Defendant-Appellant.
• Court: New Mexico Supreme Court

11 P.3d 141

129 N.M. 566

2000 NMSC 27

STATE of New Mexico, Plaintiff-Appellee, v.Charlie ALLISON, Defendant-Appellant.

No. 25,726.

Supreme Court of New Mexico.

September 5, 2000.

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Enfield, LLP, Peter Schoenburg, Albuquerque, NM, for Appellant.

Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

SERNA, Justice.

{1}DefendantCharlie Allison appeals his convictions for willful and deliberate first degree murder, aggravated battery, aggravated assault, conspiracy, and tampering with evidence.SeeRule 12-102(A)(1) NMRA 2000(appeals from sentence of life imprisonment taken to the Supreme Court).Defendant asserts six errors on appeal: (1) whether the trial court abused its discretion by denying his motion to grant a continuance; (2) whether the trial court erred in allowing the prosecutor to impeach him with an unrelated arrest without first disclosing the information to the defense; (3) whether the trial court erred by admitting a tape and transcript of a witness's out-of-court statement; (4) whether prosecutorial misconduct deprived him of his right to due process and a fair trial; (5) whether Defendant's trial counsel's performance constituted ineffective assistance of counsel; and (6) whether the errors constitute cumulative error.We conclude that the prosecutor's failure to disclose Defendant's unrelated arrest and the failure of the trial court to cure the error were prejudicial, and we must therefore reverse Defendant's convictions and remand for a new trial.For guidance upon remand, we address whether the trial court erred by admitting a witness's out-of-court statement.Because we reverse on the issue of disclosure, we do not review Defendant's other contentions.

I.Facts and Background

{2} On July 3, 1997, Defendant and Chris Trujillo drove in Defendant's car to apartments located in Albuquerque.Defendant and Trujillo were standing on a first-floor balcony of one of these apartments when they became involved in an argument with four young men located at ground level in front of the balcony: Joseph Ortiz, Juan Ortega, Jesus Canas, and Javier Mendez.Shots were fired from the balcony at a downward angle, all from the same gun.Mendez was killed, and Canas was wounded.Defendant and Trujillo departed in Defendant's car.Defendant admitted to changing the distinctive rims on the car in order to make the car less recognizable after he viewed a news report which included a description of the car.

{3} Trujillo was a member of the Barelas gang.The State introduced evidence that Defendant was also a member of the Barelas gang.Ortega testified that he, Canas, and Mendez were all members of the Juaritos gang; Mendez stated, "Juaritos," prior to being shot.Ortega stated that he, Mendez, and Canas walked together to the apartments, unarmed, and he identified Defendant as one of the men standing on the balcony.He testified that he heard Defendant tell Mendez to leave the area and that Defendant pulled out a gun and fired two or three times at Mendez.Ortega testified that Trujillo took the gun and shot at Ortega and Canas.He stated that Trujillo and Defendant drove away in Defendant's car.

{4} Ortiz, Defendant's cousin, was a former member of the Barelas gang; he was expelled from the gang several years prior to the shooting and warned that he was unwelcome in the area.He testified that he planned to meet Mendez at the apartments on the day of the shooting.The State claims that the record supports an inference that the argument began when the Barelas gang members on the balcony challenged Ortiz's right to be in the neighborhood.Ortiz stated that he heard an argument and gunshots, and then he saw Mendez on the ground.He could not recall various details regarding the incident; as a result, the prosecutor played a tape of an interview between Ortiz and Detective Shawn.Ortiz told the detective that he saw "two guys," that "they looked straight at me, and they told me, `What are you doing here,'" and, "`You don't belong here.'"During the interview, Ortiz said that he and Mendez exchanged a few words with the men on the balcony, and then described the shooting.Ortiz said that he didn't recognize them, but he did describe a "big guy" wearing black jeans and a black t-shirt, presumably Defendant, and a shorter "skinny guy" wearing jeans and a striped shirt, presumably Trujillo.According to Ortiz, the smaller man had the gun.Although the larger man asked for the gun, the smaller man did not want to give it to him.Ortiz recounted that the smaller man said, "`Oh, you guys think I'm joking,'" and then began shooting.Ortiz told the detective that Mendez saw the gun and said, "Well no, no, you don't have to do that, you don't have to do that."

{5}Defendant admitted that he was standing next to Trujillo on the balcony when the shooting occurred, that he drove both to and from the apartments with Trujillo, and that he changed the appearance of the car in order to make it less recognizable.However, Defendant claimed at trial that he was not a gang member, that he was not involved with the shooting, and that he altered the appearance of the car because he feared gang retaliation.

II.Discussion

A.Failure to Disclose Defendant's Unrelated Arrest

{6}Defendant argues that the prosecutor intentionally failed to disclose an arrest report regarding Defendant which occurred almost one year before trial and approximately six months after the shooting.Defendant was arrested in January of 1998 for using a false name during a traffic stop.The prosecutor conceded that he received the report before Defendant began testifying, yet chose not to disclose it to defense counsel or bring it to the attention of the trial court because he believed that he was under no duty to do so.

When evidence is disclosed for the first time during trial, this Court must consider the following factors to determine whether the error is reversible: (1) whether the State breached some duty or intentionally deprived the defendant of evidence; (2) whether the improperly non-disclosed evidence was material; (3) whether the non-disclosure of the evidence prejudiced the defendant; and (4) whether the trial court cured the failure to timely disclose the evidence.

State v. Mora,1997-NMSC-060, ¶ 43, 124 N.M. 346, 950 P.2d 789.

1.Duty to Disclose

{7} The first question is whether the State breached a duty or intentionally deprived Defendant of evidence.Defendant argues that the State was required to disclose any statement by Defendant known to it as well as any prior criminal record under Rule 5-501(A) NMRA 2000.Rule 5-501(A) provides that

The State shall disclose or make available to the defendant:

(1) any statement made by the defendant... within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney;

(2)the defendant's prior criminal record, if any, as is then available to the state;

(3) any books, papers, documents ... or copies or portions thereof, which are within the possession, custody or control of the state, and which are material to the preparation defense or are intended for use by the state as evidence at the trial, or were obtained from or belong to the defendant;

....

Rule 5-505(A) NMRA 2000 provides:

If, subsequent to compliance with Rule 5-501... and prior to or during trial, a party discovers additional material or witnesses which he[or she] would have been under a duty to produce or disclose at the time of such previous compliance if it were then known to the party, he[or she] shall promptly give written notice to the other party or the party's attorney of the existence of the additional material or witnesses.

{8}The State argues that the context of Rule 5-501(A)(2), which requires the State to disclose a defendant's prior criminal record, supports the notion that "prior" refers to the time preceding the arrest on the particular charge at issue; thus, because Defendant's undisclosed arrest occurred after his arrest for the crimes in the present case, the State believes it is under no obligation to inform defense counsel.¹The State argues that any continuing duty only relates back to events occurring prior to the time of the initial disclosure but not known to the prosecutor at that time.We disagree.To limit the duty to a criminal record prior to the arrest on the charge at issue arbitrarily restricts Rule 5-501(A)(2).Cf.Standards for Crim. Just.: Discovery and Trial by Jury§ 11-2.1(a) commentary at 29(1993)(commentary completed 1995)(noting that disclosure of prior convictions or pending charges"enables defense counsel effectively to advise the defendant whether to plead guilty, and whether to testify at any trial" and "puts the defense on notice of any need to move to restrict the use of prior convictions for impeachment purposes").

{9}"The purpose of discovery in a criminal case, indeed the purpose of a trial itself, is to ascertain the truth."State v. Manus,93 N.M. 95, 103, 597 P.2d 280, 288(1979).

The articles regulating discovery are intended to eliminate unwarranted prejudice which could arise from surprise testimony.Discovery procedures enable the defendant to properly assess the strength of the state's case against him [or her] in order to prepare his [or her] defense.If a defendant is lulled into a misapprehension of the strength of the state's case by the failure to fully disclose, such prejudice may constitute reversible error.

State v. Selvage,644 So.2d 745, 750(La.Ct. App.1994)(concluding that, because defense counsel was aware of the possibility of the defendant's prior convictions, defense counsel's advice regarding the defendant testifying would not have been different even if fully informed by the prosecution).This rationale would logically...