State v. Atwood, 685

Citation83 N.M. 416,1971 NMCA 171,492 P.2d 1279
Decision Date03 December 1971
Docket NumberNo. 685,685
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Sylvester ATWOOD, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

WOOD, Chief, Judge.

Convicted of arson, defendant appeals. The issues are: (1) venue; (2) unauthorized contact with a juror; (3) sufficiency of the evidence; and (4) sequestration of the jury.

Venue.

Defendant moved for a change of venue, alleging an impartial jury could not be obtained because of 'public excitement or local prejudice.' The trial court held a hearing on the motion. Defendant's evidence was to the effect that articles in the Roswell newspaper had prejudiced the residents of Chaves County against defendant so that an impartial jury could not be obtained. The State introduced evidence to the contrary. The trial court denied the motion. No findings of fact on the question of venue were requested and none were made. On the morning of trial, defendant renewed the motion, supporting the renewal with a Roswell newspaper article about the hearing on the venue motion and its denial. The trial court denied the renewed motion.

Where, as here, there was conflicting evidence, it is within the discretion of the trial court to grant or deny the motion for change of venue. State v. Vaughn, 82 N.M. 310, 481 P.2d 98 (1971), cert. denied, 403 U.S. 933, 29 L.Ed.2d 712, 91 S.Ct. 2262 (1971). Defendant contends the trial court abused its discretion in denying the motion. The basis of this argument is that the trial court should have believed the defendant's witnesses and exhibits. Where, as here, the trial court's ruling is supported by substantial evidence, the trial court did not abuse its discretion in not accepting as true the evidence introduced in support of the motion. See Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969). The fact that newspaper articles were introduced in support of the motion does not change the rule. Even with the newspaper articles in support of the motion, the trial court, on the evidence presented, could properly deny the motion. State v. Foster, 82 N.M. 573, 484 P.2d 1283 (Ct.App.1971); State v. Herrera, 82 N.M. 432, 483 P.2d 313 (Ct.App.1971). This is also true as to the renewal of the motion, where there was one newspaper article in support of the motion and no opposing evidence. The uncontested newspaper article supporting the renewed motion did not require that venue be changed because the article in itself did not establish public excitement or prejudice. State v. Foster, supra.

The foregoing assumes the venue issue is properly before this court even though findings were neither requested nor made. See State v. Fernandez, 56 N.M. 689, 248 P.2d 679 (1952); State v. Mosier, (Ct.App.), 83 N.M. 213, 490 P.2d 471, decided September 17, 1971.

Unauthorized contact with a juror.

A witness, on the stand immediately prior to the noon recess on the first day of trial, rode in a car with some of the jurors who were being taken to lunch. Upon arrival at the cafe, the witness sat down at a table where some of the jurors were seated. Upon being informed of this, the trial court interrogated four of the jurors and the witness. They were interrogated one at a time, in private. The interrogation was by the judge and by defense counsel.

The testimony at the interrogation was that there was no conversation about the case either in the ride to the cafe or at the cafe. There is evidence that some comment was made about the weather, and possibly, that the witness remarked that it was hard to pick a jury. The evidence is that little, if any, conversation could have occurred at the cafe because as soon as the witness sat down the bailiff moved him away.

After the above evidence was received, defendant moved for a mistrial, which was denied. Defendant claims the trial court erred in denying the motion for a mistrial. He asserts that the contacts between the witness and some of the jurors raised a presumption that defendant was prejudiced and that the State failed to overcome the presumption.

We agree that the unauthorized contacts between the witness and some of the jurors raised a presumption of prejudice. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967). We also agree that the burden was on the State to overcome the presumption. State v. Gutierrez, supra. Compare State v. Dickson, 82 N.M. 408, 482 P.2d 916 (Ct.App.1971). The trial court's denial of the motion for mistrial was, in effect, a ruling that the presumption had been overcome. 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).

Defendant's claim is that the interrogation by the court was insufficient to overcome the presumption of prejudice. He claims the questioning should have been more extensive, and implies that the number of jurors questioned was insufficient. We disagree. Jurors questioned included one who sat by the witness in the car and one beside whom the witness seated himself in the cafe. The four jurors interrogated, as well as the witness, all testified there had been no discussion of the case being tried. The evidence taken by the court is sufficient to sustain the trial court's ruling. State v. McFerran, 80 N.M. 622, 459 P.2d 148 (Ct.App.1969); State v. Thayer, 80 N.M. 579, 458 P.2d 831 (Ct.App.1969); State v. Gutierrez, supra. Compare State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970).

Here, as in the first issue discussed, we have assumed the issue is properly before us. The record fails to show, however, that defendant's claim, that the interrogation was insufficient, was ever called to the trial court's attention; rather, it is raised here for the first time. Compare State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970).

Sufficiency of the evidence.

The arson statute, § 40A--17-5(A), N.M.S.A.1953 (Repl.Vol. 6, Supp. 1971) reads:

'Arson consists of maliciously or willfully starting a fire or causing an explosion with the purpose of destroying or damaging any building, occupied structure or property of another, or bridge, utility line, fence or sign; or with the purpose of destroying or damaging any property, whether the person's own or another's, to collect insurance for such loss.'

The instructions told the jury that a material allegation was that defendant '. . . did maliciously or willfully start a fire or cause an explosion with the purpose of destroying or damaging a building located at 802 South Main Street, Roswell, belonging to the New Mexico Savings and Loan Association or with the purpose of destroying or damaging property to collect insurance for such loss.' Three 'ors' are found within this material allegation. Thus, various alternatives were charged.

No claim is made that the alternative charge was erroneous. See State v. Hollowell, 80 N.M. 756, 461 P.2d 238 (Ct.App.1969). The alternatives in the charge are pointed out because defendant challenges the sufficiency of the evidence. If the evidence is sufficient as to one of the alternatives defendant's attack on the evidence fails.

One of the alternatives charged is that defendant willfully caused an explosion with the purpose of damaging the building of the savings and loan association. This alternative does not involve insurance and the evidence pertaining to insurance will not be reviewed.

Defendant's business (television sales and service) was located in the building of the savings and loan association. There was an explosion and fire at defendant's business at approximately 2:00 a.m. on August 5, 1970. There is evidence that the explosion and fire resulted from the use of dynamite and gasoline. Evidence of bottles filled with gasoline, primer cord and the physical arrangement of these items inside defendant's business permits the inference that the explosion was willfully caused and was for the purpose of damaging the building. Specifically, the evidence fully supports a determination that arson did occur under the alternative charge that we are reviewing. Defendant does not claim that arson did not occur.

Defendant's claim is that the evidence is insufficient to show that he was the person who committed the arson. This claim has four aspects: direct evidence that defendant was the arsonist; circumstantial evidence that defendant was the arsonist; direct evidence that defendant aided and abetted the arsonist; circumstantial evidence that defendant aided and abetted the arsonist. As to the first three aspects, we agree that the evidence is insufficient to connect defendant with the arson. We disagree as to the fourth. We hold that the circumstantial evidence that defendant aided and abetted the arsonist, who is unknown, is sufficient to sustain the conviction.

The circumstantial evidence of aiding and abetting follows. The explosion at defendant's business occurred at approximately 2:00 a.m. on Wednesday, August 5, 1970. The building was locked at the time and there is evidence of no forcible entry into the building. Investigators found a five gallon water bottle filled with gasoline with primer cord wrapped around it. A 'cap' was attached to the primer cord. This bottle was intact. A second bottle was also found, but it was broken. There is evidence that a similar bottle had been on the premises prior to the arson. Sometime in July, defendant had borrowed another similar bottle from a business acquaintance.

There is evidence that sometime in July, prior to the arson, defendant contacted Mr. Sparks in Hobbs and asked him to come to Roswell. When defendant met Sparks in Roswell, defendant asked Sparks if Sparks could get defendant some fuse and caps. Sparks said he could get whatever defendant wanted. Subsequently, Sparks purchased some caps, dynamite...

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