State v. Aull

• Decision Date: 16 October 1967
• Docket Number: No. 8268,8268
• Citation: 78 N.M. 607,435 P.2d 437,1967 NMSC 233
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Edward AULL and John Eubanks, a/k/a Jay Eubanks, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 437

435 P.2d 437

78 N.M. 607

STATE of New Mexico, Plaintiff-Appellee, v. Edward AULL and John Eubanks, a/k/a Jay Eubanks Defendants-Appellants.

No. 8268.

Supreme Court of New Mexico.

Oct. 16, 1967.

Rehearing Denied Nov. 15, 1967.

Boston E. Witt, Atty. Gen., Donald W. Miller, Edward R. Pearson, Asst. Attys. Gen., Santa Fe, for appellee

Fred M. Calkins, Jr., Albuquerque, for appellant Aull.

Buchmiller & Gammill, Albuquerque, for appellant Eubanks.

OPINION

BLYTHE, District Judge.

These appeals by two convicted burglars involve issues regarding change of venue, severance, search and seizure, voir dire examination of jurors, and remarks made during final arguments to the jury.

Edward Aull and John Eubanks, the present defendants, and two others were jointly informed against for burglary on January 24, 1966, and on March 31, 1966, Aull filed his first change of venue motion, which merely asked that venue be removed from Bernalillo County. On April 5, 1966, he amended his motion to ask that venue be changed to a county other than the three counties of the Second Judicial District. The amended motion sought entirely different relief, i.e., change of venue to a different district, superseding the original motion, which, accordingly, became functus officio. Monarch Lumber Co. v. Haggard, 139 Mont. 105, 360 P.2d 794 (1961). We, therefore, consider only the amended motion. Section 21--5--3(A)(2)(c), N.M.S.A.1953, provides for change of venue if a fair trial cannot be had in the county where the case is pending because of public excitement or local pejudice. When a motion for change based upon that ground requests a change to a county outside the district, subsection (B) of § 21--5--3 limits the time within which such motion must be filed to the first day of the next regular or special term of court. The amended motion in this instance, which was based upon local prejudice, was filed after the first day of the term. It follows that it was not timely filed. Since the motion for change of venue was not timely filed, the fact that evidence was taken concerning whether local prejudices existed does not require a different result. A reviewing court's function is to correct an erroneous result, not to review questions which could not change the ultimate decision. Tevis v. McCrary, 75 N.M. 165, 402 P.2d 150 (1965); Wieneke v. Chalmers, 73 N.M. 8, 385 P.2d 65 (1963).

On June 2, 1966, new counsel for Eubanks moved orally in the alternative for a change of venue or a continuance, incorporating by reference the exhibits introduced at the hearing of April 14th on Aull's motion for change of venue. Eubanks' oral motion did not meet the requirements of § 21--5--3(A)(2), N.M.S.A.1953, as amended, that a party's motion for change of vanue be supported by 'an affidavit of himself, his agent or attorney, that he believes he cannot obtain a fair trial in the county in which the case is pending because' of the existence of one or more of the conditions listed in the statute, so it was properly denied for this reason, as well as for the reasons stated above with reference to Aull's motion.

In the first of two motions for severance, filed June 6, 1966, the ground was:

'That Edward Lee Aull has received such bias and notorious publicity as a result of his various hearings and statements alleged to have been made to the District Attorney's Office and replies from the District Attorney's office in the local press as to unduly prejudice the rights of the Defendant, John Eubanks.'

On June 8, 1966, another motion for severance was filed by Eubanks, alleging:

'1. That there is currently being tried in the United States District Court in Albuquerque, New Mexico an action in which an allegation of fraud and arson has been interposed as a defense to an insurance claim.

'2. That one Edward Lee Aull, one of the Defendants herein, has received prominent and notorious publicity by reason of his alleged activities with reference to the aforesaid arson.

'3. That the defendant, Eubanks, has absolutely no connection with either that law suit or the crime of arson.

'4. That Defendant, Eubanks, by reason of being charged as a co-defendant with the Defendant Aull, is adversely affected in his defense by reason of the notoriety, publicity and requtation of Mr. Aull.'

The general rule is that it is insufficient ground for severance 'that other defendants have bad reputations, or have confessed to, or been convicted of, other crimes * * *.' 23 C.J.S. Criminal Law § 935, p. 713, citing numerous cases.

However, Eubanks' present counsel, who did not participate in the trial, does not now urge the grounds stated in the motions. Instead, he argues that the evidence introduced in the trial of the case was directed mostly against the defendant Aull and that Eubanks was found guilty by association with Aull. His position is summarized in this quotation from the annotation in 70 A.L.R. 1171, 1185:

'Separate trials are properly granted where it appears that a defendant would be prejudiced on a joint trial by the reception of evidence which is not admissible against him, but which is competent as against his codefendant. But a refusal is justified when the jury is properly instructed concerning the application of the evidence and no prejudice has in fact resulted from trying the defendants jointly.'

Eubanks relies havily on State v. Turnbow, 67 N.M. 241, 354 P.2d 533, 89 A.L.R.2d 461 (1960), where we reversed because the trial court's denial of a severance had the effect of denying the defendants, who were husband and wife, the benefit of a statute making one spouse incompetent to testify against the other in a criminal prosecution. Turnbow is clearly distinguishable.

In a long line of cases, collected in Turnbow, we have held that the granting of separate trials to jointly-charged defendants is, in New Mexico, a matter resting in the discretion of the trial court. Here, on the basis of facts disclosed at the time of the filing of the motions for severance, the trial court had a reasonable anticipation that the jury could properly weigh the testimony on the various issues as they arose, and we cannot say, even in retrospect, that this prophecy has not been realized, or that prejudice has in fact resulted from trying these defendants jointly, or that there has been an abuse of discretion.

Aull contends also that the trial court erred in denying his motion to suppress evidence seized from him at the time of his arrest, on the ground that the arrest and search were illegal. This necessitates a rather detailed review of the factual situation surrounding the arrest, search and seizure, as revealed by the testimony adduced at the hearing on the motion to suppress. State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966). This consisted of the testimony of Albuquerque police officers John H. Bowdich, John R. McKnight and Francis A. Troup; Celicia Cruz, wife of one of the original co-defendants; and the defendant Aull. It may be summarized as follows:

Aull was apprehended in a car on a street in the City of Albuquerque about 3:00 a.m. in front of a house where, after responding to a neighbor's complaint about disturbing noises, investigating officers found a 'peeled' safe in a pickup truck. At that time the officers did not know a burglary in fact had been committed, but they later discovered that the safe had been taken in a burglary of the Singer Sewing Center in Albuquerque.

The neighbor had made three complaints to the police by telephone in the early morning hours of November 11, 1965, about loud pounding and hammering noises coming from a garage behind the house next door, at 7404 Sky Court Circle, N.E., in a residential area. Twice the officers drove by, but, seeing and hearing nothing, they drove on. Two police patrol cars responded to the third call, which was to the effect that five or six men were loading something heavy into a truck. One car, containing officers McKnight and Troup, went to the 7404 Sky Court Circle address. The second patrol car was occupied by Bowdich and Officer Tom Chappell, who had heard all three of the police radio calls regarding the disturbance but had not responded to the first two. As Bowdich and Chappell approached the Sky Court Circle address, they saw a red Chrysler automobile, driven by Aull on Arvada Street, approach the interestion of Arvada Street and Sky Court Circle in front of the house where the disturbance had been reported. It was the only car other than the police car moving on the street at that hour. Aull's car swerved into the intersection and back out again. Bowdich turned his car's spotlight on Aull's car 'to see who it was,' and he recognized Aull, who was known to him as a 'safeman,' meaning a burglar specializing in safe burglaries. He also recognized Aull's car. Aull stopped his car as soon as the spotlight was turned on. Bowdich did not use his red light, siren, or other emergency equipment, but said he would have stopped Aull if he hadn't stopped, and probably would have stopped him again if he had attempted to leave after stopping. Bowdich did not at that time intend to arrest Aull and had not observed him to be violating any law.

Aull and the officers both alighted from their cars, and they met at the rear of Aull's car. Bowdich looked into Aull's car through a rear window and saw tools on the floor. After securing Aull's permission, but without telling him he didn't have to consent, Bowdich and Chappell searched the car and found a jack hammer, a claw hammer, an electric drill, a crowbar, a pair of gloves, and an electric razor.

Meanwhile, back at the house, officers McKnight and Troup had found the battered safe with its door pried off, ¹ and McKnight reported this fact on the police radio together with the information that Aull's car was seen leaving the area as the first police car arrived. Upon hearing this radio report, Bowdich informed Aull that he was under arrest for burglary. This...