State v. Bazan

• Decision Date: 25 January 1977
• Docket Number: No. 2599,2599
• Citation: 561 P.2d 482,90 N.M. 209,1977 NMCA 11
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Leroy BAZAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 482

561 P.2d 482

90 N.M. 209

STATE of New Mexico, Plaintiff-Appellee, v. Leroy BAZAN, Defendant-Appellant.

No. 2599.

Court of Appeals of New Mexico.

Jan. 25, 1977.

Certiorari Granted then Quashed March 17, 1977.

Farrell L. Lines, Lamb, Metzgar, Franklin & Lines, P.A., Albuquerque, for defendant-appellant

Toney Anaya, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

There was a car chase with shooting. Involved were defendant, Madrid and Sheriff's Officer Foster. Defendant appeals his conviction of assault with intent to commit a violent felony. Section 40A--3--3, N.M.S.A.1953 (2d Repl. Vol. 6). The issues raised divide into two categories: (1) writing used to refresh memory, and (2) character evidence.

Writing Used to Refresh Memory

Because the incident in question involved the discharge of a firearm by Foster, the Internal Affairs Division of the Sheriff's Office conducted an investigation. As a part of that investigation, defendant was interviewed. The interview was tape recorded. A transcription was made of the tape; the transcription was included as a part of the Sheriff's Office file.

Officer Stockard conducted the investigation. When subpoenaed to testify, he attempted, unsuccessfully, to locate the tape of the interview with defendant. Prior to any testimony from Stockard, defendant moved to suppress the transcribed statement on various grounds. See State v. Baca, 82 N.M. 144, 477 P.2d 320 (Ct.App.1970). We are not concerned with these grounds because the State did not attempt to introduce the transcription into evidence.

However, the State did inform Stockard that he could refer to the transcription to refresh his memory of the interview. Defendant claims the trial court erred in permitting Stockard to refresh his memory from the transcription. This contention involves past recollection recorded, present recollection revived and Evidence Rule 612.

3 Wigmore, Evidence (Chadbourn rev. 1970) discusses past recollection recorded at §§ 734--755. One of the requirements for use of a recorded recollection as evidence is a showing that the record was correct when made. See §§ 746--747. Wigmore (Chadbourn rev.), supra, discusses present recollection revived at §§ 758--765. Section 758 states:

'It is worth while . . . to note that none of the limiting rules just examined for past recorded recollection has any bearing on the present subject (present recollection revived). The confounding of the two has led to many misguided rulings.' (Emphasis in Wigmore.)

Wigmore's distinction between the two rules has been consistent through the years. 1 Wigmore on Evidence, § 747 (1904) discusses the requirement of a showing that the past recollection recorded was accurate when made; §§ 758--764 discusses present recollection revived; § 758 states that any writing may be used to stimulate and revive a recollection.

McCormick on Evidence, § 9 (2nd Ed. 1972) agrees that the two rules are different, explaining that when a witness speaks from a memory that has been revived, the testimony is what the witness says and not the writing. However, when memory is not revived, the witness relies upon a writing. In this situation the reliability of the writing must be established. McCormick, supra, also agrees that the two rules have been confused, explaining the confusion by the practice of referring to both rules by the phrase 'refreshing recollection'.

Although a showing that the writing was correct when made is not a requirement of the rule concerning present recollection revived, McCormick, supra, considers there is no harm in adding this requirement 'if it is a safeguard needed in the search for truth.' As to this, McCormick, supra, states:

'(M)ost courts today when faced with the clear distinction between the two uses of the memoranda, will adhere to the 'classical' view that any memorandum or other object may be used as a stimulus to present memory, without restriction by rule as to authorship, guaranty of correctness, or time of making. On balance, it would seem that this liberality of practice is the wiser solution because there are other sufficient safeguards to protect against abuse.'

New Mexico decisions have confounded the two rules. The question for this Court is whether we may adopt the 'wiser solution' or whether under Alexander v. Delgado, 84 N.M. 717, 507 P.2d (1973) we must follow the New Mexico decisions. The question arises because there is no evidence that the transcription of the tape was correct when made. If such was required, the trial court erred in allowing Stockard to use the transcription to refresh his memory.

The confounding occurred in two decisions reported in Volume 15 of the New Mexico Reports: Territory v. Harwood, 15 N.M. 424, 110 P. 556, 29 L.R.A.(n.s.) 504 (1910) and Palma & Ruppe v. Weinman & Barnett, 15 N.M. 68, 103 P. 782, 24 L.R.A.(n.s.) 423 (1909).

An issue in Harwood was the age of a girl. A priest testified as to the age, however, he had no recollection of the girl's age or of her christening. His only knowledge of the girl's age was based on a memorandum made about the time of the christening. The priest did not testify that the memorandum was correct when made. This testimony raised an issue only as to past recollection recorded because there was no present memory.

Harwood discusses both present recollection revived as well as past recollection recorded and states:

'Whether one or the other of the rules above outlined (concerning past recollection recorded) is followed or whether the memorandum is used simply to stimulate memory which thereupon becomes awakened thereby, it is an essential at the basis of the use of all memoranda that they shall be shown to have been correct when made.'

State v. Apodaca, 42 N.M. 544, 82 P.2d 641 (1938) follows this quotation in a case involving past recollection recorded, citing Harwood as authority. Accordingly, Apodaca does not require separate consideration.

Harwood gives four citations in support of the above quotation. They are: Section 747 of the 1904 edition of Wigmore, supra; Acklen's Executor v. Hickman, 63 Ala. 494, 35 Am.Rep. 54 (1879); Imhoff v. Richards, 48 Neb. 590, 67 N.W. 483 (1896); Nehrling v. Herold Co., 112 Wis. 558, 88 N.W. 614 (1902). All involve past recollection recorded; however, the Alabama and Wisconsin decisions do state that before a writing may be used to refresh one's memory, there must be a showing that the writing was correct when made. Thus, two of the authorities cited confuse the two rules; the other two authorities cited deal only with past recollection recorded.

In Palma & Ruppe v. Weinman & Barnett, supra, the witness read a list of items to the jury. The evidentiary question involved past recollection recorded. Yet, the opinion discusses the refreshing of a witness' memory and cites § 758 of the 1904 edition of Wigmore. This section deals with present recollection revived.

The New Mexico decisions involved past recollection recorded; as to this see Evidence Rule 803(5). The decisions did not involve present recollection revived. We do not consider that Alexander v. Delgado, supra, requires us to follow the dicta in Territory v. Harwood, supra, when that dicta is based on an obvious confusion of two evidentiary rules. Instead, we follow Wigmore, supra, and McCormick, supra. We hold that Territory v. Harwood, supra, does not apply to present recollection revived. Compare Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975). We also hold there was no error in allowing Stockard to revive his memory by referring to the transcription without a showing that the transcription was correct when made.

This result is not affected by Evidence Rule 612, the applicable part of which reads:

'If a witness uses a writing to refresh his memory for the purpose of testifying, either--(1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.'

3 Weinstein's Evidence, 612(01) (1975) explains:

'The Rule covers but a small portion of the law relating to the refreshing of recollections. A brief survey of some of the features of reviving memory is useful in understanding the rationale of the Rule, even though these aspects will continue to be governed by case law.

'1. No means of arousing recollection may be used until the witness has satisfied the trial judge that he lacks effective present recollection. . . .

'2. Anything may be used to revive a memory--'a song, a scent, a photograph, all allusion, even a past statement known to be false.' Thus, a 'writing' in Rule 612 includes sound recordings and pictures of all kinds. Compare Rule 1001. It does not matter whether a statement is written by the witness himself, was made contemporaneously with the event itself, or is a copy rather than an original. 'The only question is whether in fact it is genuinely calculated to revive the witness' recollection.' . . .

'3. The witness' recollection must be revived after he consults the particular writing or object offered as a stimulus so that his testimony relates to a present recollection. If his recollection is not revived, a memorandum may be read into evidence and admitted if it meets the test of recorded recollection set forth in Rule 803(5). . . .

'Two safeguards have been adopted by the courts to temper the possibility of the witness putting before the court inaccurate, though perhaps unconscious, inventions which purport to be his present recollection. The first, which remains a matter of case law, is that the trial judge has considerable discretion at various points to reject the testimony either, as discussed before, by holding that the witness is not lacking in...