State v. Carrillo
| Citation | 539 P.2d 626,88 N.M. 236,1975 NMCA 103 |
| Decision Date | 13 August 1975 |
| Docket Number | No. 1950,1950 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. David CARRILLO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of two counts of trafficking in heroin, defendant appeals. Section 54--11--20, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973). He contends the trial court erred in: (1) denying his motion for a polygraph examination, (2) refusing to dismiss because the State could not produce an informer, (3) refusing to strike the testimony of a witness, and (4) refusing to grant a new trial. Appellate counsel has either disregarded the record or appellate rules in each point raised.
Prior to trial defendant sought an order requiring the State 'to provide the defendant with the opportunity and means to submit to a polygraph examination. * * *' The contents of the motion make clear that defendant had the opportunity for such an examination; defendant had selected the examiner and alleged the examiner had consented to conduct the examination. What defendant sought by his motion was an order committing the State to pay for the examination before the examination was conducted. See State v. Frazier, 85 N.M. 545, 514 P.2d 302 (Ct.App.1973) concerning requests for advance authorization.
The trial court denied the motion. The order recites that the court had 'heard from counsel' in connection with the motion. There is nothing in the record showing what contentions were presented to the court. All this record contains on this issue is the motion and the order.
On what basis was defendant entitled to compel the State to pay for such an examination?
The motion alleges that defendant was indigent thus presumably invoking the provisions of the Indigent Defense Act, §§ 41--22--1 through 41--22--10, N.M.S.A.1953 (2d Repl.Vol. 6). At the time the motion was ruled on, there was nothing in the record showing defendant was in fact indigent. The court's finding of indigency was made after trial and for purposes of the appeal. Trial counsel was court-appointed but the only reference to indigency is in defendant's various motions, not in orders of the court. Also appearing in defendant's motions are allegations that defendant had employment and could return to that employment if released on bail. The record does not support the claim that defendant was indigent when he sought a free polygraph examination.
If we assume indigency, § 41--22--3(A), supra, would apply. That section provides that a needy person is to be provided with necessary services at public expense. Defendant's motion alleges a polygraph examination 'is necessary to afford the defendant the full extent of his constitutional rights to due process of law and equal protection. * * *' On what basis such an examination was 'necessary' we do not know. See State v. Frazier, supra. We need not consider the Indigent Defense Act further because there is nothing showing defendant relied on that act in the trial court and he does not rely on the act in his appeal.
On appeal, defendant asserts the polygraph examination was critical to the defense of alibi and misidentification. Defendant claims he had a constitutional right to be given the examination under State v. Dorsey, 87 N.M. 323, 532 P.2d 912 (Ct.App.1975); and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Our answers are: (a) The record does not show any claim of 'critical' evidence was ever raised in the trial court. From the record it appears this contention is raised for the first time on appeal. Section 21--12--11, N.M.S.A.1953 (Int.Supp.1974). (b) There is nothing in this record supporting a claim of 'critical' evidence at the time the motion was denied. (c) Defendant claims a polygraph examination was critical because two State Police agents identified defendant as the person who sold the heroin. Defendant also asserts a polygraph examination would either have added weight to his alibi defense or would have destroyed that defense. The trial record shows defendant called at least four alibi witnesses. This is quite different from State v. Dorsey, supra, where defense witnesses, apart from the defendant, could testify only to what defendant had stated. The absence of a polygraph examination was not critical. (d) The defendant's motion seeking the polygraph examination makes no allegations of any kind concerning requirements for admissibility 4 and 5, as stated in State v. Lucero, 87 N.M. 686, 526 P.2d 1091 (1974). These requirements are not questioned in State v. Dorsey, supra.
The polygraph contention is without merit on each of the above grounds.
Pursuant to Rule of Evidence 510(c)(2), the trial court directed the State to produce the informant for an in camera hearing. See State v. DeBarry, 86 N.M. 742, 527 P.2d 505 (Ct.App.1974); State v. Bauske, 86 N.M. 484, 525 P.2d 411 (Ct.App.1974).
The State was unable to produce the informer. The Rules of Evidence do not state what happens in this situation. Defendant moved for dismissal, which was denied.
United States v. Williams, 496 F.2d 378 (1st Cir. 1974) states:
'But should an informer disappear or become unavailable to the defense, we would compel the government, upon timely demand, either to locate him or make an affirmative showing satisfactory to the court why it could not reasonably be expected to do so and of its diligence generally as regards the disappearance.'
United States v. Jones, 492 F.2d 239 (3rd Cir. 1974) and Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965) require the government to demonstrate its inability, through reasonable efforts, to produce the informer. See also People v. Goliday, 8 Cal.3d 771, 106 Cal.Rptr. 113, 505 P.2d 537 (1973).
We follow the approach used in United States v. Williams, supra. Defendant's demand was made approximately four months prior to trial and was timely. The State could not produce the informer for the in camera hearing ordered by the court. Accordingly the State was required to satisfy the court as to why it could not reasonably be expected to produce the informer and satisfy the court as to the State's diligence as regards the disappearance. Whether the State has met its burden is a question of fact for the trial court. Velarde-Villarreal v. United States, supra.
The evidence produced by the State is uncontradicted. That evidence details the efforts to locate the informer after the trial court ordered the informer to be produced. In addition, Officer Frausto testified: 'I had made many efforts prior, however, I was not able to learn, not for the purpose of this case, but for other cases involved.'
On the basis of this evidence produced, the trial court ruled the State 'has made diligent search and inquiry to ascertain the whereabouts of the informer and I so find. * * *'
In contending the trial court erred in refusing to dismiss, defendant makes only indirect reference to the trial court's ruling. Defendant asserts there should have been a dismissal '(a)bsent a better showing of effort to locate than was made in the instant case. * * *' The answer to this contention is that the State's evidence is uncontradicted and that evidence is sufficient to...
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... ... NMSA 1978, Evid.R. 103(a)(2) (Repl.Pamp.1983); see also State v. Carrillo, 88 N.M. 236, 539 P.2d 626 (Ct.App.1975). Moreover, defendant's motion to compel compliance with the plea bargain did not alert the court to the necessity for an evidentiary hearing on the motion as required by NMSA 1978, Crim.P.Rule 33(e) (Cum.Supp.1984). Under these circumstances, the trial ... ...
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... ... Vol. 6). The trial court denied both motions ... On appeal, defendant does not rely on a statutory right for expenses of investigation under the Indigent Defense Act. See State v. Carrillo, 88 N.M. 236, 539 P.2d 626 (Ct.App.1975); State v. Frazier, 85 N.M. 545, 514 P.2d 302 (Ct.App.1973) ... The appellate claim is that defendant was denied equal protection when the trial court denied his motion to appoint a statistician to develop information concerning nonuniform ... ...
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...do not make the required showing of necessity for the defense services or inability to pay for them. See State v. Carrillo, 88 N.M. 236, 237-38, 539 P.2d 626, 627-28 (Ct.App.1975). Thus, Defendant's argument in his brief that the trial court erred in excluding the testimony of Dr. Roll is n......
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