State v. Case

Decision Date13 January 1984
Docket NumberNo. 14721,14721
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Carl CASE, Defendant-Appellant.
CourtNew Mexico Supreme Court
Janet E. Clow, Chief Public Defender, David Stafford, Asst. Appellate Defender, Santa Fe, Gary C. Mitchell, Ruidoso, for defendant-appellant
OPINION

STOWERS, Justice.

Defendant Carl Case was tried by jury and convicted in the District Court of Eddy County for one count of first degree murder and one count of criminal sexual penetration in the first degree. The jury did not find the aggravating circumstances of NMSA 1978, subsection 31-20A-5(B) (Repl.Pamp.1981) that the murder was committed with intent to kill in the commission of criminal sexual penetration. The defendant was sentenced to life imprisonment for the conviction of first degree murder.

From this conviction the defendant appeals. We affirm.

The issues on appeal are:

1. Whether the trial court erred in denying a motion to appoint substitute counsel for the defendant and in failing to recuse itself.

2. Whether the trial court abused its discretion by refusing to admit evidence that the decedent was seen by friends several days after the murder allegedly occurred.

3. Whether the trial court abused its discretion by refusing to voir dire jurors or declare a mistrial due to alleged juror misconduct.

4. Whether the trial court erred in permitting "death qualification" of the jury.

The pertinent facts are as follows:

On January 30, 1982, the partially decomposed body of Nancy Mitchell was found near the Pecos River, Eddy County, New Mexico in the area known locally as Six-Mile Dam. A preliminary autopsy showed that Nancy Mitchell had bruises on her upper body and a fractured skull. There was testimony that on January 1, 1982, the defendant, Curtis Worley, Joseph Brown, and several others were overheard discussing forcing Nancy Mitchell to engage in sexual intercourse. There was further evidence that on this same date, Nancy Mitchell was seen with the defendant, Worley, and Brown in the area of Six-Mile Dam. Eyewitnesses testified that Worley struck the victim with his fist and that the defendant, Worley, and Brown then attacked the victim, disrobing her. It was also alleged that the victim was then sexually assaulted in turn by the defendant, Worley, and Brown. There was further testimony that the defendant was also seen striking the victim with an object described as possibly a pipe. One eyewitness testified that the defendant, Worley and Brown then dressed the unconscious victim, dragged her away, and abandoned her. Furthermore, it was alleged that on or about January 3, 1982, the defendant, Worley, and Brown, while in the company of others, were overheard discussing the forced sexual intercourse they had with Nancy Mitchell and the probability of her body being discovered.

Motion to Appoint Substitute Counsel and Failure of Trial Court to Recuse Itself.

The defendant argues that the trial court was biased because the judge stated he would file disciplinary charges against Mr. Mitchell, one of the defendant's attorneys. Mr. Mitchell had filed thirty motions in this case within the seven days preceding trial. The judge denied these motions because defense counsel had violated the time limitations of NMSA 1978, Crim.P.Rule 33 (Cum.Supp.1983). Rule 33 states in pertinent part:

(d) Time for making motions. All motions, unless otherwise provided by these rules or unless otherwise ordered by the court, shall be made at the arraignment or within twenty days thereafter, unless upon good cause shown the court waives the time requirement.

The defendant contends that the judge's action shows bias, and because of this alleged bias he should have recused himself or allowed Mr. Mitchell to withdraw on the day of the trial.

The defendant admits that he filed the motions in violation of Rule 33.

In support of his contention of judicial bias, the defendant cites Matter of Klecan, 93 N.M. 637, 603 P.2d 1094 (1979); Matter of Avallone, 91 N.M. 777, 581 P.2d 870 (1978); and State v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966). We do not find these cases applicable here. These cases involved allegations of bias by the trial court against a party. The bias alleged in the present case is against the defendant's attorney and not against the defendant. It has been previously decided that bias or prejudice towards an attorney is insufficient to disqualify a judge unless the bias rises to such a degree as to adversely affect the interests of the client. Martinez v. Carmona, 95 N.M. 545, 624 P.2d 54 (Ct.App.1980), cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981). In the present case, we find nothing in the record to show any adverse impact upon the interests of the defendant as a result of the actions taken by the judge against Mr. Mitchell. The judge was enforcing the Rules of Criminal Procedure, NMSA 1978, Crim.P.Rules 1 through 59 (Repl.Pamp.1980 and Cum.Supp.1983), and such action by a trial court is not considered bias. In United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980), cert. denied 451 U.S. 901, 101 S.Ct. 1966, 68 L.Ed.2d 289 (1981), this Court dealt with a situation where the trial court was alleged to be biased due to sanctions and orders imposed upon General Atomic Co. This Court noted that criticism by the trial court of a party or its counsel was inevitable when the trial court was faced with a violation of discovery rules and orders. In the present case, the trial court informed Mr. Mitchell that it disapproved of his violation of the procedural rules. This is not the equivalent of bias which must arise from some extra-judicial source. Id.

Defendant further argues that certain rulings made by the trial court demonstrate its alleged bias against Mr. Mitchell. This argument is equally without merit. In Re I.B.M., 618 F.2d 923 (2nd Cir.1980) dealt with a claim of bias based on unfavorable rulings by the trial court. We agree with the reasoning of In Re I.B.M. that bias requiring recusal must be personal, and cannot be based on unfavorable rulings. See also United Nuclear Corp. v. General Atomic Co.

Defendant also claims that Mr. Mitchell should have been allowed to withdraw from the case on the day of trial due to his alleged conflict between "pleasing" the trial court and aggressively representing the defendant. A review of the record indicates that the actions of the trial court in no way adversely affected the nature of the defendant's case. Mr. Mitchell aggressively defended his client throughout this case and was in no way intimidated by the trial court's actions prior to trial.

Moreover, the defendant was also represented throughout trial by co-counsel who was equally as aggressive as Mr. Mitchell in presenting the defendant's case. Our review of the record shows that any alleged conflict which may have existed had no adverse effect upon Mr. Mitchell or the performance of co-counsel. There must have been an actual conflict which adversely affected the defense lawyer's performance. Absent an actual conflict, the defendant has no claim. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v. Robinson, 99 N.M. 674, 662 P.2d 1341 (1983).

We find that the trial court did not err in denying the defendant's motion to appoint substitute counsel, nor in failing to recuse itself.

Admissibility of Evidence that the Decedent Was Seen Several Days After the Murder Allegedly Occurred.

At trial, the defense called Tammie Simmons (Simmons), who testified regarding a visit she had with a friend, Michelle Kent (Kent), on or about January 6, 1982. At a bench conference, the State explained it believed Simmons was about to respond with inadmissible hearsay and lodged an objection. The prosecution claimed Simmons would testify that her friend Kent said "there goes Nancy Mitchell" but that Simmons turned and did not see her. Defense counsel argued that Kent's declaration was admissible as a present sense impression or an excited utterance pursuant to NMSA 1978, Evid.Rule 803(1) and (2) (Repl.Pamp.1983).

The present sense impression exception is one of a potentially broad nature. In State v. Perry, 95 N.M. 179, 619 P.2d 855 (Ct.App.1980), the Court of Appeals stated that a trial court must assess the time element and determine that the statement was made at or near the time of the occurrence. Next, the Court of Appeals noted that the declarant could be unavailable, and could even be an unidentified bystander. In light of that possibility, the Court of Appeals stated that:

The admissibility of the statement will depend upon the trial court's view of the type of case, the availability of other evidence, the verifying details of the statement and the setting in which the statement was made.

Id. at 180, 619 P.2d at 856, citing 4 J. Weinstein & M. Berger, Weinstein's Evidence, Sec. 803(1) (1979). The trial court therefore has a correspondingly broad discretion to assess the reliability of the statement made by a witness who does not testify.

In the present case, the statement of identification was made by a declarant whose whereabouts were unknown at the time the statement was offered into evidence. Furthermore, there were no identifying details in the statement. The record indicates that this identification was based on the absent declarant's brief glimpse of the person she believed to be Nancy Mitchell. By the time Simmons looked up in response to Kent's declaration, the person was no longer visible. Therefore, Simmons was unable to verify that Nancy Mitchell was in the passing car. Under State v. Perry the trial court may consider whether the absent declarant's observation could be verified by the witness who heard the declaration. In order for the trial court to assess the value of the testimony in a situation where a statement made under...

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