State v. Chamberlain

• Decision Date: 25 September 1991
• Docket Number: No. 18938,18938
• Citation: 1991 NMSC 94,819 P.2d 673,112 N.M. 723
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Merrill CHAMBERLAIN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 673

819 P.2d 673

112 N.M. 723

STATE of New Mexico, Plaintiff-Appellee, v. Merrill CHAMBERLAIN, Defendant-Appellant.

No. 18938.

Supreme Court of New Mexico.

Sept. 25, 1991.

[112 NM 725] Robert J. Jacobs, Taos, for defendant-appellant.

Tom Udall, Atty. Gen., Charles Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BACA, Justice.

Defendant-appellant Merrill Chamberlain appeals his conviction on a charge of first-degree murder for which he received a life sentence.

On February 21, 1987, Chamberlain hired a female prostitute whom he then brought to his home. That evening she called the police to report a beating. Officers Carrillo and Messimer of the Albuquerque Police Department responded. Chamberlain denied that a woman was present and allowed the police to enter the house, consenting to their search. The officers conducted an initial search of the premises and did not find the woman, although they found evidence that a woman had been in the home. They sought to continue the search and wanted to return to the upstairs, but Chamberlain attempted to withdraw his consent. The officers insisted on continuing to search and accompanied Chamberlain to his bedroom. Chamberlain removed a semi-automatic weapon from the bedroom and took it into the bathroom. He then shot and killed Officer Carrillo.

Two trials were held. In the first, Chamberlain was convicted of several lesser offenses, but a mistrial was declared on the capital charge. This appeal is taken from his conviction in the second trial.

Appellant asserts the court erred in its: (1) refusal to change venue; (2) refusal to strike the jury venire; (3) failure to excise or suppress portions of a tape recording made during the shooting; (4) refusal to propound requested jury instructions; (5) refusal to grant a mistrial for prosecutorial misconduct; (6) failure to instruct the jury that, after it began to consider a lower count, it could not reconsider a higher count; and (7) failure to grant a new trial because of jury experimentation. He also contends he was denied effective assistance of counsel in violation of the sixth amendment and that cumulative error requires reversal. We consider appellant's arguments, and we affirm.

I. CHANGE OF VENUE

Appellant moved for a change of venue pursuant to NMSA 1978, Section 38-3-3 (Repl.Pamp.1987), arguing that extensive publicity had exposed potential jurors to information regarding the case. The motion was denied with leave to renew after voir dire. The renewed motion was also denied, and appellant asserts the court thereby abused its discretion and violated his right to a fair trial.

The trial court possesses broad discretion in ruling on motions to change venue, and we will not disturb its decision absent a showing of an abuse of that discretion. State v. Martin, 101 N.M. 595, 686 P.2d 937 (1984). The burden to show an abuse of discretion lies with the movant. State v. Jimenez, 84 N.M. 335, 337, 503 P.2d 315, 317 (1972). Exposure of venire members to publicity about a case by itself does not establish prejudice or create a presumption of prejudice. State v. McGuire, 110 N.M. 304, 311, 795 P.2d 996, 1003 (1990); see also State v. Hargrove, 108 N.M. 233, 239, 771 P.2d 166, 172 (1989) (fairness does not require jurors who are totally ignorant of facts of case). "[T]he pertinent inquiry is whether 'the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.' " McGuire, 110 N.M. at 311, 795 P.2d at 1003 (quoting Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984)). The court determined through voir dire that the jurors, although they may have heard of the case, were not incapable of impartiality. More is not required. Appellant has not carried his burden, and we affirm.

II. JURY VENIRE

Appellant argues that he was denied his right to a venire composed from voter registration and driver's license records as required by NMSA 1978, Section 38-5-3 (Cum.Supp.1990). We resolved this issue in State ex rel. Stratton v. Serna, 109 N.M. 1, 780 P.2d 1148 (1989), where we found the plain language of Section 38-5-3 required the jury pool to be expanded ninety days after the next general election, and we refuse to reconsider that conclusion. Appellant's trial took place before the expanded pool took effect. Section 38-5-3 was not violated.

III. FAILURE TO EXCISE OR SUPPRESS PORTIONS OF A TAPE RECORDING

When Officer Carrillo entered Chamberlain's house, he turned on a tape recorder attached to his belt and recorded his conversations with appellant and the other officer, the sound of gun shots, and sounds made by Carrillo after he had been shot. This tape was played to the jury.

A. Failure to Excise.

Appellant argues that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice and the court erred in admitting that portion of the tape containing Carrillo's moans made prior to his death. See State v. Baca, 89 N.M. 204, 549 P.2d 282 (1976); SCRA 1986, 11-403. The trial court is vested with great discretion in applying Rule 403, and it will not be reversed absent an abuse of that discretion. Mac Tyres, Inc. v. Vigil, 92 N.M. 446, 589 P.2d 1037 (1979). Evidence should be excluded if it is "calculated to arouse the prejudices and passions of the jury and [is] not reasonably relevant to the issues of the case." State v. Boeglin, 105 N.M. 247, 253, 731 P.2d 943, 949 (1987).

Appellant presented a theory of self defense. The tape tended to disprove that theory and was relevant, therefore, to the state's case. The recording showed that Carrillo was talking on his radio prior to being shot. Evidence was presented that police procedure forbids talking on the radio while holding a weapon. The tape also showed the officer was alive after being shot. The tape thus was probative of whether Carrillo drew his weapon prior to being shot and supported the possibility he drew it subsequently.

The evidence was also probative of appellant's intent to kill--the tape showed that Chamberlain shot Carrillo a second time after hearing his moans. See Boeglin, 105 N.M. at 253, 731 P.2d at 949 (danger of unfair prejudice from admission of gruesome photographs of victim did not substantially outweigh its value as probative of intent).

Thus, we hold that although the tape may have been prejudicial, it had probative value, and the district court properly and within its discretion balanced the probative value of the tape against its potential for unfair prejudice. The court did not abuse its discretion in admitting that portion of the tape recording containing the moans of Officer Carrillo.

B. Failure to Suppress.

Appellant argues that although the initial search of his house was proper, he withdrew his consent prior to the shooting and, thus, those portions of the recording made after consent was withdrawn should have been suppressed as product of an illegal search. See U.S. Const. amend IV; see, e.g., United States v. Torres, 663 F.2d 1019 (10th Cir.1981) (waiver of fourth amendment rights may be withdrawn); Mason v. Pulliam, 557 F.2d 426 (5th Cir.1977) (consent to search limited by right to reinvoke fourth amendment protections). Appellant also contends that he was in police custody and should have been given Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).¹ He asserts he requested an attorney, the request was not honored, the police continued to question him, and those questions and his answers are on the tape. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Accordingly, appellant concludes admission of the tape violated his rights as guaranteed by the fifth and sixth amendments to the United States Constitution.

Initially, we consider a question regarding appellate procedure. In State v. Chamberlain, 109 N.M. 173, 783 P.2d 483 (Ct.App.), cert. denied, 109 N.M. 154, 782 P.2d 1351 (1989), the court of appeals considered this issue as raised in Chamberlain's appeal of lesser convictions at his first trial. Appellant suggests that the doctrine of law of the case should not apply--the court of appeals decided the issue wrongly, and in the interest of justice, we should exercise our discretion to review the issue. See Reese v. State, 106 N.M. 505, 745 P.2d 1153 (1987).

In Reese, we reasserted our respect for and continuing adherence to the doctrine of the law of the case. Justice Ransom, specially concurring, emphasized our duty "to pursue a consistent course" when the law of the case is not " 'clearly erroneous.' " Id. at 507, 745 P.2d at 1155 (quoting Sanchez v. Torres, 38 N.M. 556, 567, 37 P.2d 805, 812 (1934)). We held: "Were we to adhere immutably to the law of the case, the defendant ... would be denied a fair trial," and we granted a new trial because " 'the doctrine should not be utilized to accomplish an obvious misjustice, or applied where the former appellate decision was clearly, palpably or manifestly erroneous or unjust.' " Id. (quoting 5 Am.Jur.2d Appeal and Error Sec. 750, at 194 (1962)).

The court of appeals decision in Chamberlain is not clearly erroneous or manifestly unjust,² and we will not deviate from the law of the case doctrine under these circumstances. As determined by the court of appeals, assuming arguendo the illegality of the search, the evidence may have been excluded in a trial on charges regarding the beating of the prostitute, but not in the trial for murder of the police officer. See 109 N.M. at 175, 783 P.2d at 485; see generally 4 W.LaFave, Search and Seizure Sec. 11.4(j), at 460-61 (2d ed. 1987) (in such circumstances, "no exploitation of the prior illegality is involved and ... the rationale of the exclusionary rule does not justify its extension").

Similarly, the court of appeals' disposition of the fifth and sixth amendment issues was not manifestly unjust. See 109 N.M. at 176, 783 P.2d at...