State v. Chavez

• Decision Date: 19 August 1993
• Docket Number: No. 13549,13549
• Citation: 867 P.2d 1189,1993 NMCA 102,116 N.M. 807
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Manuel CHAVEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1189

867 P.2d 1189

116 N.M. 807

STATE of New Mexico, Plaintiff-Appellee, v. Manuel CHAVEZ, Defendant-Appellant.

No. 13549.

Court of Appeals of New Mexico.

Aug. 19, 1993.

Certiorari Denied Jan. 10, 1994.

[116 N.M. 809] Tom Udall, Atty. Gen., Joel Jacobsen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, David Henderson, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

BLACK, Judge.

Defendant appeals from his convictions for second degree murder, two counts of tampering with evidence, and conspiracy to tamper with evidence. He raises five issues on appeal: (1) error in failing to grant a motion for new trial based on the State's suppression of material evidence; (2) error in failing to grant a motion for new trial based on the recantation of testimony by the State's key witness; (3) admission of evidence in violation of the spousal privilege; (4) sufficiency of the evidence; and (5) cumulative and fundamental error in the prosecutor's closing argument. Issues listed in the docketing statement but not briefed are deemed abandoned. See State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). Since the record is sufficient to enable us to evaluate the merits of the second and third issues we deny Defendant's contingent motion to remand for an evidentiary hearing and we affirm.

FACTS

On December 31, 1989, Defendant and his wife, Stacey Chavez, had a New Year's Eve party at their mobile home. Darl "Pops" Hicks, Debbie McDaniel, and her friend, Les Hall, attended the party. Everyone drank very heavily and the group consumed four or five marijuana cigarettes. Hall also inhaled four or five lines of cocaine and swallowed "some pills."

As Hall continued to consume alcohol and drugs, his mood soured. He made several disparaging and hostile remarks to Defendant during the evening, including a statement that Defendant had two women; this was presumably a reference to Defendant's affair with McDaniel. Sometime before midnight, Hall got up, remarked that the others were spoiling the party, and left. Defendant told McDaniel that Hall was leaving to get more cocaine and that he was coming back.

Between 1:00 and 2:00 a.m., the group heard a loud truck outside the trailer. Defendant said it sounded like Hall was back. There is some dispute as to exactly when, or why, but at least by the time Hall returned, Defendant had placed his derringer in his back pocket. When Hall reentered the trailer, the two women went into the back bedroom, leaving Defendant and Hicks in the kitchen.

Hall entered without knocking, holding a whiskey bottle in his hand, and accused Defendant and Hicks of stealing his winning Colorado lottery ticket. Hall and Defendant pushed each other, and Hall shattered a glass table top with the whiskey bottle. Since the glass table had been a wedding gift, Defendant was angry and demanded to know who would pay for it. Hall either stumbled or was pushed out the door. According to Defendant, Hall then threatened to get a gun and kill "all of you sons of bitches."

When Hall began walking quickly toward his truck, where Defendant knew Hall kept a gun, Defendant followed him. Defendant testified: "That's when I pulled my gun out of my back pocket and fired a warning shot and said, 'Don't do it, Les, don't do it, I got the drop on you.' " Defendant said that Hall reached the door of his pickup and was "within arm's reach" of his gun. Defendant testified, "He turned on me and we had a struggle for my gun and he tried to trip me and take my gun away and the gun went off." Hall's body was discovered in his truck off a dirt road south of Bloomfield on New Year's Day.

THE FIRST MOTION FOR NEW TRIAL

When initially questioned by a state police officer, Stacey Chavez admitted Hall had been in their home New Year's Eve, but insisted he left after dinner and never returned. On January 6, 1990, Stacey Chavez gave a formal statement to state police officer Lonnie Valencia and a local officer. After Stacey repeated the story that Hall never returned, she was asked if she heard gunshots. At her request, the tape recorder was then shut off.

At some point during the ensuing discussion, the prosecutor, Assistant District Attorney Craig Westberg, was contacted. Westberg told Stacey that she would be given immunity from prosecution if she cooperated. Stacey then admitted that Hall had returned after midnight. She described how he had argued with Defendant, and Hall had been forced to leave. Stacey told the police that Hall fell or was pushed from the porch. She said Hall threatened to get his gun and shoot them and ran off into the darkness towards his truck. She heard her husband shout, "Don't do it Les, don't do it," and a shot. A few seconds later, she said she heard a second, muffled, gunshot. When she went outside, she saw Hall lying still on the ground. Stacey admitted to the police that she and the others had decided to get rid of the body and hide the evidence. At her request, the police took Stacey and her children to a "safe house," as she was afraid Defendant would be angry that she did not stick with her story.

After a preliminary hearing in February, Defendant was bound over for trial on charges of second degree murder, conspiracy, and tampering with evidence. Stacey Chavez was not called as a witness.

About four months after the preliminary hearing, Stacey Chavez took her children and moved to Grand Junction, Colorado. Sometime during this stay in Colorado, Stacey told a pastor and a counselor that she had lied to police when she said she had not seen the shooting. Her counselor contacted Officer Valencia and told him that Stacey wanted to change her story. Officer Valencia travelled to Colorado and took a third statement from Stacey. It differed in two main respects from the second story. Stacey now claimed that Hall had made no threats when he was ejected from the trailer, and she claimed to have actually witnessed the shooting. As a result of Stacey's new recitation, the State moved to amend the criminal complaint to charge Defendant with first degree murder.

Before the second preliminary hearing, however, Stacey Chavez moved back in with Defendant. She also contacted Defendant's attorney and said she wished to recant her third story. She insisted the second statement was correct.

Within a few days of her conversation with Defendant's lawyer, Stacey placed another phone call, this time to the District Attorney's Office. She stated that she needed help to get herself and her children out of the house. In response to her call, the prosecutor and a witness coordinator from his office drove out to the Chavez trailer, picked up Stacey and her children, and took them to another "safe house." Stacey appeared as a witness at the second preliminary hearing, and testified in a manner consistent with her third statement to Officer Valencia.

Following her testimony at the second preliminary hearing, Stacey again took the children and moved back to Grand Junction. While in Colorado, she instituted divorce proceedings against Defendant. She agreed, however, to let Defendant come up and see the children during the Easter weekend of 1991. Defendant also spent the weekend prior to his trial with his wife and children in Grand Junction. During this visit, Stacey called Defendant's lawyer and indicated that she had informed the New Mexico police she would not testify at trial. Defense counsel apparently told her a New Mexico subpoena would not be valid in Colorado and there was nothing New Mexico authorities could do to her if she did not come to Defendant's trial.

The prosecutor then contacted the Colorado attorney who was representing Stacey in her divorce action. That attorney contacted Stacey and told her that it would be a mistake not to cooperate with the New Mexico authorities. On April 14, after Defendant left Grand Junction to return for his trial the next day, Officer Valencia went to talk to Stacey in an attempt to persuade her to testify at trial.

On April 15, the prosecutor ordered that a warrant be prepared for the arrest of Stacey Chavez. The warrant was obtained through a magistrate judge, without the knowledge of the district judge presiding over Defendant's trial. On the first day of Defendant's trial Stacey was arrested and underwent extradition proceedings in Colorado. The prosecutor then discussed the immunity agreement with Stacey's court-appointed Colorado attorney. After conferring with counsel, Stacey decided to waive extradition. Upon returning to New Mexico, she was released upon her own recognizance.

At trial, Stacey testified much as she had at the second preliminary hearing. Defense counsel was unaware of her arrest, but cross-examined Stacey repeatedly and at great length about the immunity agreement and her inconsistent renditions of the New Year's Eve events. Defendant was convicted.

After trial, defense counsel reviewed the San Juan County Detention Center arrest records. He found that on the first day of Defendant's trial, Stacey Chavez had been booked on charges of conspiracy and tampering with evidence. Defense counsel then moved for a new trial based on the State's failure to disclose Stacey's arrest.

Defense counsel argues Defendant was deprived of his right to due process under the United States Constitution. He reasons that, since the prosecutor knew Stacey Chavez had been arrested and suppressed this fact, the three-part test enunciated in State v. Chouinard, 96 N.M. 658, 634 P.2d 680 (1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1980, 72 L.Ed.2d 447 (1982), rather than the six-prong test set forth in State v. Volpato, 102 N.M. 383, 696 P.2d 471 (1985), should apply. Applying Chouinard, we affirm. The three-part test adopted by Chouinard to determine whether deprivation of evidence is reversible error requires the following:

1) The State...