State v. Cheadle
| Decision Date | 21 November 1983 |
| Docket Number | No. 14177,14177 |
| Citation | 1983 NMSC 93,101 N.M. 282,681 P.2d 708 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. David Leon CHEADLE, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
David Leon Cheadle (Cheadle), was convicted of murder in the first degree for which he received a sentence of death. Cheadle was also convicted of kidnapping in the first degree for which he received nineteen years imprisonment, kidnapping in the second degree for which he received ten years imprisonment, two counts of armed robbery in the second degree for which he received ten years imprisonment for each count, and criminal sexual penetration in the second degree for which he received four years imprisonment. Cheadle appeals. We affirm.
The issues on appeal are:
I. Whether the trial court erred in denying Cheadle's motion to strike certain identification testimony.
II. Whether the trial court erred in refusing to grant immunity to a defense witness.
III. Whether the jury instructions used for sentencing were inconsistent and confusing thereby providing inadequate standards for the jury to use in deciding between the death penalty and life imprisonment.
IV. Whether Cheadle is entitled to a new sentencing proceeding because one of the two aggravating circumstances submitted to the jury was not justified by the evidence.
V. Whether Cheadle's sentence of death should be set aside as excessive and/or disproportionate under the circumstances.
VI. Whether New Mexico's Capital Felony Sentencing Act, NMSA 1978, Sections 31-20A-1 through 31-20A-6 (Repl.Pamp.1981), is unconstitutional because the death penalty is cruel and unusual punishment.
Leslie Goodwin (Goodwin) testified that on September 10, 1981, at approximately 2:15 a.m., she and Gabe Nava (Nava) left Ned's El Portal (Ned's), a bar in Albuquerque, New Mexico. They walked over to Nava's car and stood there in the parking lot talking. Cheadle approached them branishing a gun. Cheadle stated, "Come on let's go, * * * I will kill you if you don't," and then by waving a silver-colored gun instructed them in which direction to proceed. After walking a short distance and stopping between buildings, Cheadle instructed Nava and Goodwin to stand facing the wall of the building in a "spread eagle" position with their backs to Cheadle. Cheadle then demanded money which they both gave to him. Nava was then instructed to take off his jeans and shirt, which he did. Nava and Goodwin were then ordered to move about ten to twelve feet down the alley. They moved to a fence, when again they were ordered to put their hands on the fence and stand in a "spread eagle" position. Cheadle then ordered Goodwin to remove her clothes. At about that time, Cheadle shot Nava for the first time. Cheadle again demanded that Goodwin remove her clothes and told her that he would kill her if she did not. She complied. Cheadle then attempted to rape Goodwin, but could not get an erection. Goodwin was then instructed to put her clothes back on. At that time, Cheadle shot Nava a second time. Cheadle ordered Goodwin back to Nava's car. Upon arriving at Nava's car, Cheadle then got into the front seat and reached over to unlock the driver's door for Goodwin. Goodwin ran and stopped a passing police car, explained what happened and gave a description of the offender to the police.
Nava died later that morning from gunshot wounds to the head.
Cheadle moved to "strike the identification of all the witnesses." The basis of the motion was that the identifications were unreliable because the witnesses had viewed Cheadle's picture furnished to the media by the police before they made the identification from a photographic lineup or the in-court identification. The trial court denied the motion.
The test with respect to suppression of out-of-court photographic identification is "whether the 'photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " State v. Nolan, 93 N.M. 472, 476, 601 P.2d 442, 447 (Ct.App.), cert. denied, 93 N.M. 683, 604 P.2d 821 (1979) (citations omitted.) To determine this, we must decide whether under the "totality of the circumstances" the identification was reliable, even if the confrontation procedure was suggestive. Manson, Correction Commissioner v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Nolan. In Manson, Correction Commissioner v. Brathwaite, the United States Supreme Court set forth five factors to weigh in deciding whether out of court identification was suggestive:
1) The opportunity to view * * *.
2) The degree of attention * * *.
3) The accuracy of the description * * *.
4) The witness' level of certainty * * *.
5) The time between the crime and the confrontation * * *.
Id. at 114 & 115, 97 S.Ct. at 2253.
Four witnesses were shown a photographic array of five or six pictures which included Cheadle, after Cheadle's picture had been on television and in the newspaper, as the person responsible for Nava's killing.
We will first apply this test to Goodwin. Goodwin testified that she saw Cheadle's face clearly. Goodwin also testified that at times during the incident, she talked directly to Cheadle, face to face, at a distance of inches. Goodwin gave a description of the offender at the scene and later to Officer Putman of the Albuquerque Police Department, before the photographic identification. At the hospital, Goodwin was shown a photographic array which did not contain Cheadle's picture. Upon viewing the array, Goodwin told the police officer that the assailant was not among the pictures. The day following the incident, after she was released from the hospital, two friends of Goodwin testified that they stopped by Goodwin's home. During a news broadcast, Goodwin saw Cheadle's picture on television. She told her friends, "Oh, my God that's him except he's got an afro in the picture." Goodwin immediately called the police station. Approximately six days later, Goodwin picked Cheadle's picture from a photographic array that contained a picture of Cheadle that was different from the one shown on television. At the trial, Goodwin made a positive in-court identification of Cheadle, as the man that killed Nava and attempted to rape her.
Julie Jones (Jones), a patron at Ned's the night of the incident, also identified Cheadle. Jones testified that Cheadle was sitting at the bar when Jones walked over to the bar to speak to Nava at approximately 1:15 a.m. Cheadle said something to her which she ignored. Jones, a hairdresser, remembers Cheadle particularly because of his slicked back hair style. On September 14, 1981, after seeing a picture of Cheadle on television, Jones picked Cheadle's picture from a photographic array. At trial, Jones positively identified Cheadle as being in Ned's the night of the incident. She also testified that when she picked Cheadle's picture from the photographic array, she was relying only on what she saw at Ned's the evening of the incident.
Ken Gaddis (Gaddis), the manager of Ned's, also identified Cheadle. Gaddis remembers Cheadle coming into Ned's around 1:00 a.m. the night of the incident. Ned's closes at 2:00 a.m., and Gaddis testified that he always starts noticing people around closing time. Gaddis testified that he remembers Cheadle's hair style and his eyes. Between the time of the incident and when he made his identification, Gaddis testified that he saw Cheadle's picture on television and in the newspapers approximately five times. On September 17, 1981, Gaddis was shown a photographic array which contained a picture of Cheadle different from the pictures shown on and in the media. Gaddis tentatively identified Cheadle from this photographic array. At the time of trial, Gaddis made a positive in-court identification of Cheadle as the person he saw in Ned's the night Nava was killed.
The last witness who identified Cheadle from a photographic array was Robert Mayes (Mayes). At trial, Mayes testified about and identified Cheadle as the person who came to his apartment a few days before the Nava murder, demanded money, and fired three shots at him with a chrome plated automatic pistol. Mayes identified Cheadle from a photographic array after Cheadle's picture appeared in the newspaper; however, he testified that his identification of Cheadle was from his own recognition concerning the night of the shooting at his apartment.
In determining whether there has been a violation of due process in the conduct of a confrontation, we must look to the totality of the circumstances. State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.), cert. denied, 81 N.M. 506, 469 P.2d 151 (1970). After examining the record, we find that the trial court did not err in allowing the out-of-court identification testimony. Manson, Correction Commissioner v. Bruthwaite; State v. Gilliam, 83 N.M. 325, 491 P.2d 1080 (Ct.App.1971).
In-court identification which is independent of and not tainted by the extra-judicial identification is admissible. State v. Torres. The in-court testimony from the record before us supports the trial court's ruling that it was independent.
Other witnesses who made in-court identifications of Cheadle without being shown photo arrays were: Jim Ewing, who was the doorman at Ned's the night of the incident, and remembers Cheadle coming in around midnight, showing his I.D. and paying the cover charge; and Hal Bereberg, a friend of ...
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