State v. Crislip

• Decision Date: 26 April 1990
• Docket Number: No. 11411,11411
• Citation: 1990 NMCA 54,796 P.2d 1108,110 N.M. 412
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert CRISLIP, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1108

796 P.2d 1108

110 N.M. 412

STATE of New Mexico, Plaintiff-Appellee, v. Robert CRISLIP, Defendant-Appellant.

No. 11411.

Court of Appeals of New Mexico.

April 26, 1990.

Certiorari Denied June 19, 1990.

[110 N.M. 414] Ellen Bayard, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen. and William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HARTZ, Judge.

Defendant appeals his conviction by a jury of child abuse resulting in death. NMSA 1978, Sec. 30-6-1 (Repl.Pamp.1984). He raises the following contentions on appeal: (1) the trial court erred in upholding the assertion of a fifth amendment privilege by defendant's wife, who at the time was appealing her own conviction of the same offense in a prior trial; (2) the state's failure to grant use immunity to defendant's wife constituted plain error; (3) the admission at his trial of a recording of the testimony of defendant's wife at her own trial was error because the testimony had been coerced; (4) the admission of the prior testimony of defendant's wife violated defendant's right of confrontation; (5) the trial court erred in not permitting defendant to question his wife before the jury and in admitting the prior testimony of defendant's wife without advising the jury that she had been convicted for child abuse; (6) the trial court erred in refusing defendant's tendered instructions and in submitting its own instruction defining the word "permit" in the child-abuse statute; (7) the trial court should have granted a mistrial because of the prosecutor's allegedly inflammatory question to defendant; (8) defendant was denied his right to effective assistance of counsel; and (9) the child-abuse statute is unconstitutional. We affirm defendant's conviction.

I. TESTIMONY OF DEFENDANT'S WIFE

We first discuss defendant's five appellate issues relating to testimony by his wife.

Defendant and his wife were each charged with child abuse resulting in the death of defendant's stepson. Defendant and his wife were tried separately. We need not recite the evidence, except to state that it revealed multiple injuries to the child, the only questions being when and how the injuries were inflicted.

The prosecution called defendant's wife as a witness. Outside the presence of the jury she stated her intention to invoke her privilege against self-incrimination. When the trial court upheld the claim, the prosecutor was permitted to play for the jury a recording of her testimony at her own trial.

A. Privilege Against Self-Incrimination

Although defendant's wife had testified in her defense at her own trial, under New Mexico law she did not thereby waive her right to claim the privilege at defendant's trial. In Apodaca v. Viramontes, 53 N.M. 514, 212 P.2d 425 (1949), the state claimed that a witness who had testified before the grand jury could not claim the privilege against self-incrimination when called to give identical testimony at trial. The court rejected the state's position, adopting the following statement of the law:

"A person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding. The privilege attaches to the witness in each particular case in which he may be called on to testify, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same case, and without reference to his declarations at some other time or place."

Id. at 524, 212 P.2d at 431 (quoting 58 Am.Jur. Sec. 99, at 82 [81 Am.Jur.2d Witnesses Sec. 65 (1976) ]. A more recent decision in another jurisdiction has adopted the same principle in circumstances virtually identical to those here. In Ottomano v. United States, 468 F.2d 269 (1st Cir.1972), cert. denied, 409 U.S. 1128, 93 S.Ct. 948, 35 L.Ed.2d 260, reh'g denied, 410 U.S. 948, 93 S.Ct. 1383, 35 L.Ed.2d 616 (1973), a witness who had been convicted and sentenced after testifying at his own trial was called to testify as a witness at the trial of his alleged co-conspirator. The court upheld the witness's claim of a fifth amendment privilege.

Perhaps defendant's wife could have been asked certain questions that had no potential to elicit incriminating responses; but defendant's counsel declined the trial court's offer to ask defendant's wife questions out of the presence of the jury, so we have no record upon which to make a finding that the claim of privilege was improper in any particular.

Although defendant's wife had already been tried and convicted, her conviction was being reviewed on appeal. Given the possibility of reversal (which was, in fact, the result of her appeal), courts overwhelmingly hold that the claim of privilege may be raised while a direct appeal is pending. See Ellison v. State, 310 Md. 244, 528 A.2d 1271 (1987) (collecting cases).

Defendant argues that the trial court should not have been concerned about erroneously compelling his wife to testify, because if the compulsion was improper, the evidence could not be used at any subsequent criminal proceedings against her. See State v. Archunde, 91 N.M. 682, 579 P.2d 808 (Ct.App.1978); SCRA 1986, 11-512. In substance what defendant is arguing is that the trial court was compelled to grant defendant's wife immunity from use against her of any testimony she gave at his trial. The trial court, however, has no such authority. The grant of immunity to a witness is, absent prosecutorial misconduct in deliberately intending to disrupt the fact-finding process, within the sole control of the prosecution. See State v. Sanchez, 98 N.M. 428, 649 P.2d 496 (Ct.App.1982).

In his second appellate contention defendant argues that there was such prosecutorial misconduct and therefore the state had an obligation to grant his wife immunity from use against her of her testimony in his trial. We reject this contention.

First, the record does not compel us to find that the prosecutor's failure to grant immunity was for improper reasons. On the contrary, the state's failure to grant immunity does not in itself establish bad faith. Given the obvious difficulties of proving at a later trial of defendant's wife that the later trial had not been tainted by indirect prosecutorial use of immunized testimony, see 2 P. Robinson, Criminal Law Defenses Sec. 205(c) (1984), the state's failure to volunteer to grant immunity is understandable. In addition, the state's willingness to admit her prior testimony (discussed in the next section of this opinion) indicates that the state was not trying to distort the fact-finding process, particularly since defendant made no suggestion, much less an offer of proof, of what defendant's wife would testify to that was not contained in her prior testimony.

Moreover, this appellate contention was waived at trial. Although defendant argues that the state's failure to grant immunity to the witness was plain error, see SCRA 1986, 11-103(D) or fundamental error, see SCRA 1986, 12-216, this would be a highly inappropriate circumstance in which to apply either doctrine. During argument at trial concerning the claim of privilege by defendant's wife, defense counsel stated, "I don't think the State has to offer immunity." We would only be encouraging sharp practices if we permitted a defendant to waive a claim explicitly, take his chances at trial, and then rely on plain or fundamental error in the event of an adverse verdict.

B. Admissibility of Testimony from Prior Trial

After the trial court upheld the claim of privilege by defendant's wife, the state played for the jury portions of a tape recording of her testimony at her own trial. As the state pointed out in offering the testimony, the testimony was not admissible under any recognized exception to the hearsay rule. Because defendant's counsel had not had an opportunity to cross-examine defendant's wife at her trial, the requirements for admission of former testimony were not satisfied. See SCRA 1986, 11-804(B)(1). Defendant now includes among his appellate issues the contentions that: (1) the taped testimony was inadmissible because his wife's testimony at her own trial was coerced; and (2) the use of her testimony violated his right of confrontation.

We need not consider these appellate contentions, however, because they were waived below. See R. 11-103(A)(1). Defense counsel made quite clear to the trial court that if defendant's wife was permitted to invoke her privilege against testifying at his trial, he wished the tape recording of her testimony at her own trial to be played to the jury. At a hearing on the day of trial, defense counsel stated:

I propose to put [defendant's wife] on the stand; and if she refuses to answer any questions, I do have the tapes from the last trial, your Honor. I propose to ask that the court allow her prior testimony as prior recorded testimony as an exception to that rule, the hearsay rule, or any rule of self-incrimination.

Later that day, after the trial court ruled on the claim of privilege, defense counsel stated:

In light of the court's ruling that [defendant's wife] will be taking the fifth and using her constitutional privilege, we are going to play the tapes of her prior recorded testimony, which I per se am not objecting to. However, at this time Judge, just for the record, I would like to make a motion for a continuance at this time, that I feel I am being denied my effective right of cross-examination of the defendant [sic] and that if she's an absent defendant [sic], then my client is losing his constitutional right of confrontation against the witnesses against him and of his own witnesses, for that fact, Judge, just for the record, I do make a motion for a continuance at this time.

There is no question that defense counsel failed to raise any claim relating to the involuntariness of the testimony from the prior trial. As...