State v. Doak
| Decision Date | 14 September 1976 |
| Docket Number | No. 2493,2493 |
| Citation | 554 P.2d 993,1976 NMCA 91,89 N.M. 532 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Rod O. DOAK and Lloyd R. Blakey, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Each defendant was charged with the felony offenses of battery upon a peace officer and assault with intent to kill or commit mayhem. Sections 40A--22--23 and 40A--3--3, N.M.S.A.1953 . The jury convicted each defendant of the lesser misdemeanor offenses of assault upon a peace officer and simple assault. Sections 40A--22--20 and 40A--3--1, N.M.S.A.1953 . Defendants' appeal raises numerous issues; two issues are dispositive. They are: (1) death pending appeal, and (2) Evidence Rule 408.
The trial court's judgment sentenced Doak to a term in the county jail for each offense. A fine was imposed upon Doak for one of the offenses. In addition, the judgment provides that Doak was to bear 'his share' of certain court costs.
The State has informed this Court that Doak died while the appeal was pending. What is the effect of the death upon the various provisions in the judgment?
Annot. 83 A.L.R.2d 864 states:
'. . . (M)ost of the few courts which have considered the matter have recognized the rule that the death pending appeal of a defendant convicted of a criminal offense abates not only the appeal, but likewise all proceedings had in the prosecution from its inception.'
Footnote 1 to the annotation, at page 864, indicates that the abatement applies to the verdict of guilty, the judgment of conviction, the imposition of a fine and the taxation of costs.
The rule in federal courts is the same. '. . . (D)eath pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.' Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971).
In State v. Crump, 24 N.M. 331, 171 P. 502 (1918), the defendant had been convicted of assault with a deadly weapon. The judgment imposed a fine and taxed costs. Crump died pending the appeal. The opinion states: '(A) judgment imposing a fine in a criminal case abates on the death of the defendant pending an appeal or writ of error, and the fine imposed cannot be enforced against the estate.' Although the Crump decision does not specifically deal with costs, the ruling that the judgment abates and that a fine cannot be enforced against the estate indicates that costs also abate.
We hold that the New Mexico rule is the same as that stated in the above-quoted authorities. Death pending the appeal of a criminal conviction abates all proceedings had in the prosecution from its inception. Doak having died pending the appeal, the verdict of guilty, the judgment of conviction, the sentence, the fine, and the costs are abated. Section 21--7--4, N.M.S.A.1953 (Repl.Vol. 4) is not to the contrary because that section does not apply to appeals of criminal convictions.
During cross-examination of the complaining witness Muse, the attorney for defendants asked:
'Did you tell the District Attorney, Mr. Muse, that you would be willing for this case to be dismissed if Mr. Doak, Mr. Blakey give you $20,000.00?'
The district attorney objected, asked that the question be withdrawn from consideration by the jury, and asked that defense counsel be reprimanded for asking the question. The basis of the district attorney's contention was that offers of compromise were not admissible and defense counsel knew it. Defense counsel replied that this was not an offer of compromise; that his understanding was that Muse had offered to dismiss the case for $20,000.00.
The trial court sustained the objection and admonished the jury to disregard the question. The following occurred at proceedings outside the presence of the jury.
Defense counsel stated that the district attorney had informed him by telephone that Muse would have no objection to dismissal of the cases against Doak and Blakey if he were paid $20,000.00. According to defense counsel, the district attorney stated that he would have no objection if this occurred. Defense counsel stated that his only response to this information was 'shit' because he was concerned that to become involved would be compounding a felony. See § 40A--22--6, N.M.S.A.1953 for the definition of 'compounding a crime'.
The district attorney then stated that he and defense counsel had had several conversations about how to settle the case to the benefit of both the State and defendant. He stated that Muse was contemplating a civil suit for damages against the defendants, that he contacted Muse with the knowledge of defense counsel to explore possibilities of settlement. On appeal, the State argues that the settlement discussion involved only the civil suit. This is inaccurate. The district attorney informed the trial court of his discussion with Muse in these words: 'I said could we settle this matter, the criminal and civil by payment of money and get this thing off the docket, and he (Muse) talked with his wife and they gave me a figure that we would be happy to settle both . . ..' The district attorney then agreed with defense counsel as to defense counsel's response when this information was imparted to defense counsel.
The State asserts that the above matters dealt with an offer of compromise and that cross-examination as to the above matters was prohibited by Evidence Rule 408. We disagree.
Our concern is with Evidence Rule 408 prior to the amendment on April 1, 1976 (the amendment is not applicable). The Rule reads:
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