State v. Doran
| Decision Date | 11 December 1986 |
| Docket Number | No. 9341,9341 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Grant Louis DORAN, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
The previous opinion is withdrawn and the following is substituted.
Defendant appeals from multiple convictions for armed robbery, aggravated burglary, false imprisonment, commercial burglary, and larceny over $100. Six issues are presented on appeal: (1) whether the indictment should have been dismissed; (2) whether the search warrant affidavit should have been invalidated; (3) whether the witness-advocate rule required disqualification of the district attorney's office: (4) whether defendant was entitled to review the prosecutor's case notes; (5) whether the court erred in limiting cross-examination; and (6) whether defendant was entitled to a new trial. Issues not briefed are abandoned. State v. Romero, 103 N.M. 532, 710 P.2d 99 (Ct.App.), cert. denied, 103 N.M. 525, 710 P.2d 92 (1985). We affirm.
Defendant was employed as an assistant manager of a Walgreens store in Albuquerque. In August of 1983, he failed to return from vacation. Shortly thereafter, on August 11, the store was burglarized and a large amount of currency and merchandise was taken. On September 17, 1983, a second burglary occurred and currency and large amounts of controlled substances were taken. Police investigation revealed indicia that the burglaries may have been an "inside" job, accomplished by use of either interior or exterior keys to the store. A third incident occurred four days after the second burglary. On September 21, after the store had been locked for the night, two masked men forced an employee to open the store and the business safe and took a large amount of money. According to the employee, one of the robbers showed a detailed knowledge of the store's security system.
The police investigation focused on defendant and Roger Robinson, both former Walgreens employees. A search of Robinson's home and car produced a knife, which police believed to be the knife used in the armed robbery, and two packets of money found hidden under the mattress in Robinson's bedroom. Robinson was arrested and thereafter gave police a written confession, implicating both himself and defendant in the three crimes. Robinson also directed police to a motel room where defendant was staying. Although defendant was not at the motel, another person in the motel room gave police permission to seize three suitcases belonging to the defendant. A warrant was subsequently obtained to search the contents of the suitcases. Inside the bags police found three driver's licenses issued to the defendant, approximately $800 in cash, a savings deposit book belonging to defendant, and a deposit receipt showing a deposit to defendant's savings account.
Following a jury trial, defendant was convicted of five felony offenses. The trial court directed a verdict of not guilty on two other charges of commercial burglary and larceny of property over $2,500.
Defendant sought to have his indictment dismissed on the ground that it had been allegedly obtained through the false testimony of Kenneth Berlint, the manager of the Walgreens store where the crimes had occurred. Berlint testified that the locks to the store had been changed following the first burglary. In fact, according to documents submitted in support of defendant's motion to dismiss, the locks had been changed on August 8, 1983, three days prior to the first burglary. Defendant argues that the prosecutor's failure to correct this testimony denied him due process of law. We disagree. The alleged false testimony related only to counts 6 and 7 of the indictment, charges on which the defendant was acquitted. We agree with the state that defendant's acquittal on these charges negates his claim of denial of due process. The supreme court has ruled that due process claims which are predicated upon false or perjured evidence before a grand jury require a showing of actual prejudice. See Maldonado v. State, 93 N.M. 670, 604 P.2d 363 (1979); see also Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981). At trial, Berlint was questioned extensively concerning the change of locks, and defendant was acquitted of the two charges relating to the first burglary. In both Maldonado and Buzbee the supreme court also required a showing of prosecutorial misconduct. See also NMSA 1978, Sec. 31-6-11(A) (Repl.Pamp.1984). Here, there was no showing that prosecutor Cox knew the testimony was false. Thus, State v. Reese, 91 N.M. 76, 570 P.2d 614 (Ct.App.1977), relied upon by defendant, is distinguishable from the facts herein: In Reese the parties stipulated that the prosecutor knew the testimony was false.
Finally, defendant has not shown that the allegedly false grand jury testimony tainted or was otherwise material to the grand jury or trial proceedings on the remaining five counts for which he was indicted and convicted. He cites no authority in support of his contention that false testimony relative to counts 6 and 7 necessarily invalidated the entire grand jury proceedings. See In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984). Defendant's reliance on Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) is misplaced because that case did not involve grand jury testimony, but instead dealt with a prosecutor's knowing failure to correct false testimony at trial. Thus, in Napue both elements of the relevant test--actual prejudice and prosecutorial misconduct--were present. Here, neither element has been shown.
Defendant filed a motion to suppress the evidence seized from his suitcases, claiming that the affidavit for the search warrant sworn to by Assistant District Attorney Michael Cox contained material misrepresentations. Defendant contends the affidavit contained "intentionally false statements" made by Berlint, which were accepted by prosecutor Cox, and which allegedly were made with a reckless disregard for the truth.
The affidavit recited that Berlint believed "the only former employee in possession of the necessary keys and information to perpetrate the above crimes [was] Grant Doran, a former Assistant Manager who left under mysterious circumstances only a week before the first burglary...." Defendant argues that this statement was intentionally false because the store's exterior locks had been shown to have been changed prior to the time of the first burglary.
The trial court denied the motion to suppress, and ruled that even without the objectionable statement, the affidavit indicated a factual basis to find probable cause for the issuance of the search warrant. See State v. Copeland, 105 N.M. 27, 727 P.2d 1342 (Ct.App.1986). We find no error in this ruling.
The focus of our concern is whether the affidavit, apart from the challenged portion, contains facts constituting probable cause. The facts set forth in a search warrant affidavit must establish probable cause for the issuance of the warrant. State v. Herrera, 102 N.M. 254, 694 P.2d 510 (1985); State v. Van de Valde, 97 N.M. 680, 642 P.2d 1139 (Ct.App.1982). "Probable cause" which will authorize a judge or magistrate to issue a search warrant requires a showing of a state of facts which leads the issuing judge, acting in a neutral capacity and as a prudent person, to reasonably believe that an accused, at the time of the application for warrant, is in possession of illegal property or the fruits of a crime, or that evidence relating to the commission of a crime exists in the place or property sought to be searched. State v. Donaldson, 100 N.M. 111, 666 P.2d 1258 (Ct.App.), cert. denied, 100 N.M. 53, 665 P.2d 809 (1983).
The affidavit for the search warrant contained additional information indicating that all three crimes were apparently committed by someone familiar with the store's operation; that defendant had severed his employment under mysterious circumstances shortly before the first burglary occurred and had never returned to work; that a close friend of the defendant, Roger Robinson, had been arrested in connection with the crimes and had confessed to committing the crimes with defendant; and that Robinson had directed officers to defendant's motel room where the three suitcases had been seized. These facts provided sufficient probable cause for the issuance of the search warrant. The present case falls within the canopy of our decisions in Donaldson and Copeland.
Defendant also contends that, as the affiant, Cox should not have presented the affidavit to the trial court. Defendant relies on the "witness-advocate rule," which he also argues as a reason why the prosecutor should have been generally disqualified. This aspect of defendant's argument is addressed under point III, infra; but because we hold that the affidavit, apart from the challenged section, contained facts constituting probable cause for the issuance of the warrant, we find no error in the trial court's denial of the motion to suppress.
Defendant filed a pretrial motion seeking to disqualify the prosecutor and his staff and requesting the appointment of a special prosecutor. Defendant's motion was based on his request to call prosecutor Cox as a defense witness at the suppression hearing and possibly at trial.
Defendant's motion relied on the "witness-advocate rule," which prohibits an attorney from appearing as both a witness and an advocate in the same litigation. See NMSA 1978, Code of Prof.Resp.R. 5-102(B) (Repl.1985). The trial court denied this motion but ordered that the prosecutor refrain from personally conducting matters for the state at the suppression...
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