State v. Duran

• Decision Date: 12 October 1988
• Docket Number: No. 17402,17402
• Citation: 762 P.2d 890,1988 NMSC 82,107 N.M. 603
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jake DURAN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 890

762 P.2d 890

107 N.M. 603

STATE of New Mexico, Plaintiff-Appellee, v. Jake DURAN, Defendant-Appellant.

No. 17402.

Supreme Court of New Mexico.

Oct. 12, 1988.

[107 N.M. 605] Jacquelyn Robins, Chief Public Defender, Hollis A. Whitson, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WALTERS, Justice.

The defendant was sentenced to life imprisonment plus ten years upon his conviction of first degree murder and armed robbery. He contends there was insufficient evidence to support conviction and that due process was violated because, as a result of prosecutorial misconduct, he was denied his right to a fair trial. Two secondary points are presented in accordance with State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), requiring appointed counsel to set forth contentions urged by the defendant regardless of whether counsel believes they are meritorious and whether such contentions in fact are argued by counsel. Those issues, which concern the trial court's refusal to give an instruction not permitted under the Use Note following SCRA 1986, 14-5150, and a bare contention that defendant's photograph used in a photo array was taken without his permission, are devoid of merit; consequently, we do not address them.

The only test recognized by this court to review the sufficiency of the evidence from a jury trial is one inquiring whether substantial evidence, either direct or circumstantial in nature, exists to support a verdict of guilty beyond a reasonable doubt with respect to each essential element of a crime charged. State v. Sutphin, 107 N.M. 126, 753 P.2d 1314, 1319 (1988); State v. Montoya, 101 N.M. 424, 425-26, 684 P.2d 510, 511 (1984); State v. Brown, 100 N.M. 726, 728, 676 P.2d 253, 255 (1984). The evidence is viewed in a light most favorable to the jury's verdict; all reasonable, permissible inferences are indulged to support it, and all conflicts are resolved in favor of the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at 1319; Brown, 100 N.M. at 729, 676 P.2d at 256. An appellate court does not evaluate the evidence to determine whether some hypothesis exists that is consistent with a finding of innocence; it does not weigh the evidence or substitute its judgment for that of the jury. Sutphin, 107 N.M. at 130-31, 753 P.2d at 1318-19.

The only issue here is identity. The prosecution presented several witnesses to connect defendant with the crime, including one eyewitness and three expert forensic witnesses. That evidence as a whole would support the conclusion that defendant could not be excluded from the class of persons who could have committed the crimes, and it placed the defendant in the victim's neighborhood at the time of the homicide. Defendant did not object to the testimony at trial, and he had an opportunity to cross-examine and attempt to impeach each witness. He also was able to argue his portrayal of the testimony to the jury, and it was within the jury's function and discretion to believe or disbelieve him. Just because the evidence supporting the conviction was circumstantial does not mean it was not substantial evidence. State v. Tovar, 98 N.M. 655, 658, 651 P.2d 1299, 1302 (1982).

Defendant's principal claim is that he was denied his right to a fair trial because the prosecution shifted the burden of proof in trying to prove his guilt by showing that he had no alibi. During its case-in-chief, the prosecution called defendant's aunt Rose Montoya, his only proposed alibi witness, and elicted testimony concerning defendant's shoe size, where he was on the evening of the homicide, and what she had done with the denim jacket he allegedly wore on the night of the homicide. The prosecution then asked Montoya about a prior statement given by her to the police in which she had been asked: "Did he [defendant] ask you to tell the police that you drove him to the Mills?" and she had replied: "He said that I was his only alibi." The question asked at trial was "[D]id the defendant tell you to tell the story about him driving to the Mills' house?" Not only was the question asked at trial a leading question, it also was misleading regarding Montoya's earlier answer.

Defendant insists that the prosecution did not call Montoya to offer any relevant, substantive evidence, but called her solely for the purpose of impeaching her and introducing an otherwise inadmissible hearsay statement. Case law from other jurisdictions supports the proposition that it is entirely inappropriate for the prosecution to call a witness who is favorable to the defendant only to elicit statements made to the witness by a defendant, because such a scheme operates as a subterfuge to avoid the hearsay rule. See United States v. Johnson, 802 F.2d 1459, 1466 (D.C.Cir.1986); State v. Graham, 200 Conn. 9, 18, 509 A.2d 493, 498 (1986).

A review of the trial transcript confirms that the prosecution's primary purpose for calling Rose Montoya as its witness was to impeach her credibility. The trial court interrupted the prosecutor shortly after examination of Ms. Montoya began and, outside the presence of the jury, the following colloquy ensued:

THE COURT: Why don't you just ask her the facts. I mean, she doesn't have to know and understand what an alibi is. Just ask her whether or not--if that is what you want to do, but I think it's improper questioning, at this point, about whether she is--has--at this point in this case, there hasn't been any evidence of her as an alibi witness. He hasn't testified.

MR. BIEHLER: Well, I think she is going to testify as to an alibi witness. * * * At some point in time, I am sure she'll--it will become--she is a hostile witness.

....

THE COURT: Well, up to this point, I think the approach of the District Attorney is inappropriate. I don't think you can show that this witness is biased before she has testified to anything substantive. In other words, if she is--if she says something in a substantive manner that--concerning the facts of this case that would be adverse to the State or whatever, then maybe you could show bias. But you could--you can't start off with your examination of this witness showing that she is biased, and that's what it seems as if you're trying to do, trying to show her relationship to this Defendant, and so on. That she would--that she is a biased witness.

....

Unless she would testify to something which would seem to be inappropriate, then maybe you could impeach her, depending on what she says.

MR. BIEHLER: We will go from the other direction first.

THE COURT: Well, I would think so. I would think you would have to.

MR. BIEHLER: It is my understanding that once she has testified, then it is adverse to the State in this case, that she would, then, be considered to be an adverse witness.

THE COURT: Well, I don't know that I am going to consider her an adverse witness. I don't believe the law requires that she be adjudged adverse or hostile in order for you to impeach her, but I am not going to make any ruling in advance. We'll see how she is.

MR. LEYBA: I would like to make an objection to the improper cross-examination by the State. She--they haven't established that there is anything to impeach her with, and he is trying to impeach her before she testifies.

THE COURT: That's the essence of the reason I sent the jury out. I think that's correct. Until she testifies to some factual matter in the case, which might be inconsistent with what she may have given a statement on or whatever, that there is no way you can show her bias.

....

That is a rather strange method of utilizing this witness, from the Court's point of view, calling a defense alibi witness as your own witness to show that she is lying before she even testifies in the court that there is an alibi. There's been no evidence of alibi, yet, at least from her.

MR. LEYBA: Your Honor, I would object to that unless this witness has some testimony that she would give that would be relevant to the facts in issue in the case. I think what the State is attempting to do is discredit his alibi witness before the Defendant even has an opportunity to call her. I may not even call her to the stand. I think it's their method by the prosecution to usurp the Defendant's right to testify or not to testify in this case.

MR. BIEHLER: Your Honor, what we have got in this situation is a witness who the Defendant's attorney claimed, in opening statement, and told to the jury, that this witness would be an alibi witness. The State intends to present her testimony for some substantive things. There are some substantive things that she can tell us for a witness, whether she be for the Defense or for the Prosecution. I will get to those. * * *

Later in the direct examination of the witness, another discussion was held at the bench and out of the presence of the jury:

THE COURT: Do you have anything further?

MR. BIEHLER: Only, Judge, that this witness has tried to provide, on the one hand, is trying to provide an alibi for the Defendant, where he was that night, which is essential to our case, and has made a whole bunch of different statements, and I think the State has an opportunity--or discover an opportunity to impeach her credibility by her relationship with the defendant.

THE COURT: You have been impeaching her credit. I believe, of course, she is trying to, I would suppose, you might say, giving him an alibi, but only because you called her as a witness. The defense hasn't called her yet.

MR. LEYBA: Your Honor, if I may, I would object to the State calling an alibi witness to impeach the alibi unless she has some relevant evidence.

THE COURT: I don't even know if he has determined an alibi. She said she didn't know where he was after 11:15. I will sustain the objection. I think we are getting way, way off base here, and it's rather unorthodox, the whole situation, and...