State v. Evans

• Decision Date: 23 November 1976
• Docket Number: No. 2605,2605
• Citation: 557 P.2d 1114,1976 NMCA 113,89 N.M. 765
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ben F. EVANS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1114

557 P.2d 1114

89 N.M. 765

STATE of New Mexico, Plaintiff-Appellee, v. Ben F. EVANS, Defendant-Appellant.

No. 2605.

Court of Appeals of New Mexico.

Nov. 23, 1976.

Certiorari Denied Dec. 22, 1976.

Floyd D. Wilson, Ahern & Montgomery, Albuquerque, for appellant

Toney Anaya, Atty. Gen., Don D. Montoya, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

WOOD, Chief Judge.

Convicted of six counts of embezzlement, defendant appeals. Section 40A--16--7, N.M.S.A.1953 (2d Repl.Vol. 6). Issues listed in the docketing statement which have not been argued are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). The three issues argued concern: (1) grand jury proceedings; (2) choice of defense counsel; and (3) communication between the trial court and a member of the jury.

Grand Jury Proceedings

Defendant was accused of embezzling from a savings and loan association. Prior to grand jury proceedings in this case, defendant was named a defendant in a civil case involving the savings and loan association. Attorney Foley took the deposition of the defendant in the civil case. Portions of the civil case deposition were read to the grand jury by the prosecutor in the criminal case. Defendant contends this violated § 41--5--4, N.M.S.A.1953 (2d Repl.Vol. 6), the pertinent portion of which reads:

'All deliberations will be conducted in a private room outside the hearing or presence of any person other than the grand jury members. All taking of testimony will be in private with no persons present other than the grand jury and the persons required or entitled to assist the grand jury, including the district attorney and the attorney general and their staffs, interpreters, court reporters and the witness. Inspections or grand jury views of places under inquiry may be made when directed by the foreman wherever deemed necessary within the county, but no oral testimony or other evidence may be received except during formal private sessions.'

Because the prosecutor read portions of the deposition to the grand jury, defendant claims that Foley, who took the deposition, was present and participated in the grand jury proceedings. Defendant does not claim that Foley was physically present. The claim is that the deposition testimony was taken while Foley was present at the deposition; that the reading of the deposition testimony resulted in Foley being present before the grand jury and amounted to an unauthorized presence.

The purpose of § 41--5--4, supra, is to maintain the secrecy of grand jury proceedings. State v. Hill, 88 N.M. 216, 539 P.2d 236 (Ct.App. 1975). Section 41--5--4, supra, does not deal with the type of evidence which may be presented to a grand jury. See § 41--5--11, N.M.S.A.1953 (2d Repl. Vol. 6) which refers to documentary evidence. The grand jury has the power to subpoena 'records or other evidence relevant to its inquiry'. Section 41--5--12, N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1975). Under §§ 41--5--11 and 41--5--12, supra, the grand jury could properly consider the deposition testimony. The fact that the deposition was taken by Foley did not make Foley present, within the meaning of § 41--5--4, supra, when the deposition was read to the grand jury.

The trial transcript indicates that the civil action was brought in the name of the State on behalf of the receiver of the savings and loan association and that Foley was attorney for the receiver. Relying on State v. Hill, supra, defendant contends Foley had 'a conflict of interest which compromises the impartiality of the grand jury proceedings.' The transcript does not support the claimed conflict of interest; there is nothing showing that Foley had anything to do with the prosecutor presenting the deposition testimony to the grand jury or was in any was involved in the grand jury proceedings. That (a) Foley was the attorney for the receiver in the civil suit; (b) Foley took defendant's deposition in the civil suit; and (c) the prosecutor read portions of the deposition to the grand jury does not show a compromise of the impartiality of the grand jury proceedings.

Choice of Defense Counsel

In the early stages of this matter defendant was represented by New Mexico counsel. The case was set for trial. Four days before the trial date, New Mexico counsel moved for a continuance on the basis that two days earlier 'Defendant retained out-of-state counsel to try the matter to the jury.' The continuance was granted. Out-of-state counsel, Mr. Eldridge, entered his appearance. At a subsequent pretrial conference, the prosecutor indicated that in a telephone conversation, a Mr. Thoreen had indicated he was thinking of entering his appearance for defendant. The prosecutor inquired: 'Is that still true as far as you know?' Mr. Eldridge...