State v. Fernandez

• Decision Date: 14 April 1994
• Docket Number: No. 14681,14681
• Citation: 875 P.2d 1104,117 N.M. 673,1994 NMCA 56
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David FERNANDEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1104

875 P.2d 1104

117 N.M. 673

STATE of New Mexico, Plaintiff-Appellee, v. David FERNANDEZ, Defendant-Appellant.

No. 14681.

Court of Appeals of New Mexico.

April 14, 1994.

Certiorari Denied May 26, 1994.

[117 N.M. 674] Tom Udall, Atty. Gen., Daniel F. Haft, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Anthony James Ayala, Albuquerque, for defendant-appellant.

OPINION

BLACK, Judge.

On December 4, 1991 David Fernandez (Defendant) was arrested by Taos County Police Officer David Romo and charged with driving while intoxicated (DWI), careless driving, and resisting arrest. On January 6, 1992, in his capacity as Chairman of the Taos County Commission, Defendant wrote a letter to Romo stating that he had received information indicating Romo and his wife were violating the guidelines of a federal food commodities program. Based on this letter, the New Mexico Attorney General's Office decided to add a witness intimidation count to the three pending misdemeanor charges. In addition, Defendant was facing embezzlement charges in an unrelated matter.

Following a four-day jury trial, Defendant was convicted on the two misdemeanor offenses of careless driving and resisting arrest, and on one felony count of intimidating a witness. Defendant was acquitted on the DWI charge.

Defendant raises thirteen points on appeal, but, in violation of SCRA 1986, 12-213(A)(1)(a) (Repl.1992) fails to list the legal issues in an index. Nonetheless, this Court has reviewed each of the arguments raised in Defendant's brief in chief and we address them here, combining some of Defendant's issues for purposes of our discussion. We find Defendant's arguments without merit, and we affirm.

I. JUDICIAL BIAS AND MISCONDUCT

Defendant's principal contentions on appeal revolve around the alleged judicial bias and misconduct of Judge Benjamin S. Eastburn, who presided over both Defendant's DWI trial and Defendant's embezzlement trial. In support of his allegations, Defendant cites more than fifteen instances which he claims demonstrate Judge Eastburn's bias against him. However, Defendant's claims of judicial bias or misconduct are not supported by the record.

Our Supreme Court has recognized the scope of the challenge a trial judge faces in remaining impartial:

A trial judge must exercise great care to assure a criminal defendant a fair and impartial trial. This required fairness and impartiality may often run counter to natural human reaction, particularly where the case involves a heinous crime, or the demeanor of an attorney has been particularly disrespectful or antagonistic. Nonetheless, fairness and impartiality are required of a judge and necessitate that the judge "be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom he deals in his official capacity."

State v. Martin, 101 N.M. 595, 603, 686 P.2d 937, 945 (1984) (citations omitted).

As a general rule, " 'a fair and impartial tribunal requires that the trier of fact be disinterested and free from any form of bias or predisposition regarding the outcome of the case.' " Purpura v. Purpura, 115 N.M. 80, 83, 847 P.2d 314, 317 (Ct.App.) (quoting Reid v. New Mexico Bd. of Examiners in Optometry, 92 N.M. 414, 416, 589 P.2d 198, 200 (1979)), cert. denied, 115 N.M. 79, 847 P.2d 313 (1993). On the other hand it is also well settled that a party "cannot establish bias merely by pointing to the judge's failure to accept his argument." State v. Cherryhomes, 114 N.M. 495, 500, 840 P.2d 1261, 1266 (Ct.App.), cert. denied, 114 N.M. 501, 841 P.2d 549 (1992). Rather, the test for resolving a claim that a judge is biased in favor of the State "is whether the conduct of the judge deprived the defendant of a fair trial." State v. Muise, 103 N.M. 382, 389, 707 P.2d 1192, 1199 (Ct.App.), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985).

We note at the outset that, following the voluntary recusal of the two local district judges, Defendant stipulated to Judge Eastburn. While not dispositive on the issue of judicial bias, it may also be relevant that Defendant was acquitted of DWI, the charge he seemed most concerned about in his dialogue with Officer Romo. At a minimum, Defendant's acquittal on the DWI charge reveals the jury's ability to distinguish the evidence presented at trial notwithstanding any allegedly improper conduct by Judge Eastburn and is therefore inconsistent with Defendant's contention that he was denied a fair trial. For the same reason, it also is noteworthy that Defendant was acquitted of all charges in his subsequent trial in which he was represented by the same counsel and which was also presided over by Judge Eastburn.

A. Voir Dire

Defendant's first example of alleged judicial misconduct occurred during voir dire. Defendant complains that Judge Eastburn's refusal to allow defense counsel a five-minute recess to reconcile his own seating chart was an example of the type of judicial bias and misconduct which ultimately denied him a fair trial.

The record reflects, however, that defense counsel's request occurred shortly after the court had already begun to conduct its own voir dire. The record further reflects that in denying the recess, the court confirmed with defense counsel that counsel had all the names "in order" and "coded," and pointed out that counsel would have ample opportunity to organize his materials further during voir dire by the court and State.

A judge's expressed desire to expedite resolution of a matter is not generally an indication of bias against either party. In re Bokum Resources Corp., 26 B.R. 615, 621 (D.N.M.1982); cf. State v. Turner, 97 N.M. 575, 577-78, 642 P.2d 178, 180-81 (Ct.App.1981) (denial of motions for continuance not proof of bias), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982). The Supreme Court rejected a similar argument and held defense counsel was not entitled to continue voir dire so he could have additional time to review the supplemental jury questionnaires in State v. Gonzales, 112 N.M. 544, 549, 817 P.2d 1186, 1191 (1991). Finally, there is no evidence the court was predisposed towards refusing short recesses by the defense, since such requests were granted at other points in the trial.

Defendant also argues the district court improperly limited his voir dire. The relevant New Mexico Rule of Criminal Procedure governing juror voir dire states:

The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as [the court] deems proper, or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper.

SCRA 1986, 5-606(A) (Repl.1992) (emphasis added).

A review of the trial tapes reveals the district judge initially conducted his own examination of the jury panel, and then allowed counsel for both the Defendant and the State to conduct their own voir dire. The court's examination resulted in the dismissal for cause of a number of prospective jurors, after which defense counsel spent well over an hour in voir dire of the remaining jurors. Counsel for the defense examined the panel as a whole, as well as prospective jurors, at length. In sum, Defendant was permitted more than adequate voir dire by the court, consistent with his right to have a jury free from bias or prejudice. Cf. State v. Gonzales, 112 N.M. at 549, 817 P.2d at 1191 (voir dire of seventy-nine prospective jurors in three-hour period within discretion).

In raising this claim, Defendant appears to argue that any restriction on a party's voir dire by the court amounts to reversible error. Defendant cites no authority to support any such theory and it is inconsistent with well established New Mexico law. See, e.g., State v. Isiah, 109 N.M. 21, 25-6, 781 P.2d 293, 297-98 (1989). Moreover, Defendant has failed to assert any prejudice he may have suffered by the court's exercise of its supervision over voir dire. In the absence of prejudice, there is no reversible error. State v. Duran, 107 N.M. 603, 608, 762 P.2d 890, 895 (1988).

B. The District Court's Conduct Regarding the Scope of the State's Investigation

At trial, the State called six witnesses, none of whom were involved in the Attorney General's investigation of the case. The defense was permitted to call Art Garcia, an investigator with the Attorney General's Office who was assigned to Defendant's case. On direct examination, Garcia testified regarding his involvement in the investigation, but the defense never questioned Garcia concerning the thoroughness of the investigation.

Our review of the record suggests the court inquired into the relevance and probative value of the proffered evidence, then ruled it was admissible on cross-examination under limited circumstances. Defendant's only specific complaint is that in response to a specific question by defense counsel as to whether the Attorney General's Office had requested that Romo utilize an electronic listening device in Defendant's presence, the district court sustained an objection on the grounds of relevance and speculation. At trial, Defendant argued several theories in support of his defense that the charges were politically motivated. One of these theories involved an attempt by defense counsel to show that the prosecution's investigation was less thorough than the investigation it performed in a separate, unrelated case. Specifically, the court questioned defense counsel as to the nature of the defense which would justify calling the Attorney General and members of his staff to appear as witnesses at trial. The court stated that it did not understand "completeness of an investigation" as a legitimate defense. Judicial bias must be personal and cannot be based on adverse rulings. State v. Hernandez, 115 N.M. 6, 20, 846...