State v. Fero

• Decision Date: 10 February 1987
• Docket Number: No. 16088,16088
• Citation: 105 N.M. 339,1987 NMSC 8,732 P.2d 866
• Parties: , 37 Ed. Law Rep. 1262 STATE of New Mexico, Plaintiff-Appellee, v. O.C. "Chick" FERO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 866

732 P.2d 866

105 N.M. 339, 37 Ed. Law Rep. 1262

STATE of New Mexico, Plaintiff-Appellee, v. O.C. "Chick" FERO, Defendant-Appellant.

No. 16088.

Supreme Court of New Mexico.

Feb. 10, 1987.

Rehearing Denied Feb. 27, 1987.

[105 N.M. 341] Leon Taylor, Philip C. Gaddy, Tina Sibbitt, Albuquerque, for defendant-appellant.

Hal Stratton, Atty. Gen., Patricia Frieder, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SOSA, Senior Justice.

Convicted by a jury of murder in the first degree and sentenced to life imprisonment, O.C. "Chick" Fero (Fero) appeals to this Court. We affirm the judgment and sentence of the trial court.

Fero raises five issues on appeal, which we will address in order. They are:

I. Whether the trial judge committed reversible error by failing to disqualify himself;

II. Whether the trial judge committed reversible error by refusing to instruct the jury on voluntary and involuntary manslaughter;

III. Whether the trial judge committed reversible error by refusing to declare a mistrial, or suppress testimony, when the State had "lost" potentially exculpatory evidence;

IV. Whether the trial judge should have granted a mistrial for prosecutorial misconduct; and

V. Whether the trial judge should have instructed the jury that the State was seeking life imprisonment.

FACTS

Fero was the principal of Tohatchi High School. The Superintendent of Schools for the Gallup-McKinley school system, which included Tohatchi, was Paul Hansen. Both men resided in the Tohatchi Teacherage, whose administration was also Fero's responsibility as principal. This arrangement evidently caused friction between the two men. By all accounts, Fero was extremely conscientious and hard working, a perfectionist. To some he even seemed obsessed with his duties, a man for whom his "job was his life and his life was his job."

After several postponements and cancellations, Hansen scheduled an evaluation of Fero's employment for the morning of February 22, 1985, at Hansen's office in Gallup. Witnesses testified that the day before the evaluation, Fero seemed to be depressed, disturbed, even suicidal. He had drafted a will, boxed his personal belongings and left his life insurance policy prominently on a chair in his office. That night Fero called a close friend and read to her several "goodbye" letters he had written to his parents and his daughter.

On the morning of the evaluation, Fero stopped by his school and told his assistant, Carl Montoya, "I won't be seeing you again." Then he drove into Gallup for his 9:00 a.m. appointment. Carrying his customary files and a portfolio, he appeared calm in casual conversation with witnesses in the central offices, before entering Hansen's office just after 9:00. At approximately 10:00 a.m., five shots rang out. Soon afterward, Fero came out calmly, instructed the secretary to call the police and told two other employees that everything was okay. These two men testified that he appeared "normal."

Proceeding down the hall, Fero entered the office of Hansen's assistant, Bud Hendrickson, and handed him his school keys. He then called Montoya, told him that he had shot Hansen, and referred to some papers he had left for Montoya. Next he went into Hendrickson's inner office and sat down, calmly informing Hendrickson that he had shot Hansen because of his insistence on negative criticism and his refusal to appreciate the positive aspects of Fero's performance as principal. Fero handed Hendrickson his portfolio with the gun in it. He was arrested and gave a statement to the police.

In it, Fero stated that Hansen ridiculed and threatened him, fired him, and then offered a handshake with the words, "This is not personal." Fero started to stand up to leave, he recounted, at which point the gun fell out of his portfolio onto his lap. The next thing he remembered was seeing Hansen lying on the floor, then bending down to touch him. Fero explained how the gun had ended up in his portfolio after he and a teacher had been searching for a prowler around the Teacherage a few days earlier.

At trial, the defense requested and received an instruction on second degree murder based on mental illness. The court, however, denied defense requests for instructions on voluntary and involuntary manslaughter. The jury found Fero guilty of first degree murder, for which the court imposed a sentence of life imprisonment. This appeal followed.

I. Disqualification of the Trial Judge

Fero cites constitutional and ethical concerns which, he argues, should have mandated the disqualification of Judge DePauli. These concerns are predicated upon two¹ sets of factual circumstances: First, just before this trial began, the Hansen estate and family filed a wrongful death action against Fero. That case was also assigned to Judge DePauli. The plaintiffs were represented by Joseph L. Rich, Esq., the judge's brother-in-law. Second, during trial the district attorney employed as a law clerk a young man named Louis, who turned out to be the judge's son. Upon discovering these relationships, the defense moved to disqualify the judge and for a mistrial. The court denied the motions. The defense raised the issue again in connection with its motion for a new trial, which the court also denied.

Fero contends, quite correctly, that the New Mexico Constitution, Article VI, Section 18, requires recusal in any case in which the judge is related to "either of the parties ... or in which he has an interest." As this Court held in Tharp v. Massengill, 38 N.M. 58, 70, 28 P.2d 502, 509 (1933), the term "parties" can include an attorney who has an interest in a contingent fee. We agree, therefore, that it would be improper for Judge DePauli to hear a civil case where plaintiffs are represented by his brother-in-law. Indeed, the judge had disqualified himself from the civil case prior to the hearing on Fero's motions.

We cannot follow Fero, though, in the further leap he would have us make, namely that the judge had an "interest" in the civil case because he would have liked to see his brother-in-law succeed. Nor can we impute such an "interest" to the criminal proceeding on appeal here.

As for the judge's son, there is no evidence on the record to indicate that the son ever acted as a lawyer or appeared before the court, only that he did some legal research. In no way can his employment status as a law clerk be stretched to make him a "party" in the constitutional sense. Id. at 71, 28 P.2d at 509. Nevertheless, Fero argues that due process of law was denied him by the possibility of bias created by the filial relationship with an employee of one party, citing State ex rel. Hannah v. Armijo, 38 N.M. 73, 28 P.2d 511 (1933). This argument also implicates the "appearance of impropriety" standard found in the Code of Judicial Conduct. See SCRA 1986, 21-200.

While we are mindful of the importance of protecting the right of every litigant to a fair and impartial tribunal, we nonetheless conclude that the circumstances and relationships surrounding this trial did not warrant the disqualification of Judge DePauli. Defense counsel explored this issue at the hearing on their motion for a new trial. The facts adduced at the hearing were that Louis, Jr. was never at counsel table and seldom even in the courtroom during the trial. He did not live with his father and no evidence emerged that he had any private conversations with his father or any meetings more frequent than had the defense or prosecution teams, all of whom were staying at the same inn as the judge. Fero fails to suggest any means, other than the mere fact of the son's employment, by which he might have influenced his father. Indeed, the fact that defense counsel did not recognize that the law student assisting the district attorney was the judge's son, until the jury had retired, tends to negate even the appearance of bias.

Neither the judge's son nor his brother-in-law were "parties" to this case, nor did either possess an "interest" in the outcome as this Court has elucidated that term in State ex rel. Anaya v. Scarborough, 75 N.M. 702, 705, 410 P.2d 732, 734 (1966). See also State ex rel. Gesswein v. Galvan, 100 N.M. 769, 770, 676 P.2d 1334, 1335 (1984). We hold, therefore, that the trial judge did not abuse his discretion by declining to disqualify himself. See Martinez v. Carmona, 95 N.M. 545, 550, 624 P.2d 54, 59 (Ct.App.), cert. quashed 95 N.M. 593, 624 P.2d 535 (1981).

II. Manslaughter Instructions

On this point, Fero first contends that the trial court committed reversible error by failing to instruct the jury on voluntary manslaughter as a lesser included offense. There is no doubt that a defendant is entitled to such an instruction "if there is evidence to support, or tending to support, such an instruction." Jackson v. State, 100 N.M. 487, 490, 672 P.2d 660, 663 (1983) (citing Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982)).

The instruction defendant requested explains that "[t]he difference between second degree murder and voluntary manslaughter is sufficient provocation." NMSA 1978, UJI Crim. 2.20 (Repl.Pamp.1982). This instruction leads to another which defines "sufficient provocation": "The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition." NMSA 1978, UJI Crim. 2.22 (Repl.Pamp.1982). Sells v. State, upon which Fero so heavily relies, does not alter this requirement, although it does hold that informational words can constitute sufficient provocation, in some factual contexts.

Fero does not offer evidentiary support for his assertion that it should have been for the jury to decide whether Hansen's conduct during the evaluation would have provoked "an ordinary person of average disposition."² Because Fero might have been, subjectively, out of control, he was entitled to, and received, an instruction on inability to form a deliberate...