State v. Foster

• Decision Date: 23 April 1971
• Docket Number: No. 637,637
• Citation: State v. Foster, 82 N.M. 573, 484 P.2d 1283, 1971 NMCA 64 (N.M. App. 1971)
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Barry Lee FOSTER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1283

484 P.2d 1283

82 N.M. 573

STATE of New Mexico, Plaintiff-Appellee, v.Barry Lee FOSTER, Defendant-Appellant.

No. 637.

Court of Appeals of New Mexico.

April 23, 1971.

Ray Tabet, Albuquerque, for defendant-appellant.

David L. Norvell, Atty. Gen., Frank N. Chavez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Judge.

Convicted of robbery and aggravated battery, defendant appeals.Sections 40A--16--2,N.M.S.A.1953(Repl.Vol. 6) and 40A--3--5, N.M.S.A.1953(Repl.Vol. 6, Supp.1969).The issues concern: (1) change of venue; (2) various evidentiary matters; and (3) a trial amendment to the aggravated battery charge.

Change of venue.

Defendant moved for a change of venue claiming that because of public excitement or local prejudice an impartial jury could not be obtained in Bernalillo County.The basis for the motion was 'extensive publicity resulting from the case' and 'extensive publicity resulting from his conviction' in another case a few weeks earlier.

At the hearing on the motiondefendant introduced, as evidence, copies of newspaper articles.These articles were mostly concerned with accounts of testimony given at the earlier trial.One of the articles also states: 'Pending against Foster are robbery and aggravated battery charges stemming from a May 27 service station holdup which saw the attendant doused in gasoline and set afire by the fleeing robber.'Defendant characterizes the quoted material as '(t)ypical of the publicity that was given.'Defendant asserts the publicity was by newspaper articles, television stories and 'shots of Mr. Foster taken by T.V. reporters.'

In denying the motion, the trial court found that the evidence did not justify a change of venue, and there was no public excitement or local prejudice that would indicate an impartial jury could not be obtained in Bernalillo County.The trial court could properly reach this result because the evidence presented by defendant was limited to the newspaper articles and because those articles, in themselves neither established public excitement nor prejudice, making a fair trial impossible.Deats v. State, 80 N.M. 77, 451 P.2d 981(1969);State v. Lindsey, 81 N.M. 173, 464 P.2d 903(Ct.App.1969), cert. denied, 398 U.S. 904, 90 S.Ct. 1692, 26 L.Ed.2d 62(1970).

Defendant does not attack the decisions in Deats and Lindsey.Instead, he contends that evidence, introduced by the State in opposition to the motion, had no probative value.We are not concerned with the quality of the evidence offered by the State, because the trial court could deny the motion on the basis of the evidence offered by defendant.Defendant had the burden of persuasion, and defendant's evidence was not persuasive of the probability that a fair trial could not be obtained in Bernalillo County.Deats v. State, supra.

Evidentiary matters.

(a) Admission of photographs.

Defendant complains of the admission of five photographs which show portions of the service station where the robbery took place.He asserts the photographs were improperly admitted because there was no showing as to who took the photographs, when they were taken and whether they accurately and fairly represented the scene at the time of the crime.It is doubtful that all of these objections were presented to the trial court; however, we will assume all of these objections are properly before us.

The victim of the crime had described its occurrence, testifying as to the location of various items in the service station; the location of the robber and the victim's location when certain events occurred.The victim did not know who took the photographs or when they were taken (he was in the hospital), but he did testify that each of the photographs fairly and accurately represented the things shown in the photographs and fairly and accurately represented what he had described in his testimony.This was sufficient foundation for the admission of the photographs.United States v. Hobbs, 403 F.2d 977(6th Cir.1968), Annot., 9 A.L.R.2d 899(1950);Millers' Nat. Ins. Co., Chicago, Ill. v. Wichita Flour Mills Co., 257 F.2d 93(10th Cir.1958);compareState v. Webb, 81 N.M. 508, 469 P.2d 153(Ct.App.1970), and cases cited therein.

(b) Admission of evidence about blood.

The first officer to arrive at the service station after the crime testified that three of the photographs of the station showed blood.He also testified that a wrench, which he found at the scene, had a substance on it which 'appeared to be blood.'Defendant contends this testimony should not have been admitted because of lack of a proper foundation.

No scientific tests were made to establish the identity of the substance testified to be blood.Defendant complains that the officer's testimony was improperly admitted because it was not shown that the officer 'was able to form such an opinion.'This contention misconstrues the evidence.

The officer testified that upon arrival he saw the victim who had been burned, and who was bleeding.He observed '* * * blood splattered all over the floor and the walls, on items, on the cash box, on the counter, * * *' and a large trial of blood leading from the cash box towards the rear of the office.He had seen fresh blood in numerous investigations.It was bright red when he saw it.He testified: 'It was blood.I saw it.'He'preserved' the scene, and observed the photographs being taken.

His testimony that the photographs showed blood, and that there was blood on the wrench was properly admissible.The foundation for this testimony was based on his observations and his experience.This foundation was sufficient.CompareReid v. Brown, 56 N.M. 65, 240 P.2d 213(1952);State v. Miller, 80 N.M. 227, 453 P.2d 590(Ct.App.1969).

(c) Identification evidence.

Defendant complains of the admission of various testimony going to the identification of defendant.This testimony involves (1) the victim identifying defendant from photographs; (2) the victim identifying defendant at a lineup; (3) a witness identifying the defendant at a lineup; (4) the persons in the lineup not being the same as those in the photographs; (5) the persons in the lineup and the persons in the photographs not having the identical hair-style as defendant.Defendant asserts that showing the photographs to the victim and the witness before conducting the lineup 'imprinted' a suggestion that defendant was the person who committed the crimes.

All of these complaints are of no avail to defendant.No objection was made to the admission of the testimony about which defendant now complains for the first time.Since the complaints now made were not presented to the trial court, they have not been preserved for review.State v. Chavez(Ct.App.), 82 N.M. 569, 484 P.2d 1279, decided March 19, 1971;State v. Ford, 81 N.M. 556, 469 P.2d 535(Ct.App.1970).

Further, our review of the record shows identification of defendant was not suggested by the photographs, nor to the persons identifying defendant in the lineup, nor by the lineup procedures; nor were any of these items conducive to irreparable mistaken identification.SeeState v. Torres, 81 N.M. 521, 469 P.2d 166(Ct.App.1970).The record before us shows a fair police investigative procedure.

The victim and the witness were shown seven photographs.The victim identified defendant; the witness was not sure.The victim and the witness viewed the lineup separately and identified defendant in the lineup independent of one another.Both had been told, by the police, that the persons in the lineup were not necessarily the same persons as those in the photographs.The hair-styles were not sufficiently distinct, except in one of the photographs (which was not defendant), to suggest an identification.No extreme variation in height nor body build is shown by the lineup photograph.

(d) Sufficiency of the evidence.

Defendant contends that if the foregoing evidence is excluded the evidence is insufficient to sustain the conviction.We have held the foregoing evidence was properly admitted over claims made for its exclusion.However, even if the foregoing evidence had never been presented, the evidence is sufficient.

The victim, a service station attendant, was robbed, beaten and set on fire with gasoline.This took place about 4:00 a.m.No one else was present at the station when a person drove into the lighted area of the station and asked to have the car's oil checked.This customer stood within six or seven feet of the attendant while the oil was checked and followed the attendant into the station when the attendant went after oil.The crime then occurred.The attendant testified that he recognized the customer as one who had been to the station before; that he had a good look at him before he went for the oil; and that defendant was the person involved.CompareState v. Carrothers, 79 N.M. 347, 443 P.2d 517(Ct.App.1968).

Defendant seems to assert that his alibi evidence, to the effect that he was in Hobbs, New Mexico when the crime occurred, should have been believed.Both the victim, and the witness who identified defendant as being at another service...