State v. Gallegos
| Decision Date | 03 August 1989 |
| Docket Number | No. 10702,10702 |
| Citation | 781 P.2d 783,1989 NMCA 66,109 N.M. 55 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Ernest Jose GALLEGOS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
The court's opinion filed July 20, 1989 is withdrawn and the following substituted therefor.
Defendant appeals his convictions on three counts involving larceny, aggravated assault with intent to commit larceny, and conspiracy to commit larceny; one count of fraudulent use of a credit card; and one count of larceny over $100. We reverse and remand in part and affirm in part.
Defendant moved to amend his docketing statement to clarify certain issues, and to add an additional issue. We grant the motion, except as to the new issue. See State v. Rael, 100 N.M. 193, 668 P.2d 309 (Ct.App.1983). However, because we reverse and remand this case in part, and this issue may arise on retrial, we briefly discuss it. We disagree with the state that the motion to amend was untimely, since we granted defendant an extension of time in which to file his brief-in-chief and motion to amend. But cf. State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.1978) ().
Defendant was indicted March 30, 1987, on eight counts involving three separate alleged crimes. The state subsequently dropped one of these counts. Defendant was convicted of five of the remaining seven counts March 3, 1988. He appeals his convictions, claiming (1) his sixth amendment speedy trial rights on two of the counts were violated by both pre-indictment and post-indictment delay; (2) the trial court improperly denied a motion to sever; (3) admission of a co-defendant's confession violated his sixth amendment rights to confrontation and cross-examination; (4) the trial court erred in granting an amendment to the indictment; and (5) the evidence on all counts was insufficient to convict. He also raises a sixth point, that the trial court erred in allowing certain evidence to be admitted. We do not reach the merits of this issue because defendant raised it improperly; however, we hold that on retrial, this evidence should not go to the jury.
We resolve these issues as follows: (1) Finding no speedy trial violations, we affirm the trial court's denial of defendant's motion to dismiss two of the counts for speedy trial violations. (2) We agree with defendant that the trial court erred in refusing to grant his motion for severance. Therefore, we reverse and remand for separate trials on the three charges. (3) We affirm the trial court's admission of co-defendant Goode's statement because the statement fulfills the "indicia of reliability" test laid out in State v. Earnest, 106 N.M. 411, 744 P.2d 539, cert. denied, 484 U.S. 924, 108 S.Ct. 284, 98 L.Ed.2d 245 (1987). (4) The trial court properly granted the amendment to the indictment. (5) Finally, we hold that the evidence was sufficient to support the convictions.
The charges in this case stem from three separate incidents. Counts II through VI involved a larceny that occurred at Sundance Automotive in Albuquerque on October 24, 1986 ("Sundance case"). Count VII involved fraudulent signing of a credit card at Sears in Albuquerque on August 2, 1986 ("Sears case"). Count VIII involved larceny over $100 for the theft of automobile tires and rims from a car on February 23, 1986 ("Tires case").
Donald Goode entered Sundance Automotive around 4:30 p.m. on October 24, 1986, to ask about possible employment. While he was filling out an application, the Sundance employee left the room. Goode then snatched up a cash box that was behind and underneath the counter, out of public view, and began to run toward Best Discount Store. Two Sundance employees heard the change rattling and pursued Goode. Paul Andrews, a United Parcel Service (UPS) employee who was making a delivery in the area at the time, joined in the chase. Goode fired a gun in Andrews' direction before jumping into a blue Pontiac that was waiting in the Best parking lot. The license plate was covered by a piece of paper, which Andrews was able to grab as the Pontiac drove off, allowing him to observe the license plate number. Neither Andrews nor the two Sundance employees saw the driver of the car.
A fourth witness, Lennie Garcia, an employee of a nearby office supply store, saw two men run by. The first looked at him and grinned; the second carried a small gun and a cash box. He saw this second man fire the gun. Andrews shouted at Garcia to stop the second man, but Garcia did not join in the chase. At trial, Garcia testified that neither of the two men he had seen was in the courtroom.
The Pontiac was ultimately traced to defendant's mother through the license plate number. Marcia Sinclair, defendant's ex-girlfriend, testified that defendant told her he was driving his mother's car the day of the larceny because his was in the shop; that he had gone to pick up a friend at work; and, fearing that "something like this was going to happen," he had covered the license plate. He denied any involvement with the larceny, however. Upon cross-examination, defense counsel elicited from Sinclair that defendant had an outstanding judgment against her for taking his television set, and that, although she had been charged with harboring a felon (defendant), she had been allowed to leave the state after giving police her statement.
The state introduced into evidence a confession by Goode to Detective Cantwell. Cantwell obtained the confession while she was interrogating Goode on other charges involving the murder of Guy Funkhouser. Goode, knowing that the police had his fingerprints from the employment application, voluntarily stated that he had committed the larceny; that defendant had given him the gun; that defendant, who had previously worked at Sundance Automotive, told him where the cash box was located; that he (Goode) had shot at the UPS driver, but did not aim at or intend to shoot him; and that defendant drove the car. Goode refused to testify at trial. The state therefore presented Goode's confession as testimony of an unavailable witness under SCRA 1986, 11-804(A)(2). The court admitted it over defendant's objection.
Defendant did not testify; however, he presented the testimony of Toby Zamora as an alibi. Zamora, an auto body repairman at the time of the crime, testified that he was working on defendant's car the day of the larceny, and that defendant was at the shop at which Zamora worked from around 4:30 p.m. to 5:30 or 6:00 p.m., waiting for the work to be finished. On cross-examination, the prosecutor impeached Zamora with three prior convictions involving various types of theft.
The jury convicted defendant of larceny over $2500, conspiracy to commit larceny over $2500, and aggravated assault with intent to commit a larceny, with firearm enhancement. Defendant was acquitted of two other counts of aggravated assault with intent to commit larceny.
On February 23, 1986, at approximately 9:30 p.m., Art Vermillion noticed a figure crouched near the front of his neighbor Miles Zintz's car. The car was propped up on bricks and some tires were missing. Vermillion asked "Miles, are you having a problem?" A man responded he was fixing a flat. The voice was not Miles' voice. Vermillion went home, called Zintz, found that he was at home, and found that nothing was wrong with his car. He got a light and began to go out the door to find out what was happening. He saw a figure running toward him. He stepped out and asked for identification. The person responded, "I am Miles." Again, the voice was not that of Miles Zintz. Vermillion did not pursue the man, but went instead to Zintz's house. He saw three wheels stacked up in the bushes near Zintz's car, and also saw the lug nuts lying around.
Zintz's wife called the police. While they waited for the police, Vermillion and another neighbor began looking around the neighborhood. They saw a strange car down the street parked in a place visible from the Zintz residence. It was unoccupied; Vermillion copied down the license number, which was later found to match one of two license plates defendant apparently used for his car, a late model Cadillac. Vermillion believed the person he saw running toward him was the same as the first person he saw. He identified defendant as that person both during a photo array the police presented to him, and at trial.
When the police came to investigate, they found defendant sitting in the Cadillac. Upon searching the car, they found a screwdriver wrapped in a jacket inside the car. They also found a tire iron in the trunk.
Zintz testified that he had not given anyone permission to remove the tires and rims, and that they were valued between $520 and $550. Defendant was convicted of larceny over $100.
On August 2, 1986, defendant approached a sales clerk at Sears. He handed her a gold chain and a Sears credit card. The clerk received an indication that something was wrong with the card; she called for and obtained approval. However, she noted that the signature on the sales slip did not match the one on the card. She asked for identification; defendant told her he left his wallet in the car. The clerk called a security guard and began arguing with defendant about where he obtained the card. Finally, defendant left the store, leaving the merchandise and card behind. A security assistant followed defendant from the store and saw him enter a 1970 Cadillac. All...
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