State v. Gonzales

• Decision Date: 10 January 1991
• Docket Number: No. 11782,11782
• Citation: 1991 NMCA 7,111 N.M. 590,808 P.2d 40
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Louis M. GONZALES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 40

808 P.2d 40

111 N.M. 590

STATE of New Mexico, Plaintiff-Appellee, v. Louis M. GONZALES, Defendant-Appellant.

No. 11782.

Court of Appeals of New Mexico.

Jan. 10, 1991.

Certiorari Denied Feb. 14, 1991.

[111 NM 592] Hal Stratton, Atty. Gen., Katherine Zinn, Ass't Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Peter Rames, Ass't Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

CHAVEZ, Judge.

Defendant appeals from his convictions for trafficking cocaine and conspiracy to traffic cocaine. The docketing statement listed eighteen issues. The calendar notice that assigned the case to the general calendar held in abeyance defendant's motion to reorder the issues pending submission of this case to a panel. We now grant the motion.

The significant appellate issue raised herein concerns the prosecution's use of its peremptory challenges. We summarily discuss one other issue raised by defendant. We remand this case to the trial court for a hearing on the issues of whether the prosecution used its peremptory challenges to systematically exclude jurors on the basis of their race in violation of the equal protection clause of the fourteenth amendment to the United States Constitution, see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); see also State v. Aragon, 109 N.M. 197, 784 P.2d 16 (1989), or on the basis of their gender in violation of article II, sections 14 and 18 of the New Mexico Constitution. See State v. Aragon.

Defendant explicitly abandoned four issues in his brief-in-chief. These were issues B, I, J, and O in the docketing statement. In addition, we hold defendant has abandoned issues C, E, F, G, H, K, and P and any other issues not explicitly ruled on in this opinion, because defendant has failed to properly brief the issues. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985) (issues raised in the docketing statement and not briefed on appeal are deemed abandoned).

FACTS

Defendant and a codefendant, Victor Cordova, were tried jointly. Jury selection in this case took two days. On the first day, thirty-seven potential jurors were called. The trial court allowed each defendant four peremptory challenges and the state five. On this first day of jury selection, each defendant exercised all of his peremptory challenges, and the state exercised three of its five available challenges. All three of those challenges were used to remove Hispanic men from the jury. Ten of the necessary twelve jurors were selected from this venire.

The next day an additional twenty-four jurors were called. The trial court again allowed each defendant four peremptory challenges and the state five. The peremptory challenges allowed on the second day could only be used on the group of jurors that had been called for that day. On this second day, the state and each of the defendants exercised all of their peremptory challenges. All five of the state's peremptory challenges were used to remove Hispanic men from the jury.

The composition of the jury that was selected by this process was as follows. Ethnically, the jury consisted of four Hispanics, one Native American, and seven Anglos. In terms of gender, the jury was composed of eleven women and one man. Defendants moved to dismiss the charges against them or, in the alternative, to dismiss the jury and begin jury selection anew, contending that they were denied their rights to equal protection of the law because the prosecution had used its peremptory challenges to systematically exclude Hispanics, and particularly Hispanic men, from the jury. See Batson v. Kentucky; State v. Sandoval, 105 N.M. 696, 736 P.2d 501 (Ct.App.1987). The trial court denied the motion.

Defendants then moved to dismiss the charges or, in the alternative, to dismiss the jury and begin jury selection anew, on the grounds that the prosecution had used its peremptory challenges to systematically exclude men from the jury, violating defendants' right to be tried by a jury that was representative of the community. The trial court denied that motion as well, commenting that there was no case law to support the motion.

On appeal, defendant Gonzales argues that he made a prima facie showing that the prosecution's use of its peremptory challenges constituted purposeful discrimination against Hispanics, in violation of the equal protection clause of the fourteenth amendment to the United States Constitution. Defendant also argues that the state improperly used its peremptory challenges on the basis of gender, in violation of article II, sections 14 and 18 of the New Mexico Constitution. The state, on the other hand, argues that the trial court properly determined that defendant had not made a prima facie case.

ISSUES NOT BRIEFED

We address first a preliminary issue concerning defendant's brief-in-chief. In several cases, this court has previously decided that, when a case is assigned to a non-summary calendar, the calendar notices previously issued are superceded by the assignment to a non-summary calendar, so that all issues properly raised in the docketing statement are revived and may be briefed regardless of whether they appeared to be abandoned by failure to argue them in the memorandum in opposition. Because our decisions in those cases have been made in the context of motions upon which we do not ordinarily write opinions or because (in one case) the supreme court has decided to order our opinion not published, we take this opportunity to explain the rationale of those decisions.

There are sound reasons for allowing a party to brief issues on a non-summary calendar that may have been deemed abandoned, see State v. Martinez, 97 N.M. 585, 642 P.2d 188 (Ct.App.1982), during the time an appeal was being considered under our summary calendar. In responding to a summary calendar notice, a party need only convince this court that its proposed disposition is incorrect. Because calendar notices may be issued for tactical reasons, State v. Gonzales, 110 N.M. 218, 794 P.2d 361 (Ct.App.1990), this does not always necessitate responding to every issue. Additionally, there may be instances in which reversal is proposed as a disposition though affirmance may be proposed on other issues. A party may be willing to accept an affirmance on those issues contingent on a reversal of the case. If the same appeal is eventually reassigned to a non-summary calendar, the contingency on which the party relied no longer exists. Thus, in cases reassigned from the summary to a non-summary calendar, all issues properly raised during the summary process are revived and may be briefed.

By the same token, once a case is assigned to a non-summary calendar, the parties are expected to comply fully with the appellate rules with respect to briefs. See SCRA 1986, 12-213 (Cum.Supp.1990). This means that the brief-in-chief must contain all of the following with respect to each issue. First, it must set out all the facts and proceedings pertinent to a consideration of the issue, including the facts that support the trial court's ruling as well as the facts on which appellant relies for reversal. The facts must be supported by appropriate references to the record proper and transcript of proceedings. Id. If some of the facts relied on are not of record below, such as when defendant insists on raising issues pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), the brief should so indicate. Cf. State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct.App.1985) (counsel should inform the court whether the contentions or facts would appear in the record). Second, the brief-in-chief should affirmatively indicate how each issue was raised and preserved below or, if it was not, why this court should consider the issue for the first time on appeal. Third, the brief-in-chief should clearly indicate the authorities and arguments on which appellant relies. Id. It should not be necessary for opposing counsel or this court to review documents previously filed in the case in order to understand defendant's issues and arguments. State v. Aragon, 109 N.M. 632, 788 P.2d 932 (Ct.App.1990). In addition, the brief should indicate any contrary authorities known to defendant. SCRA 1986, 16-303(A)(3). Fourth, the brief-in-chief should clearly state the relief sought on appeal. R. 12-213(A)(4); cf. State v. Casteneda, 97 N.M. 670, 642 P.2d 1129 (Ct.App.1982) (counsel has the duty to preserve a question for appellate review by affirmatively showing in the record that a ruling or decision by the trial court was fairly invoked on the point).

With respect to the issues referenced above, the brief-in-chief in this case fails to fully set out the facts, arguments, and authorities relied on for the issues; instead, it responds to the reasoning in a previously issued summary calendar notice. Thus, the brief-in-chief implicitly incorporates by reference the facts, arguments, and authorities set out in the docketing statements and previous memoranda. We have previously held that issues that are argued by reference to the docketing statement will be deemed abandoned. State v. Aragon. We do so again.

PROPRIETY OF STATE'S PEREMPTORY CHALLENGES AGAINST HISPANICS

We note at the outset that it is difficult to determine from the record whether the trial court ruled that defendant had made the prima facie showing required by Batson and Sandoval. See State v. Moore, 109 N.M. 119, 782 P.2d 91 (Ct.App.1989) (discussing the importance of the trial court's role in these cases). From the transcript of the hearing, it appears that the trial court mistakenly believed that in order to establish a prima facie showing defendant was required to prove that Hispanics were substantially underrepresented on the jury. Thus, the only finding made by the trial court was the finding that Hispanics were not substantially underrepresented on the jury. For the reasons discussed below, we hold that this issue...