State v. Hall

• Decision Date: 01 December 1987
• Docket Number: No. 9766,9766
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Cloyd Norman HALL, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 701

751 P.2d 701

107 N.M. 17

STATE of New Mexico, Plaintiff-Appellee, v. Cloyd Norman HALL, Jr., Defendant-Appellant.

No. 9766.

Court of Appeals of New Mexico.

Dec. 1, 1987.

Certiorari Denied Feb. 29, 1988.

[107 NM 18] Jacquelyn Robins, Chief Public Defender, Stephen D. Aarons, Asst. Public Defender, Santa Fe, for defendant-appellant.

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

OPINION

FRUMAN, Judge.

Defendant appeals his conviction for second degree murder. The issues raised on appeal are addressed in the sequence presented by defendant. The issues raised in defendant's docketing statement, but not briefed, are deemed abandoned. State v. Romero, 103 N.M. 532, 710 P.2d 99 (Ct.App.1985). We affirm.

In March 1986, defendant was stopped on Interstate 40 in Quay County by New Mexico State Police Officer Sherman Toler (Toler). Defendant's car was loaded with personal possessions because he was moving from California to Missouri; he was accompanied by his common-law wife. Toler issued a warning ticket for speeding and proceeded to search the car. Although the circumstances are in dispute, it is clear that a fight developed, and Toler was fatally injured. Defendant turned himself in to authorities and was charged with first-degree murder, contrary to NMSA 1978, Section 30-2-1 (Repl.Pamp.1984).

After a jury trial in November 1986, the state filed a supplemental criminal information alleging that defendant had two prior felony convictions. Finding these allegations to be true and also finding aggravating circumstances "in that the defendant used excessive force and needless brutality," defendant was sentenced to a basic term of twelve years, together with a one-year enhancement pursuant to the jury finding that defendant used a firearm in committing the offense, and a four-year enhancement pursuant to the habitual offender statute, for a total of seventeen years.

Defendant contends on appeal that late production of certain evidence, as well as non-disclosure of other evidence, denied defendant due process, a fair trial, and effective assistance of counsel. Defendant also contends that the prosecutor's exercise of peremptory challenges to exclude Hispanic venire members denied him equal protection, due process, a fair trial, and effective assistance of counsel. Defendant further contends that the admission of testimony concerning the circumstances of that conviction deprived him of due process and a fair trial. Finally, defendant contends that the trial court erred in enhancing his sentence for use of a firearm after having aggravated the basic sentence by the maximum amount. Defendant also argues the existence of cumulative error. For the reasons that follow, we hold that there has been no reversible error.

A. Whether the prosecutor's nondisclosure of defendant's personal papers until several days prior to trial, in violation of specific orders to produce, denied him due process, a fair trial, and effective assistance of counsel.

At the time of his arrest, defendant had numerous personal papers in his vehicle. Despite several attempts and court orders to have the prosecutor produce those papers, they were not returned to defendant until several days before trial. Defendant claims these papers were essential to help him identify and secure witnesses as to his good character and character for peacefulness, and because of the untimely production of his papers, defendant was not able to do so.

Defendant has cited State v. Lovato, 94 N.M. 780, 617 P.2d 169 (Ct.App.1980), in support of his argument that the prejudice resulting from the untimely production of his personal papers requires the reversal of his conviction. Lovato was distinguished in State v. Sandoval, 99 N.M. 173, 655 P.2d 1017 (1982). In State v. Sandoval, the court held that to determine prejudice where the state initially deprives defendant of the evidence but later produces the evidence, the reviewing court should consider whether the failure to timely disclose the evidence was cured by the trial court. The Sandoval distinction applies in the instant case. Here, the evidence was not destroyed as was the situation in Lovato; rather, defendant's personal papers were delivered to his counsel shortly before trial. Thus, the decisive issue is whether the untimely production of defendant's papers was cured by the trial court. State v. Sandoval.

During voir dire, defendant moved for a continuance to make use of his personal papers. In denying the motion, the trial court stated that it would consider a several day recess if, during trial, good cause was presented by defendant. Defendant did not seek a recess during trial. We view this inaction as a cure of any prejudice that may have resulted from the untimely production. See id. We also view defendant's inaction as a waiver of any claim that the trial court abused its discretion in not granting a continuance. Cf. State v. Johnson, 91 N.M. 148, 571 P.2d 415 (Ct.App.1977).

In his reply brief, defendant claims that he made sufficient offers of proof of the testimony of material witnesses he was unable to call at trial. However, this testimony related to the character of the victim rather than to defendant's character, and thus is not related to the production of defendant's personal papers. Secondly, defendant's reference to the complex procedural requirements of NMSA 1978, Section 31-8-2 (Repl.Pamp.1984) applies to summoning witnesses from this state to appear in another state and does not apply to the converse situation found here.

Furthermore, defendant claimed that he was deprived of a fair trial, in part, on the ground that the lack of access to this material precluded him from locating "the names, current addresses and telephone numbers of * * * good character witnesses." The prejudice part of the test enunciated in State v. Sandoval requires the court to assess whether the omitted evidence created a reasonable doubt that otherwise did not exist. Defendant's claim did not create such a doubt, in the absence of evidence that particular witnesses as to character could not be located without access to the exhibit. Until defendant indicated with greater specificity what might have been proved, the trial court was not in a position to evaluate the relevance and import of the nonproduction. Cf. State v. Quintana, 86 N.M. 666, 526 P.2d 808 (Ct.App.1974) (holding that before a defendant could be prejudiced, the testimony of an omitted witness must be shown to be important and critical, not merely technical or cumulative).

B. Whether the prosecutor's nonproduction of Officer Toler's daily logs until several weeks prior to trial, in violation of specific orders to produce, denied defendant due process, a fair trial, and effective assistance of counsel.

Defendant sought to obtain Toler's daily logs to determine whether he could discover witnesses regarding Toler's character for violence during routine traffic stops. After several attempts and court orders to have the prosecutor produce these logs, they were delivered to defendant approximately three weeks prior to trial. Defendant asserts that this delay prevented him from securing the presence at trial of at least four out-of-state witnesses regarding Toler's character.

The record discloses the following. Approximately two weeks before trial, defendant filed his list of intended trial witnesses. The names and addresses of three of those four out-of-state witnesses were set forth on that list. One of these three witnesses was contacted by defendant approximately five months before trial. Defendant supplemented his witness list several days before trial. The supplement contained the name and address of the fourth witness. The trial court ordered payment of the expenses of all of defendant's witnesses several days prior to trial. A subpoena for at least one of these character witnesses was issued by the court clerk two weeks before trial.

Prior to trial, defendant sought a continuance because of the late production of the daily logs. In denying the motion, the trial court stated that defendant had sufficient time to utilize the logs. Following trial, defendant sought a new trial, claiming an inability to secure the appearance of the out-of-state witnesses as to Toler's character because of the late production of the logs. Defendant does not assign error to the denial of his motion for continuance. Rather, defendant maintains he was prejudiced by the late production of the logs because he was therefore unable to obtain the presence of these character witnesses.

We observe that in seeking a continuance to secure the appearance of an absent witness, a party must show that it has used due diligence to obtain the witness' testimony. See State v. Case, 100 N.M. 714, 676 P.2d 241 (1984); State v. Perez, 95 N.M. 262, 620 P.2d 1287 (1980); State v. Haddenham, 93 N.M. 394, 600 P.2d 846 (Ct.App.1979). See also NMSA 1978, Sec. 31-8-3 (Repl.Pamp.1984). Defendant did not make such a showing in requesting the continuance. Also, defendant has not claimed that he advised the trial court, during trial, either that his subpoenaed witnesses were unable or unwilling to appear or that a continuance would have enabled him to secure their appearance. Accordingly, defendant failed to preserve his claim of prejudice regarding the untimely disclosure of the daily logs. See State v. Case. Cf. State v. Hoxsie, 101 N.M. 7, 677 P.2d 620 (1984) (an assertion of prejudice is not equivalent to a showing of prejudice).

We recognize that under some circumstances no more prejudice need be shown than that a line of defense was frustrated by court order. See State v. Orona, 92 N.M. 450, 589 P.2d 1041 (1979). On these facts, however, we cannot conclude that the late production prevented defendant from obtaining witnesses as to the victim's character. Thus, we hold that defendant has not demonstrated reversible...