State v. Harrison

Decision Date20 February 1970
Docket NumberNo. 375,375
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Haywood HARRISON, Joe Davidson, Albert Woods, Defendants-Appellants.
CourtCourt of Appeals of New Mexico
Perry S. Key, Albuquerque, for defendant-appellant Harrison
OPINION

WOOD, Judge.

There were armed robberies of a service station and a drive-in theater. Woods, Harrison and Davidson were convicted of both offenses. Their appeals require discussion of: (1) the sufficiency of the evidence, including evidence as an aider and abettor; (2) whether there should have been separate trials; (3) whether lineup identification should have been suppressed; (4) search and seizure; and (5) the failure to give a limiting instruction.

Sufficiency of the evidence.

Each of the defendants challenges the sufficiency of the evidence.

(a) Woods.

This defendant asserts the proof of his guilt is purely circumstantial and not incompatible with innocence. To reach this assertion he brushes off the 'questionable testimony of eyewitnesses' because eyewitness testimony is suspect.

Woods was positively identified at trial as a participant in both crimes. Even if the witnesses who identified Woods at the trial made less than a positive identification at other times, the credibility of their testimony was for the jury to decide. State v. Ortega, 79 N.M. 744, 449 P.2d 346 (Ct.App. 1968). Further, State v. Williamson, 78 N.M. 751, 438 P.2d 161 (1968), cert. denied 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968), states:

'* * * It is not essential for a conviction that a positive identification be made of the accused. It is sufficient if the witnesses testify that in their belief, opinion or judgment the person accused is the person who perpetrated the crime and want of positiveness goes only to the weight of the testimony. * * *'

Since Woods was identified by eyewitnesses, his identification and his guilt was not established by purely circumstantial evidence.

(b) Harrison.

As to the drive-in theater robbery, Harrison was positively identified by the ticket seller from whom the money was taken. Her out-of-court identification of Harrison was admittedly weak; this, however, was a matter of the credibility of the witness' identification rather than a matter of admissibility. State v. Williamson, supra; State v. Ortega, supra.

Further, as to the theater robbery, there is the circumstance that a ticket taker's hat, taken in the robbery, was found in Harrison's home. The evidence identifying Harrison as a participant in the theater robbery is substantial.

As to the service station robbery, neither the attendant who was robbed nor the customer who was present testified that Harrison was a participant in this robbery. However, an investigating officer testified the customer 'postively' identified Harrison at a police line-up as one of the robbers. Counsel had made a 'continuing objection' to any identification testimony based on the line-up. Assuming the sufficiency of such a continuing objection, it does not benefit Harrison.

The officer's testimony as to the customer's line-up identification of Harrison as one of the service station robbers was elicited by counsel for Harrison on cross-examination. '* * * A defendant cannot be heard to complain on appeal that he was prejudiced by evidence which he injected into the case. * * *' State v. Sedillo, (Ct.App.), 81 N.M. 47, 462 P.2d 632, 635, decided October 31, 1969, cert. denied December 19, 1969. Although the officer's testimony as to the customer's identification was hearsay, it having been brought into the case by this defendant, it was evidence as to Harrison's participation in the service station robbery. State v. Romero, 67 N.M. 82, 352 P.2d 781 (1960); see State v. Minor, 78 N.M. 680, 437 P.2d 141 (1968); State v. Sharp, 78 N.M. 220, 430 P.2d 378 (1967).

There is evidence that Harrison's car, identified by its license number, was observed 'hesitating' in front of several service stations; that when last observed this car was heading in the direction of the robbed service station only a few minutes prior to that robbery. There is evidence that one of the theater robbers, identified as Harrison, was in his early twenties and was wearing a dark red shirt. The second robber at the service station was described as about twenty and wearing a red shirt. This evidence, together with the officer's testimony, is substantial evidence of Harrison being a participant in the service station robbery.

(c) Davidson.

There is no direct evidence that Davidson participated in either of the armed robberies. The witnesses, when asked, declined to identify Davidson as being present.

There is testimony that Davidson was with Woods and Harris before, after and during the time the crimes were committed. There is evidence that Woods and Harrison committed the crimes. On this basis, the State contends the jury could infer that Davidson was a participant. This is incorrect. This evidence supports a determination that Davidson was present when the crimes were committed. Presence alone, is insufficient to sustain a conviction. Nor is presence with mental approbation sufficient "* * * if unaccompanied by outward manifestation or expression of such approval, * * *" State v. Salazar, 78 N.M. 329, 431 P.2d 62 (1967).

For Davidson's conviction to be sustained, he must have aided or abetted the crimes. State v. Graves, 73 N.M. 79, 385 P.2d 635 (1963). To be an aider or abettor, one must share the criminal intent of the principal. There must be a community of purpose, a partnership, in the unlawful undertaking. State v. Salazar, supra.

State v. Ochoa, 41 N.M. 589, 72 P.2d 609 (1937), states:

'* * * The evidence of aiding and abetting may be as broad and varied as are the means of communicating thought from one individual to another; by acts, conduct, words, signs, or by any means sufficient to incite, encourage or instigate commission of the offense or calculated to make known that commission of an offense already undertaken has the aider's support or approval. * * *'

There is evidence that the three used Davidson's car during the night the crimes were committed; that when stopped and arrested 2 1/2 hours after the second crime was committed Davidson was driving. This does not show Davidson incited, encouraged, instigated, supported or approved the crimes because this use of Davidson's car is not connected with the crimes. The evidence is that Davidson's car was used in looking for girls, going to a pool hall, checking on a dog and visiting a friend. There is no evidence that Davidson's car was used in connection with either crime. There is an inference that Harrison's car was used in connection with the robbery of the service station; neither evidence nor inference as to the car used in the robbery of the theater.

When the police stopped Davidson's car, Harrison attempted to hide a paper sack under a seat of the car. The sack contained coins and a pair of gloves. Neither item was tied in with the robberies.

There is neither evidence nor inference that Davidson was an aider or abettor. His conviction is reversed. Compare State v. Ortega, supra; State v. Perez, 79 N.M. 417, 444 P.2d 602 (Ct.App.1968).

Whether there should have been separate trials.

Woods, Harrison and Davidson were tried jointly. The issue here concerns the motions of Woods and Harrison for separate trials.

The trial court denied the motions for separate trials prior to the trial. During the trial Woods again moved for a severance of his trial. This was denied. At the close of the evidence both defendants renewed their motions. The motions were again denied.

Woods contends he should have been granted a separate trial because certain of the witnesses identified Harrison but did not identify him. Woods took the stand, Davidson did not. Woods contends this '* * * may have caused the jury to discredit the testimony of Albert Woods, * * *' He also contends: 'The very fact that Albert Woods and Haywood Harrison took the stand and Joe Davidson did not is prejudicial comment.' None of these contentions were presented to the trial court in support of any of Woods' motions for a separate trial. They are raised here for the first time.

The written statement of Woods was introduced in evidence at the trial. This statement is discussed in the last point of this opinion. In connection with the severance issue, Harrison contends he could not exclude this statement in the joint trial but could have excluded it if he had been granted a separate trial. Thus, he contends the trial court erred in denying his motion for a severance. We do not reach these contentions. Nor do we decide the applicability of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). As to the applicability of Bruton, compare State v. Turnbow, 67 N.M. 241, 354 P.2d 533, 89 A.L.R.2d 461 (1960) and State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949). We do not reach these contentions because they were never presented to the trial court. They are raised here for the first time.

Since the contentions of Woods and Harrison, for a severance, were not presented to the trial court and are raised here for the first time, these contentions have not been preserved for review. State v. Miller, 79 N.M. 117, 440 P.2d 792 (1968); State v. Torres, (Ct.App.), 81 N.M. 521, 469 P.2d 166, decided January 30, 1970. Compare State v. Fagan, 78 N.M. 618, 435 P.2d 771 (Ct.App.1967).

Whether line-up identification should have been suppressed.

The remaining contention of Woods is that his line-up identification should have been suppressed.

At the hearing on the motion to suppress, Woods offered his...

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