State v. Hernandez

• Decision Date: 14 January 1993
• Docket Number: No. 19728,19728
• Citation: 115 N.M. 6,1993 NMSC 7,846 P.2d 312
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ralph HERNANDEZ, Defendant-Appellant,
• Court: New Mexico Supreme Court

Page 312

846 P.2d 312

115 N.M. 6

STATE of New Mexico, Plaintiff-Appellee, v. Ralph HERNANDEZ, Defendant-Appellant,

No. 19728.

Supreme Court of New Mexico.

Jan. 14, 1993.

[115 N.M. 10] Robert J. Jacobs, Taos, for defendant-appellant.

Tom Udall, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BACA, Justice.

Defendant Ralph Hernandez appeals his conviction on charges of first degree felony murder, aggravated burglary, attempted robbery, and battery. Because Defendant was sentenced to life imprisonment for the first degree murder conviction,¹ we note jurisdiction under SCRA 1986, 12-102(A)(2) (Repl.Pamp.1992).

Defendant raises numerous issues that he contends mandate a reversal including: (1) Whether he was denied effective assistance of counsel; (2) whether the trial court erred when it refused to grant Defendant's motion for a continuance in order to allow additional time for his trial counsel to prepare; (3) whether the trial court erred by failing to exclude testimony of a prosecution witness who was present during other prosecution witnesses' testimony; (4) whether the trial court erred when it admitted various photographs and a videotape; (5) whether the trial court erred by denying Defendant's motion for recusal; (6) whether the trial court erred when it refused to order the sheriff to bring a potential juror to court for jury duty; (7) whether the trial court erred when it denied Defendant's motion for a change of venue; (8) whether the trial court erred when it denied Defendant's challenges for cause of various potential jurors; (9) whether the trial court erred when it informed the jury that the State would not seek the death penalty; (10) whether the trial court erred when it gave the felony murder instruction to the jury; (11) whether the trial court erred when it qualified one of the State's expert witnesses; (12) whether the trial court erred when it denied Defendant's motion in limine and motion for a continuance based on prosecutorial misconduct; (13) whether the trial court erred when it failed to rule on the sufficiency of the evidence prior to submitting the case to the jury; (14) whether there was sufficient evidence to convict Defendant; and (15) whether Defendant was denied his right to a fair trial because of cumulative error. We find no merit to any of Defendant's arguments and affirm.

I

On April 18, 1989, officers from the Silver City Police Department discovered a woman's body in an apartment in Silver City. The body, which was later identified as that of Peggy Brown, was found lying on the bedroom floor of the apartment. Dark hairs that did not appear to match Brown's hairs were found in her mouth and on the bed. The police also found blood on her bed, pillows, sheets, and clothing. Brown's purse and its contents were scattered about on the living room floor. Brown's body had a black eye, a bloody nose, several bruises, and a cut lip. The bedroom was in a state of disarray that suggested that a struggle had ensued before Brown's death. The police took pictures of the position and condition of the body and of the interior and exterior of the apartment and recorded a videotape of the apartment. In addition, the police lifted fingerprints and palmprints from the apartment and Brown's purse.

On August 8, 1989, David Salaiz contacted the police with information regarding Brown's murder. Salaiz told the police that he had been drinking with Defendant when Defendant related the following story to Salaiz. According to Salaiz, Defendant stated that he had needed money to purchase drugs, entered Brown's apartment looking for something that he could sell, encountered Brown, who began to scream, struggled with Brown, and suffocated Brown with a pillow. Defendant then told Salaiz that no one else knew of his involvement in the murder, and that, consequently, he would have to kill Salaiz. Salaiz claimed that Defendant pulled a knife, and a fight, in which Salaiz was cut, ensued. Salaiz eluded Defendant and contacted the police, who investigated Salaiz's story. The police found blood at the location where Salaiz claims that Defendant attacked him.

The police then contacted Defendant and, with his permission, obtained a hair sample from him. This sample was sent to the FBI and compared with the hairs found in Brown's apartment. The FBI determined that the hairs found in Brown's apartment had been forcibly removed and were a microscopic match with the hair sample taken from Defendant. On the basis of Salaiz's statement and the hair analysis, the Silver City police obtained a warrant for Defendant's arrest and, after his arrest, he was charged with murder, aggravated burglary, attempted robbery, and battery regarding the incident at Brown's apartment and aggravated battery of Salaiz. A lawyer was appointed to represent Defendant, who was indigent.

Prior to trial, defense counsel made numerous motions, the most important of which was his motion for a continuance. In making this motion, defense counsel contended that he and Defendant's expert witnesses needed additional time to prepare for trial. Defendant also moved to exclude the testimony of Detective Bruce, contending that Bruce's testimony was tainted because he was allowed, over objection, to listen to other witnesses' testimony at a preliminary hearing. In addition, Defendant moved to exclude the photographs and videotape of Brown's apartment, contending that the prejudicial nature of this evidence outweighed its probative value. Over two months prior to trial, the trial court heard these motions and, with the exception of excluding some of the photographs as cumulative, denied Defendant relief.

One week prior to trial, Defendant again moved for a continuance to allow his counsel and expert witness additional time to prepare for trial. Defense counsel claimed that the Public Defender's office had not provided the necessary funds to hire co-counsel familiar with scientific evidence, a forensics expert, or a hair analysis expert. Defense counsel also claimed that he needed additional time to locate two witnesses who he claimed could provide Defendant with an alibi. In addition, Defendant wanted to delay his trial until after the DNA analysis from another murder case was available. After the trial court denied this motion, Defendant moved to recuse the judge, whose mother was a friend of the victim. This motion was also denied.

Defendant's trial began on October 29, 1990. Prior to voir dire and over objection of defense counsel, the court informed the jury venire that the State would not be seeking the death penalty. During voir dire, many of the potential jurors indicated that they had heard publicity regarding the case; however, most said that they could not remember what they had heard. After voir dire, Defendant moved for a change of venue, and the trial court denied the motion.

At trial the following evidence, viewed in the light most favorable to upholding the verdict, State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988), was introduced. Medical testimony indicated that Brown had been killed on either Sunday night, April 16, 1989, or the following morning and that Brown had probably died from suffocation. The State's main witness, David Salaiz, testified that Defendant had admitted to him (Salaiz) that he (Defendant) had entered Brown's apartment to find something to sell to enable Defendant to purchase drugs, encountered Brown, who screamed, and killed Brown by suffocating her with a pillow. Salaiz testified that after Defendant finished telling the story, he became violent and attacked Salaiz with a knife. Salaiz testified that he subdued Defendant, went to the police, gave details about Defendant's story, and submitted a signed statement. On cross-examination, Salaiz testified that he had been given a reward for coming forward with information regarding the murder. In addition, he testified that he had previously been convicted of attempted criminal sexual contact of a minor, possession of cocaine, and larceny and that other charges were currently pending against him. Salaiz's testimony was partially corroborated by Silver City police officer Hall, who testified that he found a trail of blood in the Murray Hotel where Salaiz claims that Defendant attacked him.

The State also introduced hair identification evidence, which linked Defendant to Brown's murder. Arnold Bentz, who, over Defendant's objection, was qualified as an expert witness based on job experience testified that he had separated the hairs collected at the crime scene into those matching the victim's hair and those not matching the victim's hair. Doug Diedrick, an expert in hair identification, testified that the hair samples taken from Defendant microscopically matched the hairs collected at Brown's apartment. Both Bentz and Diedrick testified on cross-examination that hair identification could not positively identify someone.

The State also introduced forensic evidence collected at Brown's apartment. James Bell, a forensic serologist, testified that numerous items found in Brown's apartment tested positive for the presence of blood. On cross-examination, Bell testified that the blood had not been type checked or compared to the blood of Brown, Defendant, or any other suspect. The State also introduced evidence that DNA testing was inconclusive.

At the close of the State's evidence, Defendant offered testimony that attacked Salaiz's credibility. In addition, Defendant offered testimony that attempted to establish an alibi for Sunday night, April 16. Further, Defendant offered testimony that tended to rebut Salaiz's account of Defendant's assault on him.

After Defendant rested and prior to the jury being instructed, Defendant objected to the felony murder instruction, arguing that this charge was not supported by the evidence. The trial court overruled the objection and instructed the jury on first...