State v. Herrera
| Decision Date | 10 November 1972 |
| Docket Number | No. 950,950 |
| Citation | 1972 NMCA 154,503 P.2d 648,84 N.M. 365 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Cresencio HERRERA, Jr., Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of possession and sale of marijuana contrary to § 54--5--14, N.M.S.A. 1953 (Repl. Vol. 8, pt. 2) (subsequently repealed by Laws 1971, ch. 245, § 13), defendant appeals.
Called as a witness by the State, Officer Rodriguez testified that he purchased marijuana from defendant. Cross-examination established that the officer 'wrote out a report on this incident.' Defendant moved that the report be produced for inspection '. . . so that the defendant may effectively cross examine this witness. . . .'
The trial court erred in denying the motion. When a witness has made a prior written statement about that which he is called to testify, the accused is entiled to an order directing the prosecutor to produce the statement for inspection of the defendant. Any other result denies the defendant the right to confront the witnesses against him. Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969).
Because of this error, defendant asserts he is entitled to be discharged. He claims a new trial would subject him to double jeopardy. We disagree. '. . . The former jeopardy clause of the constitution does not preclude a retrial of a defendant whose sentence is set aside because of an error in the proceedings leading to the sentence or conviction. . . .' State v. Nance, 77 N.M. 39, 419 P.2d 242 (1966), cert. denied, 386 U.S. 1039, 87 S.Ct. 1495, 18 L.Ed.2d 605 (1967).
The judgment and sentence is reversed. The cause is remanded with instructions to grant defendant a new trial.
It is so ordered.
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Lockhart v. State, 79-668
...the report was a witness to the crime itself and used the report prior to testifying to refresh his memory. See also, State v. Herrera, 84 N.M. 365, 503 P.2d 648 (App.1972); State v. Babin, 319 So.2d 367 (La.1975); State v. Hicks, 515 S.W.2d 518 (Mo.1974); LeGrande v. Commonwealth, 494 S.W.......
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State v. Vigil
...Mexico as to the duty of supplying the defendant with prior written statements of a witness was presented in State v. Herrera, 84 N.M. 365, 366, 503 P.2d 648, 649 (Ct.App.1972), where the Court of Appeals '* * *. When a witness has made a prior written statement about that which he is calle......
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State v. Sparks
...to testify by the state denies to an accused the right of effective cross-examination of the witness. * * *' See State v. Herrera, 84 N.M. 365, 503 P.2d 648 (Ct.App.1972). The right of cross-examination is a part of the constitutional right to be confronted with the witnesses against one. S......