State v. Ho'o
| Decision Date | 14 October 1982 |
| Docket Number | No. 5675,5675 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Malcolm HO'O, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
The defendant appeals from his conviction of involuntary manslaughter contrary to Sec. 30-2-3(B), N.M.S.A.1978, and attempted second degree murder, contrary to Secs. 30-2-1 and 30-28-1, N.M.S.A.1978.
On appeal the defendant raises four issues: (1) error in allowing the state to cross-examine him concerning his "other than honorable" discharge from military service; (2) error in the admission of photographs taken of the victim during autopsy; (3) failure to give instructions requested by the defense; and (4) refusal to grant a mistrial based upon alleged improper jury contact. Other issues raised in the docketing statement but not briefed by the defendant on appeal are deemed abandoned. State v. Gonzales, 96 N.M. 556, 632 P.2d 1194 (Ct.App.1981). We affirm the trial court and the defendant's convictions.
On August 30, 1981, the defendant and two companions, Mike Baldonado and Bruce LeChey, spent several hours at a night club near Farmington. The victims, Connie and David Roberts, husband and wife, had spent the evening at the same bar and dance hall. The parties all left the club at approximately closing time. In the parking lot, LeChey made a flirtatious remark to Connie Roberts, who was sitting alone in her car. David Roberts approached the car and an argument ensued. The defendant and his two friends, including LeChey, left the area in the defendant's pickup and began traveling toward Farmington.
A short time later the defendant observed a car stopped by the side of the road. After the defendant pulled alongside and stopped to help, it became apparent that the Roberts couple occupied the car. Almost immediately, the argument resumed between LeChey and David Roberts. LeChey began fighting with Mr. Roberts outside the vehicles. Connie Roberts also left her car to hold the passenger door of the defendant's truck closed during the fight to prevent the defendant and Baldonado from joining in the fight against her husband. During the progress of the fight, Connie Roberts began shouting "sick 'em," "get 'em," and "kill 'em" to her untrained doberman pincher who was sitting in her car. At this point the defendant, who had remained in the vehicle during the fight between Mr. Roberts and LeChey, grabbed a pistol he had in his truck and got out of the left side of the vehicle. The defendant fired six shots in rapid succession toward the Roberts car. Both Connie and David Roberts were each shot three times. Mrs. Roberts was mortally wounded and her husband was seriously injured.
The defendant and his two companions then drove away from the scene without rendering aid or notifying authorities. They testified that they did not realize then that anyone had been shot. Other passersby stopped and summoned assistance on behalf of the Roberts.
The defendant was charged with first degree murder and attempted first degree murder. He testified that he acted in defense of LeChey, that he fired the shots in fear of what the dog would do, and that he only intended to shoot the dog. He was convicted of the lesser included offenses of involuntary manslaughter and attempted second degree murder.
Whether evidence of a defendant's dishonorable or other than honorable discharge from the military service is admissible in a criminal case is a matter of first impression in New Mexico.
The defendant testified in his own defense at trial. Prior to the presentation of his testimony, the defense counsel asked the trial court to rule on the propriety of any cross-examination by the state concerning the defendant's type of military discharge. After a lengthy bench conference outside the hearing of the jury, the trial court refused to exclude all prosecution inquiry into the nature of the discharge but did restrict questions by the state about the facts and circumstances which led to it. During the conference, the state contended that the defendant had received a less than honorable military discharge because he had acknowledged his guilt of burglary, larceny, and receiving stolen property.
During the defendant's testimony in chief, he made no mention of his military service or the nature of his discharge from the armed services. On cross-examination, the state inquired into the extent and nature of his training and experience with firearms during his military service. Thereafter the state elicited the following testimony from the defendant.
Defense Attorney: Objection, your honor, I think this is irrelevant--it's a matter of separation from the service.
On appeal, the defendant argues that the state's inquiry into the type of discharge he received from the military service was irrelevant and constituted prejudicial error. He cites Casaus v. State, 94 N.M. 58, 607 P.2d 596 (1980), to support his contention that this inquiry was prejudicial. In Casaus, the court held that cross-examination of a defendant concerning his conviction for murder more than ten years earlier constituted proof of conviction of a separate criminal offense contrary to N.M.R.Evid. 609 and was prejudicial error.
Evidence of a defendant's dishonorable discharge from military service or of specific discreditable acts of conduct during his military tenure are generally held inadmissible in a criminal trial when these matters have not been first elicited or put in issue by the defendant. McNair v. State, 223 Miss. 83, 77 So.2d 306 (1955); Andrews v. State, 172 So.2d 505 (Fla.App.1965); People v. Cheary, 48 Cal.2d 301, 309 P.2d 431 (1957); Harold v. Commonwealth, 147 Va. 617, 136 S.E. 658 (1927); see also Annot. 9 A.L.R.2d 606 (1950); N.M.R.Evid. 608.
Under the circumstances, however, the introduction of this evidence must be deemed harmless. The defendant testified in his own behalf and admitted firing the shots which struck both victims. During his opening statement to the jury, the defense attorney stated that when the defendant heard Mrs. Roberts tell the dog to attack Bruce LeChey, the defendant
The defendant himself testified that he saw his friend Bruce LeChey involved in a scuffle with Roberts and that when he thought the dog would injure his friend he "grabbed the gun and ran outside to the back of the pickup and fired off shots toward the direction of the dog." The defendant further stated that, after he learned Mrs. Roberts had died, he took the pistol he used in the shootings up to the mountains and disposed of it. He said that he did not intend to shoot either of the victims, that his sole intention was to shoot the dog the victims had with them that night.
David Roberts testified that he was fighting with Bruce LeChey beside the two parked vehicles when he heard his wife shout, "David, I've been shot * * *." He said that he began to run from the scene of the fight and was shot while he was running away toward his wife.
Bruce LeChey testified that he was fighting outside the truck and heard three shots. As the three men were driving away from the scene, he asked the defendant whether he had shot anyone; the defendant responded, "Let's just be calm everybody, let's be calm, we're all in this together, everything will be all right." The evidence further indicated that as the defendant drove away from the scene after the shooting, he responded to an inquiry from Mike Baldonado as to whether he had shot anybody, "Yeah, I got them * * * I got them good."
We agree that the admission of evidence of the defendant's other than honorable discharge from the military service under the facts herein was error. However, the facts are distinguishable from those supporting the holding in Casaus, supra.
The evidence elicited through the defendant's own testimony was sufficient to support the verdict of the jury without reference to the evidence at issue concerning his discharge from the military service. State v. Moore, 94 N.M. 503, 612 P.2d 1314 (1980); State v. Vallejos, 93 N.M. 387, 600 P.2d 839 (Ct.App.), cert. denied, 93 N.M. 205, 598 P.2d 1165 (1979); see also Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). Other strong and competent admissible evidence supports the jury verdict that the defendant shot the two victims during the altercation. State v. Moore, supra; State v. Gutierrez, 93 N.M. 232, 599 P.2d 385 (Ct.App.1979); State v. Vallejos, supra. The overwhelming properly admitted testimony and evidence render any error from the questioning of defendant concerning his military discharge harmless. See N.M.R.Evid. 103(a); see also N.M.R.Crim.P. 51(a).
The defendant complains of the admission into evidence of six photographs of the decedent taken during the autopsy. (State's Exhibits 31, 35-39). The photographs consist of a picture of the face of the decedent, a photo of the decedent's torso showing a bullet wound in the middle of the chest, a side view showing a wound in the victim's left side, and three views showing the location of bullet wounds in the left side and arm of the decedent.
The admission of photographs calculated to arouse the prejudice and passions of the...
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