State v. Hogervorst

• Decision Date: 17 May 1977
• Docket Number: No. 2750,2750
• Citation: 1977 NMCA 57,90 N.M. 580,566 P.2d 828
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Paul Bik HOGERVORST, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 828

566 P.2d 828

90 N.M. 580

STATE of New Mexico, Plaintiff-Appellee, v. Paul Bik HOGERVORST, Jr., Defendant-Appellant.

No. 2750.

Court of Appeals of New Mexico.

May 17, 1977.

Rehearing Denied May 31, 1977.

Writ of Certiorari Denied June 24, 1977.

Thomas L. Grisham, McCulloch, Grisham & Lawless, P. A., Albuquerque, for defendant-appellant

John J. Duran, Paquin M. Terrazas, Asst. Attys. Gen., Toney Anaya, Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

In 1974 defendant was convicted of bribery of a public official. His crime was the payment of money to the district attorney with the intent to influence the district attorney in carrying out his duties. Section 40A-24-1(D), N.M.S.A.1953 (2d Repl.Vol. 6). In 1975 we reversed and directed a new trial. State v. Hogervorst, 87 N.M. 458, 535 P.2d 1084 (Ct.App.1975). Upon retrial in 1976, defendant was again convicted. This appeal involves the 1976 conviction. Issues listed in the docketing statement, but not briefed, are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). His brief raises issues concerning: (1) the indictment; (2) double jeopardy; (3) right to counsel; (4) entrapment; (5) intercepted communications; (6) the prosecutor as a defense witness; (7) evidence of prior wrongful acts; (8) defense cross-examination; (9) prosecutor misconduct; and (10) instructions. We affirm.

Indictment

Defendant moved to quash the indictment, contending that "members of the Grand Jury returning the indictment . . . were witnesses against the Defendant."

The indictment charging bribery was filed September 7, 1973. The same grand jury had returned indictments charging defendant with two public nuisance offenses in violation of § 40A-8-1, N.M.S.A.1953 (2d Repl.Vol. 6). One public nuisance charge concerned the operations of the Galaxy Book Store. The other public nuisance charge concerned the showing of the movie, "Deep Throat". The two public nuisance indictments were filed August 10, 1973. In addition, on August 10, 1973, defendant was directed to show cause to the district court why he should not be held in contempt for his failure to obey a subpoena. See § 41-5-12, N.M.S.A.1953 (2d Repl.Vol. 6), the 1975 amendment not being applicable. The subpoena had directed defendant to bring the film "Deep Throat" before the grand jury.

Section 41-5-3(C), N.M.S.A.1953 (2d Repl.Vol. 6) authorizes a challenge to the validity of the grand jury on the basis that "a member of the grand jury returning the indictment was a witness against the person indicted."

Defendant contends the grand jurors were witnesses against him because the grand jury had returned two indictments against him prior to returning the bribery indictment, and had "witnessed" the actions of defendant which led to the contempt citation. Defendant asserts that a grand jury involved in these prior events could not be unbiased or impartial in considering the bribery charge and had become witnesses against defendant's character and conduct. On this basis, defendant asserts the trial court erred in refusing to quash the indictment.

Defendant's argument perverts the meaning of "witness" as used in the grand jury statutes. These statutes refer to the oath for a witness, the testimony of witnesses, the power to compel the attendance of witnesses. Sections 41-5-6, 41-5-11, 41-5-12, N.M.S.A.1953 (2d Repl.Vol. 6). As used in these statutes, including § 41-5-3(C), supra, witness means a person called to give evidence regarding matters under inquiry by the grand jury. See Webster's Third New International Dictionary (1966); Black's Law Dictionary (1951). The effect of § 41-5-3(C), supra, is to prohibit a grand juror from testifying before the grand jury of which he or she is a member. The trial court correctly denied the motion to quash the indictment.

Double Jeopardy

After reversal by this Court and the granting of a new trial, defendant moved for dismissal of the indictment on the ground that retrial would violate the constitutional provision against double jeopardy.

State v. Sneed, 78 N.M. 615, 435 P.2d 768 (1967) states:

"The constitutional protection against double jeopardy does not prevent a second trial for the same offense when the defendant himself, by an appeal, has invoked the action which resulted in the second trial."

Defendant asserts this rule does not apply to his case. He relies on a statement in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). That statement is that the double jeopardy clause bars retrials where bad faith conduct by the prosecutor threatens the harassment of defendant by successive prosecutions so as to afford the prosecution a more favorable opportunity to convict.

We reversed defendant's first bribery conviction "because of the failure to correct false evidence concerning the bribery of Las Cruces officials." State v. Hogervorst, supra. Defendant asserts that it is evident from our ruling "that the prosecution's willful and deliberate actions in eliciting testimony that was known to be false constitutes the same type of bad faith conduct that the Double Jeopardy Clause is designed to protect against . . . ." We disagree.

In State v. Hogervorst, supra, we stated:

"It may be questioned whether the prosecutor knowingly or deliberately solicited this (false) evidence because some of the testimony may fairly be read as nonresponsive to the questions asked."

We did not hold that the prosecutor in the first trial willfully or deliberately elicited false testimony, and did not hold that the prosecutor was guilty of bad faith conduct. The reversal was for failure to correct false evidence. Defendant does not, in this appeal, attempt to demonstrate bad faith conduct by the prosecutor in the first trial; he relies entirely on statements in our opinion in State v. Hogervorst, supra. The result is a failure to show bad faith conduct on the part of the prosecutor.

In addition, State v. Hogervorst states: "There is substantial evidence that defendant paid $2,000 to District Attorney Williams in an effort to have the District Attorney drop the prosecution" of the August 10, 1973 indictments and the contempt citation. There is no showing that the retrial afforded the prosecution a more favorable opportunity to convict.

United States v. Dinitz, supra, is not applicable; the trial court did not err in refusing to dismiss the indictment on grounds of double jeopardy.

Right to Counsel

The public nuisance indictments were filed August 10, 1973. A civil suit seeking to close down defendant's "business" activities was filed on August 21, 1973. The bribery indictment charged that the offense was committed on August 24, 1973.

Between August 10th and August 24, 1973, investigators from the district attorney's office met with defendant in a continuing investigation of defendant. During these meetings, defendant made statements which were used against him in the bribery prosecution. And, defendant met with the district attorney on August 24, 1973, the meeting where he produced the bribery money.

Defendant had retained counsel in connection with the public nuisance indictments and in connection with the civil suit. The district attorney knew that defendant was represented by counsel. Yet, defendant did not have counsel present during the meetings with the investigators or the district attorney, nor was he advised of his right to counsel.

Defendant asserts that damaging admissions were intentionally solicited by representatives of the State subsequent to the public nuisance indictments, that these admissions were obtained at a time when he was entitled to the assistance of counsel, that the admissions were obtained in violation of his right to counsel and, because of this violation, the admissions should have been suppressed.

Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) held that defendant's statements obtained surreptitiously by federal agents, after indictment and in the absence of defendant's counsel, could not be admitted against defendant in the trial of the charge for which he had been indicted. United States v. Anderson, 523 F.2d 1192 (5th Cir. 1975) is to the same effect. Both decisions deal with evidence surreptitiously obtained by the government subsequent to indictment in the absence of the defendant's counsel. Both are distinguishable on the facts. We are not concerned here with evidence obtained by the State subsequent to the public nuisance indictments which was used at trial of the public nuisance charges. The evidence obtained by the State in this case was used at the trial of the separate bribery charge.

We are uncertain as to the meaning to be given to People v. Vella, 21 N.Y.2d 249, 287 N.Y.S.2d 369, 234 N.E.2d 422 (1967). The facts given are sparse and no reasoning is given for the conclusion reached. We recognize that Vella may be viewed as supporting defendant's contention. We disagree with such a view. The issue here involves the right to counsel. It is clear that the right to counsel exists after judicial proceedings have been initiated against an accused, whether by way of formal charge, preliminary hearing, indictment, information or arraignment. Brewer v. Williams,--- U.S. ----, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). No judicial proceedings had been initiated against defendant in connection with the bribery charge at the time of the meetings between defendant and representatives of the State. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) states the right to counsel is determined by an "examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary." Here there was no adversary; all that was involved was an investigation.

Defendant's contention is similar to that raised in State v. Anaya, 81 N.M. 52, 462 P.2d 637 (Ct.App.1969) which involved...