State v. Jett

• Decision Date: 04 February 1991
• Docket Number: No. 18258,18258
• Citation: 1991 NMSC 11,805 P.2d 78,111 N.M. 309
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard Dennis JETT, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 78

805 P.2d 78

111 N.M. 309

STATE of New Mexico, Plaintiff-Appellee, v. Richard Dennis JETT, Defendant-Appellant.

No. 18258.

Supreme Court of New Mexico.

Feb. 4, 1991.

[111 N.M. 311] Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Tom Udall, Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

MONTGOMERY, Justice.

Defendant Richard Dennis Jett (Jett) appeals his conviction of first degree murder of his former wife Judy Jett (Judy). We affirm.

On June 18, 1988, Jett shot and killed Judy in the parking lot of the Diamond Lil's Bar in Hobbs, New Mexico. Earlier that same evening Jett encountered Judy leaving George's Bar with Monetta Easter, a woman Jett also knew, and Steve Bush, whom Easter introduced to Judy that evening. Judy went back inside the bar while Easter told Jett to stay away from Judy. Nonetheless, he followed them to Diamond Lil's. Easter testified that when she told Jett they did not want any trouble, he hit her in the face and threatened to kill her.

Jett then drove to his house and put an unloaded shotgun and shells in his truck. He went out to buy snacks, returned home for at least one hour, and told his daughter Cheryl he was going out. He returned to Diamond Lil's, where he found Judy and Bush kissing in the parking lot. He loaded the shotgun and walked toward them, telling Bush to take his hands off Judy and Judy to get into his truck. Jett testified that Judy started walking toward his truck.

The precise sequence of events that followed is disputed. Jett testified he pointed the shotgun at Bush and tried to shoot but was prevented from doing so by having to release the safety on the gun. He claims that Judy made a grab for the shotgun and it accidentally discharged, wounding her. Jett further testified that after she fell he shot her twice more, then walked away, firing two additional shots into the ground. Bush testified there was no struggle for the shotgun and that Jett was 10-15 feet away from Judy when he fired the first shot. No other witness recalled a struggle. Judy suffered shotgun wounds in the head, the chest and the abdomen; the medical testimony was that any one of these wounds could have been fatal. Jett was apprehended as he drove away and he confessed to the shooting. Following a jury trial in Lea County, Jett was convicted of first degree murder and sentenced to life imprisonment.

Jett raises eight points on appeal. First, he argues that three actions by the court constitute reversible error: (1) The court excluded a prior consistent statement he had made, offered to rehabilitate his testimony concerning the struggle; (2) the court limited cross-examination into the possible bias of witness Bush; and (3) the court abused its discretion in excusing a prospective juror. Next, he contends that he was denied due process and a fair trial because the State: (4) improperly read a prior consistent statement during the direct examination of witness Cheryl Jett; (5) was late in disclosing fingerprint evidence; and (6) engaged in prosecutorial misconduct. Finally, Jett claims that his conviction should be reversed due to: (7) ineffective assistance of counsel and (8) cumulative error. Each of these issues will be addressed in turn.

1. Exclusion of prior consistent statement. Jett first argues that the court erred in refusing to admit into evidence a tape recording of a statement he made to the police. The prior statement was consistent with his testimony at trial that there had been a struggle for the shotgun and that the first shot was accidental. The statement was offered to rebut a charge of recent fabrication. Jett claims the tape was "highly relevant" to his contention of a struggle.

During Jett's cross-examination the State impeached his testimony by eliciting a prior statement it asserted was inconsistent with his claim of a struggle and tended to show that the claim was a recent fabrication. The court then conducted an in camera hearing. In that hearing counsel for Jett asked the court to allow one of three alternatives to place the statement before the jury: (1) playing the tape; (2) obtaining a stipulation from the state that Jett had made the prior consistent statement; or (3) eliciting from Jett that he had made a prior consistent statement and what it was. The court ruled that the third alternative would be allowed.

An evidentiary ruling within the discretion of the court will constitute reversible error only upon a showing of an abuse of discretion, State v. Bell, 90 N.M. 134, 139, 560 P.2d 925, 930 (1977), and a demonstration that the error was prejudicial rather than harmless, State v. Trujillo, 95 N.M. 535, 541, 624 P.2d 44, 50 (1981). We see no basis for finding an abuse of discretion, since the court granted defense counsel one of his own alternative means of placing the statement in evidence.

Moreover, even if we were to assume for the sake of argument that the trial court erred, the error in this case was harmless. New Mexico has adopted the standard for harmless error set out by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See State v. Trujillo, 95 N.M. at 541, 624 P.2d at 50. In Chapman, the Supreme Court identified the standard as "whether there is a reasonable possibility that the ... [error] might have contributed to the conviction." Chapman, 386 U.S. at 23, 87 S.Ct. at 827 (improper admission of evidence).

We fail to see how the tape could have contributed to Jett's defense in any way which would have altered the outcome of the trial. Assuming the tape had been played for the jury and they had fully believed Jett's contention that a struggle preceded the first shot, that belief would not have relieved Jett from the consequences of the two subsequent shots. Regardless of what happened at the time of the first shot, it is undisputed by Jett that once Judy was wounded he then fired two additional shots into her head, chest, or abdomen. Therefore, even if he had fully established his struggle contention, his admission to the subsequent shots convincingly supports the verdict of first degree murder.

2. Limitation of cross-examination on bias. Jett next contends that it was reversible error for the trial court to limit his cross-examination into the possible bias of witness Bush. Under Rule 611 of the New Mexico Rules of Evidence, the trial court is vested with the authority to control the interrogation of witnesses to avoid unnecessary testimony and to protect witnesses from harassment or undue embarrassment. SCRA 1986, 11-611(A); State v. McCarter, 93 N.M. 708, 713, 604 P.2d 1242, 1247 (1980). "The trial court may, within its discretion, control cross-examination to insure a fair and efficient trial." Sanchez v. State, 103 N.M. 25, 27, 702 P.2d 345, 347 (1985).

Jett alleges that he was entitled to try to establish bias on the part of Bush, contending that he (Bush) may previously have been involved in drug trafficking and was possibly a confidential informant for the state. In an in camera hearing, Jett moved that the State disclose information regarding Bush's involvement in drug trafficking and status as an informant, arguing that Bush's credibility was critical and that his (Jett's) request was supported by the sixth amendment right to confrontation. The court denied the motion, on the grounds that there was no indication of drug involvement and that Bush's possible informant status was unrelated to his having witnessed a murder.

A trial court's ruling as to the permissible scope of cross-examination is also reviewed under the "abuse of discretion" standard. Id., 103 N.M. at 29-30, 702 P.2d at 349-50. There was no evidence presented during the in camera hearing that could lead to the conclusion that Bush was either a drug trafficker or an informant. However, even if either had been established, the court concluded it would have no effect on the credibility of Bush's testimony as an eyewitness to an unexpected murder. Although the right of a criminal defendant to impeach a witness is important to a fair trial, we find the court's ruling reasonable, on the facts of this case. No abuse of discretion has been demonstrated.

Moreover, assuming the ruling was erroneous, this error too was harmless. Even if Jett had thoroughly impeached Bush for bias and the jury had completely disbelieved Bush's testimony concerning the absence of a struggle, and even if the jury had found there was a struggle, Jett's two subsequent shotgun blasts at Judy, lying on the ground, would remain unexplained. We cannot see a reasonable possibility that the court's refusal to permit witness Bush to be impeached for bias might have contributed to Jett's conviction.

3. Excuse of prospective juror. Jett's third claim of abuse of discretion is that the court improperly excused prospective juror Miguel de la Cruz (de la Cruz). De la Cruz was excused by the court after he approached the judge on his own initiative to say that he was unable to understand sufficient English to serve on the jury. Although the court is vested with "wide discretion in the superintendence of the process of empaneling the jury," Beal v. Southern Union Gas Co., 66 N.M. 424, 434, 349 P.2d 337, 344 (1960), allowing an unqualified juror to serve in a criminal case may constitute a constitutional violation, State v. Gallegos, 88 N.M. 487, 488-89, 542 P.2d 832, 834 (Ct.App.), cert. denied, 89 N.M. 6, 546 P.2d 71 (1975).

As stated in Gallegos, "It is self-evident that a juror who does not possess a working knowledge of English would be unable to serve because he cannot possibly understand the issues or evaluate the evidence to arrive at an independent judgment as to the guilt or innocence of the accused." 88 N.M. at 489, 542 P.2d at 834; see also State v. Escamilla, 107 N.M. 510, 760 P.2d 1276 (1988).

On appeal, Jett has not alleged that...