State v. Kenny

• Decision Date: 25 July 1991
• Docket Number: No. 12175,12175
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joe Lewis KENNY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 420

818 P.2d 420

112 N.M. 642

STATE of New Mexico, Plaintiff-Appellee, v. Joe Lewis KENNY, Defendant-Appellant.

No. 12175.

Court of Appeals of New Mexico.

July 25, 1991.

Certiorari Denied Sept. 11, 1991.

[112 N.M. 644] Tom Udall, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Michael Slosberg, Albuquerque, for defendant-appellant.

OPINION

APODACA, Judge.

Defendant appeals his convictions for kidnapping, conspiracy to commit kidnapping, two counts of armed robbery, conspiracy to commit armed robbery, aggravated battery (with a deadly weapon) or, in the alternative, aggravated battery (causing great bodily harm), and aggravated burglary. He raises six issues on appeal: (1) error in admitting evidence concerning defendant's flight; (2) error in admitting a gun and bullet into evidence; (3) sufficiency of the evidence; (4) refusal to compel defendant's brother to testify when he claimed a fifth amendment privilege; (5) denial of defendant's motion for a new trial; and (6) cumulative error. Under the cumulative error issue, defendant raises the issues of merger of aggravated burglary with the second armed robbery offense and jury confusion arising from the jury instructions and verdict forms regarding the alternative counts of aggravated battery. We affirm.

FACTS

The victim, the manager of a Western Sizzlin' restaurant in Albuquerque, was accosted as she arrived home in the early morning hours of June 20, 1984. Two armed assailants, a man and a woman, approached the victim as she was getting out of her car and forced her into the car's back seat. They first looked through her purse, then drove away. The woman was driving. The man was seated in the back seat with the victim. He asked for money, and she said that there were a few hundred dollars in the restaurant office. He told the victim she was lying and hit her on the head with his handgun. When the victim hesitated to give the man her business keys, he shot the gun in the car. The man told her to point out the keys to the restaurant's front door and office from those in her purse. He then took two rings from the victim's fingers. Money and a credit card were later discovered missing from her purse.

The woman drove the vehicle to the restaurant without receiving any directions from the victim. The man asked the victim about the security system, and she gave him a false security code number. He became angry and tried to strike the victim in the face with his weapon. She blocked the attempt and the blow broke her wrist. The victim showed the man which exterior door matched the key she had given him. Once they were inside the building, she led him to the office. The man took money from a file cabinet, and he and the victim then left the restaurant. The two assailants left the victim in the restaurant parking lot and fled.

At about 10:30 a.m. that same day, Albuquerque police officers stopped a vehicle in which defendant was an occupant, in connection with their investigation of a bank robbery that had occurred that morning. Defendant fled from the vehicle's back seat and was apprehended after a foot chase. A co-defendant, Jacqueline Moore, and defendant's brother, Kevin Kenny, were in the front seat of the car. Investigating officers seized a handgun from the side board of the front passenger seat.¹

A police officer took Moore to the police substation. Before Moore had been searched, she was given permission to use the restroom. She was accompanied there by a female police secretary. The secretary had used the restroom ten minutes earlier and had not seen anyone use it between then and when Moore used it. The secretary watched Moore but did not see her put any metal objects into the toilet. Moore flushed the toilet. Ten minutes later, the secretary found a bullet in the toilet when she returned to the restroom for water.

At trial, defendant attempted to discredit the victim's identification of him and sought to demonstrate that his brother, Kevin, had committed the offenses. The victim testified that Kevin had worked for her at the restaurant one month before the incident during a six-day period. She identified defendant from a photograph array, made an in-court identification, and identified a photograph of Kevin.

After defendant's convictions, and after judgment and sentence had been filed, the trial court received letters exculpating defendant, purportedly written by Moore and Kevin. Based on these letters, defendant moved for a new trial, but the trial court denied his motion. The Moore letter stated that defendant had not been her accomplice, and the Kevin letter stated that he, not defendant, had committed the crimes.

EVIDENCE OF FLIGHT

Over defendant's objection, the trial court admitted evidence that defendant fled after the police stopped the car in which he was riding. We will not disturb the trial court's evidentiary ruling absent a clear abuse of discretion. State v. Worley, 100 N.M. 720, 676 P.2d 247 (1984).

It is undisputed that the traffic stop was unrelated to the subject crimes. The police were investigating a bank robbery, not the crimes involving the Western Sizzlin' restaurant. Defendant successfully prevented the state from introducing any evidence of the bank robbery or the reasons for the stop. Although acknowledging that evidence of flight is relevant to show a consciousness of guilt, see State v. Rodriguez, 23 N.M. 156, 167 P. 426 (1917), he argues that the admission of the flight evidence placed him in an unfair position, since he was unable to explain why he fled without prejudicing his defense by alerting the jury to his suspected involvement in the bank robbery.

To avoid such a predicament, defendant requested the trial court to exclude the evidence of his flight, as well as the evidence that would have, in his view, explained his actions. We are not sympathetic toward defendant's dilemma because it was created by an evidentiary exclusion that he himself urged on the trial court. Cf. State v. Peterson, 103 N.M. 638, 711 P.2d 915 (Ct.App.1985) (one may not be heard to complain because the very relief he requested was granted), cert. denied, 475 U.S. 1052, 106 S.Ct. 1279, 89 L.Ed.2d 586 (1986).

Defendant next contends that the prejudicial impact of the evidence of flight outweighed its probative value, in view of other evidence establishing his intent. He argues that the state was not required to prove consciousness of guilt and that the inferences resulting from the evidence of flight could have been inferred from other evidence introduced by the state. Even if the evidence of flight could be characterized as cumulative, it would still be admissible to corroborate other evidence, particularly the challenged identification of defendant by the victim. See State v. Upton, 60 N.M. 205, 290 P.2d 440 (1955). We conclude that the probative value of the evidence of flight was not outweighed by its prejudicial effect. Cf. State v. Fuson, 91 N.M. 366, 574 P.2d 290 (Ct.App.1978) (trial court's decision excluding records as collateral in nature because their probative value was outweighed by their prejudicial effect sustained as not an abuse of discretion).

Defendant relies on State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966), for the proposition that evidence of his flight constituted evidence of other bad acts that was used to prove he acted in conformity with that prior misconduct. We hold that the restriction of SCRA 1986, 11-404(B) is not applicable here since the evidence was used to prove, not defendant's character, but his identity and consciousness of guilt. For these reasons, we conclude that the trial court did not abuse its discretion in admitting evidence of defendant's flight from the police. See State v. Worley; State v. Rodriguez; SCRA 1986, 11-402.

Defendant draws our attention to the fact that the crimes occurred approximately ten hours before he fled from the police. He contends that this fact establishes that the crimes charged were so remote in time from his flight that the evidence should have been excluded. Cf. State v. Beachum, 96 N.M. 566, 632 P.2d 1204 (Ct.App.1981) (probative value of defendant's seven-year-old confession to prove identity in unrelated matter was diminished by remoteness). We disagree that passage of a ten-hour period rendered the evidence of flight too remote and thus reject defendant's argument.

During deliberations, the jury sent a note to the trial court inquiring about the reasons for the stop. Defendant contends that the note established that the probative value of the evidence of flight was outweighed by the danger of confusing the issues. With defendant's approval, the trial court responded to the jury's inquiry to the effect that, if the trial court did not answer any of the jury's questions, it would be because the questions were improper as a matter of law. Thus, this response effectively informed the jury that the official reasons for the stop were not an issue for the jury's concern. Any confusion about this aspect of the events was eliminated by the trial court's response. We hold that the trial court did not abuse its discretion in determining otherwise. See State v. Rose, 79 N.M. 277, 442 P.2d 589 (1968) (question of danger of confusion is within discretion of trial court), cert. denied, 393 U.S. 1028, 89 S.Ct. 626, 21 L.Ed.2d 571 (1969).

ADMISSION OF THE GUN AND THE BULLET

Defendant argues that the state did not establish the necessary foundation showing that the gun and the bullet had any probative value. To establish the requisite relevancy sufficient to permit admission of the challenged items, the state was required to show that the items were connected with defendant, the victim, or the crime itself. See State v. Gray, 79 N.M. 424, 444 P.2d 609 (Ct.App.1968). Defendant apparently contends that the state should have done more to establish that the weapon found in the vehicle was the one used in connection with the...