State v. Litteral

• Decision Date: 18 June 1990
• Docket Number: No. 18068,18068
• Citation: 110 N.M. 138,793 P.2d 268,1990 NMSC 59
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. James Craig LITTERAL, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 268

793 P.2d 268

110 N.M. 138

STATE of New Mexico, Plaintiff-Appellee, v. James Craig LITTERAL, Defendant-Appellant.

No. 18068.

Supreme Court of New Mexico.

June 18, 1990.

[110 N.M. 139] Taylor, Gaddy, Rakes and Hall, Leon Taylor, Daniel Rakes, Albuquerque, for defendant-appellant.

Hal Stratton, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SOSA, Chief Justice.

Defendant, James Craig Litteral, was found guilty by a jury and convicted of first degree murder of William Douglas McDougal, contrary to NMSA 1978, Section 30-2-1(A)(1) (Repl.Pamp.1984). He was sentenced to life imprisonment, with a one-year firearm enhancement to be served concurrently. See NMSA 1978, Sec. 31-18-14 (Repl.Pamp.1987) (sentencing authority for capital felony) and Sec. 31-18-16(C) (Repl.Pamp.1987) (alteration of basic sentence for use of firearm). A mistrial was declared at the first trial, the court finding manifest necessity based upon improper impeachment of the state's key witness regarding prior convictions more than ten years old. All of defendant's motions to dismiss and for a new trial were denied. We affirm the conviction and sentence.

On appeal, defendant raises the following issues:

(1) whether the district court abused its discretion in excluding impeachment evidence of the state's main witness and in declaring a mistrial based on the existence of manifest necessity when defendant attempted to inquire about prior convictions more than ten years old;

(2) whether the district court abused its discretion in admitting evidence concerning defendant's involvement with drugs and weapons;

(3) whether cumulative error deprived defendant of a fair trial;

(4) whether the district court abused its discretion in allowing the state to examine defendant's wife and mother;

(5) whether a sufficient factual basis existed to establish the court's jurisdiction;

(6) whether sufficient physical evidence existed linking defendant to the scene of the crime for the jury to find him guilty beyond a reasonable doubt;

(7) whether our jury instruction regarding a unanimous verdict and the jury's duty to consult is unconstitutional; and,

(8) whether the district court abused its discretion in denying defendant's motions for a new trial based on newly discovered evidence.

A week before the killing, defendant planned to be in Colorado and asked the apartment maintenance man to watch his apartment. During this time, the maintenance man had been in and out of defendant's apartment to work on a sewer line problem involving adjacent apartments. It was not until the end of the week that he noticed a .9 mm. handgun on the counter. The maintenance man testified the gun was not there the following Monday morning, the day of defendant's return. Upon defendant's arrival home, the maintenance man inquired whether anyone had a key to his apartment since it appeared someone had been in the apartment during his absence. Defendant indicated his mother and the victim each had a key to the apartment. The victim had been seen near defendant's apartment during defendant's absence.

The state sought to prove defendant killed the victim with one round fired from defendant's .9 mm. handgun, alleging that defendant and the victim had a dispute involving their methamphetamine manufacturing operation. The state contended the motive behind the killing involved money the victim allegedly owed defendant. The maintenance man testified he overheard a telephone conversation in which defendant, in a loud voice, accused the victim of taking his chemicals and threatened to kill the victim if he did not pay money he allegedly owed. The conversation allegedly took place within ten minutes of defendant's return from his trip. Further testimony indicated defendant left the premises immediately after the conversation. That afternoon the Albuquerque police were called to the victim's house to investigate his death. The maintenance man testified he had no motive to lie or testify falsely against defendant.

The defense hypothesized the maintenance man had stolen the gun and concocted the telephone threat to divert suspicion from himself. During cross examination, defense counsel abruptly inquired into past convictions of the witness, the latest being twenty-five years prior. After a bench conference, the court allowed further questioning of the witness, while reserving a ruling on the issue of the prior convictions until that afternoon.

At a hearing held outside the presence of the jury, the state moved for a mistrial arguing that defense counsel improperly questioned the state's witness concerning convictions over ten years old in violation of SCRA 1986, 11-609(B). Defendant argued the state invited an attack on the witness's credibility, and further submitted that the fact of the prior crimes was admissible for purposes other than impeachment under Rule 11-404(B), evidence bearing on the motive of a witness, or Rule 11-608(B), specific instance of conduct probative of truthfulness.

The court again deferred ruling until the following morning to allow the parties time to research the issue. The court asked the prosecutor to consider whether an admonition or curative instruction would be appropriate under the circumstances. On the following morning, the court ruled the prior convictions were too remote in time to be admissible and found the prejudice to the state could not be cured by cautionary instructions. The court declared a mistrial based on manifest necessity arising from prejudice to the state and immediately impaneled a new jury for the second trial.

Mistrial

Defendant claims the court abused its discretion in refusing to admit evidence of the prior convictions and that his second trial subjected him to double jeopardy. He alleges the court failed to explore alternatives to mistrial, like curative instructions, to correct any prejudice arising from defense counsel's questioning. Further, defendant argues, by limiting his examination of the state's witness, the court deprived him of the right to develop and present his defense, to confront an adverse witness, and to due process of law.

Defense counsel denied having knowledge of the age of the prior convictions despite the fact that the questions were posited with specific reference to the years 1957-1963. When asked by the court about a good-faith basis for asking the question, defense counsel replied, "my private investigator researched it and found out--tracked his history and found out that he had these convictions." From this response and from the way defense counsel had framed his questioning, the court inferred defense counsel knew when the convictions had taken place. Moreover, regardless of such knowledge, Rule 11-609(B) establishes an absolute ten-year limit on the use of a prior conviction. See SCRA 1986, 11-609, committee commentary.

Evidence inadmissible for one purpose may be admissible for other purposes under a different rule of evidence. See State v. Omar-Muhammad, 105 N.M. 788, 793, 737 P.2d 1165, 1170 (1987). Assuming evidence of the prior convictions otherwise admissible the record in the present case fails to establish an abuse of discretion in the trial court's refusal to admit this evidence under either Rule 11-404(B) or Rule 11-608(B). See State v. Smith, 92 N.M. 533, 537, 591 P.2d 664, 668 (1979) (admission of evidence is within sound discretion of trial court and its ruling will be upheld unless there is showing of abuse of discretion). "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case." State v. Simonson, 100 N.M. 297, 301, 669 P.2d 1092, 1096 (1983). We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason. See State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970). We agree with the trial court that "acts that are ... 25 and 29 years old ... are in no way relevant to behavior in 1987." We thus disagree with defendant's contention that he was deprived the opportunity to test the credibility of the key witness against him in violation of the sixth amendment. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (defendant's constitutional right to confront evidence places limits on trial court's ability to prevent impeachment of prosecution witness by means of prior convictions); United States v. Ferguson, 776 F.2d 217 (8th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986) (right to cross-examination under Davis does not extend to stale convictions of witness).

In some instances, the double jeopardy clause protects a criminal defendant against being retried when the criminal proceeding is aborted before a final judgment was obtained. State v. Saavedra, 108 N.M. 38, 41, 766 P.2d 298, 301 (1988). When the first jury is sworn jeopardy attaches and a defendant cannot be retried unless the declaration of a mistrial is based upon reasons of manifest necessity. Id. However, "[a]s the term 'manifest necessity' implies, the protection against retrial is not absolute when the trial process has been stopped short of a final judgment." Id.

When the underlying issue involves possible jury bias, a reviewing court must afford substantial deference to the trial court's ruling. Id. at 42, 766 P.2d at 302. As discussed above, the court here first looked to whether the evidence was admissible and determined that the prior acts were far too remote in time to be probative of truthfulness. The court properly concluded that, because the evidence concerned the state's main witness, it had been prejudiced to the point where an admonition or a curative instruction would not have cured the harm that already had been done. Cf. State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966) (reversal of conviction required when trial court's admonition did not cure effect...