State v. Lopez

• Decision Date: 09 September 1986
• Docket Number: Nos. 9083,9084,s. 9083
• Citation: 1986 NMCA 94,734 P.2d 778,105 N.M. 538
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Alberto LOPEZ and Thomas K. Colson, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 778

734 P.2d 778

105 N.M. 538

STATE of New Mexico, Plaintiff-Appellee, v. Alberto LOPEZ and Thomas K. Colson, Defendants-Appellants.

Nos. 9083, 9084.

Court of Appeals of New Mexico.

Sept. 9, 1986.

Certiorari Quashed March 17, 1987.

[105 NM 540] Paul G. Bardacke, Atty. Gen., Carol J. Vigil, Sp. Ass't Atty. Gen., Santa Fe, for plaintiff-appellee.

David A. Baca, Timothy M. Padilla, Albuquerque, for defendants-appellants.

OPINION

DONNELLY, Judge.

The appeals of co-defendants Alberto Lopez and Thomas K. Colson arise out of efforts of Lopez, a Texas bail bondsman, and Colson, his employee, to arrest and forcefully return to Texas authorities a person to whom Lopez had issued a surety bond. As a result of this incident, Lopez was convicted of aggravated assault on a peace officer, attempted aggravated burglary, and aggravated assault; Colson was convicted of attempted aggravated burglary and aggravated assault. The jury found that defendants committed each of the charges with a firearm. The two appeals have been consolidated.

We discuss: (1) the authority of a bail bondsman to arrest a bonded defendant; (2) denial of defendants' motions for mistrial; (3) comment on defendants' failure to testify; (4) claim of prosecutorial misconduct; (5) refusal to disqualify prosecutor and exclusion of evidence; and (6) defendants' claim of cumulative error. We affirm as to defendant Lopez and reverse as to defendant Colson.

The charges against defendants stem from a complicated scenario. In November 1984, Rudy Ojinaga was arrested in El Paso, Texas, and charged with possession of marijuana (a felony) and driving while intoxicated. A bail bond company operated by Lopez, secured the release of Ojinaga by posting a $9,500 surety bond. Following his release, Ojinaga left Texas and resided at the home of his parents in Grant County, New Mexico. In March 1985, Lopez was informed that Ojinaga had failed to comply with the conditions of his release on bond and that he had been terminated from a pretrial diversion program. In response, Lopez filed a motion in El Paso County Court, requesting that he be permitted to surrender Ojinaga to the custody of the court and be relieved of the bond. Thereafter, the Texas Court issued a bench warrant, directed to "any peace officer of the State of Texas," for the arrest of Ojinaga.

In May 1985, Lopez directed George Sandoval, an employee, to go to Central, New Mexico, and return Ojinaga to Texas authorities. In Central, Sandoval contacted Ojinaga's parents, seeking their assistance in returning their son to El Paso. The parents refused to relinquish their son or permit him to be returned to Texas and phoned Daniel Garcia, a Grant County undersheriff. Upon the deputy's arrival, Sandoval showed him the Texas bench warrant and informed him that he had been directed by the defendant Lopez to return Ojinaga to El Paso authorities.

Garcia testified that he was suspicious of Sandoval's authority because Sandoval was not a Texas peace officer and the bench warrant had several apparent erasures. Sandoval explained to Garcia that he was a "bounty hunter" with Texas Fugitive Apprehension. Texas Fugitive Apprehension was a private company owned by Lopez. Garcia told Sandoval to return after the Memorial Day holiday with a valid bench warrant and that he would assist in Ojinaga's arrest. Sandoval then returned to El Paso.

Early the next morning, Lopez, Colson and Sandoval and two other men, without notifying New Mexico authorities, went to the home of Ojinaga's parents, where Ojinaga was staying. Lopez issued firearms to three of the men and armed himself. Lopez positioned the men around the residence and then knocked on the front door. Ojinaga's father answered the door. Lopez identified himself and informed him that he had come to take his son into custody for return to Texas. The father told Lopez he would not surrender his son. Lopez advised the father that they would forcibly enter the house if the son did not surrender voluntarily. The father locked the door, and Ojinaga's mother phoned the sheriff.

Lopez then instructed Colson to break the door down so they could enter the house. Pursuant to Lopez's direction, Colson kicked the door in. Both Lopez and Colson were armed. The father barred the entry to the house and brandished a knife. Hernandez, who had accompanied Lopez, pointed a rifle at the father and told him to drop the knife or he would shoot. Lopez then observed several other persons inside the house and instructed his men not to enter the house.

At this point, Garcia, dressed in civilian clothes, arrived at the house, where he was met by Lopez, Colson and two other armed men. Lopez disarmed Garcia. Lopez testified that he did not know that Garcia was a deputy sheriff because Garcia was neither wearing a badge nor driving a marked vehicle. Garcia testified that he had a badge pinned to his sport coat. Garcia persuaded Lopez to permit him to enter the house and bring out Ojinaga. Upon entering the house, Garcia phoned the sheriff's department and requested further assistance. Both the sheriff's department and the State Police responded.

Deputy Carl Henderson testified that when he arrived at the Ojinaga residence, Lopez was carrying a shotgun. Lopez put the gun down and approached Henderson, who was in a marked sheriff's vehicle and wearing a jumpsuit without insignia. Henderson testified that he identified himself as a deputy sheriff. Lopez then returned to where his shotgun was and picked it up. Henderson drew his revolver and told Lopez to leave the gun alone. Lopez disregarded Henderson's order and told him to leave the area "or we will shoot." Henderson then drove away from the residence. Lopez denied threatening to shoot Henderson or knowing that Henderson was a deputy sheriff.

Thereafter, other officers arrived at the scene and arrested Lopez, Colson, Sandoval and two other accomplices.

I. BONDSMAN'S AUTHORITY TO ARREST

Defendants argue that the trial court erred in refusing to grant their motion to dismiss and their motions for a directed verdict. Defendants claim that they had both a legal and contractual right to arrest their bonded principal and forcibly return him to judicial authorities in Texas; hence, their actions were not criminal. Defendants also contend that they were lawfully armed and authorized to use reasonable force, and that the sheriff's deputies who intervened to prevent the arrest were not acting lawfully. In advancing this argument, defendants assert that the trial court erred in denying their requested instructions relating to their authority to arrest and in excluding certain exhibits referring to their good faith in reliance on their authority to act as bondsmen. We find no error in the rulings of which defendants complain.

Defendants rely upon Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371, 21 L.Ed. 287 (1872), which provides in applicable part:

When bail is given, the [bonded] principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment * * * they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose.

At common law, a defendant released on bond was still under court control and in the custody of his bondsman. To be discharged from the obligation of its bail bond, the surety could surrender the principal to the control from which he had been released on bail. The bondsman was invested with authority to arrest the principal without warrant and redeliver him to the custody of the court to exonerate the bond. See generally Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Taylor v. Taintor; Reese v. United States, 76 U.S. (9 Wall. 13) 13, 19 L.Ed. 541 (1869). See also Annot., 3 A.L.R. 180 (1919); 73 A.L.R. 1369 (1931). Under common law, and in the absence of a statute providing otherwise, no new process is necessary for the arrest of a principal by his surety. See Taylor v. Taintor; Crain v. State, 66 Okla.Crim. 228, 90 P.2d 954 (1939).

In New Mexico, the powers of a bondsman are regulated by statute under the Bail Bondsmen Licensing Law, NMSA 1978, Sections 59A-51-1 to -19 (Orig.Pamp.1984). By separate statute, a bondsman is empowered to arrest his principal. NMSA 1978, Section 31-3-4(B) (Repl.Pamp.1984), provides: "When a paid surety desires to be discharged from the obligation of its bond, it may arrest the accused and deliver him to the sheriff of the county in which the action against the accused is pending." Compare State v. United Bonding Insurance Co., 81 N.M. 154, 464 P.2d 884 (1970). Alternatively, a bondsman may petition a judge or magistrate [in this state] for the issuance of an arrest warrant for the apprehension of an individual alleged to have violated the terms of his bail. See NMSA 1978, Sec. 31-4-13 (Repl.Pamp.1984). Under this statute, the accused may be arrested to await requisition for extradition. The arresting officer is directed to bring the accused before the court to answer the complaint and show cause why he should not be subject to extradition to another state. Id.

Assuming but not deciding that the common law has been codified in Section 31-3-4(B), that does not support defendants' arguments on appeal. We are persuaded that the common law authority of the bondsman to transport a principal out-of-state, without the principal's consent, has been modified by enactment of the Uniform Criminal Extradition Act. NMSA 1978, Secs. 31-4-1 to -30 (Repl.Pamp.1984). Under Section 31-4-15, a bondsman may not, without consent of the principal, remove him from this state without compliance with the provisions of the Uniform Criminal Extradition Act. The purpose of this...