State v. Lopez

Decision Date20 June 1969
Docket NumberNo. 276,276
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Juan Jose LOPEZ, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
James A. Parker, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellant
OPINION

HENDLEY, Judge.

Defendant appeals from a conviction of aggravated burglary, armed robbery and rape.

Defendant's counsel relies on five points of error for reversal and has additionally included thirteen points of error at the specific direction of defendant. See State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967).

1) Defendant contends the trial court erred in permitting a State's witness to testify about defendant's subsequent criminal acts.

Generally, evidence of a distinct criminal offense independent of the offense with which defendant is charged and for which he is being tried is inadmissible. State v. Velarde, 67 N.M. 224, 354 P.2d 522 (1960); State v. Nelson, 65 N.M. 403, 338 P.2d 301 (1959), cert. denied, 361 U.S. 877, 80 S.Ct. 142, 4 L.Ed.2d 115 (1959); State v. Mason, 79 N.M. 663, 448 P.2d 175 (Ct.App.1968). However, there are exceptions to this rule, one of which is when the independent offense tends to establish the identity of defendant. State v. Lord, 42 N.M. 638, 84 P.2d 80 (1938); State v. Bassett, 26 N.M. 476, 194 P. 867 (1921); State v. Gutierrez, 79 N.M. 732, 449 P.2d 334 (Ct.App.1968). The probative force of such evidence must bear directly on some material element of the crime with which the defendant is charged. Evidence of this nature should not be received when the overwhelming result would be nothing more than establishing defendant's bad character or his disposition or propensity to commit crime. State v. Mason, supra.

On October 3, 1967, a man broke into the home of Mr. and Mrs. R. He assaulted Mr. R., a semi-invalid, with a knife, took two one dollar bills and a five dollar bill, and Mr. R's initialed flashlight. During the assault the assailant stated, 'I'm a nigger.' The assailant then went to Mrs. R.'s separate bedroom and raped her at knife point. The assailant again said, 'I'm a nigger.' At no time were Mr. and Mrs. R. ever able to see the assailant. The rooms were dark and the assailant shone the flashlight in their eyes the remainder of the time. They could only say he had on a light shirt and spoke with a Spanish accent.

About an hour or so later, approximately five blocks from Mr. and Mrs. R.'s home, an unknown assailant entered the bedroom of Miss P. and raped her twice at knife point. The room was dark and the assailant flashed a light in Miss P.'s eyes so she could not see. The assailant spoke with a Spanish accent. The assailant once alluded to the fact he 'could be colored.' The assailant passed out and Miss P. ran next door and called the police. When the police arrived they found defendant partially undressed in Miss P.'s bed. A blood-stained knife was on the bed, Mr. R.'s flashlight was on the floor, defendant's trouser pocket contained a five and two one dollar bills and defendant's shirt had blood spots which were subsequently identified as type O. Mr. R. had type O blood and defendant had type A.

Defendant's trial counsel made strenuous objection both before and during trial that Miss P.'s testimony was extremely inflammatory, prejudicial and extraneous to the case. These objections were overruled and properly so. The testimony went to identity. See Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959); compare People v. Diaz, 66 Cal.2d 801, 58 Cal.Rptr. 729, 427 P.2d 505 (1967).

Defendant also contends that even if this testimony went to identity it was merely cumulative of other evidence and should not have been admitted. Morgan v. United States, 355 F.2d 43 (10th Cir. 1966), cert. denied 384 U.S. 1025, 86 S.Ct. 1976, 16 L.Ed.2d 1029 (1966); State v. Mason, supra. Although there was other circumstantial evidence of the identity of defendant the testimony of Miss P. was not cumulative, as defendant contends. Miss P.'s testimony served to show defendant's possession of the knife and flishlight. It was necessary to show defendant's possession of these items in order to establish his identity as Mr. and Mrs. R.'s assailant. The testimony also established identity by characteristic conduct, Nester v. State, supra; and in this respect there was no other evidence. It was proper to go into the details of the rape of miss P. in order to establish both characteristic conduct and defendant's possession of the knife and flashlight.

2) Defendant next contends the trial court committed error in permitting the prosecution's expert medical witness to express an opinion that the defendant was not committable to a mental institution.

Prior to this statement the medical expert testified that defendant had no mental disease either at the time of the commission of the criminal act or at the time of trial. The reason for testimony concerning defendant's mental condition at the time of trial was because the medical expert's examination had been primarily to determine defendant's present competency to stand trial. See § 41--13--3.1, N.M.S.A.1953 (Repl.1964, Supp.1967). No objection was entered as to this testimony. The following question and objection then occurred:

'Q. And in view of your opinion that he is not suffering from any kind of mental disease, then he would not be committable to a mental institution, is that correct?

'MR. ROBB: We object to that. It is irrelevant and immaterial.

'THE COURT: Overruled.

'Q. Is that correct, Dr. Penley?

'A. On the basis of the diagnosis I gave him, in my opinion, Mr. Lopez would have no reason to be sent to a mental institution, since I feel he does not have a mental disease.'

Standing alone as an isolated statement this testimony could be prejudicial, however, when viewed in the total of the expert's testimony such is not the case. The testimony could have been taken as merely referring to defendant's present competency to stand trial; a matter about which the witness was being questioned. To give credence to defendant's argument that the testimony implied to the jury that it must not acquit defendant by reasons of insanity, because if defendant was not committable he would be free to roam the streets and menace other women without restraint, would be to go far beyond the actual testimony. Even if we were to agree that the trial court erred in admitting this testimony over objection, in our opinion it was harmless in the light of the overwhelming evidence of defendant's guilt. See State v. Gray, 79 N.M. 424, 444 P.2d 609 (Ct.App.1968).

We do not feel, as defendant, that the cases of Farris v. Commonwealth, 209 Va. 305, 163 S.E.2d 575 (1968) and State v. Nickens, 403 S.W.2d 582 (Mo.1966) apply. They are distinguishable because in both cases the evidence admitted was directly concerned with the future conduct of the defendants and was highly prejudicial. Such was not the case here.

In addition the trial court gave a limiting instruction as follows:

'13. You are not to consider in arriving at your verdict whether the defendant is or is not dangerous to himself or to society nor what the consequences of your verdict might be. If you should decide from the instructions and evidence that the defendant was insane at the time of the alleged commission of the offenses, then it will be your duty to bring back a verdict of 'not guilty by reason of insanity at the time of the alleged offenses,' regardless of whether or not you believe that the defendant may or may not be dangerous.'

As to the legal effect generally given to such limiting instructions, see Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); State v. Long, 49 N.M. 57, 157 P.2d 236 (1944).

3. Defendant next contends the State failed to meet its burden of proving beyond a reasonable doubt that defendant was legally sane at the time of the commission of the offense. We cannot agree.

One accused of a crime is presumed to be sane. However, if the defendant introduces competent evidence reasonably tending to support insanity at the time of the alleged offenses then an issue is raised as to the mental condition of the accused. It then becomes the duty of the jury to determine the issue from the evidence independent of the presumption of sanity. However, if the jury disbelieves the evidence as to defendant's claimed insanity, then the presumption stands. State v. Moore, 42 N.M. 135, 76 P.2d 19 (1938).

defendant mistakes quantum of proof for quality of proof. Defendant presented two doctors who testified that defendant was not sane at the time of the commission of the crimes. The State presented one medical expert who said defendant was sane at the time of the commission of the offenses. This medical expert not only had examined defendant, but had the benefit of the reports of defendant's psychiatrist and psychologist. This expert testimony was certainly affirmative evidence of sanity. The jury determines the weight and credibility of the evidence. See State v. Hudson, 78 N.M. 228, 430 P.2d 386 (1967); compare State v. Moore, supra.

Defendant contends that the opinion of the State's expert was predicated on the testimony and reports of other witnesses. Reading the record as a whole the State's medical expert stated that after listening to the other experts' testimony he had not changed his opinion, which resulted from an independent investigation. Defendant's contention is not well taken.

4. Defendant next contends the trial court committed reversible error by admitting

evidence of defendant's blood test because:

a. the blood was taken without due process of law;

b. the manner in which the blood was taken constituted an illegal search and seizure;

c. and defendant was denied his constitutional right to counsel when the blood was taken.

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