State v. Maes

• Decision Date: 17 April 1970
• Docket Number: No. 409,409
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Arthur MAES and Emma Felix, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 529

469 P.2d 529

81 N.M. 550

STATE of New Mexico, Plaintiff-Appellee, v. Arthur MAES and Emma Felix, Defendants-Appellants.

No. 409.

Court of Appeals of New Mexico.

April 17, 1970.

Warren O. F. Harris, King & Harris, Albuquerque, for appellant maes.

Ramon Lopez, Albuquerque, for appellant Felix.

James A. Maloney, Atty. Gen., Santa Fe, F. Stephen Boone, Asst. Atty. Gen., for plaintiff-appellee.

OPINION

WOOD, Judge.

Each defendant was convicted of two unlawful sales of heroin. Both appeal. The issues: (1) lack of advice of rights when the accusatory stage was reached; (2) use of a surprise witness; (3) admissibility of two recordings; (4) sufficiency of the evidence; and (5) improper communication with the jury and misconduct of a juror.

Lack of advice of rights.

An informer purchased hereoin on successive days. Maes claims he should have been advised of his rights--the Miranda warnings, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966)--when the accusatory stage was reached. He asserts the accusatory stage was reached when the police and the informer made arrangements for the informer to make the first purchase. He asserts that if the accusatory stage had not been reached at the time of the first purchase, certainly it had been reached at the time of the second purchase.

The contention is answered by State v. Anaya, 81 N.M. 52, 462 P.2d 637 (Ct.App.1969), which states:

'* * * Defendant was neither in custody, nor under indictment. He was not being interrogated. His freedom of action had not been interfered with in any way. The adversary system had not begun to operate against defendant. The claim that he should have been given the Miranda warnings immediately prior to selling the heroin to the informer is without merit.' (Citations omitted)

State v. Tapia (Ct.App.), 81 N.M. 365, 467 P.2d 31, decided March 13, 1970; State v. Lindsey, 81 N.M. 173, 464 P.2d 903 (Ct.App.1969).

Use of a surprise witness.

The first witness called by the State was the informer. Defendants objected to his testimony, claiming surprise. The District Attorney's office had issued a subpoena for witnesses. The informer's name was not included among the names listed. Defendants moved for a mistrial, claiming they were entitled to know, in advance of trial, the names of the witnesses for the State.

Defendants stated: 'We are basing our objection on Exhibit No. A and would like to introduce this in evidence.' Exhibit A is never identified, but from the context of the argument to the court, we gather the exhibit was the subpoena. The record does not show the court ever ruled on the offer of this exhibit. Our view, however, is that the argument based on this exhibit is misdirected. We know of no requirement that the District Attorney list all of the State's witnesses in a subpoena.

Section 41--6--47, N.M.S.A.1953 (Repl. Vol. 6) states that names of witnesses are to be endorsed upon the indictment or information. The informer's name was not included among the names endorsed upon the indictment in this case. Defendants' objection is that since the informer's name was not among those listed, they were surprised when the informer was called to the witness stand.

State v. Edwards, 54 N.M. 189, 217 P.2d 854 (1950) states:

'* * * It is not enough that a defendant claim surprise or prejudice in the calling of * * * one whose name does not appear upon the information charing him with (the) crime. Nor is the mere admission of testimony of such witness, error; rather, error follows from a denial of an opportunity to rebut the objectionable evidence. When it is made to appear that testimony of the witness is such that it cannot be reasonably anticipated, postponement or continuance of the hearing is available to a defendant to meet it and if application therefor is denied, prejudice being shown, reversal will follow. We see nothing, however, in the statute directing the court to execlude the testimony of such witness.'

We have conflicting statements of counsel as to whether defendants were surprised when the informer was called as a witness. The record is not established by conflicting statements of counsel. State v. Edwards, supra. Disregarding counsels' statements, there is nothing showing surprise. However, we will assume the defendants were surprised.

Maes asserts the defendants moved for a continuance. No such motion appears in the record. The only motion was for a mistrial. However, we will assume the motion for mistrial was understood as a motion for a continuance.

On what basis is a continuance to be granted? When the surprise testimony cannot reasonably be anticipated and defendant seeks the continuance in order to rebut the surprise evidence. State v. Edwards, supra. The State asserts the record shows the defendants presented testimony at trial which rebutted the informer's testimony. We do not consider this contention.

Defendants' arguments to the trial court went only to the omission of the informer's name; their surprise. Their motion was based only on these two items. There is nothing indicating the informer's testimony could not be reasonably anticipated. Further, the question of rebutting the informer's testimony was never mentioned to the trial court. Since no claim is made that the testimony could not be reasonably anticipated and since defendants never asserted they desired a delay in order to rebut the surprise testimony, defendants' claim that the trial court erred in denying their motion is without merit. State v. Edwards, supra.

Admissibility of two recordings.

At the time the informer made each of his purchases, he had an electronic device concealed on his person. This device transmitted sounds to a receiver in a police car; the sounds were recorded on tape.

Two tape recordings were identified as true and accurate recordings of the conversations which occurred at the times of the two purchases. Defendants contend the two tapes were erroneously admitted as evidence--they assert they were victims of an illegal search and seizure and that their privilege against self-incrimination was violated.

Defendants rely on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). There, the government, without a warrant, electronically listened to a telephone conversation. None of the parties had consented to the intrusion. The intrusion was held to be an illegal search and seizure. Our facts are different; the informer was a consenting party.

Defendants also rely on United States v. White, 405 F.2d 838 (7th Cir. 1969), cert. granted 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559 (1969). Although there was a consenting party in White, supra, it was held there had been an illegal search and seizure as to the non-consenting party. We express no opinion as to the correctness of this decision because again, there is a factual difference. In White, supra, the informer was not called to testify. In holding the overheard conversations were not admissible, the court points out the overheard conversations were not offered in corroboration of the informer's testimony. Here, the tapes were admitted as corroboration of the in-court testimony of the informer.

The informer having testified as to the conversations, the tapes were admissible to corroborate the informer's testimony. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); United States v. Kaufer, 406 F.2d 550 (2nd Cir. 1969), affirmed 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414 (1969); Dancy v. United States, 390 F.2d 370 (5th Cir. 1968); Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert. denied 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (1969).

Introduction of the tapes, for corroboration, in our opinion, does not violate constitutional provisions as to search and seizure or self-incrimination. As stated by Justice White, concurring in Katz v. United States, supra:

'When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates. * * * It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another. * * *'

Here, the informer had testified to the conversations on direct examination. On cross-examination, his credibility had been severely attacked, not only by the fact that the informer may have been under the influence of heroin when he made the purchases, but by questioning as to the details of his conversations with the defendants and his purchases from them. In the light of this possibly successful attack on the informer's credibility, it was logical for the State to offer the tapes in corroboration of the informer's testimony. The admission of the tapes was not error.

Sufficiency of the evidence.

Two contentions are made.

First, defendants asserts that the 'main evidence' against them was the testimony of the informer. Relying on Lujan v. United States, 348 F.2d 156 (10th Cir. 1965), cert. denied 382 U.S. 889, 86 S.Ct. 179, 15 L.Ed.2d 125 (1965), they assert an informer's testimony must be corroborated. They contend that the evidence (including the tapes) failed to corroborate the testimony of the informer.

The State concedes there must be corroboration, but claims there is corroboration. We agree there is corroboration not only by the tapes, but by the testimony of the officers who provided the informer with the money to buy the hero in, searched him before and after the purchases, and followed him to the residence where the purchases occurred.

The fact of corroboration...