State v. Mares

• Court: Court of Appeals of New Mexico
• Writing for the Court: APODACA
• Citation: State v. Mares, 112 N.M. 193, 812 P.2d 1341, 1991 NMCA 52 (N.M. App. 1991)
• Decision Date: 30 April 1991
• Docket Number: No. 11666,11666
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John MARES, Defendant-Appellant.

Page 1341

812 P.2d 1341

112 N.M. 193

STATE of New Mexico, Plaintiff-Appellee, v. John MARES, Defendant-Appellant.

No. 11666.

Court of Appeals of New Mexico.

April 30, 1991.

Certiorari Denied June 12, 1991.

[112 N.M. 195] Tom Udall, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

APODACA, Judge.

Defendant appeals jury convictions of second degree criminal sexual penetration (CSP), kidnapping, and four counts of aggravated battery. He raises five issues on appeal: (1) the trial court's contact with jurors outside defendant's presence; (2) ineffective assistance of counsel based on trial counsel's unilateral failure to move to sever counts before trial; (3) the propriety of counts merger; (4) the trial court's admission of the dates of prior convictions; and (5) the trial court's admission of the victim's out-of-court statement. Defendant did not brief one issue he raised in his amended docketing statement and is thus deemed to have abandoned that issue. See State v. Roybal, 107 N.M. 309, 756 P.2d 1204 (Ct.App.1988). We reverse only on the merger of battery counts under issue 3. Defendant's arguments do not persuade us with respect to all other issues. We thus affirm his convictions in all other respects.

FACTS

The Incident Giving Rise to the Charges.

The victim testified that on August 5, 1988 (the August 5 incident), she went with a friend to a bar. They drank and socialized with other patrons. Defendant introduced himself to the victim and later enticed her to go with him to his car to obtain some marijuana. After first giving a couple a ride home, defendant told the victim he did not have marijuana in his possession but that they could drive elsewhere for it. En route, they stopped at a park to use restroom facilities. When they returned to the car, defendant made advances at the victim.

Until then, the victim had not been apprehensive. She repelled defendant's efforts and he stopped. However, she noticed he appeared angry. Defendant drove the car only a short distance, then stopped and suddenly climbed on top of the victim and began choking her. Frightened, she quickly opened the car door to escape. She fell or dragged herself out of the car, but defendant jumped on her and began choking her again. They struggled. Defendant continued choking the victim and then began hitting her in the face with his fist. Somehow, she convinced him to let her get up. When she stood up, she attempted to escape, but defendant had hold of her hair and began choking and hitting her again. She got up a couple of times and tried to run away, but he caught her each time. From what he was saying to her as he hit her, she realized he was trying to knock her out.

Eventually they ended up by a bush. While they struggled there, a vehicle arrived. Apparently to silence the victim, defendant began choking her again until the vehicle left. He then took his pants off and attempted to rape the victim. He failed to achieve an erection and, instead, digitally penetrated the victim. Soon, a police car arrived, giving the victim an opportunity to escape. She immediately ran to the police car, seeking assistance. She testified that he tried to choke her four to six times, and pointed to four separate episodes.

Pre-Trial and Trial Proceedings.

Several defense motions were set for hearing before trial. Defendant was not able to attend this hearing because he was incarcerated, but defense counsel stated that defendant's presence was "not constitutionally required." At this hearing, the trial court and defense counsel discussed the possibility of severing certain counts concerning an incident (the prior incident) that had occurred before the August 5 incident. We should note at this juncture that, following a mistrial, a jury later acquitted defendant of these particular counts.

During the course of the hearing, defense counsel stated that he would not seek severance. In explaining his decision, he stated that the description of the offender given by the victim of the alleged criminal acts involved in the prior incident did not match defendant's and, because of the discrepancy, they should proceed with all counts joined. Apparently, counsel theorized that there was some strategic advantage in having the impeachable testimony to be adduced at the trial involving the August 5 incident. We assume defense counsel sought to discredit the state's case entirely by transferring the prejudice to the state from a flawed identification in the prior incident to the entire trial.

During voir dire, two jury panel members stated they wanted to speak privately with the trial judge about possible difficulties in serving as jurors. The trial judge said that he would first talk with these prospective jurors, as well as a third juror, and would then call in counsel and defendant if the jurors did not object. With defendant present, defense counsel agreed to the procedure. The record reflects the trial judge spent seven minutes in chambers alone with the three prospective jurors.

The trial judge then reconvened with counsel, presumably in defendant's presence, since the record does not indicate he was absent. At this conference, the trial judge questioned each panel member individually about the concerns they had expressed to him privately. One explained he needed to take hourly breaks. Another stated he had a vision problem best accommodated by sitting in the front row of the jury box. The third one said she was involved in litigation scheduled for hearing the next day. Both counsel stated they had no questions.

During trial, three events occurred that are significant to the issues raised in this appeal. First, the state called as a witness the friend with whom the victim went to the bar the night of the August 5 incident. The friend testified she had visited the victim the morning after the incident. She found her taking a shower. When the friend saw the victim's bruises, they both began to cry. The friend gave detailed testimony concerning the victim's hysterical account of the events of the preceding night. Second, over objection, the trial court admitted evidence of the dates of defendant's prior convictions. Finally, near the end of trial, the prosecutor alerted the trial judge to certain odd behavior by the juror who had previously informed the court of his vision problem. The trial judge sought and obtained defense counsel's approval to speak privately with the juror in chambers. After doing so, the trial judge explained to counsel that the juror had an excitable personality and that his odd behavior was his way of relieving tension. Apparently satisfied, neither counsel took action, and the trial proceeded to completion.

DISCUSSION

Contacts with Jurors.

Relying on our supreme court's recent holding in State v. Wilson, 109 N.M. 541, 787 P.2d 821 (1990), defendant argues that the court's contacts with the jurors deprived him of due process. He contends that Wilson requires a new trial, because the trial court did not offer him an opportunity to be present during the court's contact with jurors and defendant himself did not expressly waive that right. We disagree with defendant's contention, both because defendant waived the right to be present during such contact and because he was afforded an opportunity to meaningfully participate in the process.

Before the trial judge communicated with any of the jurors, he explained in open court what he intended to do. We presume defendant was present on those occasions. On both occasions, defense counsel explicitly approved of the procedure. Defendant said nothing. In that circumstance, defendant waived any objection to the procedure. When counsel speaks in open court in the presence of a defendant, he speaks on behalf of that defendant. In such circumstances, a defendant cannot remain silent and then contend that his counsel had no authority to bind him to a tactical decision concerning how to proceed in determining a juror's problem. See State v. Ramming, 106 N.M. 42, 738 P.2d 914 (Ct.App.1987).

Even if there was no waiver, we would affirm the trial court based on our holding in State v. Haar, 110 N.M. 517, 797 P.2d 306 (1990). In Haar we implied that, where the trial judge affords defendant meaningful input and participation in the processes involving juror issues, no error results from the judge's communications with those jurors in the absence of prejudice. In this case, after the trial judge met with the three jurors prior to trial, the jurors repeated their concerns in open court, in the presence of all counsel and, presumably, in the presence of defendant. Counsel were allowed an opportunity to ask questions, although they did not. In addition, after the judge communicated with one juror late in the trial, the judge reported the substance of the conversation to counsel so that defendant had an opportunity to pursue the matter further. He did not do so. Under these circumstances, we hold that defendant was given the opportunity to participate in the procedures involving the jurors and was not prejudiced by the judge's communications with the jurors. See State v. Haar; see also State v. Wilson (Ransom, J., concurring and emphasizing that the problem in that case was the lack of meaningful opportunity for defendant to participate in the decision to excuse one juror after trial had begun).

The Wilson decision does not require a different result in this case because in Wilson the defendant did not waive the issue, although he failed to preserve it for appeal, and the defendant was not given a meaningful opportunity to participate in the process. There is no indication in Wilson that the trial judge announced beforehand that she planned to talk to the juror. Therefore, defendant had no opportunity to object to the conversation before it...