State v. McClaugherty, 27,100.

• Decision Date: 04 February 2003
• Docket Number: No. 27,100.,27,100.
• Citation: 133 N.M. 459,2003 NMSC 6,64 P.3d 486
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles I. McCLAUGHERTY, Defendant-Appellant.
• Court: New Mexico Supreme Court

64 P.3d 486

133 N.M. 459

2003 NMSC 6

STATE of New Mexico, Plaintiff-Appellee, v. Charles I. McCLAUGHERTY, Defendant-Appellant.

No. 27,100.

Supreme Court of New Mexico.

February 4, 2003.

Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., John D. Cline, Albuquerque, for Appellant.

Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

MINZNER, Justice.

{1} Charles McClaugherty (Defendant) appeals from a judgment and sentence entered following a jury trial and from an order denying a motion for a new trial. The jury convicted Defendant of the following crimes: first degree murder (deliberate), contrary to NMSA 1978, § 30-2-1(A)(1) (1994); first degree murder (felony murder), contrary to Section 30-2-1(A)(2); aggravated battery (inflicting great bodily harm), contrary to NMSA 1978, § 30-3-5(C) (1969); assault with intent to commit a violent felony (murder), contrary to NMSA 1978, § 30-3-3 (1977); tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963); conspiracy to commit tampering with evidence, contrary to NMSA 1978, § 30-28-2(B)(3) (1979); and two counts of shooting at or from a motor vehicle (inflicting great bodily harm), contrary to NMSA 1978, § 30-3-8(B) (1993).

{2} The trial court sentenced Defendant to life in prison for first degree murder plus seventeen years suspended on the remaining convictions.¹ We have jurisdiction pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA 2003 (setting out appellate jurisdiction of the Supreme Court).

{3} Defendant raises two issues on appeal. First, Defendant contends that the trial court erred in not granting him a new trial based upon newly discovered evidence concerning an alleged understanding between the State and one of its witnesses. Second, Defendant contends that the trial court erred in permitting the prosecutor to ask him about an alleged admission of guilt to his sister and his roommate, neither of whom testified. We conclude that permitting the cross-examination was reversible error, because it put information before the jury contrary to the rules of evidence. See Rule 11-802 NMRA 2003; Rule 11-613 NMRA 2003. Because we reverse as to the second issue, we need not decide the first issue raised by Defendant.²

I

{4} This case centers around the shootings of Vincent Martinez and Ricky Solisz, which resulted in the death of Solisz, in the early morning of June 19, 1999. The second issue concerns the cross-examination of Defendant concerning statements he allegedly made to his sister and his roommate shortly after the shootings.

{5} On June 18, 1999, Defendant, Nachima Coriz, Rodrigo Dominguez and others threw a party at Defendant's apartment in Northeast Albuquerque. At the party that night, Defendant and Dominguez engaged in an argument with Solisz over the telephone and eventually agreed to meet Solisz in order to fight. Defendant, Dominguez, Coriz and several other people left the party and drove to the agreed location in two vehicles to meet Solisz and others. Defendant rode in the front seat of a Cadillac driven by Dominguez, with two other people in the back seat. Coriz rode in the back seat of the other car, a white Suzuki. Dominguez carried a .40 caliber Glock handgun, and Coriz carried a shotgun. Coriz testified that Defendant had a gun, but Defendant testified that he was unarmed. One of the other young men carried a .22 caliber handgun. Solisz, Martinez and Eloy Sandoval traveled to the site in a Dodge Neon.

{6} The two groups met each other in a shopping center parking lot close to Defendant's apartment. The Neon and Cadillac approached each other in the parking lot from opposite directions. The Suzuki was following about fifty feet behind the Cadillac. As the Cadillac and Neon drove side-by-side, Martinez jumped out of the Neon holding a baseball bat. At that moment shots were fired at the Neon from the Cadillac. Martinez was shot in the arm and the abdomen, and he immediately retreated back into the Neon. Solisz was shot in the head while in the Neon, and died immediately.

{7} Altogether, approximately fourteen bullets struck the Neon. Police found Remington and CCI .40 caliber shell casings at the scene. An expert identified the bullet that killed Solisz as a CCI bullet. Police found the CCI casings at one spot of the scene and the Remington casings at another spot, indicating that two .40 caliber Glocks may have been fired at the scene. Police also found several live Remington .40 caliber rounds en route from the parking lot to Defendant's apartment.

{8} Dominguez and Coriz returned from the incident to Defendant's apartment. Defendant arrived soon afterwards. Dominguez eventually left the apartment. Later in the morning, as the police were knocking on Defendant's apartment door, Defendant and Coriz threw a Glock handgun and a shotgun out the window to Dominguez, who had returned to retrieve the guns left at the apartment. Then the two jumped out the apartment window and fled from the police. The police found one Glock and a shotgun near the apartment. The police expert could not determine if the Glock that was found fired the CCI bullet that killed Solisz. No one at trial could account for the second Glock.

{9} Defendant and Coriz hid in a nearby apartment until the evening of June 19, 1999. At that time, Coriz turned himself in to the police and gave a statement inculpating Defendant and Dominguez. Police later arrested Defendant.

{10} Defendant's trial began on February 28, 2001. At trial, Coriz testified against Defendant. Coriz was the only witness to identify Defendant as one of the men who fired a gun on the night of the murder. Coriz claimed that Defendant carried a pistol to the scene on the night of the murder. He testified that he saw Defendant and another person get out of the Cadillac and run toward a fence that bordered the parking lot. While running, Coriz testified, Defendant turned and shot at the Neon between five and seven times, then turned back and jumped over the fence. Coriz testified that after they returned to the apartment, he heard Defendant tell his sister that they "went and shot at some people." Defendant testified at trial and denied that he handled or fired a gun that night.

{11} On cross-examination of Defendant, the prosecutor attempted to impeach Defendant's assertion with statements that Sarah Tucker and Sherri Goen, Defendant's sister and roommate respectively, apparently gave to police. These statements were never introduced into evidence, and neither the sister nor the roommate were called as witnesses at trial. Tucker and Goen allegedly said that Defendant admitted to them, when he returned to his apartment on the night of the shooting, that he had shot a gun. After the prosecutor asked Defendant if he told his sister and roommate what happened that night, Defendant answered: "I had told them, yes, I was there and I ran." The prosecutor then asked:

Q: Is that all you told them?

A: I'm pretty sure.

Q: You're aware I've got statements? You got copies of the statements.

A: Yes.

Q: So why are they lying about you then?

A: Can you tell me what you're referring to?

{12} At this point defense counsel objected to the State's line of questioning. During the subsequent bench conference, defense counsel argued to the court:

Defense: He's trying to impeach him with hearsay that's never been admitted into evidence.

State: Inconsistent statements of admission.

Court: Do we have statements from these people that say something opposite to what he's saying?

State: When they were talking about the shooting, at first he —

Court: I think what you're doing is the objection is really to the form of the question. You can ask him, "Would it surprise you if somebody else said this, like as far as something—you know, why are they lying about you?" You're assuming facts not in evidence, so I'm going to sustain the objection on that particular ground, okay?

{13} The prosecutor then returned to the cross-examination by asking Defendant, "[s]ir, would it surprise you to hear that your sister, Sarah Tucker, gave a statement to the police 6/19/99, the day after or the day, that morning, that said that you admitted to her that you shot —." At this point defense counsel objected again. At the bench conference, defense counsel argued:

Defense: He is attempting to impeach him with extrinsic evidence of which I have no opportunity to cross-examine him with, under what circumstances or anything else.

Court: Anything for your record?

State: Your Honor, [Sarah] Tucker is actually his sister. She's been subpoenaed. She's been available. She won't come up to our office. She has had the opportunity to interview her.

Court: The question that's being asked is whether or not he agrees with this or not is not—I mean because this person can always be brought in to explain it, so I'm going to allow him to proceed and allow him to ask the question, so I'm going to overrule the objection.

{14} The prosecutor then continued to question Defendant:

Q: Do you remember the question?

A: Yes.

Q: Does it surprise you?

A: Yes.

Q: How about your roommate, Sherri Goen? Does it surprise you that she also made the same statement?

A: Yes.

Q: That you admitted shooting?

A: Yes.

Q: Bragged about it?

A: Yes.

{15} The jury found Defendant guilty of all charges, and the trial court convicted him on March 7, 2001. Defendant filed a motion for a new trial on August 16, 2001, based on newly discovered evidence that an agreement existed between Coriz and the State to secure Coriz's testimony against Defendant. This Court remanded to the trial court for a hearing on Defendant's motion. The trial court conducted an evidentiary hearing on January 4, 2002, and subsequently denied Defendant's motion. Defendant appealed his conviction based upon the denied motion as well as contending that the trial court abused its discretion in permitting ...