State v. McFerran

• Decision Date: 29 August 1969
• Docket Number: No. 301,301
• Citation: 80 N.M. 622,1969 NMCA 84,459 P.2d 148
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John Lavurn McFERRAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 148

459 P.2d 148

80 N.M. 622

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

No. 301.

Court of Appeals of New Mexico.

Aug. 29, 1969.

Certiorari Denied Nov. 10, 1969.

William C. Marchiondo, Robert C. Hanna, Albuquerque, for defendant-appellant

James A. Maloney, Atty. Gen., Santa Fe, Ray Shollenbarger, Asst. Atty. Gen., for plaintiff-appellee.

OPINION

WOOD, Judge.

Defendant was convicted of second degree murder in the killing of Rafael Griego. Appealing, he raises 14 issues. These issues concern: (1) loss of evidence; (2) admonitions to the prosecutor; (3) the court's refusal to call two men as witnesses of the court; (4) cross-examination of witnesses as to their misconduct; (5) the basis for questioning as to witness misconduct and claiming the privilege against self-incrimination during such questioning; (6) improper reference to defendant during cross-examination of a witness; (7) refusing defendant's requested instruction concerning defendant's association with two witnesses; (8) questioning defendant concerning prior convictions; (9) failure of the court to instruct the jury to disregard a question to which an objection had been sustained; (10) rebuttal evidence as to deceased's peaceful disposition; (11) conversation between a juror and a witness; (12) evidence of and instruction on malice; (13) the instruction on intent to kill; and, (14) fundamental error.

Defendant, Mapys and Koch were afoot, at night, in Tijeras Canyon east of Albuquerque. Mapys took a bale of hay from the property of Griego. The men spread the hay on the ground across an arroyo from the Griego property and went to sleep. Griego's son discovered the men and called his father. Griego told the men to go to his house. Griego followed the men. Without their knowledge, Griego picked up a rock and put it in his pocket. (See issues 1 and 12). While at the house, a fight occurred. During the fight, defendant shot Griego. The wounds were fatal.

Issue 1. Loss of evidence.

In the fight, Griego struck defendant with the rock. The rock was taken into custody by investigating officers. Subsequently, the rock was lost. Defendant moved to dismiss because of the State's failure to produce the rock. In denying the motion, the court stated: '* * * I feel that with the testimony being available to the defendant as to the existence of the rock, the description of the size of the rock by the deceased's own son, plus the fact that the district attorney is willing to stipulate that the deceased struck the defendant with the rock prior to the shooting--* * * that there is no denial of due process.'

The State admitted, to the jury, '* * * that the defendant, John McFerran, was struck * * * with a rock by Rafael Griego. * * *' This admission did not state that defendant was hit with the rock before the shooting, however, no objection was made to this omission. We do not consider the omission crucial. There is evidence that Griego hit defendant with the rock before defendant shot him. The conflict in the evidence is whether defendant had the gun out and pointed at Griego before Griego hit defendant.

Defendant claims the loss of the rock deprived him of due process. He relies on Trimble v. State, 75 N.M. 183, 402 P.2d 162 (1965). In Trimble the police lost a letter and some tape recordings which had been taken from the defendant. The State's evidence cast doubt on the existence of the letter. It introduced evidence that the tapes contained nothing concerning the case. Production of the letter and tapes would have corroborated, to some extent, defendant's account of the events leading to the shooting. Loss of these items prejudiced the defense and deprived the defendant of due process.

Trimble is not applicable. It is not disputed that Griego struck defendant with the rock. There was testimony concerning its size and shape. The dispute is over whether defendant pulled the gun before or after being hit with the rock. The presence of the rock would have contributed nothing to resolving this dispute. With information available as to the size and shape of the rock, the loss of the rock did not deprive defendant of evidence tending to show his innocence. The loss of the rock did not deprive defendant of due process. Compare State v. Morris, 69 N.M. 244, 365 P.2d 668 (1961).

Issue 2. Admonitions to the prosecutor.

Defendant asserts the prosecutor made improper and prejudicial comments in the presence of the jury and that the court repeatedly admonished the prosecutor because of these comments. He contends these remarks of the prosecutor, of sufficient gravity to result in admonition by the court, deprived him of due process. He relies on five instances. They are:

(a) The prosecutor moved to withdraw certain items from evidence in order to conduct an experiment. Out of the presence of the jury, the prosecutor was cautioned against making that type of motion in the presence of the jury. In the presence of the jury, the prosecutor was advised that the experiment would not be permitted. The jury was told not to consider the prosecutor's remark; further, that the prosecutor's remarks were not evidence.

(b) Mapys was on the witness stand; his attorney, Mr. Tapia, was nearby. Mr. Tapia requested permission to approach the bench. The prosecutor remarked: 'Your Honor, anything Mr. Tapia says I want it said loud enough so the Court and everyone can hear.' The court immediately ordered the prosecutor's remarks stricken, stating: '* * * This is the last time I am going to caution counsel in this case about making those kinds of statements in this Court.'

(c) During cross-examination of the defense witness, Mapys, an objection was sustained to one of the prosecutor's questions (see issue 6). The question went beyond the prosecutor's stated purpose of testing the credibility of the witness. The court told the prosecutor to proceed with testing the witness's credibility.

(d) At another point in the cross-examination of Mapys, a defense objection was sustained. However, contrary to defendant's assertion, there was no admonition to the prosecutor. (e) The testimony of a rebuttal witness for the State was stricken. The jury was instructed to disregard the testimony. Again, contrary to defendant's assertion, the prosecutor was not admonished.

At the most, there are three instances of prosecutor misconduct. In each instance the prosecutor was admonished. The instructions told the jury that remarks of counsel were not to be considered as evidence (items (a) and (b)). The jury was instructed not to consider what would have been the answers to questions which the court ruled could not be answered (items (c) and (d)). It was instructed not to consider the court's reasons for its rulings on evidence (item (e)). Further, it was instructed that it must follow the law as stated by the court.

If the three instances of prosecutor misconduct tended to prejudice the defendant, that tendency was offset by the admonitions and instructions. We hold the prosecutor's misconduct did not deprive defendant of a fair trial. See State v. Anaya, 79 N.M. 43, 439 P.2d 561 (Ct.App.1968); compare State v. Cummings, 57 N.M. 36, 253 P.2d 321 (1953). In so holding, we do not condone the improper conduct of the prosecutor.

Issue 3. The court's refusal to call Mapys and Koch as witnesses of the court.

Mapys and Koch were eye witnesses to the killing. Defendant asked the court to call them as witnesses of the court. Because the court refused to do so, defendant contends he was denied due process.

City of Portales v. Bell, 72 N.M. 80, 380 P.2d 826 (1963) refers to an instance where it may be proper for the court to call a witness. It states:

'* * * One of the rare cases where the action of the trial judge in calling a witness in a criminal case has been approved was when the prosecuting attorney informed the court that the witness was available, but the prosecutor declined to call him because he could not vouch for his truthfulness and veracity. * * *'

That is not the situation here. Defendant did not question that Mapys and Koch would '* * * tell the truth about the events. * * *' Absent such a rare instance, City of Portales makes it clear that, generally, the trial court should not call a witness in a criminal case, particularly where the case is being tried before a jury. It states:

'* * * in a criminal proceeding, such a practice should rarely be followed, as the court must be extremely careful to preserve an attitude of impartiality. * * *

'* * * We would observe, however, that the discretionary power of the court to call a witness is one that should be exercised cautiously and is fraught with great danger which might improperly influence a jury if it were present. * * *'

In following the admonitions of City of Portales, the trial court did not deprive defendant of due process.

Issue 4. Cross-examination of Mapys and Koch as to misconduct.

Defendant's request that the court call Mapys and Koch as witnesses of the court included a request that both the State and the defense be allowed to cross-examine, but that no cross-examination be allowed concerning prior convictions or misconduct. Defendant contends the State's cross-examination of Mapys and Koch, as to their misconduct, was so prejudicial that it should not have been permitted.

Section 20--2--4, N.M.S.A.1953 provides that the bad moral character of a witness may be shown for the purpose of attacking his credibility. Martinez v. Avila, 76 N.M. 372, 415 P.2d 59 (1966) and cases therein cited. Where the witness is the defendant: '* * * The trial court * * * should limit the cross-examination where its legitimate probative value on the credibility of the accused as a witness seems obviously outweighed by its illegitimate tendency, effect and often purpose, to prejudice him as a defendant.' State v. Holden, 45 N.M. 147, 113 P.2d 171 (1941). See State v. Williams, 76 N.M. 578, 417 P.2d 62 ...