State v. Mead

• Decision Date: 05 May 1983
• Docket Number: No. 5720,5720
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David O. MEAD, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 289

665 P.2d 289

100 N.M. 27

STATE of New Mexico, Plaintiff-Appellee, v. David O. MEAD, Defendant-Appellant.

No. 5720.

Court of Appeals of New Mexico.

May 5, 1983.

Janet Clow, Chief Public Defender, Ellen Bayard, Asst. Appellate Defender, Santa Fe, for defendant-appellant

Paul G. Bardacke, Atty. Gen., Carol Vigil, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Defendant was indicted, along with Lisa Segotta, for the crimes of first degree murder of John Segotta contrary to Sec. 30-2-1(A), N.M.S.A.1978 (1982 Cum.Supp.), and conspiracy to commit first degree murder contrary to Sec. 30-28-2, N.M.S.A.1978 (1982 Cum.Supp.), and Sec. 30-2-1(A), N.M.S.A.1978 (1982 Cum.Supp.), the conspiracy allegedly occurring between defendant and Lisa Segotta (Segotta). Defendant was acquitted of the conspiracy charge but convicted of second degree murder under Sec. 30-2-1(B), N.M.S.A.1978 (1982 Cum.Supp.). The trial court altered his basic sentence under Sec. 31-18-15.1, N.M.S.A.1978 (1981 Repl.Pamp.), to add three additional years because of aggravating circumstances. Defendant appeals his conviction and the altered sentence. Segotta was convicted of second degree murder as an accessory and of solicitation to commit murder, and she pursues a separate appeal.

Defendant raises three issues in this appeal:

1. Did the trial court abuse its discretion in denying defendant's motion to sever, thereby depriving him of a fair trial?

2. Did the court err in imposing an aggravated sentence?

3. Is the statute under which defendant's basic sentence was altered unconstitutional?

We affirm the conviction and basic sentence but reverse as to the altered sentence.

The facts relevant to this appeal are set forth in State v. Segotta, --- N.M. ---, 665 P.2d 280 (1983), filed concurrently this date.

I. Severance

While recognizing that the granting of separate trials to defendants who have been jointly informed against falls within the trial court's discretion, State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971), and will not be disturbed on review absent a clear showing of abuse which results in prejudice, State v. Baca, 85 N.M. 55, 508 P.2d 1352 (Ct.App.1973), defendant contends that the trial court abused its discretion in denying him a separate trial.

Defendant claims that he was prejudiced by (1) certain evidence that would have been inadmissible in a separate trial; (2) the conflicting and irreconcilable defenses presented; and (3) having his peremptory challenges limited to seven.

(A) Evidence

While at the scene, Segotta gave an oral taped statement to the police. Defendant claims that this declaration damaged his defense, because Segotta told the police that a man grabbed her husband by the neck from behind, and she could tell that he had a large and muscular arm. Her description could have applied to defendant's arm. This evidence, according to defendant, violated the hearsay rule and prejudiced his self-defense theory.

As noted, defendant and Segotta were charged with conspiracy to commit first degree murder. A statement is not hearsay if it is offered against a party and is a statement by a co-conspirator made during the course and in furtherance of a conspiracy. N.M.R.Evid. 801(d)(2)(E), N.M.S.A.1978. As a foundational requirement, out-of-court statements made by a co-conspirator about matters relating to the conspiracy are not admissible unless and until other independent evidence establishes a prima facie case of conspiracy. State v. Harge, 94 N.M. 11, 606 P.2d 1105 (Ct.App.1979). In order to prove the existence of a conspiracy the State need not present direct evidence; proof of circumstances from which the existence of the conspiracy may be inferred is sufficient. State v. Dressel, 85 N.M. 450, 513 P.2d 187 (Ct.App.1973); Bartlett v. United States, 166 F.2d 920 (10th Cir.1948). The trial court has complete discretion to determine the order of proof. Bartlett v. United States, supra.

Even if the State establishes the existence of a conspiracy, any out-of-court statement which it seeks to introduce must have been made during the course of and in furtherance of the conspiracy. "During the course of" means from the commencement to the consummation of the offense. State v. Robinson, 84 N.M. 2, 498 P.2d 694 (Ct.App.1972). Since Segotta made her statement after the assault, it was not made during the course of the conspiracy.

The trial court ruled that a conspiracy to kill John Segotta and collect his life insurance proceeds would still have been in effect so that Lisa Segotta's statement would have been in furtherance of that crime. Under this theory the conspiracy would continue beyond the killing. We reject that basis. Although the evidence indicates that Segotta was aware of one policy of insurance on her husband's life and had discussed the existence of group coverage provided through his employment, nothing in the record shows that she knew of the policy amounts. Moreover, no evidence establishes that defendant knew of the existence of any policies.

When the trial court ruled, however, it did so on the condition that the State show a conspiracy by independent evidence; if the State failed, the court indicated it would consider giving a limiting instruction. No limiting instruction was given, and none was requested. We have pointed out that the foundational requirement of proof of a conspiracy by independent evidence need not be met at the time the State offers the co-conspirator's statement. The trial court may rule conditionally. We would note that a written statement given by Lisa Segotta, at about the same time as the taped statement, was also admitted, but with a limiting instruction that the jury could only consider it as to her.

Even if there was error, was it harmless? If the evidence adduced through Lisa Segotta's taped statement was merely cumulative, and without the statement the case against defendant remained as strong, then we should hold the error harmless. See State v. Lujan, 94 N.M. 232, 608 P.2d 1114 (1980); Cf. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (holding extrajudicial statement by co-conspirator not harmless error when court left with grave doubt as to whether the error had substantial influence on verdict). In addition to Lisa Segotta's statement to the police, the clerk at Circle K testified that Segotta came into the store in a hysterical condition, asking for help. Segotta told the clerk that two men had "jumped" her husband. A.J. Romero, an Albuquerque police officer, testified that when he arrived Segotta was hysterical and told him two or three people had "jumped" her husband. Even though this evidence substantially conflicts with defendant's self-defense theory, defendant did not object to its admission. Thus, even without Segotta's direct statement to the police, substantial evidence came in under the excited utterance exception to the hearsay rule, N.M.R.Evid. 803(2), N.M.S.A.1978 (1982 Cum.Supp.), to support the jury's verdict. State v. Martinez, 99 N.M. 48, 653 P.2d 879 (Ct.App.1982). This evidence included the number of stab wounds as well as testimony by the Circle K clerk and Officer Romero.

Maurice Landavazo testified that on or about March 23 or 24, 1981, approximately a week prior to the incident, Lisa Segotta asked him if he knew of a "hit man." According to Landavazo, Segotta said a friend needed a "hit man" and that the "hit" would be an easy one, because the person walked to and from work, and there was an alley or big lot nearby. The State established through co-workers where the victim, John Segotta, worked, that he frequently walked to and from work, and that there was an alley near the place of his employment. Lisa Segotta denied the conversation with Landavazo. On cross-examination of Landavazo, Segotta challenged his testimony as a recent fabrication, and the trial court allowed the witness to read a prior consistent written statement. The State also called Mrs. Landavazo to confirm that a week before the incident her husband told her that a "Lisa" had asked him if he knew of a "hit man."

The State offered this evidence in connection with the solicitation charge against Lisa Segotta and the trial court properly admitted it without a limiting instruction (with the exception of Mrs. Landavazo's testimony), since the court found the statements relevant to show motive, opportunity, intent, preparation or plan to kill on the part of both Segotta and defendant. N.M.R.Evid. 404(b), N.M.S.A.1978. Although defendant was acquitted of first degree murder and conspiracy, he claims that Landavazo's testimony prejudiced his claim of self defense. Defendant argues that if the jury believed he carried out a "hit," his self defense claim was prejudiced.

Applying the same analysis as previously discussed, the critical question is whether this statement was made during the course and in furtherance of a conspiracy between Segotta and defendant to kill John Segotta. Defendant testified that he met Lisa Segotta in early February, 1981 and that they became sexually intimate immediately. After defendant learned Segotta was married, the intimacy ceased, but their close friendship continued. According to defendant, Segotta confided in him that John had been following her and that he had beaten and raped her. During the two to three weeks before the incident, Segotta and defendant had discussed confronting John to scare him or beat him up so he would stop bothering her.

Assuming defendant chose not to testify in a separate trial, thus making his testimony unavailable, the State could still introduce independent evidence from which the jury could infer a conspiracy. This evidence includes the close relationship between Segotta and defendant observed at their place of employment before Segotta's statement to Landavazo, the evidence that Segotta purchased the knife at K-Mart the day of the killing, and...