State v. Melendrez
| Decision Date | 29 November 1977 |
| Docket Number | No. 2975,2975 |
| Citation | 1977 NMCA 131,91 N.M. 259,572 P.2d 1267 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Rudolfo R. MELENDREZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of two counts of battery upon a police officer, defendant appeals. We discuss: (1) evidentiary matters, and (2) refused instructions.
Police officers had a warrant for defendant's arrest on a charge not involved in this appeal. There is a conflict in the evidence as to the arrest of defendant in a bar, getting defendant into the police car for the ride to the police station, getting defendant out of the police car and into the lobby of the police station, and getting defendant from the lobby to the booking room in the police station. This conflict goes to the question of whether the officers used excessive force during these episodes.
None of the above episodes are involved in this appeal. The episode with which we are concerned is the fight which broke out in the booking room. The prior episodes are not involved because the testimony is to the effect that the booking room fight was a separate incident. The police officers testified that upon reaching the booking room, defendant calmed down and the handcuffs were removed from defendant. Defendant testified that he was left in the booking room, alone, for five to ten minutes, that the officers then returned, removed the handcuffs and started the booking procedures. During the booking procedures, defendant fought with both of the police officers. The convictions are based on this fight.
There are three evidentiary matters. Each involves the prosecutor's cross-examination of defendant. Defendant sought a mistrial as to each item. On appeal he asserts that denial of his mistrial motions was error because each item involved prosecutor misconduct. We disagree.
( a) The prosecutor asked defendant if he had been arrested by Officer Tully in 1974. The defense objection was sustained and the question was not answered. This question was relevant because the defense had interjected Officer Tully's character into the case and defendant had denied having had any contact with Officer Tully prior to the arrest in this case. Thus, the asking of the question cannot be held to be prosecutor misconduct.
( b) On direct examination defendant testified that he had been convicted of a burglary in either 1969 or 1970. On cross-examination the prosecutor asked defendant if he had been convicted of commercial burglary in 1975. The reply was "no". Defendant moved for a mistrial, arguing that the prosecutor's questions concerning prior convictions were limited to the questions that defendant had asked on direct examination. Defendant's view is not correct. Questioning a defendant concerning prior convictions is not limited to convictions to which the defendant testifies on direct examination. Evidence Rule 609.
Defendant also contended that the question concerning a 1975 commercial burglary conviction was asked in bad faith. The prosecutor asked this question on the basis of records which showed that a person with the same name as defendant had been convicted of commercial burglary. The prosecutor admitted that he could not prove that the Melendrez mentioned in the records was the same person as defendant. The trial court refused to rule that the question concerning a commercial burglary conviction in 1975 was asked in bad faith. Nor can we. There are insufficient facts and circumstances for such a ruling. State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966); State v. Garcia, 80 N.M. 247, 453 P.2d 767 (Ct.App.1969).
(c) Defendant was also asked, on cross-examination, whether he had been convicted of shoplifting in 1975. The defendant answered: "That is not a felony conviction." The trial court sustained defendant's objection. The jury was instructed to disregard the question and answer, that the shoplifting conviction was not material and not to be considered in arriving at a verdict. After the jury was excused, the prosecutor insisted that the shoplifting conviction was admissible as a crime that "involved dishonesty". Evidence Rule 609(a)(2). The ensuing colloquy between the court and the prosecutor indicates the shoplifting conviction was for the violation of a city ordinance. The trial court ruled that a violation of a city ordinance was not a "crime" under Evidence Rule 609.
Evidence Rule 609(a)(2) permits evidence that defendant had been convicted of a crime, "but only if the crime . . . involved dishonesty or false statement, regardless of the punishment." Since admissibility is " regardless of the punishment" we are not concerned with the possible punishment for shoplifting in determining whether the ordinance violation was a crime. See City of Clovis v. Curry, 33 N.M. 222, 264 P. 956 (1928). Shoplifting is a crime under the state statute. Section 40A-16-20, N.M.S.A. 1953 (2d Repl.Vol. 6). A municipal ordinance prohibiting shoplifting would be quasi-criminal. City of Roswell v. Gallegos, 77 N.M. 170, 420 P.2d 438 (1966). Violation of a municipal ordinance prohibiting shoplifting comes within the meaning of "crime" in Evidence Rule 609.
Although shoplifting is a crime, is it a crime involving dishonesty as contended by the prosecutor? The Advisory Committee's Note to the proposed evidence rule on which our Evidence Rule 609 is based, states the reference to crimes involving dishonesty or false statement was intended to cover crimen falsi. Black's Law Dictionary (4th ed. 1951) states the phrase crimen falsi applies to: "A crime less than felony that by its nature tends to cast doubt on the veracity of one who commits it." Consistent with this definition, Albertson v. State, 89 N.M. 499, 554 P.2d 661 (1976) refers to "the policy behind Rule 609, that is, prior convictions of misdemeanors, not dealing with the veracity of the defendant, simply are irrelevant as to his credibility."
What kind of crimes cast doubt on, or involve, the veracity (truthfulness) of the defendant? Black's Law Dictionary, supra, states that the phrase, crimen falsi, is "used as a general designation of a class of offenses, including all such as involve deceit or falsification". While a circuit judge, Chief Justice Burger explained:
In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on man's honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty or veracity. A "rule of thumb" thus should be that convictions which rest on dishonest conduct relate to...
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State v. Ray
...cited in State v. Brown, 113 Wash.2d at 550, 782 P.2d 1013, including: State v. Page, 449 So.2d 813 (Fla.1984); State v. Melendrez, 91 N.M. 259, 572 P.2d 1267 (Ct.App.1977); State v. Tolliver, 33 Ohio App.3d 110, 514 N.E.2d 922 (1986); Kennedy v. State, 640 P.2d 971 (Okla.Crim.App.1982); St......
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State v. Brown
...753, 617 P.2d 142 (robbery involves dishonesty), cert. denied, 449 U.S. 860, 101 S.Ct. 163, 66 L.Ed.2d 77 (1980); State v. Melendrez, 91 N.M. 259, 572 P.2d 1267 (N.M.App.1977) (shoplifting involves dishonesty or false statement); State v. Tolliver, 33 Ohio App.3d 110, 514 N.E.2d 922 (1986) ......
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State v. Brown
...753, 617 P.2d 142 (robbery involves dishonesty), cert. denied, 449 U.S. 860, 101 S.Ct. 163, 66 L.Ed.2d 77 (1980); State v. Melendrez, 91 N.M. 259, 572 P.2d 1267 (Ct.App.1977) (shoplifting involves dishonesty or false statement); State v. Tolliver, 33 Ohio App.3d 110, 514 N.E.2d 922 (1986) (......
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State v. Nemeth
...it, the offense of battery is a lesser offense within the offense of battery upon a peace officer. See State v. Melendrez, 91 N.M. 259, 261, 572 P.2d 1267, 1269 (Ct.App. 1977). {59} Defendant must show that the offense of battery is the highest degree of crime committed. See State v. Salaza......