State v. Milton
| Decision Date | 21 August 1974 |
| Docket Number | No. 1499,1499 |
| Citation | 1974 NMCA 94,526 P.2d 436,86 N.M. 639 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Harold MILTON, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of armed robbery, defendant appeals. Section 40A--16--2, N.M.S.A.1953 . The issue concern: (1) photographic identification; (2) requested instruction concerning identification; (3) admission of a copy of a prisoner's letter; and (4) mistrial because of non-responsive answers of witnesses. We affirm.
By motions for directed verdict at the close of the State's case-in-chief and at the close of all the evidence, defendant challenged the sufficiency of the evidence identifying defendant as the robber of the service station. Defendant claimed the only witness identifying defendant was Jimmy Baca, that Baca made the identification after being shown a photograph, that the circumstances of the identification were impermissibly suggestive. He claimed the evidence as to Baca's photographic identification was erroneously admitted and absent that evidence there was insufficient identification evidence for the case to go to the jury. These contentions are renewed on appeal. He relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
The claim is factually inaccurate. There is circumstantial evidence, sufficient to sustain the conviction, that defendant was the robber. This includes evidence placing defendant and his distinctly colored car at the service station on the afternoon before the robbery and evidence that the robber departed the scene in this car after the robbery. This evidence also includes the description of the robber given by Baca and defendant's own statement against his interest.
The claim that Baca's photographic identification was in impermissibly suggestive circumstances is also without merit. Nothing indicates the police suggested the identification. Baca was shown a photograph of a man and a woman. An officer asked Baca, 'Is this the man?' Baca said, 'Yeah, that is him.' The identification was a couple of days after the robbery. The factual basis for the claim of an impermissively suggestive identification procedure is: (1) that Baca was shown only one picture, and that this picture showed defendant, a Black person, with a white female; and (2) Baca had 'little time and poor circumstances under which to observe the thief.'
Simmons v. United States, supra, states that showing only one photograph increases the danger of an incorrect identification, but it does not state that an identification after the showing of one photograph renders the identification testimony inadmissible. There is nothing indicating the white female in the photograph in any way influenced Baca's identification. The contention that the time and circumstances of the robbery limited Baca's observation of the robber, thereby weakening his identification is factually inaccurate. The robber entered the station and conversed with Baca and Gutierrez, a co-worker. He then held a gun on Gutierrez and directed Baca to open the cash register. The robber forced Gutierrez and Baca into a backroom, then returned for Baca to fill out a credit card slip for a service station customer after the robber supplied gas to the customer. The robber also required Baca to fill the robber's car with gasoline. This occurred in daylight over a period of ten to fifteen minutes.
At trial, Baca identified defendant as the robber.
Simmons v. United States, supra, states that a conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside 'only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'
In this case there was no impermissibly suggestive identification procedure and nothing suggesting a misidentification. State v. Jones, 83 N.M. 600, 495 P.2d 380 (Ct.App.1972); State v. Gilliam, 83 N.M. 325, 491 P.2d 1080 (Ct.App.1971).
Defendant requested the trial court to instruct that it was for the jury to determine whether the photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. We do not concern ourselves with whether the requested instruction properly states the law concerning photographic identification. The request was properly refused because the question of improper photographic identification is a matter for the trial court to decide in ruling on the admissibility of an in-court identification. United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970), cert. denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972); see State v. Aguirre, 84 N.M. 376, 503 P.2d 1154 (1972).
A letter written by defendant while in jail was examined by the sheriff. A copy was made of the letter; the original was mailed to the addressee. The copy was admitted into evidence. One sentence from the letter was read to the jury. This sentence was an admission against defendant's interest. The jury was not informed as to other portions of the letter.
The objection before the trial court, renewed here, is that the letter was a privileged communication. The factual basis for this contention is that the trial court had ordered a psychiatric evaluation, that Dr. Lowe participated in the evaluation and the letter involved was addressed to Dr. Lowe.
There are additional facts. The evaluation had been ordered because of defendant's 'insanity' defense. The evaluation was completed by October 18, 1973, defendant had been returned to the county jail, and the letter was written from the jail on October 29, 1973. These facts, together with the contents of the letter make it doubtful that the letter was a communication 'made for the purposes of diagnosis or treatment of his (defendant's) mental or emotional condition.' Paragraph (b) of § 20--4--504, N.M.S.A.1953 (Repl. Vol. 4, Supp. 1973). We need not, however, decide this question.
Paragraph (d)(2) of § 20--4--504, supra, excepts a court-ordered examination from the psychotherapist-patient privilege. It reads:
'If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.'
If the letter was a communication for the purpose of diagnosis or treatment, it was a communication made in the course of the court-ordered examination. It was not privileged under § 20--4--504, supra, because the trial court had not ordered otherwise. The privilege claim is based entirely on § 20--4--504, supra.
There being no privilege, admission of a copy of the letter and reading one sentence from the letter to the jury was not error.
( a) The sentence from defendant's letter, read to the jury, was: 'I am guilty of everything that I have been charged with here.'
Cross-examining the sheriff, defense counsel asked: 'You don't know what if anything that Mr. Milton has done here, do you?' The sheriff answered: 'No, only what is on his FBI report.' Defendant moved for a mistrial because the answer was not responsive to the question. After argument of counsel outside the presence of the jury, the motion for mistrial was denied. Thereafter, in the presence of the jury, the sheriff admitted that on the basis of his own knowledge, he could only guess as to the meaning of the letter.
Defendant claims the reference to an FBI report implies that defendant is a 'criminal.' Defendant then reminds us that, generally, evidence of crimes independent of the offense for which defendant is being tried is inadmissible. The State's response is that the reference to an FBI report is ambiguous, that it could mean either the offense being tried or other crimes. We agree the remark is ambiguous.
The issue is whether the court erred in denying a mistrial. A motion for a mistrial is addressed to the discretion of the court and is reviewable only on the basis of an abuse of discretion. State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct.App.1972); State v. Martinez, 83 N.M. 9, 487 P.2d 919 (Ct.App.1971). Since the nonresponsive answer was ambiguous, we cannot say the trial court abused its discretion in denying a mistrial. State v. Jamerson, 85 N.M. 799, 518 P.2d 779 (Ct.App.1974).
( b) The State, directly examining a detective, asked if the detective obtained an arrest warrant on the basis of certain information. The detective's answer was not responsive. The answer referred to inquiries of the police department in Santa Fe, and concluded with: 'they were looking for him for burglary.' The prosecutor instructed the witness to confine himself to answering the question. The State concluded its direct examination with one additional question.
Thereafter the witness was cross-examined and examined on redirect. After the examination of the witness was concluded (some 6 typewritten pages of the transcript later), defendant moved for a mistrial on the basis of the detective's non-responsive answer.
Defendant recognizes that his motion was untimely. He would avoid the effect of an untimely motion on the basis that an objection on his part would have magnified the 'error.' This does not excuse the failure to make a timely objection. State v. Carmona, 84 N.M. 119, 500 P.2d 204 (Ct App.1972); State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App.1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 688, 30 L.Ed.2d 662 (1972). By lack of a...
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