State v. Moore
| Decision Date | 29 August 1989 |
| Docket Number | No. 10836,10836 |
| Citation | 1989 NMCA 73,109 N.M. 119,782 P.2d 91 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Charles Robert MOORE, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals from judgment and sentence on conviction after a jury trial. He asserts on appeal that the trial court erred in: (1) denying his motion to suppress a pistol seized by police and statements made to the police about the pistol; (2) denying his motion to suppress the in-court identification testimony of the two victims; (3) allowing the state's peremptory challenge of the only black member of the jury venire; (4) imposing consecutive sentences for two counts of armed robbery and for two counts of false imprisonment; and (5) denying his motion for a change of venue. We conditionally affirm, but we remand for a hearing with respect to the third issue.
Defendant's third issue was not raised in his docketing statement. During an extension of his briefing time, defendant moved to amend his docketing statement, claiming the issue was properly preserved below. Defendant had not, however, sought or secured an extension of time in which to move to amend, as most appellants now routinely do when they seek an extension of briefing time. The state claims defendant's motion is untimely. Defendant asserts the motion was made as soon as counsel discovered the issue on the tapes, which were lost until they were filed during the extension of briefing time. Defendant also contends the issue involves fundamental error. The state disagrees.
We take this opportunity to clarify the law relating to amending the docketing statement. We hold the motion was timely and that, notwithstanding that the motion may not have shown good cause for amending the docketing statement, we grant it nonetheless because we believe it is fairer to make our pronouncements in this case prospective. We discuss the motion to amend as the last issue in the opinion.
This case arises out of an early evening robbery at the home of Ken and Ann Batson in Hobbs, New Mexico, as the Batsons were returning to their home. Mrs. Batson pulled into the garage, and Mr. Batson parked behind her. Mrs. Batson went into the house to turn off the burglar alarm, and Mr. Batson walked across the lawn to pick up the paper. As Mr. Batson turned to walk back into the garage, a tall, thin, black man with a gun jumped out from beside the house. A second man appeared, and the tall, thin man and his companion escorted Mr. Batson into the garage. As the tall, thin man came around Mrs. Batson's car, he pulled a stocking mask over his face. Mrs. Batson first saw the tall, thin man as she was going back into the garage and he was pulling the stocking mask over his face. At some point a third man appeared, and the men then escorted the Batsons into the house. At first they kept the Batsons in the hallway, and the tall, thin man guarded them while the others searched the house. The men handcuffed the Batsons together and bound them with duct tape. After searching the house, the men took guns, cash, and jewelry away with them. The men were at the house approximately ten to fifteen minutes.
A few days later members of the Hobbs Police Department entered the house where defendant was staying for a few weeks. The house was rented and occupied by Malora Lacy. Although the police had a search warrant, it is undisputed on appeal that it was invalid.
Both defendant and Ms. Lacy were present when the police arrived, and Ms. Lacy invited the police to enter. Once inside, Detective Knott sat at the kitchen table with Ms. Lacy, while other officers made a protective sweep. While the other officers were occupied, Ms. Lacy told Detective Knott that there was a gun under her bed, that defendant had given her the gun and some money, and that he said he had obtained the money and the gun in a robbery. Subsequently, Mr. Batson identified the gun as one taken during the robbery.
The Batsons saw defendant before trial. Mr. Batson saw him the day the preliminary hearing was postponed and again on the day of the rescheduled hearing six weeks later. Mrs. Batson saw defendant at the preliminary hearing. There was conflicting evidence on the issue of whether either victim saw defendant at the police station.
At trial, as well as at the preliminary hearing, the Batsons identified defendant as the tall, thin man who had held them at gunpoint. The record indicates defendant is six feet, two inches tall, weighs about 150 pounds, and is missing one eye.
Defendant was convicted of the five counts with which he had been charged: one count of aggravated burglary, contrary to NMSA 1978, Section 30-16-4 (Repl.Pamp.1984) and NMSA 1978, Section 31-18-16 (Repl.Pamp.1987); two counts of armed robbery, contrary to NMSA 1978, Section 30-16-2 (Repl.Pamp.1984) and Section 31-18-16; and two counts of false imprisonment, contrary to NMSA 1978, Section 30-4-3 (Repl.Pamp.1984) and Section 31-18-16. Defendant was sentenced to nine years on each of the three second degree felony counts and to eighteen months on both fourth degree felony counts. The trial court ordered that his sentences be served consecutively.
Defendant's motion to suppress contended that the evidence obtained by police at the home of Ms. Lacy was the fruit of an unreasonable search and seizure under the fourth amendment. The record does not support defendant's contention. The trial court was entitled to find that Ms. Lacy voluntarily disclosed the location of the pistol as well as what defendant had told her. Under these circumstances, the trial court did not err in denying defendant's motion to suppress. See State v. Barry, 94 N.M. 788, 617 P.2d 873 (Ct.App.1980). Once defendant disclosed inculpatory evidence to a third person, he could not prevent that person from divulging the information in willing cooperation with a police investigation. See United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). In this case, defendant waived any expectation of privacy he might otherwise have had.
Defendant contends that the in-court identification of defendant by the victims should not have been allowed because there had been various pre-trial confrontations that were impermissibly suggestive. See State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970). Even if there has been an improper extra-judicial identification, this fact does not require the exclusion of an independent in-court identification, which is not tainted by the prior identification. Id. We understand defendant's argument to be that the in-court identifications were tainted by suggestive and unreliable extra-judicial identifications. We disagree.
In this case, the trial court did not indicate whether it found there had been pre-trial confrontations or, if so, whether they had been impermissibly suggestive. Even where the trial court has found pre-trial confrontations were suggestive, however, the circumstances may support a finding that the identifications were sufficiently reliable to support a conclusion that the in-court identification was not tainted. See State v. Nolan, 93 N.M. 472, 601 P.2d 442 (Ct.App.1979). Based on the evidence offered at the motion to suppress hearing and at trial, the trial court was entitled to find that the in-court identifications were reliable. Thus, the trial court did not err in denying defendant's motion to suppress them.
The relevant factors supporting the reliability of the in-court identification include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description, the level of certainty demonstrated at the time of the confrontation, and the time elapsed between the crime and the confrontation. These factors are to be weighed against the potentially corrupting effect of the suggestive identification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Nolan. Under the relevant factors, the trial court could have found that the out-of-court identifications were sufficiently reliable to deny suppression of the in-court identification.
There is no question that the Batsons had ample time, in well-lit areas, to observe the man who held them at gunpoint while the others ransacked other rooms. They both testified at trial that the man kept threatening to blow their heads off if they looked at him and that this induced them to look at him more often. They also testified that they were "100 percent" certain of their identification of defendant because of their observation at the time of the crime. Mrs. Batson testified that, in spite of the stocking mask, she saw the man's facial features clearly. Both testified that they immediately and unquestionably recognized defendant when they saw him after the robbery in the magistrate courthouse. It is unclear exactly when the pre-trial confrontations occurred, but there is no question that they occurred between January 3, 1987, the date of arraignment, and February 23, 1987, when the preliminary hearing was finally held, from five days to seven weeks following the robbery.
Defendant argues that the victims failed to report that the tall, thin man was missing an eye. For this reason and others, he contends that the descriptions given the police were highly inaccurate. We disagree.
Although Mr. Batson saw the tall, thin man for a few moments before he pulled a stocking over his face, the man wore the stocking for most of the time that the victims had an opportunity...
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