State v. Pennington

• Decision Date: 16 March 1993
• Docket Number: No. 13263,13263
• Citation: 1993 NMCA 37,115 N.M. 372,851 P.2d 494
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Douglas PENNINGTON, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 494

851 P.2d 494

115 N.M. 372

STATE of New Mexico, Plaintiff-Appellee, v. Douglas PENNINGTON, Jr., Defendant-Appellant.

No. 13263.

Court of Appeals of New Mexico.

March 16, 1993.

Certiorari Denied April 27, 1993.

[115 N.M. 374] Tom Udall, Atty. Gen., Max Shepherd, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

HARTZ, Judge.

Defendant appeals his conviction of child abuse resulting in death. He contends: (1) the district court should have disqualified the district attorney's office from prosecuting the case because of a conflict of interest; (2) the prosecutor's closing argument was improper; (3) an autopsy photograph should not have been admitted; (4) the evidence was insufficient to support the conviction; and (5) the trial court should have granted his request for a continuance. We affirm, although we agree with Defendant's claim that some of the prosecutor's comments during closing argument constituted improper vouching for a witness.

BACKGROUND

Defendant was indicted on one count of child abuse not resulting in great bodily harm and one count of child abuse resulting in death. The victim of the alleged abuse was Devon Candelaria, the six-month-old son of Frances Candelaria, Defendant's girlfriend. Both charges stemmed from injuries Devon suffered while Defendant was baby-sitting him. On August 28, 1989, Devon suffered a skull fracture. On September 24, 1989, Devon lapsed into a coma caused by a head injury; he died on September 27, 1989.

Defendant's first trial ended in a mistrial when the jury could not reach a unanimous verdict on either charge. At his second trial (nine and one-half months later) the jury convicted Defendant of the charge of child abuse resulting in death and acquitted him of the other charge.

I. Conflict of Interest.

We first consider Defendant's contention that the Third Judicial District Attorney's Office should have been disqualified from prosecuting him. About four months after the first trial Tim Kling, a private investigator who had worked on the case for Defendant, joined the district attorney's office. The district attorney instituted procedures to screen Kling from the prosecution of cases he had worked on for defense attorneys. One month later Defendant filed a motion to disqualify the entire district attorney's office from participating in prosecuting him. At a hearing on the motion Defendant testified that he had recently called Kling to obtain copies of various documents and that Kling then asked him several questions about the upcoming trial, including what his strategy would be, before Kling informed him that he now was working for the district attorney. Kling acknowledged having a conversation with Defendant but testified that he received no confidential information and that he immediately informed Defendant that he was working for the district attorney. Finding the evidence on the matter to be "evenly balanced," the district court held that Defendant had not met his burden to prove that Kling obtained confidential information after going to work for the district attorney. The district attorney did not dispute that Kling had obtained confidential information about Defendant's case when he worked for Defendant. The district court denied the motion to disqualify the office, however, because of the screening procedure established by the district attorney.

Defendant claims that the district court erred in two respects: first, in not applying a per se rule of disqualification that would prohibit the district attorney's office from handling the prosecution after the hiring of Kling; second, in assigning him the burden of proving that Kling acquired confidential information after he joined the district attorney's staff. A. Per Se Disqualification of District

Attorney's Office.

We first consider whether an entire district attorney's staff should always be disqualified from prosecuting a defendant when one member of the staff before joining the office was involved in representing the defendant on the charges being prosecuted. In arguing for a per se rule of disqualification Defendant relies on State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct.App.), cert. denied, 86 N.M. 372, 524 P.2d 988 (1974). In that case a district attorney's office was disqualified when one staff attorney had a conflict of interest because he had previously represented the defendant. Id., 86 N.M. at 384, 524 P.2d at 1000. Chambers focused on the appearance of impropriety created when former defense counsel joined the district attorney's staff. Id. In reversing the district court's refusal to disqualify the office, Chambers held that the facts of the case compelled disqualification to ensure "the fair and impartial administration of justice." Id. at 388, 524 P.2d at 1004. The Court wrote:

What must a defendant and his family and friends think when his attorney leaves his case and goes to work in the very office that is prosecuting him? Even though there is no revelation by the attorney to his new colleagues, the defendant will never believe that. Justice and the law must rest upon the complete confidence of the thinking public and to do so they must avoid even the appearance of impropriety. Like Caesar's wife, they must be above reproach.

Id. at 384-85, 524 P.2d at 1000-01 (quoting State v. Latigue, 108 Ariz. 521, 523, 502 P.2d 1340, 1342 (1972) (en banc)).

A year later, however, this Court ruled that in some cases a showing at an evidentiary hearing can overcome the appearance of unfairness. State v. Mata, 88 N.M. 560, 543 P.2d 1188 (Ct.App.1975). As in Chambers the defendant's former attorney had joined the district attorney's office. But an evidentiary hearing established that the defendant's former attorney had totally divorced himself from any involvement in the prosecution. Although Mata involved a "stale" claim--the issue was first raised in a motion for post-conviction relief--the opinion did not explicitly restrict its holding to motions for post-conviction relief.

In evaluating what, if any, of the Chambers holding remains good law, we look to other jurisdictions for guidance. Opinions in eight other jurisdictions have disqualified an entire prosecutor's office without requiring a showing that the employee who had assisted the defendant before joining the staff had participated in the prosecution or conveyed information to a person participating in the prosecution. State v. Latigue; People v. Stevens, 642 P.2d 39 (Colo.Ct.App.1981); State v. Tippecanoe County Court, 432 N.E.2d 1377 (Ind.1982); State v. Ross, 829 S.W.2d 948 (Mo.1992) (en banc); Fitzsimmons v. State, 116 Neb. 440, 218 N.W. 83 (1928); People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909 (1980); State v. Cooper, 63 Ohio Misc. 1, 409 N.E.2d 1070 (1980); State v. Stenger, 111 Wash.2d 516, 760 P.2d 357 (1988) (en banc). Cf. Love v. Superior Court, 111 Cal.App.3d 367, 168 Cal.Rptr. 577 (1980) (disqualifying the six attorneys in the major crimes section of the district attorney's office). The principal concerns expressed in these cases, as in Chambers, are the appearance of impropriety and the potential for an undiscoverable breach of confidence when a defendant's former confidante joins the enemy camp.

Even in the above jurisdictions, however, it is not clear that the courts would always require disqualification of an entire district attorney's office on the ground that one employee had worked for the defendant on a related matter. Most of the cases involved special circumstances. In two of the cases the attorney causing the disqualification was a part-time prosecutor whose private firm continued to represent the defendant in related civil litigation. State v. Ross; Fitzsimmons v. State. In four of the cases the attorney who had worked for the defendant had become the district attorney or chief assistant. State v. Latigue; State v. Tippecanoe County Court; People v. Shinkle; State v. Stenger. Tippecanoe, 432 N.E.2d at 1379 and Stenger, 760 [115 N.M. 376] P.2d at 360-61, explicitly stated that the entire office need not be disqualified just because a deputy in the office had represented the accused in the same matter. Although Latigue emphasized that the decision did not rest "on the fact that the attorney involved here is the County Attorney's chief deputy," id. at 1342, a later decision in that jurisdiction has suggested that whether to disqualify an entire office will depend on the specifics of the case, Turbin v. Superior Court, 165 Ariz. 195, 797 P.2d 734 (Ct.App.1990). In the remaining two cases the decisions were by a two-to-one majority, People v. Stevens, and by a single-judge trial court, State v. Cooper.

The great majority of jurisdictions have refused to apply a per se rule disqualifying the entire prosecutor's staff solely on the basis that one member of the staff had been involved in the representation of the defendant in a related matter. In their view the entire staff ordinarily need not be disqualified from prosecuting the defendant if the staff member who had previously worked for the defendant is isolated from any participation in the prosecution of the defendant. United States v. Caggiano, 660 F.2d 184 (6th Cir.1981); United States v. Goot, 894 F.2d 231 (7th Cir.1990); Jackson v. State, 502 So.2d 858 (Ala.Crim.App.1986); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974); People v. Lopez, 155 Cal.App.3d 813, 202 Cal.Rptr. 333 (1984) (applying new state statute); State v. Bunkley, 202 Conn. 629, 522 A.2d 795 (1987); State v. Fitzpatrick, 464 So.2d 1185 (Fla.1985); Frazier v. State, 257 Ga. 690, 362 S.E.2d 351 (1987); State v. Dambrell, 120 Idaho 532, 817 P.2d 646 (1991); State v. McKibben, 239 Kan. 574, 722 P.2d 518 (1986); Summit v. Mudd, 679 S.W.2d 225 (Ky.1984); State v. Bell, 346 So.2d 1090 (La.1977); Young v. State, 297 Md. 286, 465 A.2d 1149 (1983); ...