State v. Pettigrew

• Court: Court of Appeals of New Mexico
• Writing for the Court: PICKARD
• Citation: State v. Pettigrew, 116 N.M. 135, 860 P.2d 777, 1993 NMCA 95 (N.M. App. 1993)
• Decision Date: 03 August 1993
• Docket Number: 14202 and 14229,Nos. 14114,s. 14114
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Aaron PETTIGREW, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. Darrell BANNISTER, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. Jason TURNER, Defendant-Appellant.

Page 777

860 P.2d 777

116 N.M. 135

STATE of New Mexico, Plaintiff-Appellee, v. Aaron PETTIGREW, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. Darrell BANNISTER, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. Jason TURNER, Defendant-Appellant.

Nos. 14114, 14202 and 14229.

Court of Appeals of New Mexico.

Aug. 3, 1993.

Certiorari Denied Sept. 22, 1993.

[116 N.M. 137] Tom Udall, Atty. Gen., Mary Catherine McCulloch, Daniel F. Haft, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Christopher Bulman, Asst. Appellate Defender, Santa Fe, for defendant-appellant Aaron Pettigrew.

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

D. Scott Riedel, Santa Fe, for defendant-appellant Jason Turner.

OPINION

PICKARD, Judge.

In these consolidated appeals, Defendants Bannister, Pettigrew, and Turner raise issues related to their felony aggravated battery convictions pursuant to NMSA 1978, Section 30-3-5(C) (Repl.Pamp.1984). Defendant Bannister raises the issue of whether the trial court erred in failing to give a jury instruction for simple battery pursuant to NMSA 1978, Section 30-3-4 (Repl.Pamp.1984). Defendants Bannister and Turner raise the issue of whether there is sufficient evidence to sustain their convictions for felony aggravated battery. In addition, all three Defendants raise the following two issues: (1) whether it was an abuse of discretion for the trial court to admit into evidence a life-size color photograph depicting Victim's injuries prior to Victim's having been attended to and cleaned up by the medical staff; and (2) whether the trial court committed reversible error in excusing a seated juror for the appearance of impropriety based on the trial court's interview of the juror. Other issues, raised at earlier stages in the appellate proceedings but not argued in the briefs, are deemed abandoned. See State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985).

In affirming the decisions of the trial court, we hold that (1) the trial court properly denied giving a simple battery jury instruction for Defendant Bannister because no view of the evidence shows that simple battery was the highest degree of crime committed; (2) substantial evidence supports Defendants Turner's and Bannister's convictions of aggravated battery in a manner that could have caused great bodily harm; (3) the photograph was properly admitted into evidence because it was relevant and more probative than prejudicial; and (4) the trial court did not commit reversible error in its excusal of the juror.

FACTS

The altercation that resulted in the felony aggravated battery convictions of the three Defendants began when Victim approached a group of people who were moving furniture into a mobile home. Victim mistakenly believed that these people were there without the owner's permission and discharged a shotgun into the ground as a warning. Defendants, in confronting Victim, asserted their right to be at the mobile home. One witness testified that Victim pointed his shotgun at Defendants Bannister and Turner, while another witness testified that Victim backed away from Defendants in a non-threatening manner. Then Defendant Bannister took the gun away from Victim. It is not disputed that all three Defendants then were involved in striking Victim.

Defendant Pettigrew admitted to an investigator for the district attorney's office that Pettigrew punched Victim thirty times very rapidly and very hard. Testimony concerning Defendant Bannister ranged from his hitting Victim a few times with his fists or once with the butt of the shotgun to his hitting Victim with his fists and the shotgun and kicking Victim three times in the face. Testimony concerning Defendant Turner showed that he hit Victim after Victim fell down and that he held Victim by the neck while Defendant Bannister hit Victim. Victim's injuries were comprised of swelling about the eyes, mouth, and face in general, and lacerations of the face, one of which required stitches. The prosecution's expert witness, Dr. Timmons, was very surprised that the beating about the head sustained by Victim did not result in serious injury or death.

JURY INSTRUCTION FOR SIMPLE BATTERY

Defendant Bannister claims that the trial court should have instructed the jury on simple battery pursuant to Section 30-3-4. A defendant has the right to instructions on lesser included offenses when there is some evidence tending to establish that the lesser included offense is the highest degree of crime committed. See Fish, 102 N.M. at 778-79, 701 P.2d at 377-78; see also State v. Duran, 80 N.M. 406, 407, 456 P.2d 880, 881 (Ct.App.1969). Battery is included within the offense of aggravated battery. Id.; see Secs. 30-3-4 & -5(C). The difference is that battery does not require an intent to injure.

Bannister acknowledges that he at the least hit Victim with the butt of a gun or punched him a few times. In light of these admissions, together with the showing that the blows administered by Bannister occurred when Victim was being beaten by the other Defendants, there was no evidence to support a finding that Bannister did not have the intent to injure victim. See State v. Jaramillo, 82 N.M. 548, 549-50, 484 P.2d 768, 769-70 (Ct.App.1971) (the defendant's admission that he intended to hit someone on the head with a pistol established nothing less than aggravated battery when pistol was discharged during a fight). Accordingly, the trial court did not err in refusing to instruct on simple battery.

SUFFICIENCY OF THE EVIDENCE

Defendants Bannister and Turner both argue that the State failed to establish the essential element for felony aggravated battery that the battery occur "in any manner whereby great bodily harm or death can be inflicted." Section 30-3-5(C). Section 30-3-5(C) requires only that great bodily harm could result, not that it must result. Testimony during the trial described a beating in which Victim was hit by the butt of a gun and kicked and punched thirty or forty times by Defendants. Dr. Timmons' expert medical testimony set forth that the beating about the head of Victim could have caused permanent impairment and death. In fact, the doctor was surprised that it did not cause such injury. This evidence is substantial evidence for the charge of felony aggravated battery when viewed, as it must be, in the light most favorable to the verdict. See State v. Sutphin, 107 N.M. 126, 130-31, 753 P.2d 1314, 1318-19 (1988).

Defendant Bannister also argues that his conviction for felony aggravated battery should be overturned for lack of sufficient evidence that he went beyond justified self-defense. Viewing the evidence in the light most favorable to the verdict, substantial evidence exists through witness testimony that a rational jury could have found that Bannister committed aggravated battery by joining the other two Defendants in hitting and kicking Victim repeatedly without facing resistance after the gun was taken away. See id.

ADMISSIBILITY OF PHOTOGRAPH

Defendant Turner asserts that the life-size photograph of Victim that was taken after the battery but before Victim was medically attended to was not relevant. SCRA 1986, 11-401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The photograph is relevant because it depicts the extent of Victim's injuries and because it makes more probable than not the potential of great bodily harm, which is an element of aggravated battery. Also, it illustrates the treating physician's testimony concerning the injuries to Victim. See State v. Carlton, 83 N.M. 644, 648, 495 P.2d 1091, 1095 (Ct.App.), cert. denied, 83 N.M. 631, 495 P.2d 1078 (1972).

All three Defendants argue that the photograph was impermissibly proffered to arouse prejudices and passions in the jury and that the photograph had little probative value compared to the prejudice it aroused. See SCRA 1986, 11-403; State v. Valenzuela, 90 N.M. 25, 28-29, 559 P.2d 402, 405-06 (1976); State v. Upton, 60 N.M. 205, 209-10, 290 P.2d 440, 442 (1955). We give trial courts great discretion in balancing the prejudicial impact of a photograph against its probative value, and we review their decisions under the abuse of discretion standard. State v. McGhee, 103 N.M. 100, 104, 703 P.2d 877, 881 (1985); State v. Webb, 81 N.M. 508, 510, 469 P.2d 153, 155 (Ct.App.1970). Defendants argue that the photograph actually obscures the true nature of the injuries because the blood and swelling in the photo give the jury a less clear picture of whether the battery occurred in a manner in which great bodily harm could occur. We do not find that argument persuasive. The photograph could have aided the jury in determining whether aggravated battery occurred by illustrating the doctor's testimony and depicting Victim's injuries. " 'Photographs are the pictured expressions of data observed by a witness. They are often more accurate than any description by words, and give a clearer comprehension of the physical facts than can be obtained from the testimony of witnesses.' " Carlton, 83 N.M. at 648, 495 P.2d at 1095 (quoting Potts v. People, 114 Colo. 253, 158 P.2d 739, 740 (1945)).

In addition, admission has been upheld for far more gruesome and potentially prejudicial and inflammatory photos than the one in the instant case. See State v. Boeglin, 105 N.M. 247, 252-53, 731 P.2d 943, 948-49 (1987) (close-up photos of neck wounds); Valenzuela, 90 N.M. at 28-29, 559 P.2d at 405-06 (three color autopsy photos and one photo of the murder victim at the crime scene). In fact, we are unaware of any case that has reversed a conviction due to...