State v. Ramming

• Court: Court of Appeals of New Mexico
• Writing for the Court: BIVINS
• Citation: State v. Ramming, 738 P.2d 914, 106 N.M. 42, 1987 NMCA 67 (N.M. App. 1987)
• Decision Date: 12 May 1987
• Docket Number: No. 9277,9277
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John W. RAMMING, Defendant-Appellant.

Page 914

738 P.2d 914

106 N.M. 42

STATE of New Mexico, Plaintiff-Appellee, v. John W. RAMMING, Defendant-Appellant.

No. 9277.

Court of Appeals of New Mexico.

May 12, 1987.

Certiorari Denied June 17, 1987.

[106 NM 43] Nancy Hollander, John W. Boyd, Freedman, Boyd & Daniels, P.A., Albuquerque, for defendant-appellant.

Hal Stratton, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Convicted of multiple counts of kickbacks, fraud, racketeering and conspiracy, defendant appeals. During the pendency of the appeal, then Governor Toney Anaya issued an executive order granting defendant a pardon for all counts except one count of conspiracy. Defendant has expressly abandoned his appeal as to all counts for which he received a pardon. Thus, he appeals from his conviction for conspiracy; any appeal from other convictions is dismissed. We affirm the conviction and sentence for conspiracy.

We state the facts and discuss (1) preliminary matters; (2) whether the trial court erred in failing to grant defendant a severance; (3) whether reversal is required because of a prosecutor's comment during closing argument; (4) whether the trial court erred in admitting summary documents into evidence; and (5) whether defendant's issue concerning the trial court's communication with a prospective juror requires reversal.

FACTS

The evidence reflects that in 1984 and 1985 a contractor, Richard Rowand, and his company, CRW Development Corporation, received $2,800,000 in state money for construction of various disaster projects. An engineer, Levi Valdez, and his company, Valdez Engineering Company, also received state money for work done on some of the projects. The monies were provided after the governor issued disaster declarations.

The evidence showed that each of the projects had its own problems. Some were not genuine disasters or emergencies. In some, there were excessive change orders. In some, the work done was unnecessary; in others, it was simply shoddy; in others, it was not done at all. No one seems to dispute that Rowand cheated the state out of hundreds of thousands of dollars.

The proceedings below concerned defendant, the governor's authorized representative, who recommended to the governor when and where to issue disaster declarations, and Pete Mondragon, who worked in the Civil Emergency Preparedness Division, administering the disaster funds. Rowand was defendant's friend; Valdez was Mondragon's friend.

During the time the contracts were being awarded for the projects and the work was being performed, defendant received $15,000 from Rowand. A friend of defendant received $14,000. Defendant characterized these as loans. During the same time, Mondragon and his daughters received a number of vehicles from Rowand. Mondragon, too, characterized them as loans.

The state had charged that each defendant aided and abetted the frauds committed in connection with each project. The state also charged bribery, kickbacks, racketeering and conspiracy. Defendant and Mondragon were tried together. Each defendant was convicted of fraud in connection with all projects but one; each defendant was also convicted of conspiracy, racketeering and bribery or kickbacks or both.

1. Preliminary Matters

Defendant's original docketing statement raised thirteen issues and some of those had subissues. In addition, defendant has amended his docketing statement and attempted to amend it to raise other issues. We recite the procedural posture of the appeal because our discussion of it disposes of all issues except the four we discuss later.

In response to the original docketing statement, this court issued a calendaring notice proposing summary affirmance. Defendant filed a memorandum in opposition and motion to amend the docketing statement. The memorandum in opposition abandoned all original issues except for three: (1) the severance issue; (2) the issue concerning the summary documents; and (3) the issue concerning the closing argument comment. See State v. Martinez, 97 N.M. 585, 642 P.2d 188 (Ct.App.1982). The memorandum also argued a fourth issue (concerning the racketeering instruction) raised in the motion to amend, which we granted.

Our second calendaring notice also proposed summary affirmance. In response, defendant filed a second motion to amend the docketing statement to raise an issue concerning the alleged erroneous admission into evidence of hearsay. Specifically, defendant alleged that the trial court erred in allowing one of Mondragon's daughters to testify that Rowand and Mondragon asked her to say that Rowand gave her a vehicle during an affair she had had with him. We denied the motion to amend because the rules do not contemplate that a defendant may amend his docketing statement to raise a new issue each time this court grants a previous motion to amend and proposes summary affirmance. See State v. Smith, 102 N.M. 350, 695 P.2d 834 (Ct.App.1985). After receiving defendant's memorandum in opposition to our second calendaring notice, we reassigned this case to the limited calendar.

Following our assignment of this case to the limited calendar, defendant filed yet another motion to amend his docketing statement, together with a motion to file a supplemental transcript of the proceedings relating to the issue with which he wanted to amend his docketing statement at that time. Appellate counsel, who was different than trial counsel, had learned that, after the jury was selected, but before it was sworn, a juror had had a conference with the trial court.

At the time defendant filed his motion to amend the docketing statement to raise the issue of the trial court's conversing with the juror in defendant's absence, and his motion for a supplemental transcript, this court entered an order providing that the transcript could be filed conditionally and that defendant could brief the issue of whether the trial court erred by holding the conference. This order reserved deciding whether to allow the docketing statement amendment and the filing of the supplemental transcript until the time the case was finally decided. Our order setting forth this procedure stated the court was concerned that allowing the docketing statement amendment and supplemental transcript would contravene cases holding that unauthorized transcripts are not entitled to consideration, State v. Robertson, 90 N.M. 382, 563 P.2d 1175 (Ct.App.1977), and holding that the appellate rules do not allow new appellate counsel to pick through the transcript for possible error, State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.1978).

Defendant's brief argues that our denial of the docketing statement amendment to allow the hearsay issue and our potential denial of the docketing statement amendment to allow the juror issue will deny him his right to due process of law and effective assistance of counsel. Because the transcript has been filed and because both defendant and the state have briefed the juror issue on the merits, we have considered the issue on its merits. See "5. Communication with Prospective Juror ". Further, the case we rely on for our decision on the severance issue also answers defendant's hearsay contention. See "2.Severance ". Because we have decided the merits of the issues and that decision is adverse to defendant, we need not decide the general issue of whether a docketing statement amendment and supplemental transcript request should be granted under circumstances such as are present here.

We note, however, the rules contemplate that meritorious issues will have been raised in the trial court or at least recognized by counsel at the time the docketing statement or initial memorandum in opposition is filed and, accordingly, will be contained in the docketing statement or the first amendment thereto. Indeed, in this case, defendant's new juror issue was not preserved, because it was not raised in the trial court and because it is not within that category of issues that can be raised for the first time on appeal. His hearsay issue is dispositively answered by existing New Mexico case law. The rules do not contemplate that such issues will be the subject of successful motions to amend. State v. Rael, 100 N.M. 193, 668 P.2d 309 (Ct.App.1983). There is nothing unfair or unconstitutional about denying defendant the right to raise non-meritorious issues. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Other issues, which were listed in the docketing statement but not briefed, are abandoned. State v. Romero, 103 N.M. 532, 710 P.2d 99 (Ct.App.1985). Finally, defendant expressly abandons his issue concerning the racketeering instruction because of his pardon on the racketeering count. Thus, defendant agrees with the state that the appeal is moot as to the convictions for which defendant was pardoned. Because of this, we deny defendant's motion to vacate and remand the pardoned counts.

2. Severance

Defendant contends his trial should have been severed from that of co-defendant Mondragon. Defendant moved for a severance on a number of grounds and originally raised those grounds in his docketing statement and memoranda in opposition. Now, however, in his brief, he limits his argument to one specific contention. Thus, grounds other than the one specifically addressed have been abandoned. State v. Romero.

Defendant's specific argument is that the trial court should have granted a severance when defendant objected to the testimony of Mondragon's daughter, Monica Romero. The substance of that testimony was that Mondragon and Rowand asked her to lie about the circumstances surrounding her receipt of a vehicle from Rowand. The vehicle was titled in her name. They asked her to tell investigators that the gift of the vehicle was a result of an affair she had had with Rowand.

Following a bench conference on this issue, the trial court instructed the jury as follows:

Ladies and...