State v. Robinson

Decision Date14 April 1980
Docket NumberNo. 12483,12483
Citation616 P.2d 406,1980 NMSC 49,94 N.M. 693
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Wayne Jeffrey ROBINSON, Defendant-Appellant.
CourtNew Mexico Supreme Court
Jack Smith, Stephen C. M. Long, Albuquerque, for defendant-appellant
OPINION

FELTER, Justice.

Defendant, Robinson, was convicted under Count I of murder in the first degree; Count II of murder in the first degree; and Count III of aggravated battery with a firearm. He was sentenced to consecutive terms of life imprisonment upon each of Counts I and II and a term of not less than seven years nor more than fifteen years upon Count III. The Count III sentence was made consecutive to the Count I sentence, but concurrent with the Count II sentence.

Five issues are presented on appeal. The essential facts will be developed within the discussion of each of these issues.

I. Whether the court erred in denying the defendant's motion for a change in venue?

II. Whether the court erred in denying the defendant's motion for a directed verdict upon the charge of first degree murder of Tim Walker?

III. Whether the court erred in admitting the testimony of Kathy Miller under exceptions to the hearsay rule?

IV. Whether the Court erred in refusing defendant's requested jury instructions relating to character evidence and alibi?

V. Whether the court erred in refusing to instruct the jury upon voluntary manslaughter as a lesser included offense?

We affirm the judgment and sentence of the trial court.

I.

In support of his motion for a change of venue, the defendant filed his affidavit or jurat to the motion and presented the testimony of three witnesses. After hearing argument on the motion, the court deferred final decision on the motion in order to consider the voir dire of jurors and determine whether the jurors had formed an opinion as to the guilt of the defendant. In so doing, the court stated that certain fair trial protections from prejudicial publicity can be afforded a defendant, one of which is sequestration of jurors if requested.

Defendant filed a motion to reconsider the change of venue motion, based, inter alia, upon news accounts of the court's decision to sequester the jury in the case. Again the court deferred final decision on the motion and reiterated the intention to employ "extra-ordinary precautions" by means of voir dire of jurors to ensure a fair trial and an impartial jury. No evidence was presented in support of the "Motion to Reconsider Change of Venue Motion". It was supported only by argument of counsel.

Based upon questions submitted by both parties, the trial court exclusively conducted the initial screening process of 123 venire persons. This process was conducted by dividing the panel into groups of twelve, and the court made clear its intention of excluding sua sponte any prospective juror who had formed an opinion as to the innocence or guilt of the defendant, without further inquiry as to the particulars of such predilection.

No error is predicated upon a failure to excuse any prospective juror whose responses manifested any kind of taint from pre-trial publicity or otherwise. Error is predicated entirely upon the posture of the request for a change of venue prior to voir dire, coupled with a claim that prospective juror responses on voir dire of those not excused were not reliable and assurances by them were insufficient to protect the defendant's right to a fair trial. The Court of Appeals held in State v. Lunn, 88 N.M. 64, 537 P.2d 672 (Ct.App.1975), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 793, 46 L.Ed.2d 648 (1976), that a change of venue need not be granted as a matter of right upon an affidavit in support of a motion for a change of venue. It is for the trial court to determine whether further evidence on the motion should be required. Subsequently, in State v. Sierra, 90 N.M. 680, 568 P.2d 206 (Ct.App.1977), cert. denied, 91 N.M. 4, 569 P.2d 414 (1977), the court held that where the trial court did not make a final ruling on a motion for change of venue until after voir dire of the jury, voir dire is evidence to be used by the trial court in reaching its decision. Such a decision thus made will not be disturbed on appeal absent an abuse of discretion by the trial court. See also Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969); State v. Fernandez, 56 N.M. 689, 248 P.2d 679 (1952); State v. Alaniz, 55 N.M. 312, 232 P.2d 982 (1951); State v. Evans, 85 N.M. 47, 508 P.2d 1344 (Ct.App.1973).

We cannot find an abuse of discretion by the trial court in not granting a change in venue.

II.

The motion for a directed verdict of acquittal on the charge of first degree murder of Tim Walker is directed to the sufficiency of the evidence to establish a prima facie case supporting the charge. The narrow question thus presented in this case is whether there is substantial evidence to show deliberate intent to take the life of the deceased, Tim Walker.

In ruling on a defense motion for a directed verdict, the evidence must be viewed in the light most favorable to the State. State v. McKay, 79 N.M. 797, 450 P.2d 435 (Ct.App.1969). And a verdict of not guilty should be directed only when there are no reasonable inferences or sufficient surrounding circumstances from which to infer intent. State v. Manus, 93 N.M. 95, 597 P.2d 280 (1979). A directed verdict is not proper where there is substantial evidence to support the conviction. State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979). Substantial evidence is defined as that evidence which is acceptable to a reasonable mind as adequate support for a conclusion. State v. Manlove, 79 N.M. 189, 441 P.2d 229 (Ct.App.1968), cert. denied, 79 N.M. 159, 441 P.2d 57 (1968). The element of intent involves the state of mind of the defendant, and since it is seldom, if ever, susceptible to direct proof, it may be proved by circumstantial evidence. See State v. Ferrari, 80 N.M. 714, 460 P.2d 244 (1969).

Under the criteria and tests by which the motion for a directed verdict is to be viewed, the evidence supports the following conclusions of fact and inferences. A high speed chase took place where a car similar to defendant's was overtaking a car apparently containing Tim Walker and the other victim. The two cars stopped in front of Walker's home and Walker got out of his car and went over to the other car on the driver's side. He was seen "talking to the driver" or "leaning down like he was talking to someone for a few seconds." A witness, assuming that Walker had been hit by the car he was standing next to, then saw his body fall to the ground, his back toward the ground and his arms and legs still in the air. Medical testimony revealed that at this point Walker had been dealt a nonfatal shot in the chest area. Extensive testimony then showed the defendant turned his car around a cul-de-sac, came back, stopped his car, got out of his car and shot Tim Walker in the head at close range. This was the fatal shot and the circumstances surrounding it give rise to a strong inference of defendant's deliberate intent to kill Walker, not merely to wound him.

Evidence showed that defendant, who killed both Tim Walker and also Christine Hitchcock on the same occasion, had been dating Hitchcock off-and-on for about a year and that they had "broken up" several days before the shootings. Defendant did not know Walker, nor did he know that Walker had started dating Hitchcock shortly before the killings. The following, coupled with all the other circumstances, further indicate time for deliberation: time lapse between the first shot and the fatal shot; the manual functions necessarily indulged by the defendant in operation of his bolt-action rifle (the murder weapon); and the act of getting out of his car and aiming at Walker's head.

In State v. Lucero, 88 N.M. 441, 541 P.2d 430 (1975), defendant was convicted of first degree murder. He appealed, claiming that the evidence was insufficient to support his conviction because he did not have sufficient time to weigh his actions and consider their consequences. In rejecting defendant's claim and affirming his conviction this Court stated, inter alia :

Although a deliberate intention means an intention or decision arrived at after careful thought and after a weighing of the reasons for the commission of the killing, such a decision may be reached in a short period of time. Here there is evidence clearly supporting a deliberate intention on the part of Lucero to kill decedent as well as decedent's wife. Although he was receiving no treatments at El Vicio, Lucero went there armed with a loaded pistol, which was concealed on his person; there was a suspected informer or informers among the group who patronized El Vicio; Sena, with whom Lucero lived, was a member of this group; Sena and decedent's wife, in the presence of Lucero, exchanged some unpleasant words; Lucero then charged decedent with being a "rat"; decedent asked Lucero why he was called a "rat"; and Lucero thereupon drew his gun and proceeded to shoot both decedent and his wife.

Id. at 443, 541 P.2d at 432.

Likewise, in the instant case there is evidence clearly supporting a finding of deliberate intention to kill Walker. See also State v. Hall, 40 N.M. 128, 55 P.2d 740 (1935); Torres v. State, 39 N.M. 191, 43 P.2d 929 (1935). The error claimed from denial of directed verdict as to the first degree murder of Tim Walker is without merit.

III.

On the day that Christine Hitchcock was killed by the defendant she went to her choral music class, taught by Carolyn Wade, just before 1:00 P.M. Christine appeared upset and not her normal self, according to the testimony of Ms. Wade. At the class Kathy Miller, Christine's best friend, also noticed that Christine was not herself. Kathy Miller testified that Christine was trembling and pale, literally...

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