State v. Rodriguez

• Decision Date: 31 October 1969
• Docket Number: No. 10377,10377
• Citation: 460 P.2d 711,93 Idaho 286
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Nicolas RODRIGUEZ, Jr., Defendant-Appellant.
• Court: Idaho Supreme Court

Page 711

460 P.2d 711

93 Idaho 286

STATE of Idaho, Plaintiff-Respondent, v. Nicolas RODRIGUEZ, Jr., Defendant-Appellant.

No. 10377.

Supreme Court of Idaho.

Oct. 31, 1969.

Denman, Reeves & Oksendahl, Idaho Falls, for appellant.

Robert M. Robson, Atty. Gen., and Mack A. Redford, Deputy Atty. Gen., Boise, Grant L. Young, Pros. Atty., Rigby, for appellee.

DONALDSON, Justice.

The defendant (appellant) Nicolas Rodriguez, Jr., was convicted of both murder in the first degree and assault with a deadly weapon with intent to commit murder and sentenced to life imprisonment on the murder charge and to five years imprisonment on the assault charge with the two sentences running concurrently. Appellant's motions for a mistrial and for a new trial were denied and the appellant has appealed to the Supreme Court from the judgment of conviction and the denial of his motions.

The evidence reveals that a quarrel was about to take place between the appellant and Andres Garza Cantu, the deceased victim's brother. However there is a conflict in the testimony with respect to whether the appellant challenged Cantu or Cantu challenged the appellant. For the purpose of preparing to fight fairly against Andres Cantu, the appellant gave his gun, which he kept to protect himself from death threats made by his wife's cousins, to his brother-in-law, Lopez. Lopez then handed the gun to one Thain Waston, a barber who had momentarily entered the barroom from his adjoining shop when he heard a fracus erupt in the barroom. Watson then placed the gun in a drawer located in his barber shop.

The appellant's brother-in-law, Lopez, was then struck by Guerra, the deceased victim. Lopez had recently undergone back surgery and still suffered pain at the time of the provocation by the deceased victim. Lopez was knocked to the floor, kicked, and threatened by the victim.

The appellant attempted to stop the fight by shouting and throwing a pool ball and beer bottle at the victim. The victim's brother, Cantu, chased the appellant out of the bar with the leg of a chair while the victim continued to kick and threaten the life of the appellant's disabled brother-in-law. The appellant then went to the barber shop and obtained his gun because he thought that if he entered the bar with the gun, he would probably scare his brother-in-law's aggressors and be able to remove his brother-in-law from the bar with safety.

As appellant was attempting to pick his brother-in-law up from the barroom floor, Guerra and Cantu advanced toward the appellant allegedly to take his gun away. Appellant started shooting when the two men were between three and five feet from him and killed Guerra and wounded Cantu.

An information was filed charging the defendant (appellant) with assault with intent to commit murder (Count I) and murder (Count II). On December, 6, 1968, after a trial on both counts, a jury returned a verdict of guilty of murder in the first degree on Count I and guilty of assault with intent to commit murder on Count II. The court then discharged the jury. On December 11, 1968, 5 days later, the court recalled the jury form the purpose of correcting such verdicts. The jury retired without having been sworn and returned verdicts of guilty of assault with intent to commit murder on Count I and guilty of murder in the first degree on Count II.

Appellant assigns as errors numerous irregularities which occurred in the conduct of the trial, viz., failure to swear the bailiff, permitting the jury to separate, returning a verdict without appellant's counsel being present and given an opportunity to poll the jury and recalling the jury after it had been discharged to correct the verdict. In addition appellant raises several evidentiary objections as well as objections to the court's refusal to give certain requested instructions. A murder charge with death as a possible penalty is the most serious charge that can be made and the conduct of the trial deserves the closest scrutiny to determine whether all the defendant's rights were protected and whether or not he received a fair trial. While any one of the errors in the conduct of the trial standing alone might not constitute grounds for reversal or for a new trial, it is our opinion that the cumulative effect requires the court to reverse and grant the defendant (appellant) a new trial. In addition there is at least one serious evidentiary error which requires reversal.

Appellant's first assignment of error concerns the failure to have the bailiff sworn. The statutory requirement ¹ that the bailiff be sworn to keep the jury together in a murder trial was enacted to guarantee defendant a fair and impartial trial.

The record does not reflect that the bailiff was sworn prior to placing the jury in his custody. Whatever is essential in a criminal proceeding to deprive a person of his liberty must appear of record and nothing is taken by intendment or implication. Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891).

The mere claim that the oath was given is not sufficient to resolve the matter. ²

'A record is constituted of proper and legitimate elements set down in their order; for it is certainly not the law that all the gossip a clerk or prothonotary writes down in his docket, ipso facto becomes the voice of undeniable truth. The judges of a court of error must determine for themselves, and consequently on facts, instead of sweeping assertions.' Hamilton v. Commonwealth, 16 Pa. 129 at 133 (1851) as quoted by the United States Supreme Court in Ball v. United States, Supra.

The Idaho statute speaks in mandatory terms and this court therefore holds that the record must affirmatively show that the bailiff was sworn. Whether this constitutes prejudicial error depends on the circumstances of the case and what was the jury's conduct during recess. This then brings us to appellant's next assignment of error regarding the separation of the jury and their association with the State's witnesses. Where the defendant in a murder case shows the jury have separated after having been sworn to try the case, he has made a sufficient prima facie showing to entitle him to a new trial and to shift the burden onto the state of showing clearly and beyond reasonable doubt that nothing transpired during such separation or on account thereof that did or could prejudice the defendant in any of his rights. State v. Sly, 11 Idaho 110, 80 P. 1125 (1905). The record indicates that during a recess the jurors were joined for lunch by one of the State's witnesses and conversed with him. The court does not approve of this conduct, but realizes under certain circumstances, as where there is only one eating establishment in town, such contacts are practically unavoidable. In this case the evidence reveals that the conversation that transpired did not relate to any subject related to the trial. We therefore hold that the state met its burden and decide such contact was harmless.

In Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) the United States Supreme Court considered a related problem and held that close and continuous association between key witnesses and the jury deprived the petitioner of the right to trial by an impartial jury which the Due Process Clause of the Fourteenth Amendment requires. However the court clearly emphasized the fact that, 'We deal here not with a brief encounter, but a continuous and intimate association throughout a three-day trial.' 379 U.S. 466 at 473, 85 S.Ct. 546 at 550 (1965).

We find a passage enunciated by this court in State v. Sly, supra, particularly applicable to the questions presented by appellant's first and second assignments of error.

'These slipshod methods are allowed to go on unrebuked and then on appeal this court is asked to overlook a multitude of violations of the statute in order to avoid the necessity of new trials.' State v. Sly, supra, 11 Idaho, at 122, 80 P., at 1129.

Turning now to the question of whether or not the trial court erred in admitting evidence of appellant's failure to have secured a gun permit, it is our opinion that it was error to allow into evidence this testimony. Such evidence was completely irrelevant to the crime for which Rodriguez was on trial. The prosecution is not permitted to introduce evidence of other crimes in criminal prosecutions. State v. Blank, 33 Idaho 730, 197 P. 821 (1921). While there are certain well defined exceptions to this rule, the evidence here in question did not fall within one of them.

Appellant asserts that the court's refusal to allow him to read to the jury from material used on the stand by a witness to refresh his memory pursuant to § 9-1204 of the Idaho Code ³ constituted error. However the particular documents used to refresh the witness' memory was only one of several contained in a file. The entire file and all the documents contained therein were not subject to the scrutiny of the adverse party. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202 (1950). The document which appellant desired to read to the jury was a F.B.I. report which the witness had not read on direct examination Thus there was no error committed by the district court.

Appellant claims the court erred by refusing to give requested instruction No III. ⁴ This instruction is not a correct statement of the law of self-defense in a homicide case. It is based on I.C. §§ 19-202 and 19-203 which gives one the right to use resistance sufficient to prevent the offense. The law relevant to self-defense in a homicide case is I.C. § 18-4009. ⁵ Essentially this permits self-defense with a deadly weapon only where the accused has reasonable cause to believe, and does believe, he is in danger of great bodily injury or where the person being defended is in similar danger. State v. Wilson, 41 Idaho 616, 243 P. 359 (1925). Therefore the proposed instruction was incorrect since it did not include the statutory requirement of 'great...