State v. Romero

• Decision Date: 14 August 1974
• Docket Number: No. 1209,1209
• Citation: 1974 NMCA 90,86 N.M. 674,526 P.2d 816
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joey Jacob ROMERO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 816

526 P.2d 816

86 N.M. 674

STATE of New Mexico, Plaintiff-Appellee, v. Joey Jacob ROMERO, Defendant-Appellant.

No. 1209.

Court of Appeals of New Mexico.

Aug. 14, 1974.

Certiorari Denied Sept. 10, 1974.

John C. Wheeler, Wheeler & Poulson, Albuquerque, for defendant-appellant

David L. Norvell, Atty. Gen., Jay F. Rosenthal, Sp. Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Convicted of second degree murder contrary to § 40A--2--1(B), N.M.S.A.1953 (Repl.Vol.1972) defendant appeals asserting three grounds for reversal which relate to: (1) defendant's statement; (2) police informant; and, (3) shotgun instruction.

Defendant's Statement

Detective Conley learned in an unrelated interview that the defendant was a possible suspect in a three year old homicide. Thereafter, Detectives Ness and Conley proceeded to defendant's place of employment where they interviewed him in an office on the premises.

Detective Conley stated at trial that during the interview defendant admitted shooting deceased and after the admission was given his advice of rights. Detective Ness also stated at trial that at the time they went to interview defendant he and Conley were merely investigating a crime and were in no position to accuse the defendant of a crime. Ness then stated that when defendant made a verbal confession he immediately told defendant that '. . . we would like to advise him of his rights 'as of now due to the fact that . . . (he) admitted to a crime here,' and we did so advise him of his rights verbally.' (Emphasis added). Defendant was then taken to police headquarters and gave a written confession after signing an Advice of Rights Form.

After the foregoing testimony defendant's attorney made the following statement to the court out of the presence of the jury.

'I'm not sure what my motion ought to be because I am caught by surprise. I wish to inform the Court that I declined to file a motion to suppress the statement in this case, because my pretrial investigation revealed that the Defendant made no incriminating statements prior to the time that his advice of rights was given. The Defendant, quite frankly, did not remember anything about the sequence of events. He was only eighteen years old at the time and didn't know the law. He didn't even know his rights, for that matter, and so I had to resort to other parties to try to find out if the procedures had been properly administered, so I spoke to Detective Ness, who I determined was in charge of the case.

'I took a tape-recorded interview of the statement, and I was advised by him that no incriminating statements were made prior to the advice of rights.'

Defendant's motion for a mistrial was denied. Defendant's attorney then requested and was granted permission to play a portion of the taped interview with Detective Ness. During that interview Ness stated:

'. . . we advised Mr. Romero who we were, and that we were investigating the homicide involving a Mr. Richard Cordova, explained the circumstances of how Cordova died, and asked--not really asked Romero, we just talked to him. After we explained to him why he was there and everything, he more or less--he indicated then that he possibly knew something about it at that time. So I felt at this time that we better advise him of his rights because rather--we weren't actually being accusatory at this time, but it was coming to the point where I thought it would be best to advise him of his rights verbally at this time, which we did. And then we asked him more questions about it, and he stated that he had done it and felt--he blurted out, he said, 'I was going to tell you before', but he just never got around to it. And we advised him we would take him downtown.' (Emphasis added)

Defendant's motion to suppress was denied. Defendant then made a '. . . motion for a delay in the trial of twenty-four hours while I investigate the facts in this further and present additional evidence . . ..' The court then stated:

'. . . I'm going to deny that, too. After this witness testifies, you will have until tomorrow morning when we reconvene, and you can try and locate whatever you need by then. If you can't, advise the Court and we will decide at that point whether you need additional time.'

The statement was then read to the jury and admitted into evidence.

Shortly thereafter the court recessed for the evening. When it reconvened the next day defendant offered no additional evidence nor did he request any additional time.

Defendant's subsequent testimony essentially reiterated the story contained in the written statement--that he shot decedent but it was a matter of self-defense. Defendant testified he had no recollection of when the police advised him of his rights. Further, the jury was instructed on the issue of voluntariness of the confession.

We believe that the cases of State v. Barnett, 85 N.M. 301, 512 P.2d 61 (1973) and Milton v. Wainwright, Corrections Director, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) control. They stated, under comparable circumstances, that if any error was committed it was harmless.

Identity of Informant

Failure to disclose the identity of an informant is prejudicial error only where the individual's right to prepare his defense outweighs the public interest in protecting the flow of information to the police. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Baca, 84 N.M. 513, 505 P.2d 856 (Ct.App.1973). In this case we find no such prejudicial error.

Officer Conley testified that, to the best of his knowledge, the informant was not an eye-witness to the shooting. In Roviaro, supra, where the court reversed on this issue, the informant was an eye-witness. Additionally, in that case a statement by the informant was introduced into evidence and the informant purportedly admitted to a government witness that he had never seen the defendant before. In the instant case there is no indication that the informant had any relevant information other than that the defendant was a 'possible suspect' in the case. Finally, in Roviaro, supra, the defendant did not take the stand. The informant was the only other possible witness to defendant's involvement. That is not true here where defendant testified fully. In sum the interest of the present defendant in preparing his defense does not counterbalance the state's interest in maintaining the anonymity of the informant. See State v. Baca, supra, and State v. Rodriquez, 84 N.M. 60, 499 P.2d 378 (Ct.App.1972).

Shotgun Instruction

The jury first retired at 5:00 p.m. They went to supper at 8:25 p.m. and returned at 9:10 p.m. The 'shotgun instruction' was given at 9:55 p.m. The jury returned its verdict of guilty at 10:45 p.m.

Subsequently, defendant filed a motion for acquittal or new trial which was denied. Paragraph 6 of the motion read as follows:

'6. After the Jury had deliberated for some time and had been to supper, the Court on its own Motion returned the Jury to the Courtroom. No Reporter was present. The Court inquired as to the numerical division of the Jury if it could reply without disclosing which side was prevailing. The Foreman replied that he could not so disclose without indicating the state of the deliberations. Thereafter, the Court delivered an additional instruction in the nature of a 'shotgun instruction'. Within 50 minutes, the Jury returned a verdict of Second Degree Murder. Defendant objects to this procedure. . . .'

The shotgun instruction given states:

'To aid you in the further consideration of the case, I instruct you that, although the verdict to which a juror agrees must, of course, be his own verdict, result of his own convictions, not mere acquiescence in the conclusions of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you calmly, dispassionately and candidly, with a proper regard and deference to the opinions of each other. In a large proportion of cases absolute certainty cannot be expected.

'You should consider that the case must at some time be decided by a jury; that you are selected in the same manner and from the same source which any future jury must be, and there is no reason to suppose that this case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it, or that more and clearer evidence will be produced on the one side or the other. And with this in view, it is your duty to decide the case if you can conscientiously do so.

'In conferring together, you ought to pay proper respect to each other's opinions; and listen, with a disposition to be convinced, to each other's arguments; and if the larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one that makes no impression on the minds of so many men, equally honest, equally intelligent, with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.

'And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to, doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated, and distrust the weight and sufficiency of that evidence which fails to carry conviction to the minds of their fellow jurors.'

Defendant asserts three contentions under this point: (1) the trial court recalled the jury on its own motion to ask for the numerical division; (2) no reporter was present to report the exchange between the trial court and the jury foreman; and, (3) the instruction was untimely given.

First, assuming the judge erred in asking for a numerical division of the jurors, such error was harmless. As indicated in defendant's own motion the foreman did not give...