State v. Sanchez, s. 22064

• Court: Supreme Court of New Mexico
• Citation: 901 P.2d 178,1995 NMSC 53,120 N.M. 247
• Docket Number: 22065,Nos. 22064,s. 22064
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Daniel SANCHEZ and Ronald Sanchez, Defendants-Appellants.
• Decision Date: 26 July 1995

Page 178

901 P.2d 178

120 N.M. 247

STATE of New Mexico, Plaintiff-Appellee, v. Daniel SANCHEZ and Ronald Sanchez, Defendants-Appellants.

Nos. 22064, 22065.

Supreme Court of New Mexico.

July 26, 1995.

[120 N.M. 249] Gary C. Mitchell, P.C., Gary C. Mitchell, Ruidoso, for appellants.

Tom Udall, Attorney General, Jennifer L. Stone, Assistant Attorney General, Santa Fe, for appellee.

OPINION

MINZNER, Justice.

Appellants, Daniel Sanchez and Ronald Sanchez, were convicted of first-degree murder under NMSA 1978, Section 30-2-1(A) (Repl.Pamp.1994), attempted first-degree murder with a firearm enhancement under NMSA 1978, Section 30-28-1(A) (Repl.Pamp.1994), and conspiracy to commit first-degree murder under NMSA 1978, Section 30-28-2(A) (Repl.Pamp.1994) and sentenced to life imprisonment under NMSA 1978, Section 31-18-16 (Repl.Pamp.1994). On appeal, they contend that the trial court improperly denied their request to replace a juror, declare a mistrial, or order a new trial after defense counsel realized the juror's sister, a victims' advocate employed by the prosecuting attorney's office, was sitting with the victims' family during the trial. Appellants also contend that the trial court erred in denying their motion for a continuance that they requested in order to obtain expert testimony regarding the blood alcohol level of one of the victims and that the prosecutor made improper statements during rebuttal closing argument. Finally, they contend that they were denied effective assistance of counsel. We note jurisdiction under SCRA 1986, 12-102(A)(2) (Repl.Pamp.1992), and affirm.

FACTS

Appellants were charged with shooting Ernest Charles Lovato and Vicente Lovato. According to evidence presented at trial, Appellants, after hearing about a fight between their uncle and the Lovatos, drove to Ernest Lovato's home; there Appellant Ronald Sanchez shot and killed Ernest Lovato, and Appellant Daniel Sanchez shot and seriously injured Vicente Lovato.

The crimes occurred in Valencia County, but due to a change of venue, Appellants' trial took place in Cibola County. Prospective jurors submitted completed questionnaires prior to trial. One juror, responding to the questionnaire, stated that her sister worked for the Cibola County district attorney's office. Later, responding to the trial court's questions about whether the panel members knew the district attorneys from both Grants and Los Lunas who were involved in the case, the prospective juror stated that she knew Ted Howden, one of the prosecutors, because her sister worked in his office. During voir dire, defense counsel did not question the prospective juror about her answers to the questionnaire, nor did defense counsel further inquire about the prospective juror's relationship to any of the district attorneys involved in the case. Defense counsel did not exercise a peremptory challenge to the juror, nor did they object to her presence on the jury at any time during the trial.

The prosecution's case included testimony by Dr. David Shammel, the pathologist from the Office of the Medical Investigator, who performed the autopsy on Ernest Lovato and testified that at his death he had a blood alcohol level of 0.160%. In addition, Vicente Lovato testified that he and his brother had gone to a local bar, were involved in a fight, and had just parked in the driveway of Ernest's home when Appellants pulled into the driveway. According to Vicente's testimony, Ronald Sanchez fired several shots through the driver's side door, killing Ernest, and Daniel Sanchez fired at Vicente, hitting him in the shoulder. On cross-examination, Vicente testified that he and his brother each consumed only part of two beers. The final witness for the prosecution was Dr. Turner Osler, who operated on Vicente the night he was shot. Dr. Osler testified by video deposition, and his report was admitted without objection at the time the jury heard his video deposition.

After the prosecution rested and following the testimony of the first defense witness, Appellants moved for a continuance so that they could obtain expert testimony to explain the meaning of a sentence in Dr. Osler's report. The sentence, stating "ETOH level is 90," indicated Vicente's blood alcohol content at the time Dr. Osler treated him. The trial court denied the motion, ruling that defense counsel could use a medical treatise to interpret the sentence.

Appellants testified in their own defense, denying that they had committed the offenses charged or that they were present when the victims were shot. Members of their family testified that they were in a town several miles away at the time of the shootings. Renee Sanchez, the wife of Appellant Ronald Sanchez, testified that their automobile had a bad battery and could not have been the automobile Vicente saw.

During closing argument, the prosecutor asked the jury to consider the lack of corroborating evidence to support Appellants' evidence of a bad battery. The prosecutor also argued that Appellants had neither presented evidence nor questioned Dr. Osler about Vicente's blood alcohol level. Appellants objected to both questions on the basis that they improperly shifted the burden of proof. The trial court overruled the objections.

After the jury retired to deliberate, a local law enforcement officer advised defense counsel that the juror's sister was employed by the district attorney's office as a victims' advocate and had sat with the victims' family throughout the trial. On the second day of the jury's deliberations, defense counsel requested that the trial court interview the juror to determine whether she had obtained any information from her sister regarding the case and whether seeing her sister sitting with the victims' families had affected her ability to be impartial. The trial court denied Appellants' motion. Appellants then moved to have the juror replaced with an alternate juror and, in the alternative, for a mistrial. The trial court denied both motions, stating that Appellants had waived the issue and that alternates were not available because they had been dismissed when the jury began to deliberate. Appellants raised this issue again in a motion for a new trial, which the trial court denied.

JUROR BIAS

Appellants argue that the juror was biased and, as a result, they were deprived of their constitutional right to a fair and impartial jury. An accused is constitutionally entitled to a fair and impartial trial. State v. Sacoman, 107 N.M. 588, 593, 762 P.2d 250, 255 (1988). However, a defendant may waive objection for possible juror bias by failing to discover the possible bias. See State v. McGough, 536 So.2d 1187 (Fla.Dist.Ct.App.1989).

In United States v. Diaz-Albertini, 772 F.2d 654 (10th Cir.1985), cert. denied, 484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 45 (1987), the court determined that the defendant had waived any objection to the participation of a juror who had close relationships to the state police. Prior to the impaneling of the jury, defense counsel had been put on notice about the prospective juror's relationship with the state police, yet took no action to remove the juror from the panel. The court held that "[w]hen the basis for a challenge to a particular juror can be timely shown, the failure to object at the trial's inception constitutes a waiver of the right to attack the composition of the jury." Id. at 657. The court further held that in addition to situations where a juror's misconduct is at issue, this proposition applies in those cases where a defendant is on notice, prior to trial, about a juror's possible bias. Id.; see also United States v. Uribe, 890 F.2d 554, 560 (1st Cir.1989) ("A sentient defendant, knowledgeable of a possible claim of juror bias, waives the claim if he elects not to raise it promptly.").

We believe that the principles articulated in Diaz-Albertini apply in this case. It is undisputed that the juror revealed the nature of her sister's employment both on her jury questionnaire and in response to the trial court's inquiries. At no time did defense counsel further inquire into the matter. We believe that by failing to question the juror during voir dire, Appellants waived any objection to the juror's participation in the trial.

Appellants now argue that defense counsel assumed the juror's sister would not be involved in the trial because she worked for the district attorney in Grants and because Appellants' trial originated in Los Lunas. We do not find this fact persuasive. One of the defense lawyers indicated that he knew the juror's sister, knew that she worked for the prosecutor in Grants, and had seen her in the courtroom sitting with the victims' family. Although he also indicated he had not realized either that the woman he knew was the sister to whom the juror referred or that the woman he knew was the victims' advocate, we are persuaded Appellants had enough information to explore actual bias. The trial court was entitled to conclude that Appellants were aware of the juror's relationship, had decided that it did not merit concern, but had subsequently changed their trial strategy. At the point the issue was raised, the trial court was entitled to conclude that Appellants had waived any objection to the juror based on her sister's role during trial. A defendant cannot be permitted to "escape the consequences of his earlier knowledge [of possible juror bias] or to reverse his previous position simply because he gambled and lost." Uribe, 890 F.2d at 560.

Even though Appellants waived any challenge to the juror's participation in the trial, they arguably would be entitled to a new trial if, because of her relationship to a participant in the trial, the juror's bias could be implied. In Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982), the United States Supreme Court rejected the idea of implied bias of a juror, and instead reaffirmed that "the remedy for allegations...