State v. Seaton

• Decision Date: 23 August 1974
• Docket Number: No. 9927,9927
• Citation: 1974 NMSC 67,86 N.M. 498,525 P.2d 858
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Terry W. SEATON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 858

525 P.2d 858

86 N.M. 498

STATE of New Mexico, Plaintiff-Appellee, v. Terry W. SEATON, Defendant-Appellant.

No. 9927.

Supreme Court of New Mexico.

Aug 23, 1974.

Dow & Feezer, Charles A. Feezer, Leonard T. May, Carlsbad, for defendant-appellant.

David L. Norvell, Atty. Gen., Ralph W. Muxlow II, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

OMAN, Justice.

Defendant appeals from his conviction of first degree murder. We affirm.

The first point relied upon for reversal is defendant's claim that the evidence supporting his conviction is so inherently improbable that his conviction amounts to fundamental error. This claimed inherent improbability arises from the fact that there is evidence from which it could be found defendant was in Clovis, New Mexico, at about 1:00 a.m. on May 19, 1971; drove from there to Portales where he and a companion stopped for gasoline; then drove to Roswell where they stopped for at least thirty minutes; drove from there to Carlsbad where he and his companion both lived; unloaded some stolen clothing; walked about 2,000 feet to a bakery which he twice entered; mutilated and killed the baker; removed the cash register from the bakery at some time around 4:00 a.m.; and he and his companion then drove outside the city where the cash register was broken open and the money removed therefrom some time before 4:30 a.m., when the cash register was found by a farmer residing in the area. The distance between Clovis and Carlsbad is slightly more than 200 miles. However, there is also evidence that defendant and his companion burglarized a clothing store in Clovis between 10:00 p.m. and midnight on May 18; that they then left at about midnight to make the trip to Carlsbad as above related, and arrived in Carlsbad at about 4:00 a.m.; defendant was seen coming out of the bakery on two occasions by his companion between 4:00 and 5:00 a.m.; on the second occasion defendant was carrying the cash register, which he loaded into his Cadillac Eldorado automobile, which had been driven to and parked near the bakery by the companion at defendant's direction; defendant admitted to his companion that he had killed decedent and mutilated his body with a razor while inside the bakery; another witness, who knew defendant and his companion well, saw the defendant coming out of the bakery and the companion sitting in defendant's automobile, which was parked by the bakery, at some time between 4:00 and 5:00 a.m.; and the death of decedent occurred between 4:00 and 5:00 a.m.

Regardless of the inconsistencies in the testimony of witnesses as to estimated times, and the suggested improbability of defendant accomplishing all he did accomplish during the eventing and early morning hours of May 18 and 19, there is positive and overwhelming evidence that defendant did kill decedent and multilate his body between 4:00 and 5:00 a.m. on May 19.

In support of his claim of inherent improbability, defendant relies particularly upon State v. Garcia, 19 N.M. 414, 143 P. 1012 (1914); State v. Taylor, 32 N.M. 163, 252 P. 984 (1927); State v. Armijo et al., 35 N.M. 533, 2 P.2d 1075 (1931); State v. Maestas, 76 N.M. 215, 413 P.2d 694 (1966). He can find no particular comfort in our decisions in those cases.

He quotes at length from the opinion on rehearing in State v. Garcia, supra, beginning at page 421 of 19 N.M. and page 1014 of 143 P. However, in that case the stated basis for the reversal of the conviction of Francisco Garcia was:

'* * *. A man has been convicted and sentenced to imprisonment for a term of years where there is, not only no evidence to support the verdict, but where the evidence conclusively establishes his innocence. * * *'

In the case now before us, the evidence in support of the verdict is overwhelming, and the only evidence supporting defendant's claim of innocence is the evidence of alibi submitted by him and some of his close friends.

Defendant relies upon the following language appearing in State v. Taylor, supra, most of which was quoted from the opinion in State v. Armijo, 25 N.M. 666, 187 P. 553 (1920):

'* * * (T)here was not 'a single unequivocal fact, established by a single witness, shown by his examination to be fair and willing and able to tell the truth which pointed unerringly to the guilt of the defendant."

The question of credibility of the witnesses and their testimony is for the jury and not for us to decide. Worthey v. Sedillo Title Guaranty, Inc., 85 N.M. 339, 512 P.2d 667 (1973); Cooper v. Burrows, 83 N.M. 555, 494 P.2d 968 (1972); Durrett v. Petritsis, 82 N.M. 1, 474 P.2d 487 (1970); State v. Hudson, 78 N.M. 228, 430 P.2d 386 (1967); State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966); State v. Fagan, 78 N.M. 618, 435 P.2d 771 (Ct.App.1967); State v. Torres, 78 N.M. 597, 435 P.2d 216 (Ct.App.1967). On appeal from a conviction in a criminal case, the appellate court will only review the evidence to the extent necessary to determine whether the verdict and judgment are supported by substantial evidence. State v. Williamson, 78 N.M. 751, 438 P.2d 161 (1968); State v. McAfee, 78 N.M. 108, 428 P.2d 647 (1967); State v. Kennedy, 80 N.M. 152, 452 P.2d 486 (Ct.App.1969); State v. Sanchez, 79 N.M. 701, 448 P.2d 807 (Ct.App.1968).

A reading of the record in the case before us clearly shows that the testimony of witnesses as to defendant's presence at the scene of the crime and as to his admissions of guilt of the murder and the mutilation of decedent's body were unequivocal and inherently credible, and the facts established thereby point positively and unerringly to defendant's guilt of the vicious murder for which he was convicted.

Defendant quotes at some length from the opinion on rehearing in State v. Armijo et al., supra. This quotation ends with the following: '* * *. The verdict rests upon evidence which fails to meet any test of truth. We consider it unsubstantial. * * *'

As above stated, the truth or falsity of evidence is a question for the jury. Clearly the evidence supporting defendant's guilt is substantial. As we have already observed, accepting the reliability of the witnesses and the truth of their testimony, which were matters for the jury, the evidence of defendant's guilt was positive and overwhelming.

In State v. Maestas, supra, which involved a conviction for rape, the point relied upon for reversal was the claimed inherent improbability of the testimony of the prosecuting witness--the victim of the rape. It is true, as urged by defendant, that we stated in our opinion in the Maestas case, in quoting from the Garcia case, that we would not weigh the evidence, but would weigh the prosecutrix' story, not against the denial of the appellant, but in the scales of inherent improbability. We have weighed the evidence now before us in these scales, and we have found the evidence to be substantial, overwhelming and positive as to defendant's guilt. There is absolutely no merit to defendant's position.

In his second point relied upon for reversal, defendant asserts he was denied a fair and impartial trial by an accumulation of errors occasioned by misconduct of 'the prosecution.' He apparently equates 'the prosecution' with the sheriffs, the district attorney and the assistant district attorney, because they are the persons he claims were guilty of misconduct which deprived him of a fair trial.

The doctrien of cumulative error is recognized in New Mexico and may be raised as an issue on a direct appeal. State v. Victorian, 84 N.M. 491, 505 P.2d 436 (1973); State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App.1971); State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967). However, the doctrine is not applicable if the claimed errors were not committed by the trial court and the entire record demonstrates that the defendant did receive a fair trial. State v. Victorian, supra; State v. Polsky, supra.

The first two claims of misconduct allegedly constituting error are directed against actions of the sheriffs of Eddy and Lea Counties. The first of these is that the sheriff of Eddy County violated a protective order of the district court entered January 30, 1973 by which the law enforcement officers of Eddy County were prohibited from questioning defendant and from removing him from the Eddy County jail, except for trial purposes. On March 21, 1973, defendant wrote a note to the sheriff's wife in which he stated he was not writing about his 'case or any other case,' but was writing her as a 'friend,' and asked if he could have a few minutes of her time for a 'friendly conversation.' She agreed to see him, and the sheriff took defendant to the kitchen in the courthouse where she and defendant had a conviersation. When the district attorney, during the presentation of the...