State v. Smith

Decision Date02 December 1975
Docket NumberNo. 1989,1989
Citation1975 NMCA 139,543 P.2d 834,88 N.M. 541
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Larry SMITH and Mel Smith, Defendants-Appellants.
CourtCourt of Appeals of New Mexico
Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Santa Fe, for defendants-appellants
OPINION

WOOD, Chief Judge.

Both defendants were convicted of robbery. Section 40A--16--2, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). Their appeals raise issues involving: (1) refusal of the trial court to allow alibi evidence; (2) continuing duty of disclosure; (3) cross-examination concerning juvenile offenses; and (4) refused instructions concerning evaluation of a witness's testimony.

Refusal to Allow Alibi Evidence

Rule of Criminal Procedure 32(a) provides that upon written demand of the district attorney detailing the place, date and time of the crime charged a defendant who intends to offer alibi evidence shall serve upon the district attorney a notice in writing of defendant's intention to claim an alibi. 'Such notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as known to defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish such alibi.'

By letter dated Junuary 31, 1975 defendants informed the district attorney that they would offer alibi evidence. Defendants did not, however, provide the specific information required by Rule of Criminal Procedure 32(a). The trial court refused to allow defendants to present evidence of alibi other than defendants' own testimony. The trial court's authority to exclude the alibi evidence is Rule of Criminal Procedure 32(c) which states: 'If a defendant fails to serve a copy of such notice as herein required, the court may excluded evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant himself.'

Defendants claim the exclusion of their alibi evidence was error for four reasons.

First, defendants assert the district attorney's written demand under Rule of Criminal Procedure 32(a) was deficient and, therefore, defendants were never required to supply alibi information to the district attorney. The district attorney filed in the district court on January 9, 1975 a demand for alibi defense information and a motion for disclosure under Rule of Criminal Procedure 28. As of Junuary 9, 1975 neither of these documents were a written demand under Rule of Criminal Procedure 32(a) because there was no certificate of service and nothing showing defendants received these documents. On January 29, 1975 the district attorney wrote to defense counsel stating that a demand for alibi information had been filed and that there had been no response. This letter, by its reference to the demand filed on January 9, 1975, was a written demand.

The defense responded by the letter of January 31, 1975. In that letter counsel stated: 'I am currently compiling a list of witnesses and a list of other items which may be introduced as evidence and will forward to you on completion.' In addition, on January 13, 1975 the State responded to the defense request for disclosure by the government. That response identified the place, date and time of the crime charged.

In light of the foregoing, it is understandable that when the trial court was considering defendants' failure to disclose alibi information, no claim was made that the State's written demand was deficient. Such a claim was raised for the first time by a motion for new trial. We do not decide whether the sufficiency of the district attorney's written demand was waived because not raised until after trial. We do not do so because the record affirmatively shows that the defense was provided the information allegedly missing from the written demand. Defendants were not prejudiced by any technical deficiency in the demand. State v. Quintana, 86 N.M. 666, 526 P.2d 909 (Ct.App.1974); see Chacon v. State, 88 N.M. 198, 539 P.2d 218 (Ct.App.1975).

Second, defendants contend that in precluding the testimony of an available alibi witness whose testimony would have been relevant to the defense 'the trial court violated their rights to have compulsory process for the obtaining of witnesses in their favor and to due process of law.'

Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) states: '* * * the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.' Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) held that Florida's alibi rule did not violate due process because the rule '* * * is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.' New Mexico's alibi rule provides for reciprocal discovery rights and provides ample opportunity for an investigation of the facts. There is no claim to the contrary. The alibi rule does not violate due process.

The compulsory process claim was not decided in either Wardius or Williams. See Wardius, supra, footnote 4 and Williams, supra, footnote 14. Cases deciding this issue have found no violation of the right to compulsory process. The reasoning is that the alibi rule does not prevent a defendant from compelling the attendance of witnesses; rather, the rule provides reasonable conditions for the presentation of alibi evidence. Rider v. Crouse, 357 F.2d 317 (10th Cir. 1966); State v. Dodd, 101 Ariz. 234, 418 P.2d 571 (1966); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966); State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177 (1968). Compare Carlile v. Continental Oil Company, 81 N.M. 484, 468 P.2d 885 (Ct.App.1970) which held a constitutional guaranty of a right to trial by jury does not preclude the adoption of reasonable rules providing that a litigant is not entitled to a jury trial unless the litigant demands the jury trial within the time and in the manner specified by the rule. The alibi rule does not violate the constitutional right to have compulsory process for obtaining witnesses.

Rule of Criminal Procedure 32(c) does not require the exclusion of alibi evidence when the alibi rule has been violated; rather the court may exclude. Defendants' third claim under this issue is that 'the most onerous possible sanction was applied arbitrarily and without adequate inquiry into the circumstances surrounding the violation of the notice of alibi rule.'

The record shows the parties were given opportunity to present their contentions to the trial court and that after certain exhibits were admitted, attorneys for the parties argued to the court. The record does not show what was argued. This record does not show that the trial court proceeded arbitrarily or ruled without an adequate inquiry. The answer to this third claim is twofold: (1) the record does not support the contention made, and (2) the record does not show the contention was raised in the trial court. State v. Wingate, 87 N.M. 397, 534 P.2d 776 (Ct.App.1975); Rule 11 of the Rules Governing Appeals.

Characterizing the decision in Williams v. Florida, supra, as an emasculation of the Fifth Amendment, defendants nevertheless concede that the Williams decision holds that the alibi rule, in itself, does not violate the privilege against self-incrimination. Defendants' fourth contention under this issue is that in applying the alibi rule their privilege against self-incrimination was violated. Defendants assert that in excluding the alibi testimony of any witness other than the defendants, the trial court gave the defendants a choice of either taking the stand or foregoing the only defense they had. Defendants claim: 'The effect of the trial court's ruling was to deprive the defendants of the choice whether or not to take the stand.'

Williams v. Florida, supra, states that nothing in the alibi rule 'requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.' Concerning the decision as to whether a defendant should testify, Williams states: 'That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.' In applying the alibi rule the trial court did not violate defendants' privilege against self-incrimination. Compare, State v. Duran, 83 N.M. 700, 496 P.2d 1096 (Ct.App.1972); State v. Lindsey, 81 N.M. 173, 464 P.2d 903 (Ct.App.1969), cert. denied 398 U.S. 904, 90 S.Ct. 1692, 26 L.Ed.2d 62 (1970)

Continuing Duty of Disclosure

During his cross-examination, defendant Larry Smith identified a letter he had written. When the district attorney sought admission of the letter into evidence, the defendant objected because the State had a continuing duty of disclosure and the letter had not been provided to the defense 'prior to trial'. The district attorney explained that he 'just got it yesterday'. The trial court overruled the objection and admitted the letter into evidence. The contents of the letter raise a serious question as to the truth of the alibi defense.

The State was under a continuing duty to disclose. Rule of Criminal Procedure 30 states alternative actions available to the trial court when the duty to disclose has been violated. The contention is that the trial court cannot properly exercise its discretion as to the alternatives without an adequate inquiry into the circumstances of the nondisclosure. Defendants claim the trial court did not make an adequate inquiry. They point out that the standard is whether a defendant has...

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