State v. Smith

• Decision Date: 18 June 1986
• Docket Number: No. 15128,15128
• Citation: 721 P.2d 397,1986 NMSC 38,104 N.M. 329
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Bernie SMITH, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 397

721 P.2d 397

104 N.M. 329

STATE of New Mexico, Plaintiff-Appellee, v. Bernie SMITH, Defendant-Appellant.

No. 15128.

Supreme Court of New Mexico.

June 18, 1986.

Rehearing Denied July 14, 1986.

[104 N.M. 330] Winston Roberts-Hohl, Santa Fe, for defendant-appellant.

Paul Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Asa Kelly, Jr., Silver City, Trial Counsel.

OPINION

STOWERS, Justice.

Defendant Bernie Smith was convicted of first degree murder for the death of Ralph Pierro. He appealed his conviction, challenging the exclusion at trial of exculpatory testimony regarding an out-of-court statement made by his codefendant and the exclusion of evidence of threats made against the witness offering that testimony. While the appeal was pending, this Court remanded to the trial court to hear defendant's motion for a new trial on the basis of newly discovered evidence, an affidavit of the codefendant confessing her role in Ralph Pierro's death and exculpating defendant. The trial court denied the motion, and defendant supplemented his appeal with a claim that the trial court's denial constituted an abuse of discretion.

We affirm the trial court's denial of the motion for a new trial. We also affirm its evidentiary rulings challenged here. Accordingly, we affirm defendant's conviction.

This case presents the following issues:

(1) Did the trial court abuse its discretion in denying defendant's motion for a new trial on the basis of newly discovered evidence, under NMSA 1978, Crim.P. Rule 45(c) (Repl.Pamp.1985), where the evidence offered was the affidavit of a codefendant who had invoked her Fifth Amendment right not to testify at defendant's trial? Wanda Pierro Smith, the victim's and, later, the defendant's wife, was tried separately and was convicted of voluntary manslaughter before she came forward with this affidavit.

(2) Did the trial court err in concluding that witness Karen Eaton's testimony about cellmate Wanda Smith's out-of-court statement tending to exculpate defendant was not admissible at trial under the hearsay exception for statements against interest, NMSA 1978, Evid. Rule 804(b)(4) (Repl.Pamp.1983)?

(3) Did the trial court err in excluding evidence of "threats" made by Danny Watkins, Wanda Smith's son, in order to prevent Karen Eaton from repeating Wanda's statement?

The facts of this case are quite extraordinary, and must be related in some detail in order to demonstrate why we do not believe the trial court abused its discretion in refusing to grant a new trial. In January 1982, Wanda and Ralph Pierro's marriage was in the process of legal dissolution, and Wanda was living with defendant. Days before Ralph Pierro was killed, he was awarded temporary custody of their three minor children and exclusive possession of the family home.

On the night of January 28, 1982, the two Pierro boys ran away and were reunited with their mother, but their three-year-old sister remained with Pierro. By the morning of January 29, 1982, Wanda had recovered her daughter, and Ralph Pierro was dead. Defendant and Wanda's grown son by a previous marriage, Steve Watkins, had wrapped the body in bedding, removed it from Pierro's house, driven it into the desert, and dumped it down an abandoned mineshaft. They had then driven Ralph Pierro's truck to a junkyard in Juarez, Mexico, stripped it of identification, and abandoned it.

In the weeks that followed, both defendant and Wanda were questioned by the police several times. They separately stated that they had seen Ralph in Las Cruces after the date of his death, and that he had gone East but had made long-distance phone calls. In March 1982, Wanda petitioned the court for a dissolution of marriage and distribution of property, testifying that Ralph's whereabouts were unknown. Defendant, Wanda, defendant's children, and Wanda's children moved into the Pierro house.

On April 2, 1982, defendant and Wanda Pierro were arrested, but were released because the body had not been found. A few days later, defendant and Wanda were married. They travelled around the western United States for months. Finally, Ralph Pierro's body was discovered and identified, and on October 2, 1982, defendant and Wanda Smith were arrested in Hope, Alaska.

While awaiting extradition, Wanda allegedly told a fellow prisoner, Michael Bowlin, about the killing of Ralph Pierro. Later in October 1982, defendant and Wanda were brought to New Mexico, charged, arraigned, and granted separate trials. In March 1983, Wanda told her cellmate Karen Eaton that her eldest son Steve Watkins had killed Ralph Pierro. A month before Steve, an armed robbery suspect, had been shot and killed by FBI agents.

Wanda Smith was tried for Ralph Pierro's murder in April 1983. At her trial she testified that defendant Bernie Smith had killed Pierro. She also denied discussing the crime with Michael Bowlin in Alaska. She was convicted of involuntary manslaughter, and appealed.

Defendant came to trial on June 20, 1983. The prosecution's chief witness was Danny Watkins, Wanda Smith's second son, who testified that defendant had told him that he, defendant, had killed Ralph Pierro. The prosecution also presented testimony of defendant's statements and actions through Danny's girlfriend and through the officers who investigated Pierro's killing. The prosecution called as a witness Wanda Smith, but she declined to testify, invoking her spousal and self-incrimination privileges.

Taking the witness stand in his own behalf, defendant testified that on January 28, 1982, Wanda went to the Pierro house to meet with Ralph. When she returned she was a little upset, and sent defendant to Pierro's house to jumpstart Steve Watkins's car. Defendant there found Steve with the body. Defendant testified that he did not know who killed Ralph Pierro and that, despite his suspicions, he never asked Wanda what had happened that night.

Apparently unimpressed by defendant's alibi defense, the jury found him guilty of first degree murder, tampering with evidence, and conspiracy to tamper with evidence. Defendant was sentenced to life imprisonment and to two eighteen-month terms, to be served concurrently. He promptly commenced this appeal.

In November 1983, Wanda Smith divorced defendant. The following month, defendant's father arranged a meeting between Wanda, his Deming lawyer, and himself. At that meeting, on December 12, 1983, Wanda stated on tape that she, not Bernie Smith, was responsible for Ralph Pierro's death. Pierro tried to force her to have sex with him, she said, and Wanda angrily shoved him away. He hit his head on a doorframe and fell to the floor, hitting his head again on a decorative rock planter. When Wanda realized he was dead, she telephoned defendant, then drove to his trailer and brought him back to the scene of Pierro's death.

On the basis of this statement, defendant moved this Court to remand to district court for consideration of his motion for a new trial. Wanda Smith had chosen not to release the taped statement, however, and we denied the motion. After her conviction was reversed and retrial for homicide precluded, she obtained the tape and prepared a handwritten statement, signed and notarized on June 13, 1984. When defendant presented her affidavit to this Court, we granted his motion to remand to the trial court for a hearing on his motion for a new trial.

Wanda Smith's affidavit was admitted into evidence at defendant's motion hearing on September 5, 1984, and she appeared as a witness. Wanda was cross-examined about her motives for coming forward. She reluctantly admitted having given different versions of Ralph Pierro's death and disappearance to the investigating detective; to the court which granted her a divorce from Pierro; to Alaska inmate Michael Bowlin; to Luna County inmate Karen Eaton; to the jury at her own trial, where she testified that defendant Bernie Smith killed Pierro; and in her affidavit in support of defendant's motion for a new trial. After hearing this evidence and reviewing all the evidence offered at defendant's trial, the trial court denied the motion for a new trial.

I. Motion for New Trial.

The party moving for a new trial under Crim.P. Rule 45(c) on the basis of newly discovered evidence bears the burden of showing the trial court that the newly discovered evidence (1) will probably change the result if a new trial is granted; (2) was discovered since the trial; (3) could not have been discovered before the trial by the exercise of due diligence; (4) is material; (5) is not merely cumulative; and (6) is not merely impeaching. State v. Mabry, 96 N.M. 317, 322, 630 P.2d 269, 274 (1981); State v. Ramirez, 79 N.M. 475, 477, 444 P.2d 986, 988 (1968).

Because the trial judge has observed the demeanor of the witnesses and has heard all the evidence, including that bearing upon the relationships of the witnesses with the defendant, the function of passing on motions for new trial belongs naturally and peculiarly to the trial court. See State v. Romero, 42 N.M. 364, 370, 78 P.2d 1112, 1116 (1938). This Court will not lightly interfere with the trial court's discretion, and absent a clear abuse of discretion we will not overturn the denial of a new trial. Mabry, 96 N.M. at 322, 630 P.2d at 274; State v. Fuentes, 67 N.M. 31, 33, 351 P.2d 209, 210 (1960).

The trial court here made findings on each of the six criteria, but we only reach the first. The trial court found that it was "questionable" whether defendant had carried his burden of proving that the new evidence would probably change the result if a new trial were granted. It commented that Wanda Smith's affidavit was so contradictory that it would be impossible to determine when she was telling the truth. In effect the trial court concluded that the new evidence was so subject to impeachment that a new jury, hearing it along with all the evidence offered at the first trial,...