State v. Smith
| Decision Date | 27 February 1979 |
| Docket Number | No. 11905,11905 |
| Citation | 591 P.2d 664,1979 NMSC 20,92 N.M. 533 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. William J. SMITH, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
August 19, 1977 defendant William J. Smith and a co-defendant were charged with the crimes of murder, kidnapping, accessory to murder, and accessory to kidnapping. The trials of the defendants were severed, and Smith was tried October 11, 1977. The trial court granted Smith's motion for a directed verdict of acquittal as to the kidnapping charges. At the end of the trial, the court declared a mistrial because the jury was unable to reach a unanimous decision. Smith was subsequently re-tried on January 30, 1978 and was convicted of the first-degree murders of Leslie D. McDonnell and Cari Talton, a/k/a Carie Newell. Smith appeals those convictions, alleging fourteen points of error. We will discuss each point separately.
Smith filed a motion to quash the grand jury indictment because he was denied his right to a fair presentation of evidence to the grand jury and denied his rights to due process and equal protection under the Constitution of the State of New Mexico and the Constitution of the United States. Smith argues that the indictment resulted from an uninformed and misled grand jury because the district attorney knowingly failed to present exculpatory evidence at the grand jury proceeding. The trial court denied the motion, and Smith claims error.
We decline to review the trial court's ruling on this motion. Smith failed to provide this Court with a record of the hearing on the motion to quash the indictment. Therefore, Smith waived his right to challenge the ruling of the trial court. Matters outside the record present no issue for review. State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App.1975).
Smith claims that the trial court erred by not granting his motion to reduce bond. Smith contends that bond set at $100,000 was unreasonable in light of the fact that his first trial resulted in a mistrial.
Again, we find that no issue is presented for review. The remedy for a defendant claiming an excessive setting of bail is found under N.M.R.Crim.P. 26, N.M.S.A.1978. Rule 26 provides for an appeal from orders regarding release entered prior to a judgment of conviction. This rule specifically includes orders setting bond. Review of a motion to reduce bond at this point is not warranted because the trial court's ruling on bond has no relation to the merits of an appeal from a conviction. State v. Cebada, 84 N.M. 306, 502 P.2d 409 (Ct.App.1972). Furthermore, in New Mexico the amount of bail set by a trial court is within the sound discretion of the trial court. N.M.R.Crim.P. 22, N.M.S.A.1978. There has been no showing that the trial court abused its discretion in denying Smith's motion for bond reduction.
Smith claims his conviction should be reversed because the conduct of law enforcement officials violated his constitutional rights to due process and equal protection.
Smith alleges that the law enforcement officers who prepared the affidavit for search warrant included erroneous and misleading evidence and information on the affidavit. Smith attacked the search warrant in a suppression hearing, however, he has failed to provide this Court with any record of evidence presented at that hearing. Smith's only reference indicating errors in the search warrant is to tapes of the trial. These tapes have no bearing on the search warrant. Thus, the general allegations of unfairness made by the defendant are not supported in the record. General allegations present no issue for this Court to review. State v. Romero, supra. Smith also asserts that the State's attorneys acted improperly at the grand jury proceedings. Smith contends that the prosecuting attorneys knowingly failed to present exculpatory evidence in the grand jury proceedings. In addition, Smith argues that these attorneys presented the evidence and made certain comments to the grand jury in such a way as to improperly influence the decision of the grand jury. Finally, Smith alleges that certain oral testimony heard before the grand jury was not recorded in violation of § 31-6-8, N.M.S.A.1978 (formerly § 41-5-8, N.M.S.A.1953 (Repl.1972)). Smith has not forwarded the grand jury minutes to this Court, so again, we have no record to review.
The alleged violations of due process and equal protection made by the defendant are not supported in the record, nor does the defendant provide any authority to this Court in support of his allegations. A general claim of denial of a fair trial cannot provide a basis for relief. State v. Paul, 83 N.M. 527, 494 P.2d 189 (Ct.App.1972).
Smith contends that the trial court erred in not granting his motion to dismiss the indictment for lack of venue and jurisdiction in the District Court of Bernalillo County. A Torrance County rancher discovered the bodies of the two girls on his ranch, and the crime was allegedly committed in Torrance County.
The trial court did not err by denying Smith's motion. The Bernalillo County District Court had jurisdiction over this case because there was no evidence that the crime occurred in a place other than New Mexico. See State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (Ct.App.1976); State v. Losolla, 84 N.M. 151, 500 P.2d 436 (Ct.App.1972). In addition, venue was proper in Bernalillo County because there was substantial evidence that the defendant formed the intent to kill both girls in Bernalillo County. If elements of a crime were committed in different counties, the trial may be held in any county in which a material element of the crime was committed. State v. Wise, 90 N.M. 659, 567 P.2d 970 (Ct.App.1977), Cert. denied, 91 N.M. 4, 569 P.2d 414 (1977).
Smith argues that the trial court abused its discretion in denying his motion for a continuance because he was not emotionally or mentally able to prepare for the trial on its originally scheduled date.
The standard of review on a denial for a motion for continuance is whether the trial court abused its discretion to the prejudice or injury of the defendant. Doe v. State, 88 N.M. 347, 540 P.2d 827 (Ct.App.1975), Cert. denied, 88 N.M. 318, 540 P.2d 248 (1975); State v. Brewster, 86 N.M. 462, 525 P.2d 389 (Ct.App.1974); State v. Garcia, 82 N.M. 482, 483 P.2d 1322 (Ct.App.1971). In this case, Smith has failed to present any evidence supporting the claims made in his motion for continuance. As there has been no showing that the denial of defendant's motion was prejudicial or that substantial justice would have been more clearly obtained if a continuance had been granted, we must uphold the trial court's decision.
Smith argues that the trial court erred in admitting his sawed-off shotgun because there was no way to connect the gun with the deaths of either of the girls and because the prejudicial effect of the evidence outweighed its probative value.
The admission of evidence is within the sound discretion of the trial court, and its ruling will be upheld unless there is a showing of abuse of discretion. State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977). After reviewing the record, we find no such abuse.
Smith argues that the trial court's limitation of his cross-examination of various State witnesses concerning the character and habits of the two victims deprived him of a fair trial and of his constitutional right to confront the witnesses against him.
Where character is an element of the crime, claim, or defense, there is no question as to its relevancy and its admission is governed by N.M.R.Evid. 402, N.M.S.A.1978. State v. Bazan, 90 N.M. 209, 561 P.2d 482 (Ct.App.1977), Cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). In all other cases character evidence is collateral, so its admissibility is limited to the exceptions outlined in N.M.R.Evid. 404, N.M.S.A.1978. State v. Bazan, Supra; State v. Marquez, 87 N.M. 57, 529 P.2d 283 (Ct.App.1974), Cert. denied, 87 N.M. 47, 529 P.2d 273 (1974). The pertinent part of Rule 404 provides:
(a) CHARACTER EVIDENCE GENERALLY.
Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor * * * .
As we stated previously, the admission of evidence is within the sound discretion of the trial court. State v. Bell, supra ; State v. Marquez, supra. The trial court did not abuse its discretion in refusing to admit evidence pertaining to the drug habits of the victims.
Smith argues that the trial court erred in denying his motion for directed verdict of acquittal because the verdict is not supported by the evidence.
A directed verdict is not proper where there is substantial evidence to support the conviction. State v. James, 85 N.M. 230, 511 P.2d 556 (Ct.App.1973), Cert. denied, 85 N.M. 228, 511 P.2d 554 (1973). The fact that some of the evidence is circumstantial does not alter the policy of affirming a conviction on appeal where the evidence taken as a whole supports the verdict. State v. Adams, 89 N.M. 737, 557 P.2d 586 (Ct.App.1976), Cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). The question before this Court is whether the direct or circumstantial evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, will sustain a...
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