State v. Sutphin

• Decision Date: 02 May 1988
• Docket Number: No. 17211,17211
• Citation: 107 N.M. 126,753 P.2d 1314,1988 NMSC 31
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kevin SUTPHIN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1314

753 P.2d 1314

107 N.M. 126

STATE of New Mexico, Plaintiff-Appellee, v. Kevin SUTPHIN, Defendant-Appellant.

No. 17211.

Supreme Court of New Mexico.

May 2, 1988.

[107 NM 127] Rubin, Katz & Kepler, Asenath M. Kepler, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Elizabeth Major, Katherine Zinn, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

STOWERS, Justice.

Defendant-appellant Kevin Sutphin was found guilty by a jury of first degree murder and tampering with evidence. He was sentenced to a term of life and to eighteen months; both sentences to be served concurrently. It is from this judgment of conviction that defendant now appeals. We affirm.

On October 18, 1985, at "lock down" time in the New Mexico penitentiary in Santa Fe, Charles Franklin, an inmate, was found unconscious in his cell located within the protective custody unit. A corrections officer noticed him lying on his bunk covered with a bloody blanket. Defendant Sutphin and codefendant Clifford Hoffman were also temporarily housed in the protective custody unit. A second corrections officer noticed blood on defendant's forearms and a pinkish-colored towel in his cell, and other items which he knew belonged to Franklin. Defendant's bloody clothes were later found in a trash can. Franklin's autopsy revealed five large lacerations on the right side of his head which resulted in his death; but any one of the blows to his head would have rendered him unconscious.

Defendant and two others, Clifford Hoffman and David Gray, were charged with the first degree murder of Charles Franklin, conspiracy to commit murder and tampering with evidence. Codefendant Gray, who had earlier been paroled, had not been apprehended prior to trial.

Testimony was presented at trial that defendant and Franklin owed each other money as a result of gambling losses, and they argued about the amount of the debt owed. Defendant testified that on the night of October 18, he was in Franklin's cell when he noticed that Franklin was holding a small pipe in one hand. Fearful that Franklin would attack him, defendant jumped on him as Franklin started to fall, and straddled him on Franklin's bunk; defendant proceeded to grab the hand that held the pipe and hit Franklin on his head with it. Defendant further testified that Franklin then pulled from under the pillow a larger pipe, but before Franklin had time to struggle, defendant grabbed a pipe and repeatedly hit Franklin with it in the head. Codefendant Hoffman observed the incident, pulled defendant off Franklin and urged defendant to leave Franklin's cell. At trial, defendant claimed that he hit Franklin in self-defense.

At the conclusion of the state's case, the court granted Hoffman's motion for a directed verdict. Thereafter, the jury found defendant guilty of first degree murder and tampering with evidence.

Defendant raises the following issues on appeal:

1. The trial court erred in failing to permit defendant to exercise his full number of peremptory challenges.

2. The trial court erred in removing for cause two jurors who retracted their initial statements about the death penalty.

3. The trial court erred in denying a mistrial.

4. The evidence at trial was insufficient to sustain a conviction of first degree murder.

We discuss these issues seriatim.

1. Peremptory Challenges.

Defendant argues that he was denied due process of law because the trial court failed to permit him to exercise the full number of peremptory challenges to which he would have been entitled had he been tried separately and not jointly. SCRA 1986, 5-606(D)(1)(a) and (2) provides:

(1) The state and the defense in each criminal case tried to a jury in the district court shall be entitled to peremptory challenges of jurors as follows:

(a) if the offense charged is punishable by death or life imprisonment, the defense shall be allowed twelve challenges and the state shall be allowed eight challenges.

(2) When two or more persons are jointly tried, two additional challenges shall be allowed to the defense and to the state for each additional defendant. When two or more defendants are jointly tried and cannot agree by whom the peremptory challenges shall be exercised, they shall be exercised in the manner prescribed by the court.

Under the rule, defendant and codefendant were allowed a total of fourteen challenges. Defendant contends, however, that he had a due process right to twelve challenges for himself. We do not agree.

There is no constitutional right, either federal or state, which affords defendant peremptory challenges. The only right guaranteed is the right to a fair trial. U.S. Const. amend. VI; N.M. Const. art. II, Secs. 14 & 18. The number of challenges to be afforded a defendant is a privilege properly controlled by a court rule. See, e.g., State v. Nelson, 18 Wash.App. 161, 566 P.2d 984 (1977); Annotation, Jury: Number of Peremptory Challenges Allowed in Criminal Case, Where There Are Two or More Defendants Tried Together, 21 A.L.R.3d 725 (1968). "The privilege must be taken with the limitations placed upon the manner of its exercise." Stilson v. United States, 250 U.S. 583, 587, 40 S.Ct. 28, 30, 63 L.Ed. 1154 (1919). Multiple defendants have no right to more peremptory challenges than given them by the rule, provided they are given a fair trial by an impartial jury. See id. at 586, 40 S.Ct. at 29.

Defendant relies on State v. Sevin, 243 La. 1023, 150 So.2d 1 (1963) to support his contention that he should have been granted additional peremptory challenges. This case is distinguishable. In Sevin, the right of a defendant to peremptory challenges was guaranteed by the Louisiana Constitution and the number of such challenges was fixed by statute to twelve for each defendant whether tried separately or jointly. Thus, the court therein held that the failure to afford each defendant the full twelve challenges to which he was entitled deprived each one of a substantial right. Sevin, 243 La. at 1023, 150 So.2d at 1 (emphasis added).

Defendant's exercise of his peremptory challenges in the instant case did not contravene the due process clause of either the United States or New Mexico Constitutions. And, as previously noted, neither constitution prescribes as part of the right to trial by jury the granting of peremptory challenges to the accused. We are satisfied that the procedure followed in the trial of this case did not deny or impair defendant's constitutional right to a fair trial by an impartial jury.

2. Removal for Cause.

In his second point, defendant claims that he was denied due process and a fair and impartial jury by the trial court's removal for cause of two prospective jurors who were opposed to the death penalty. Specifically, it is defendant's contention that although both jurors stated initially that the imposition of the death penalty would affect their deliberations, they later indicated that it would have no such effect.

In this case, the state was seeking the death penalty for the murder of Franklin. Defendant, however, was sentenced to a life term. During the selection of potential jurors, the court questioned each of them on his or her views of the death penalty. Juror Gallegos stated that he could not send anybody to the death penalty. Upon further questioning, he responded, "I've thought of it and I thought what if a person were to rape my wife or my mother or murder somebody close to me and I still couldn't vote for that." Juror Giron also stated under voir dire questioning by the court that she was opposed to the death penalty. In response to further questioning by the court whether there were any circumstances under which she could consider the death penalty, Giron stated, "The only way I would consider it is if a policeman was killed or an officer of the law." Thereupon, the trial court excused both jurors for cause.

In the recent decision of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court clarified its earlier decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and adopted the standard set forth in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), as the proper criteria for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment. Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. Under that standard, a juror is properly excludable for cause if the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Id. (quoting Adams, 448 U.S. at 45, 100 S.Ct. at 2526). The Court also noted that Witherspoon recognized the state's legitimate interest in excluding those jurors whose opposition to capital punishment would not allow them to view the proceedings impartially, and who therefore might frustrate the administration of a state's death penalty scheme. Wainwright, 469 U.S. at 416, 105 S.Ct. at 848.

It is within the trial court's discretion as to whether a prospective juror should be excused, since it is the trial judge who can best assess a juror's state of mind. See State v. Cutnose, 87 N.M. 300, 303, 532 P.2d 889, 892 (Ct.App.1975), overruled on other grounds, State v. McCormack, 100 N.M. 657, 674 P.2d 1117 (1984). A trial court's finding that a prospective juror would be unable to faithfully and impartially apply the law is based upon a judge's determination of that juror's demeanor and credibility. Wainwright, 469 U.S. at 426, 428, 105 S.Ct. at 853, 854. In exercising its discretion, however, the court must be zealous to protect the rights of the defendant. Id. at 430, 105 S.Ct. at 855.

Applying the standard set forth by the Supreme Court, the answers given by both juror Gallegos and juror Giron indicate that their ability to act as jurors in accordance with their instructions and their oaths would have been prevented or...