State v. Taylor

• Decision Date: 06 February 1986
• Docket Number: No. 8416,8416
• Citation: 717 P.2d 64,1986 NMCA 11,104 N.M. 88
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Johnny TAYLOR, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 64

717 P.2d 64

104 N.M. 88

STATE of New Mexico, Plaintiff-Appellee, v. Johnny TAYLOR, Defendant-Appellant.

No. 8416.

Court of Appeals of New Mexico.

Feb. 6, 1986.

Certiorari Denied March 26, 1986.

[104 N.M. 90] Paul Bardacke, Atty. Gen., Elizabeth Major, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Janet Clow, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

ALARID, Judge.

Defendant appeals from his conviction of two counts of unlawful distribution of a controlled substance (marijuana), in violation of NMSA 1978, Section 30-31-22 (Repl.Pamp.1980). On appeal, defendant raises three issues: 1) whether the trial court erred in refusing to allow defendant to introduce into evidence a prior misdemeanor conviction of a state's witness, and if so, whether this error deprived defendant of a fair trial; 2) whether the prosecutor's closing argument constituted misconduct by extensively referring to facts outside of the evidence and misstating the law, thereby depriving defendant of a fair trial; and, 3) whether the trial court's restitution order is authorized by the statutory provisions governing victim restitution (NMSA 1978, Sec. 31-17-1 (Repl.Pamp.1981)), or otherwise authorized by law. We affirm defendant's convictions, judgment and sentence, finding no reversible error in the trial court's evidentiary rulings, no prosecutorial misconduct and that the sentence is authorized by NMSA 1978, Section 31-20-6(E) (Cum.Supp.1985).

FACTS

The Hobbs Police Department hired Mike Hernandez to work as an undercover agent in November of 1983. Hernandez worked under the supervision of Sergeants Bogle and Scott of the narcotics division of the department. Hernandez' duties included purchasing illegal narcotics and stolen property. He was paid $1,500 per month and was provided with an expense account by the department.

Hernandez testified that he went to defendant's home on the night of November 26, 1983, for the purpose of buying drugs. In response to Hernandez' request for drugs, defendant told Hernandez that he had some "herb" (i.e., marijuana). Defendant then went outside and returned a few minutes later with a bag of marijuana. Hernandez gave defendant $80.00 (which he obtained from his expense account furnished by the department) in exchange for the marijuana.

Mike Bell of the State Crime Lab identified this as the substance that he received from Bogle by registered mail, stated that it tested positively for marijuana, and also testified as to the chain of custody.

Hernandez also testified that he again came in contact with defendant on April 6, 1984. On that date, Hernandez was outside the front of his home when defendant, dressed in a "City shirt," and another man drove up in a City truck. Defendant then asked Hernandez if he was "looking for anything," and Hernandez responded, "yes." Defendant then handed Hernandez a bag of marijuana, and Hernandez gave defendant $100.00 in return.

Following the conclusion of the state's case, defendant took the stand on his own behalf. Defendant denied that he sold marijuana to Hernandez on November 26, 1983, on April 6, 1984, or at any other time. Defendant testified that he knew of no reason why Hernandez would accuse him of selling marijuana.

Concerning the alleged November transaction, defendant admitted that Hernandez did come to his house looking for marijuana. Defendant stated that he did not provide marijuana for Hernandez, but that Brian Marshall, who was present, offered to "fix [Hernandez] up." Defendant testified that he did not see any marijuana in his house on that date. (On rebuttal, Hernandez testified that he knows Marshall and that Marshall was not present at defendant's house on that date.) Hernandez averred that he did purchase marijuana from Marshall at defendant's house on January 16, 1984.

Concerning the alleged April transaction, defendant denied that he drove a City truck to Hernandez' house on the date in question. Defendant testified that he was home in bed with a toothache on April 6, 1984. Defendant introduced, and had admitted, a sick leave request form from the City (his employer) that was dated April 6, 1984. Stating that he remained home all day on that date, defendant denied that he was driving a City truck or dressed in a City shirt as claimed by Hernandez. Defendant testified that it was against City policy to drive a City vehicle after hours or while on sick leave from work. Hernandez, a former City employee, admitted that he was aware of this City policy.

Defendant also testified as to his athletic achievements in high school (he graduated in 1980). Although he admitted that he has smoked marijuana, defendant denied that he ever did so during an athletic season. Defendant stated that the reason that he abstained during the season was because, "[y]ou couldn't do it. You couldn't breathe."

On re-direct, defendant testified as to his potential future career in athletics (he was offered a football scholarship) that was cut short when his appendix burst, necessitating surgery. He also testified that he had a brother who was on a basketball scholarship to Western New Mexico University.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENDANT TO INTRODUCE INTO EVIDENCE A PRIOR MISDEMEANOR CONVICTION OF A STATE WITNESS, AND, IF SO, WHETHER THIS ERROR DEPRIVED DEFENDANT OF A FAIR TRIAL.

Prior to trial, the state moved to suppress Mr. Hernandez' conviction of misdemeanor possession of marijuana. Defense counsel tendered that Mr. Hernandez had been charged by information with a felony, distribution of marijuana, but had entered a plea bargain with the state in which he pleaded to the lesser included misdemeanor. The state argued that under Rule 609, as interpreted in State v. Melendrez, 91 N.M. 259, 572 P.2d 1267 (Ct.App.1977), that a misdemeanor conviction was not admissible to impeach a witness, unless that conviction involved a crime involving truth or veracity. Defense counsel argued that the act and conviction were relevant in the context of the case. This context included the fact that persons having drug convictions are generally not employed in any capacity, and specifically as undercover agents, by the Hobbs Police Department. Since an exception was made for Mr. Hernandez, counsel alleged that the circumstances were relevant. He tendered that if asked, Detectives Bogle and Scott would testify that in their opinion, Mr. Hernandez was not guilty of the offense leading to his plea, and that they hired him with full knowledge of that prior conviction despite the departmental policy against it. Defense counsel argued the act and plea were relevant to the "integrity of the undercover operation" and to the credibility of Mr. Hernandez, had he entered a plea of guilty to an offense which he now claims he did not commit.

The court heard further argument on the motion after the selection of the jury. The state continued to base its argument for exclusion on the Melendrez case, and defense counsel argued that although perhaps the conviction was not admissible under that case and Rule 609, it was admissible under Rule 404. He argued that the acceptance of the plea indicated that the Hobbs Police Department had been grooming Mr. Hernandez to work in an undercover capacity, and that the plea went to "plan, preparation, intent and motive" for testifying that Mr. Taylor sold him marijuana. Defense counsel also argued that the conviction was relevant to Mr. Hernandez' qualification to work in an undercover capacity and admitted that the state would be entitled to an instruction limiting the jury's consideration of the prior incident. Defense counsel also argued admissibility under Rule 608, admitting he could not introduce extrinsic evidence of the offense if denied by Mr. Hernandez, and argued admissibility under Rule 404. The court granted the state's motion in limine.

On appeal, defendant argues that NMSA 1978, Evid.Rule 609(a)(2) (Repl.Pamp.1983), would allow for the admission into evidence of Hernandez' prior misdemeanor conviction for possession of marijuana. At the motion in limine hearing, however, defense counsel expressly conceded that he was not relying on Evid.Rule 609, as State v. Melendrez, 91 N.M. 259, 572 P.2d 1267 (Ct.App.1977), appeared to preclude the admission of this evidence pursuant to that rule. Instead, defense counsel relied on NMSA 1978, Evid.Rules 608(b) and 404(b) (Repl.Pamp.1983), in arguing for admission of the proffered testimony. The court granted the state's motion in limine, prohibiting defendant from making any inquiries whatsoever regarding Hernandez' arrest for distribution of marijuana or subsequent plea to possession of marijuana. Because defense counsel expressly conceded at the motion hearing that Rule 609(a)(2) was inapplicable, defendant is precluded from arguing error on that ground on appeal. E.g., State v. Lopez, 84 N.M. 402, 503 P.2d 1180 (Ct.App.1972).

A. Evidence Rule 608(b).

Evidence Rule 608(b) provides, in pertinent part, that Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility ... may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness[.]

Defendant, relying on State v. Worley, 100 N.M. 720, 676 P.2d 247 (1984), argues that Hernandez' misdemeanor conviction was relevant to his credibility, and, therefore the trial court should have allowed cross-examination into that conviction.

Defendant's reliance on Rule 608(b) and Worley is misplaced. The trial court did not preclude defendant from inquiring of Hernandez as to whether he had used marijuana in the past. In fact, the court expressly ruled that defendant could make such an inquiry. This was a correct ruling under Rule 608(b). State v. Wyman, 96 N.M. 558, 632 P.2d 1196 (Ct.App.1981).

B. Evidence Rule 404(b).

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