State v. Thayer
Decision Date | 05 September 1969 |
Docket Number | No. 314,314 |
Citation | 458 P.2d 831,1969 NMCA 86,80 N.M. 579 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Ricky Lance THAYER, Defendant-Appellant. |
Court | Court of Appeals of New Mexico |
Defendant appeals from his conviction of second degree murder. In his first point relied upon for reversal, he asserts error on the part of the trial court in denying his motion for a new trial, and in denying his request, made at the hearing on his motion, for permission 'to attempt to acquire affidavits' from the jurors as to whether any of them, during the trial, had in their possession newspapers containing an article concerning the trial, and, if so, whether they read such article.
The verdict was returned, received and filed on September 20. The motion for a new trial was filed on October 3, and the hearing thereon was held on October 18.
In his motion he asserted as one of his grounds for a new trial:
'That on the afternoon and evening of September 18, 1968, several members of the jury empaneled in this case had in their possession and read certain newspaper accounts of the trial and that the defendant was prejudiced by said reading.'
At the hearing on the motion he called the two bailiffs as witnesses. The first testified that one morning during the trial he procured a newspaper from the office of the motel at which some of the jurors were sequestered. This was either an Albuquerque or an Amarillo paper. He took it to the room in which he was staying, and in looking it over noticed a four or five inch article therein relating to this case. It referred only to the fact that a jury had been selected. He told one or two of the jurors, who wanted to look at the paper, of the presence of the article and warned them not to read it. As far as he knows, none of the jurors read this paper, but he did see one juror 'look at the paper.'
The other bailiff testified that on the morning of September 19 she saw one of the jurors buy a 'big paper,' and she thought it was an 'Oklahoma paper.' As far as the bailiff observed, this juror read only the sports section. There is nothing in the record to even suggest that there was anything in this paper concerning this case or the trial thereof.
Defendant also introduced an article from the September 18 issue of the Tucumcari Daily News. It generally relates to what transpired during the first day of trial, and states that the two companions of defendant had implicated him in the killing out of which the murder charge arose. His complaints are that the article states the District Attorney '* * * is seeking the best death penalty on first degree murder * * *' (Emphasis added), and, in referring to the arrest of defendant and his two companions, states they '* * * had been arrested * * * after a high speed chase by Missouri State Police two months ago.' There is not the slightest evidence that any juror saw this article. This absence of evidence that the article was seen by the jury is apparently what prompted the request for permission 'to attempt to acquire affidavits' from the jurors.
Defendant particularly relies upon the following cases to support his claim of error on the part of the trial court in denying his motion for a new trial and his request for leave to attempt to secure affidavits from the jurors: Griffin v. United States, 295 F. 437 (3d Cir. 1924); People v. Lessard, 58 Cal.2d 447, 25 Cal.Rptr. 78, 375 P.2d 46 (1962); Quintana v. People, 158 Colo. 189, 405 P.2d 740 (1965); Commonwealth v. Crehan, 345 Mass. 609, 188 N.E.2d 923 (1963).
In the Griffin case the court stated:
'It is the right of a defendant accused of crime to have nothing reach the mind of the jury concerning the case except strictly legal evidence admitted according to law, and if facts prejudicial to him reach the jury otherwise, it is the duty of the trial judge to withdraw a juror and grant a new trial. * * *'
The other cases relied upon by defendant also discuss the right of a defendant to be tried and judged on the basis of legally admitted evidence, and in this we fully agree. But the cases also point out that extra-trial information received by the jury must be prejudicial, or likely to be prejudicial, to defendant before he is entitled to a mistrial or a new trial. This is in accord with the general principle that a defendant cannot be heard to complain if he could not have been prejudiced. State v. Sanchez, 79 N.M. 701, 448 P.2d 807 (Ct.App.1968); State v. Holland, 78 N.M. 324, 431 P.2d 57 (1967); State v. Mase, 75 N.M. 542, 407 P.2d 874 (1965). Compare § 21--1--1(61), N.M.S.A.1953.
There is nothing in the record to show that any juror read any article about the case. The jurors were instructed at the commencement of the trial that they were '* * * not permitted to read or listen to accounts * * *' of the case; they were kept together under the control of bailiffs; and they were finally instructed, before the case was submitted to them, that they were bound by their oaths to decide the case according to the evidence. Under these circumstances we cannot presume a violation by the jurors of the court's instructions and of prejudice to defendant. State v. Campos, 61 N.M. 392, 301 P.2d 329 (1956); State v. Sanchez, supra.
The distinction, between motives and influences which prompt a jury's verdict and evidence bearing upon the question of the existence of extraneous prejudicial matters which may have influenced the verdict, is of no importance in this case. For cases in which this distinction is made see Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); State v. Kociolek, 20 N.J. 92, 118 A.2d 812, 58 A.L.R.2d 545 (1955). The extraneous matters about which complaint is made did not come to the attention of the jurors.
Defendant next complains of a claimed unauthorized experiment conducted by a juror at the request of the District Attorney during closing argument.
During his closing argument, the District Attorney was discussing the trigger action on the murder weapon and stated to the jury: '* * * You all have examined this pistol, or you can, and I hand it to you if you want to do it right now to determine the pull, double action and single action. * * *'
Thereupon he handed the gun to a juror. The court immediately had it taken from the juror and instructed the District Attorney, in the presence of the jury, that no demonstration could be conducted. The District Attorney then proceeded with the argument without objection.
There is nothing in the record to support the claim that the juror cocked the gun and pulled the trigger. We consider only the record. State v. Upton, 60 N.M. 205, 290 P.2d 440 (1955). We will not assume facts unsupported by the record. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967).
Defendant claims he was denied a fair and impartial trial by reason of comments made by the court during the course of the trial. This claim is predicated upon the following exchange which occurred during the cross-examination of a defense witness upon the capacity of a person in a 'drunken stupor' or 'comatose state';
Defendant claims '* * * the trial judge's action in cutting counsel for defendant short before the could state his objection and abruptly informing him that 'non-stopping is beside the point' constituted an impermissible action on the part of the trial judge and indicated to the jury that the court thought the defendant was guilty or at least looked with displeasure upon the defendant. * * *'
We do agree that it is improper for the court, during the progress of the trial, to make unnecessary comments, or take unnecessary action, which might tend to prejudice the rights of either of the parties litigant (State v. Parks, 25 N.M. 395, 183 P. 433 (1919)), and any comment by the court, even though unintentional, is prejudicial if the comment expresses or tends to express the court's view as to the guilt of the accused, as to what has or has not been proved, or a preference by the court as to the outcome of the case. Robinson v. State, 161 So.2d 578 (Fla.Ct.App.1964); Hamilton v. State, 109 So.2d 422 (Fla.Ct.App.1959); Golden v. State, 45 Ga.App. 501, 165 S.E. 299 (Ct.App.1932). See also State v. Sedillo, 76 N.M. 273, 414 P.2d 500 (1966); People v. Montana, 252 App.Div. 109, 297 N.Y.S. 801 (1937).
As stated in State v. Sedillo, supra:
We have not overlooked § 21--1--1...
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