State v. Thoreen

• Decision Date: 28 February 1978
• Docket Number: No. 2953,2953
• Citation: 578 P.2d 325,91 N.M. 624,1978 NMCA 24
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Allen A. THOREEN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 325

578 P.2d 325

91 N.M. 624

STATE of New Mexico, Plaintiff-Appellee, v. Allen A. THOREEN, Defendant-Appellant.

No. 2953.

Court of Appeals of New Mexico.

Feb. 28, 1978.

Rehearing Denied March 13, 1978.

Writ of Certiorari Denied April 11, 1978.

[91 N.M. 626] Lynn Pickard, Pickard & Singleton, Santa Fe, for defendant-appellant.

Toney Anaya, Atty. Gen., Dennis Murphy, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

The sixteen counts of the indictment charged fraud, conspiracy to defraud, attempted fraud, or conspiracy to attempt fraud. All the charges involved financial dealings with Great West (Great West Savings and Loan Association). Eight counts were dismissed prior to trial. Of the eight counts tried, the jury convicted Thoreen of five. The convictions were of one count of fraud and four counts of conspiracy to defraud. Our discussion has five points: (1) issues answered summarily; (2) immunity for defense witness; (3) evidence of conspiracy; (4) statute of limitation; and (5) the number of conspiracies.

Issues Answered Summarily

[ a] Thoreen asserts the indictment should have been dismissed. His claim is that the general statutes under which the prosecutions were brought were inapplicable because a special statute applied. See State v. Blevins,40 N.M. 367, 60 P.2d 208 (1936); State v. Riley, 82 N.M. 235, 478 P.2d 563 (Ct.App.1970). The special statute alleged to be applicable is the Banking Act; the specific section of the Banking Act alleged to be applicable is § 48-22-66, N.M.S.A. 1953 (Repl. Vol. 7). That section pertains to unlawful service as an officer or director of a bank. There is nothing indicating that any provision of the Banking Act applies to Thoreen, and no basis for holding that a specific statute prohibited the prosecutions under the general fraud and conspiracy statutes.

[ b] Thoreen contends the indictment should have been dismissed because of irregularities in obtaining the indictment. This claim goes to the grand jury proceedings. There were two grand juries: the first investigated the demise of Great West; the second returned the indictment against Thoreen. The claim is that the proceedings in the first grand jury were tainted because of violation of statutes regulating grand jury proceedings. Assuming this is so, the stipulation of facts and State v. Evans, 89 N.M. 765, 557 P.2d 1114 (Ct.App.1976), dispose of the claim that proceedings before the second grand jury were tainted.

[ c] Thoreen asserts the indictment should have been dismissed because of pre-indictment delay. At the time set for hearing on the motion, Thoreen had no evidence to present. He claims the hearing was only to determine whether an evidentiary hearing would be held on his motion. Be that as it may, Thoreen made a tender of what the evidence would show. That tender was insufficient to show a violation of due process by pre-indictment delay. State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct.App.1976).

[ d] Defendant complains of the jury instructions on conspiracy. The instructions given were instructions approved by the Supreme Court. See U.J.I.Crim. 28.20 and 1.50. This Court is bound by the order approving the instructions. State v. Scott 90 N.M. 256, 561 P.2d 1349 (Ct.App.1977). The fact that the approved instructions were used before their use became mandatory was not error because they fairly and correctly stated the applicable law. State v. Valenzuela, 90 N.M. 25, 559 P.2d 402 (1976).

(e) Additional issues listed in the docketing statement were not briefed. They were abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).

Immunity for Defense Witness

The charges involved in the appeal were brought against Evans and Pirtle, as well as Thoreen. Prior to trial, Evans was granted immunity from prosecution pursuant to Rule of Crim.Proc. 58. Thereafter, Thoreen sought to have immunity from prosecution granted to Pirtle on the basis that Pirtle's testimony would exculpate Thoreen and that Pirtle would not testify unless granted immunity.

Rule of Crim.Proc. 58 purports to authorize the district court to grant a witness immunity from prosecution under the conditions stated in the rule. The rule was adopted by the Supreme Court. Its validity is questionable because: a) immunity from prosecution is qualitatively different from the privilege not to testify discussed in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976); and b) the granting of immunity from prosecution is a legislative function; neither a prosecutor nor a court may grant immunity absent express constitutional or statutory authority, Apodaca v. Viramontes, 53 N.M. 514, 212 P.2d 425, 13 A.L.R.2d 1427 (1949). This Court, however, has no authority to set aside a rule adopted by the Supreme Court. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

Thoreen does not challenge the validity of Rule of Crim.Proc. 58, nor does he assert that immunity to Evans was improperly granted. He does not claim he had a right to have immunity granted a purported defense witness, regardless of whether immunity was granted a prosecution witness. His claim is that once Evans was granted immunity, it was a violation of due process not to grant immunity to the purported defense witness, Pirtle. This is an argument that Thoreen was denied due process because of the manner that Rule of Crim.Proc. 58 was applied. The argument is based on the comment of then Circuit Judge Burger in footnote 1, Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531 (1966) and United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976) which states: "(W) hatever power the government possesses (as to grants of immunity) may not be exercised in a manner which denies the defendant the due process guaranteed by the Fifth Amendment."

Under Rule of Crim.Proc. 58(a) the district court may grant immunity from prosecution only upon the application of the prosecuting attorney. Under Rule of Crim.Proc. 58(c) the prosecutor may apply for a grant of immunity if the witness is likely to refuse to testify on the basis of the privilege against self-incrimination and the testimony "may be necessary to the public interest".

Thoreen represented that Pirtle's testimony would be exculpatory of Thoreen. The trial court, and the prosecutor, wanted a showing that Pirtle's testimony would, in fact, be exculpatory. Thoreen states this requirement placed him "between a rock and a hard spot" because the only person who could make the showing was Pirtle, and Pirtle would not testify before being granted immunity. This argument overlooks what occurred in the trial court.

The trial court suggested an in camera hearing; the prosecutor suggested an in camera hearing with the prosecutor excluded. Defendant did not respond to these suggestions. Not having taken advantage of the opportunity to explain to the court, outside of the prosecutor's presence, how Pirtle's testimony might be exculpatory and thus explain how a grant of immunity might be in the public interest, defendant is in no position to complain that due process was violated. Compare United States v. Alessio, supra, where information was provided to the court as to the testimony of the witness for whom immunity was sought. Here we have neither testimony nor tender as to the content of the asserted exculpatory evidence. See Evidence Rule 103. All we do have is speculation; such is an insufficient basis for holding due process was violated by the application of Rule of Crim.Proc. 58.

Evidence of Conspiracy

The conspiracy was to defraud. Fraud includes the intentional taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations. Section 40A-16-6 N.M.S.A. 1953 (2d Repl. Vol. 6); State v. McKay, 79 N.M. 797, 450 P.2d 435 (Ct.App.1969); see U.J.I.Crim. 16.30. It is uncontradicted that a thing of value was taken from Great West money. It is uncontradicted that the money was intentionally taken. It is uncontradicted that the money was taken by fraudulent conduct, practices and representations.

A conspiracy is a common design or agreement to accomplish an unlawful purpose or a lawful purpose by unlawful means. One cannot be a party to a conspiracy unless one knows of the conspiracy. State v. Dressel, 85 N.M. 450, 513 P.2d 187 (Ct.App.1973); Morris v. Dodge Country, Inc., 85 N.M. 491, 513 P.2d 1273 (Ct.App.1973). Defendant challenges the sufficiency of the evidence as to these two items. Specifically, defendant claims (a) the evidence does not show an agreement to defraud, and (b) if an agreement were shown, the evidence does not show that defendant was a knowing party to it.

To establish a common design, or agreement, there need not be proof that the alleged conspirators came together and actually agreed upon a method of operation to achieve an unlawful purpose or a lawful purpose by unlawful means; a mutually implied understanding is sufficient. State v. Armijo, 90 N.M. 12, 558 P.2d 1151 (Ct.App.1976); see State v. Deaton, 74 N.M. 87, 390 P.2d 966 (1964). This mutually implied understanding, and defendant's knowledge and participation therein may be proved by circumstantial evidence. State v. Deaton, supra. Since the proof may be by circumstantial evidence, we disagree with defendant's contention that circumstantial proof should be disallowed if evidence is available, or potentially available, to directly prove the conspiracy.

The issue is whether there is substantial evidence to support the conspiracy convictions. State v. Deaton, supra. In determining whether the evidence is sufficient, we review the evidence in the light most favorable to support the verdicts. State v. McCallum, 87 N.M. 459, 535 P.2d 1085 (Ct.App. 1975).

In deciding this issue, we must determine whether there was proof of a conspiracy involving a home mortgage loan and a conspiracy involving various construction mortgage loans. Both items involve Evans,...