State v. Trujillo

• Decision Date: 16 February 1981
• Docket Number: No. 12677,12677
• Citation: 1981 NMSC 23,95 N.M. 535,624 P.2d 44
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jesse TRUJILLO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 44

624 P.2d 44

95 N.M. 535

STATE of New Mexico, Plaintiff-Appellee, v. Jesse TRUJILLO, Defendant-Appellant.

No. 12677.

Supreme Court of New Mexico.

Feb. 16, 1981.

John B. Bigelow, Chief Public Defender, Gregory W. Chase and George W. Guzowski, Asst. Public Defenders, Albuquerque, Martha A. Daly, Michael Dickman, Asst. Appellate Defenders, Santa Fe, for defendant-appellant

Jeff Bingaman, Atty. Gen., Eddie Michael Gallegos, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

FEDERICI, Justice.

This is a direct appeal from a conviction of felony murder. During the early morning hours of January 12, 1979, the body of Charles Radosevich was discovered in the Southeast Heights of Albuquerque. He had been killed by three bullets in the chest. Defendant Jesse Trujillo was arrested for this crime and indicted by the grand jury. The indictment contained an open count of murder and an alternative count of felony murder. Defendant pleaded not guilty to both counts. Defendant was convicted by a jury and sentenced to life imprisonment. He appealed to the Supreme Court.

There are three issues presented in this appeal:

(1) Whether the second of two searches conducted under a single warrant was unreasonable;

(2) Whether a statement by defendant that he was at home on the night of the murder and which statement was admitted in evidence only for impeachment purposes during the trial was obtained in violation of Miranda procedures and suppressible; and

(3) Whether evidence of defendant's escape from the detention center was admissible.

The State's case was based on scientific as well as direct, eyewitness evidence. It included the testimony of David Lopez, Leonard Herrera and Edward Garcia. These three men were friends of defendant and had been with him on the night Radosevich was killed. Dale Rogers, who later made an unsworn confession to the homicide, was also present.

The testimony of David Lopez, Leonard Herrera and Edward Garcia was substantially identical. The men testified that during the early evening of January 11, 1979, the five of them had visited with various friends in Albuquerque. They eventually left defendant's house for a "cruise" at approximately 10:30 p. m. Throughout the night, all five men consumed considerable quantities of marijuana, beer and wine. They were in varying stages of intoxication, but David Lopez testified that he remembered the events "very well."

Some time around 12:30 or 1:00 a. m., they picked up Charles Radosevich, who was hitchhiking, on Yale Avenue. He sat in the front seat between Edward Garcia and Jesse Trujillo. Lopez, Herrera and Dale Rogers were in the back seat. Defendant was armed with a .25 caliber semiautomatic pistol. There was some conversation during the ride, but shortly after Radosevich was picked up he asked to be let off at the corner of Yale and Stadium. Garcia, who was driving, stopped the car. Both Garcia and defendant got out with Radosevich.

Defendant apparently demanded money from Charles Radosevich. Radosevich refused. Defendant shot Charles Radosevich three times. Defendant and Garcia got back in the car and they drove away at high speed. Defendant said, "let's go, I hit him." Defendant was let out of his car at his house on Gonzales Street.

The body of Charles Radosevich was discovered in less than an hour by a passing neighbor. He called the Albuquerque police. An official investigation began almost immediately. Through the Crimestoppers Program, a confidential informant eventually came forward. The informant contacted Detective Stephen Swanson a few days before defendant's arrest. Detective Swanson used the information supplied by the informant to obtain arrest and search warrants. These were both executed on January 24, the arrest taking place around 3:00 p. m. A search of the house occurred at about 4:45 p. m. and again at 6:10 p. m., in two stages. During the interim between these searches, the informant called the police with new information that the pistol used in the crime was under the doghouse in defendant's backyard.

This second search uncovered a semiautomatic pistol and two boxes of ammunition where the informant said they would be. The pistol and ammunition were introduced into evidence during trial. A firearms expert testified that in his opinion the three bullets in Radosevich's body were fired from this particular pistol. Fingerprints were also lifted from the pistol and its wrappings. Another expert compared these prints with ones taken from defendant after his arrest. In the expert's opinion, all of the fingerprints on the pistol were made by the same person, the defendant.

I. WHETHER THE SECOND OF TWO SEARCHES CONDUCTED UNDER A SINGLE WARRANT WAS UNREASONABLE.

In this case, a warrant was obtained by Detective Swanson on January 24, 1979. It authorized a search of the entire Trujillo "premises" for various items, including the semiautomatic pistol and ammunition used in Charles Radosevich's slaying. The warrant was supported by Detective Swanson's affidavit. The affidavit, in turn, was based on first-hand information from a confidential informant. Defendant admits that this warrant was valid on its face. However, defendant claims that the search of the yard (under the doghouse) went beyond the warrant's authorization and also constituted a second, separate search and was therefore unreasonable. Accordingly, the defendant moved for suppression of all items seized under this warrant. At the hearing, the trial judge denied the motion.

At approximately 4:45 on the afternoon of its issuance, Detective Swanson, who had arrested defendant just a few hours earlier, was in the process of interrogating him. For that reason Swanson remained in the stationhouse. Sergeant Richard Ness and Detectives Joe Garcia and David Garcia went to the defendant's residence. Two young girls were there. A copy of the warrant was given to one of these girls. The informant had told Detective Swanson that the pistol was hidden in the attic. The officers searched the attic but found nothing. They then searched the rest of the house unsuccessfully. None of the three officers remained on the premises. Detective David Garcia, however, testified that he intended to come back again but first wanted to discuss the situation with Detective Swanson at the stationhouse.

Meanwhile, at about 6:00 p. m., another call was received from the informant. He phoned the stationhouse and spoke with Detective David Garcia. The informant said that somebody had forewarned the Trujillo family of the search. The pistol had been moved, he said, and was now hidden beneath a doghouse in the backyard. Garcia informed Swanson of this conversation. Armed with the same warrant, the two officers returned to the house at approximately 6:10 p. m. Garcia searched a vehicle which was parked in the driveway with its engine on and found nothing. He then re-entered the house. In the meantime, Swanson searched underneath the doghouse in the backyard and found and seized a semiautomatic pistol as well as two boxes of cartridges. The warrant's return and inventory were signed by Detective Swanson two days after the search. They reflected that the warrant had been executed at 5:30 p. m. on January 24, 1979. Defendant contends that the subsequent search under the doghouse in the backyard was unreasonable. The district judge disagreed, and refused to suppress its fruits on the ground that the searches amounted to a single search separated in time by approximately one hour "and covered, in nature and scope, by the warrant."

This is a question of first impression in New Mexico. Cases from other jurisdictions have adopted the rule that a warrant is executed when a search is conducted, and its legal validity expires upon execution. After execution, no additional search can be undertaken on the same warrant. State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963), overruled on other grounds, Yuma County Attorney v. McGuire, 111 Ariz. 437, 532 P.2d 157 (1975); Delaney v. State, 135 Ga.App. 612, 218 S.E.2d 318 (1975); State v. Parsons, 83 N.J.Super. 430, 200 A.2d 340 (1964); McDonald v. State, 195 Tenn. 282, 259 S.W.2d 524 (1953). We do not quarrel with the rule. However, when "exigent circumstances" exist, an exception to the rule arises.

For example, in the McDonald case, the court said:

(O)n principle, as well as on persuasive precedent and sound public policy, this Court is of the opinion that nothing else appearing a second search of the premises under a search warrant that has already been once served with reference to those premises is an unreasonable search within the meaning of our constitution. (Emphasis added.)

Id. at 284, 259 S.W.2d at 525.

Under New Mexico case law exceptions are permitted to the general rules of search and seizure when exigent circumstances exist. An exigent circumstance exists if officer in good faith believe that the contraband, or other evidence for which the search is to be made, is about to be removed or destroyed. State v. Sanchez, 88 N.M. 402, 540 P.2d 1291 (1975); State v. Anaya, 89 N.M. 302, 551 P.2d 992 (Ct.App.1976); State v. Baca, 87 N.M. 12, 528 P.2d 656 (Ct.App.1974), cert. denied, 87 N.M. 5, 528 P.2d 649 (1974).

Exigent circumstances existed in this case at the time of the second stage of the search, pursuant to a valid warrant. The exigent circumstances were: (1) the occupants of the house had been warned that the police were about to search the house; (2) the pistol suspected of being the murder weapon had been moved once in order to hide it from the police and might be moved again or even destroyed; (3) the police in good faith believed that the 6:10 p. m. search was absolutely necessary in these circumstances; and (4) the police in good faith believed there was not time to obtain a second search warrant because of the threat of loss or destruction of evidence. These circumstances were sufficient for the trial judge to rule that the second...