State v. Turner

• Citation: 469 P.2d 720,81 N.M. 571,1970 NMCA 54
• Decision Date: 17 April 1970
• Docket Number: No. 413,413
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ernest B. TURNER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 720

469 P.2d 720

81 N.M. 571

STATE of New Mexico, Plaintiff-Appellee, v. Ernest B. TURNER, Defendant-Appellant.

No. 413.

Court of Appeals of New Mexico.

April 17, 1970.

William H. Carpenter, Scott McCarty, Albuquerque, for defendant-appellant.

James A. Maloney, Atty. Gen., Santa Fe, Justin Reid, Asst. Atty. Gen., for plaintiff-Appellee.

OPINION

WOOD, Judge.

Convicted of aggravated burglary and rape of Peggy Ann Bowen, defendant appeals. Sections 40A--16--4, and 40A--9--2, N.M.S.A. 1953 (Repl. Vol. 6). The issues concern: (1) demand for exculpatory information; (2) lack of hearing concerning out-of-court identification; (3) reference to collateral offenses during cross-examination, in rebuttal testimony and in closing argument; (4) sufficiency of the evidence; and (5) comment on defendant's failure to testify.

Demand for exculpatory information.

Defendant demanded that the State produce, for his inspection and copying, any material which might tend to exculpate him. This tactic concerns a possible suppression of evidence; that is evidence known to the police or district attorney, unknown to and kept from defendant. Trimble v. State, 75 N.M. 183, 402 P.2d 162 (1965). '* * * (S)uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or had faith of the prosecution.' Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Trimble v. State, supra; State v. Vigil, 79 N.M. 80, 439 P.2d 729 (Ct.App.1968). Compare Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967).

The State's response to the demand was '* * * that the file of the District Attorney has been available and open to counsel for defendant throughout their preparation * * *.' Defendant does not claim otherwise. Specifically, defendant does not assert that evidence has been suppressed.

Defendant's position is that he has no way of knowing whether evidence has been suppressed. On the basis of this lack of knowledge, he asked the trial court to inspect '* * * all information in possession of the State for exculpatory material not made available to the defense and to seal it and file it at the close of the case for later review in appellate court * * *.' Because the trial court did not examine the prosecutor's file and did not cause that file to be made part of the court record, defendant asserts the trial court erred.

The issue is a limited one. Here, defendant has not made a demand for inspection of specific documents as in Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969). Defendant, having demanded that the prosecution produce evidence favorable to him, does not assert that his demand has not been met. The issue is whether the trial court erred in refusing to accede to defendant's request that the court inquire into the truth of the State's response to defendant's demand.

Defendant relies on Hensley v. United States, 406 F.2d 481 (10th Cir. 1968). That case dealt with the time when the judge inspected government records to determine whether they contained exculpatory material to which the defendant should be given access. The opinion assumes that the trial court must make such an inspection if requested. That, however, is the point in issue. Hensley v. United States, supra, is not applicable.

The issue involves discovery in criminal proceedings. Under certain federal statutes and rules of criminal procedure, a federal defendant is accorded a right of discovery. Thus, the trial judge examines the prosecution's file to determine whether it contains material for which discovery is authorized or whether the failure to disclose such material has prejudiced the defendant, Government of Virgin Islands v. Lovell, 410 F.2d 307 (3rd Cir. 1969); United States v. Levinson, 405 F.2d 971 (6th Cir. 1968); cert. denied, 395 U.S. 958, 89 S.Ct. 2108, 23 L.Ed.2d 744 (1969); Meyer v. United States, 396 F.2d 279 (8th Cir. 1968); cert. denied, 393 U.S. 1017, 89 S.Ct. 621, 21 L.Ed.2d 561 (1969).

We know of no right to discovery by a defendant in criminal proceedings under New Mexico statutes or rules. Discovery is accorded where to deny it deprives a defendant of a constitutional right, see Mascarenas v. State, supra, and where a particularized need has been demonstrated, State v. Tackett, 78 N.M. 450, 432 P.2d 415, 20 A.L.R.3d 1 (1967); cert. denied,390 U.S. 1026, 88 S.Ct. 1414, 20 L.Ed.2d 283 (1968). Here, however, there is neither showing, nor claim, of a deprivation of a constitutional right or of a particularized need.

Defendant's claim simply is that he doesn't know whether the State has complied with his demand for exculpatory material; that because he doesn't know, the trial court should check on he truth of the State's response. In essence, defendant wants the court to go on a 'fishing' expedition. Defendant is not entitled to such an expedition. State v. Tackett, supra. Since defendant was not entitled to go on a fishing expedition himself, the trial court did not err in refusing to undertake such an expedition on defendant's behalf, absent some showing, or indication, that a right of defendant has been or would be violated. United States v. Mitchell, 408 F.2d 996 (4th Cir. 1969); cert. denied, 396 U.S. 930, 90 S.Ct. 268, 24 L.Ed.2d 228 (1969). There being no such showing or indication, the point is without merit.

Lack of hearing concerning out-of-court identification.

Defendant contends the victim's in-court identification of defendant was tainted by illegal out-of-court identification. He claims that he raised this issue to the trial court and that the trial court erred in failing to conduct an evidentiary hearing on the legality of the out-of-court identification of defendant. Generally, on the question of 'illegal taint' see State v. Morales, 81 N.M. 333, 466 P.2d 899 (Ct.App.) decided March 6, 1970; State v. Clark, 80 N.M. 91, 451 P.2d 995 (Ct.App.1969), rev'd, on other grounds, 80 N.M. 340, 455 P.2d 844 (1969); State v. Carrothers, 79 N.M. 347, 443 P.2d 517 (Ct.App.1968).

Where there is an issue as to an 'illegal taint,' the issue is to be resolved by a consideration of the totality of the circumstances surrounding the out-of-court identification. This requires an evidentiary hearing. See State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.), decided January 30, 1970.

Was there such an issue in this case so that an evidentiary hearing was required?

A pre-trial motion asked the court to suppress any testimony or reference to an identification of defendant if the identification was made after the victim had been shown a series of photographs. Compare State v. Carrothers, supra. This motion was pending immediately prior to trial. The trial court suggested that the jury be selected before hearing the motion. All counsel agreed. With this agreement from counsel, there was no error in failing to dispose of the motion, either with or without an evidentiary hearing, prior to selecting the jury.

After the jury was selected, and out of its presence, defendant stated that he wished to present evidence on the motion to suppress. He then represented to the court '* * * the facts * * * we would show * * *.' The State then responded with its version of facts. The court stated that it accepted the '* * * statement as what your witness will say and I will deny your motion. * * *' The objection to identification testimony during the trial was 'on the grounds previously stated.' Thus, the grounds for the claim of 'illegal taint' are those contained in the pre-trial motion and those presented to the court after the jury was selected. We must determine if those grounds raise an issue as to 'illegal taint' since no evidentiary hearing was held.

The pre-trial motion refers to identification made after the victim was shown a series of photographs. There was testimony at the trial that defendant's picture was one of the photographs shown to the victim. If the defendant is claiming that the victim identified him from the photographs, and such an identification was illegal, there is no basis for the claim. Nothing in the pre-trial motion, the grounds presented to the court after the jury was selected, or the trial testimony indicates any identification made on the basis of the photographs. There is no basis for a claim of illegal identification if there was no identification. No 'illegal taint' issue was presented in connection with the photographs.

Defendant's claim to the trial court, after the jury was selected, was based on an asserted line-up. Defendant's representations to the court were: That a witness (apparently the victim) had made a tentative identification of defendant, but indicated she could not be certain of the identification without a line-up. Preparations were under way for a line-up. '* * * That then the investigating officer inadvertently permitted a confrontation between the witness who was there to view a line up including Mr. Turner, but a confrontation was permitted that was not a line up and that the identification that arose out of that is a bad identification, an illegal one. * * *'

The State's response does not materially differ from defendant's representations. The parties agree that while preparations were underway for a line-up, there was a confrontation between defendant and the victim; that the victim identified defendant as the perpetrator of the crime immediately after this confrontation. Both parties agree that the confrontation was inadvertent. Defendant walked into the office where the victim was waiting for the lineup preparations to be completed. We add that the trial testimony fully supports these representations--that the confrontation was inadvertent.

Defendant's claim then is that he was entitled to an evidentiary hearing to determine whether the victim's in-court identification of defendant was tainted by the identification made...