State v. Vallejos, No. 1198
| Docket Nº | No. 1198 |
| Citation | 519 P.2d 135, 86 N.M. 39, 1974 NMCA 9 |
| Case Date | January 30, 1974 |
| Court | Court of Appeals of New Mexico |
Page 135
v.
Joe A. VALLEJOS and Henry Vasquez, Defendants-Appellants.
[86 N.M. 40]
Page 136
E. Ray Phelps, Roswell, for defendant-appellant Vallejos.William C. Fleming, Frazier, Cusack & Schnedar, Roswell, for defendant-appellant Vasquez.
David L. Norvell, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Jay F. Rosenthal, Sp. Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
WOOD, Chief Judge.
Defendant Vasquez appeals his conviction of battery upon a peace officer. Section 40A--22--23, N.M.S.A.1953 (2d Repl.Vol. 6). Defendant Vallejos appeals his conviction of two counts of aggravated assault upon a peace officer. Section 40A--22--21, N.M.S.A.1953 (2d Repl.Vol. 6). Vasquez does not challenge the sufficiency [86 N.M. 41]
Page 137
of the evidence; Vallejos does. The testimony of police officers concerning two incidents where Vallejos struck at police officers with a straight razor is substantial evidence to support the conviction of Vallejos on both counts. Our concern is with two issues: (1) joinder and severance and (2) prosecutor misconduct.Joinder and severance.
A melee occurred. Several persons were charged with criminal offenses in separate informations. The State sought consolidation of four of the cases, relying on the joinder provisions of § 41--23--11(c)(2), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). Consolidation was ordered. Of the four cases, the two involving the defendants in this appeal were set for trial. Immediately prior to trial, Vasquez renewed his opposition to the original consolidation. He also moved for severance, relying on § 41--23--34, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). The severance motion was denied.
At the time the severance motion was denied, Vasquez had raised three issues pertaining to joinder and severance. They were: (a) the initial consolidation under § 41--23--11(c)(2), supra; (b) discretionary severance under § 41--23--34(a), supra; and (c) severance 'as of right' under § 41--23--34(b)(2), supra. We do not reach the merits of any of these issues. The record shows Vasquez relied on the transcripts of the preliminary hearings as the factual basis for these issues. These transcripts are not in the record. We cannot say the trial court erred in granting consolidation and in denying severance when the factual basis for these issues is not before us for review. Section 21--2--1(17)(1), N.M.S.A.1953 (Repl.Vol. 4).
Prosecutor misconduct.
Four instances of prosecutor misconduct are claimed. One of the instances cannot be held to be misconduct. This instance concerns the district attorney's reference in closing jury argument to 'what happened in Albuquerque, and could have happened here.' This was a reference to what has been termed the 'Albuquerque nots.' Vasquez' new trial motion indicates the Albuquerque riots occurred in 1971.
The context of the 'Albuquerque riots' reference is this: there is evidence that the melee which resulted in criminal charges against defendants was a confrontation between approximately ten Roswell police officers and a group of approximately thirty people. Vasquez' counsel, during voir dire of prospective jurors, had referred to the confrontation as a 'near riot.' Defense counsel's argument to the jury was not recorded. In rebuttal closing argument, the district attorney stated: 'it has been mentioned to you by Mr. Fleming, about the confrontations that are going on across the country, and he was allowed to mention this in his argument.' Later in his rebuttal, the district attorney referred to a 'riot situation' and stated that this was no different than what happened in Albuquerque. Defense counsel objected to comparing the Roswell incident with the Albuquerque incident. The objection was sustained, the jury was admonished to disregard the reference to the 'Albuquerque situation' and the district attorney was instructed to confine himself to the facts of the case.
Since we do not know the nature of dfense counsel's remarks about 'confrontations * * * across the country,' we cannot say that the district attorney's reference to the Albuquerque situation, in response, was misconduct. See State v. Jamerson (Ct.App.), 85 N.M. 799, 518 P.2d 779, decided January 2, 1974, and cases therein cited.
The other three instances are clearly misconduct.
After the straight razor was introduced as evidence, questioning by the district attorney brought out that a butcher knife had been found at the scene. The 'scene' encompasses the porch of a residence, its yard and the adjoining street. The butcher knife was marked as an exhibit and identified by a witness as having been found on the porch. The witness also testified[86 N.M. 42]
Page 138
it was found in an area where a struggle was going on between a police officer and two other men who are not the defendants. The witness also testified that he had no knowledge that either of the defendants ever had the butcher knife.Over defense objection, the district attorney was permitted to continue questioning concerning the butcher knife. This questioning established that at an unidentified point in time the defendants were seen in the 'vicinity' of the porch, but there is no evidence connecting the defendants with the butcher knife. Yet, at the conclusion of the questioning, the district attorney offered the knife into evidence. A defense objection was sustained. The trial court instructed the jury to disregard testimony about the butcher knife and the district attorney was instructed to remove the butcher knife from the exhibit table and conceal it.
The witnesses who were questioned about the butcher knife were witnesses called by the State. The conduct of the district attorney in displaying the knife and questioning his own witnesses about a knife they could not connect to the defendants must be considered bad faith conduct. See State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966).
The district attorney, in his rebuttal closing argument to the jury, stated:
'* * * You know, a lot of us can put the blame on somebody else as to what is going on in the country. You know last night a Member of the United States Senate, and Head of Armed Forces Committee for something like twenty-one years, was struck and robbed as he went into his home, and was shot, and perhaps is dead by now.'
When the defense objected, the trial court directed the district attorney to stay within the issues and instructed the jury to...
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State v. Altgilbers, 10071
...abuse of the children's sister. He asks this court to examine the issues under the fundamental error rule set forth in State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974). Vallejos requires that the error deprive defendant of a fair trial. The only reference at trial to sexual abuse o......
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Gutierrez v. Moriarty, 88-1849
...318 (1983); State v. Bolen, 88 N.M. 647, 545 P.2d 1025, 1026 (Ct.App.), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976); State v. Vallejos, 86 N.M. 39, 519 P.2d 135, 139 (Ct.App.1974); State v. Baca, 81 N.M. 686, 472 P.2d 651, 651 (Ct.App.), cert. denied, 81 N.M. 721, 472 P.2d 984 (1970); see a......
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State v. McClaugherty, 24,409.
...does not reasonably believe is relevant or that will not be supported by admissible evidence[.]" Rule 16-304(E) NMRA; State v. Vallejos, 86 N.M. 39, 43, 519 P.2d 135, 139 (Ct.App.1974) (citing breach of this ethical {86} We consistently hold that counsel should not argue facts outside the r......
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State v. Smith, S–1–SC–34504.
...argues that the trial grew so out of control that the trial court erred in denying his motions, see State v. Vallejos, 1974–NMCA–009, ¶ 26, 86 N.M. 39, 519 P.2d 135 (determining that the cumulative impact of a prosecutor's improper comments was so prejudicial that it deprived the defendants......
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State v. Altgilbers, 10071
...abuse of the children's sister. He asks this court to examine the issues under the fundamental error rule set forth in State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974). Vallejos requires that the error deprive defendant of a fair trial. The only reference at trial to sexual abuse o......
-
Gutierrez v. Moriarty, 88-1849
...318 (1983); State v. Bolen, 88 N.M. 647, 545 P.2d 1025, 1026 (Ct.App.), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976); State v. Vallejos, 86 N.M. 39, 519 P.2d 135, 139 (Ct.App.1974); State v. Baca, 81 N.M. 686, 472 P.2d 651, 651 (Ct.App.), cert. denied, 81 N.M. 721, 472 P.2d 984 (1970); see a......
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State v. McClaugherty, 24,409.
...does not reasonably believe is relevant or that will not be supported by admissible evidence[.]" Rule 16-304(E) NMRA; State v. Vallejos, 86 N.M. 39, 43, 519 P.2d 135, 139 (Ct.App.1974) (citing breach of this ethical {86} We consistently hold that counsel should not argue facts outside the r......
-
State v. Smith, S–1–SC–34504.
...argues that the trial grew so out of control that the trial court erred in denying his motions, see State v. Vallejos, 1974–NMCA–009, ¶ 26, 86 N.M. 39, 519 P.2d 135 (determining that the cumulative impact of a prosecutor's improper comments was so prejudicial that it deprived the defendants......