State v. Vallejos
| Decision Date | 30 January 1974 |
| Docket Number | No. 1198,1198 |
| Citation | 519 P.2d 135,86 N.M. 39,1974 NMCA 9 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Joe A. VALLEJOS and Henry Vasquez, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
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 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 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:
When the defense objected, the trial court directed the district attorney to stay within the issues and instructed the jury to disregard the above comment.
This reference to a crime in Washington, D.C., with Senator Stennis as the victim, was clearly beyond the evidence in the case. '(A) statement of facts entirely outside of the evidence, and highly prejudicial to the accused, cannot be justified as argument.' The jury 'verdict should be based upon the law and the evidence, not on what other people did.' State v. Cummings, 57 N.M. 36, 253 P.2d 321 (1953). The State concedes this was misconduct on the part of the district attorney.
Also, during rebuttal closing argument, the district attorney stated:
* * *'
The comment is that the district attorney does not prosecute unless he believes the one he prosecutes is guilty. This expresses the personal opinion of the prosecutor in the defendants' guilt prior to any evidence being presented. There can be no excuse for such comment. People v. Kirkes, 39 Cal.2d 719, 249 P.2d 1 (1952). A prosecutor must 'refrain from pre-condemning the accused on the authority of the government he represents.' State v. Gulbrandsen, 238 Minn. 508, 57 N.W.2d 419 (1953). The expression of the personal opinion of the district attorney in the guilt of defendants was misconduct. People v. Alverson, 60 Cal.2d 803, 36 Cal.Rptr. 479, 388 P.2d 711 (1964); People v. Kirkes, supra; Price v. State, 267 So.2d 39 (Fla.App.1972); People v. Reimann, 266 App.Div. 505, 42 N.Y.S.2d 599 (1943); see Annot., 50 A.L.R.2d 766 (1956).
No objection was made to the district attorney's expression of a personal belief in the guilt of defendants. Some courts have declared such a comment error requiring a reversal, regardless of whether objection was made. See People v. Reimann, supra. Other courts require an objection before the comment will be considered on appeal. See State v. King, 375 S.W.2d 34 (Mo.1964). Still others hold that a failure to object does not foreclose appellate review if the comment had 'unfairly prejudiced the defendant.' United States v. Sawyer, 347 F.2d 372 (4th Cir. 1965).
In New Mexico, unless objection was made to the improper comment, the comment will not be reviewed. State v. Riggsbee, 85 N.M. 668, 515 P.2d 964, decided November 9, 1973; State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App.1971), cert. denied 404 U.S. 1015, 92 S.Ct. 688, 30 L.Ed.2d 662 (1972). Accordingly, the district attorney's expression of opinion that defendants were guilty has not been preserved as an independent point for review.
Before considering what effect is to be given to the three items of misconduct on the part of the district attorney, it should be noted that each item is a breach of the Code of Professional Responsibility adopted by the New Mexico Supreme Court as 'rules of conduct for attorneys in this state.' Section 21--2--1(32), N.M.S.A.1953 (Repl.Vol. 4, Supp.1973). Ethical Consideration 7--25 of the Code states: 'A lawyer should not by subterfuge put before a jury matters which it cannot properly consider.' Disciplinary Rule 7--106(C)(1) states a lawyer shall not '(s)tate or allude to any matter * * * that...
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