State v. Victorian

• Decision Date: 19 January 1973
• Docket Number: No. 9473,9473
• Citation: 505 P.2d 436,84 N.M. 491,1973 NMSC 8
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John Ashton VICTORIAN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 436

505 P.2d 436

84 N.M. 491

STATE of New Mexico, Plaintiff-Appellee, v. John Ashton VICTORIAN, Defendant-Appellant.

No. 9473.

Supreme Court of New Mexico.

Jan. 19, 1973.

Rehearing Denied Feb. 14, 1973.

Louis G. Stewart, Jr., Albuquerque, for defendant-appellant

David L. Norvell, Atty. Gen., Victor Moss, James H. Russell, Jr., Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

OMAN, Justice.

Defendant was convicted on two counts of first degree murder and sentenced to life imprisonment for each, with the sentences to run concurrently. He has appealed. We affirm. Defendant asserts eight separately stated points and four subpoints upon which he relies for reversal. We shall consider these points and subpoints in the order of their presentation in the briefs. The first is a claim that the trial court:

'* * * was without authority and jurisdiction to conduct the jury trial of defendant, because the state and the defendant had previously stipulated to a change of venue (from Bernalillo County to Santa Fe County) and the court by written order had approved that stipulation.'

The stipulation and order were filed on April 5, 1967. At the time of commencement of trial on August 24, 1971, a different trial judge was presiding over the case and different attorneys were representing defendant. From the filing of the complaint, a motion and an order on January 3, 1967 to the certification on April 26, 1972 of the record for the purpose of perfecting this appeal, all proceedings were held in the district court of Bernalillo County. At no time were the proceedings in the district court ever questioned. The matter of venue was never raised, except for the reference thereto in the stipulation and order filed on April 5, 1967 and a Motion for Change of Venue, apparently in defendant's handwriting, filed August 4, 1970. This motion was directed against the district court of Bernalillo County, and claimed undue bias and prejudice by the court against defendant. Some time between July 26, 1971 and August 16, 1971 the case came under the control of a different district judge and remained under the control of the replacing judge through all subsequent proceedings, except for two orders directing the issuance of warrants for air transportation and witness fees entered by the presiding district judge in Bernalillo County. Venue in Bernalillo County, wherein the murders were committed, was first questioned in this Court on appeal. The question presented is as above recited and its resolution is dependent entirely upon the effect of the stipulation and the order approving it.

A change of venue to Santa Fe County was never in fact accomplished. The case was never assigned and the record thereof never transferred to the district court of Santa Fe County. The trial was held in the district court of Bernalillo County without question ever having been raised or objection made thereto. No claim is made, and the record fails to reflect, that there was difficulty in selecting a fair and impartial jury, or that defendant failed to get a fair and impartial trial because it was held in Bernalillo County.

Defendant was tried in the proper district as provided in Amendment 6, Constitution of the United States, and in the proper county and district as provided in Art. II, § 14, Constitution of New Mexico. He waived whatever rights to a change of venue, if any, which he had acquired under the court's order approving the stipulation, when he proceeded to trial in the district court of Bernalillo County without ever having raised a question as to venue or having objected to being tried in that court. Compare Bernstein v. Bernstein, 73 N.M. 365, 388 P.2d 187 (1964); Heron v. Gaylor, 53 N.M. 44, 201 P.2d 366 (1948); State v. Shroyer, 49 N.M. 196, 160 P.2d 444 (1945); State v. Archer et al., 32 N.M. 319, 255 P. 396 (1927); State v. Balles, 24 N.M. 16, 172 P. 196 (1918); State v. Holloway, 19 N.M. 528, 146 P. 1066 (1914).

By his second point defendant contends the trial court abused its discretion in admitting into evidence a photograph of the body of each victim. These photographs are not before us on this appeal, but the record shows they were taken of the bodies in the hospital to which they were removed after their discovery in the grocery store which the victims had operated. The one victim was apparently dead when discovered, but the other was still alive. She died shortly thereafter.

It is defendant's position that the photographs were irrelevant to any issue in the case, and the trial court abused its discretion in failing '* * * to weigh the probative value of the evidence against the possibility of risk of prejudice of the Defendant. * * *'

Defendant concedes the matter of the admission of photographs into evidence rests largely in the discretion of the trial court, and its decision on this question ordinarily will not be disturbed on appeal. State v. Sedillo, 76 N.M. 273, 414 P.2d 500 (1966); State v. Upton, 60 N.M. 205, 290 P.2d 440 (1955); State v. Johnson, 57 N.M. 716, 263 P.2d 282 (1953); State v. Webb, 81 N.M. 508, 469 P.2d 153 (Ct.App.1970). Defendant was standing on his defenses of not guilty and not guilty by reason of insanity. The photographs were visual explanations and corroborations of testimony concerning the shootings and the deaths of the victims resulting therefrom, and were admissible for these purposes. State v. Sedillo, supra; State v. Upton, supra; State v. Johnson, supra; State v. Webb, supra. See also State v. Horton, 57 N.M. 257, 258 P.2d 371 (1953).

The record clearly shows the court in ruling on the admissibility of these photographs did exercise its discretion. The burden was on defendant to show an abuse of discretion by the trial court. State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966); State v. Holden, 45 N.M. 147, 113 P.2d 171 (1941); State v. Coca, 80 N.M. 95, 451 P.2d 999 (Ct.App.1969). This he has failed to do.

The next contention of defendant is that the trial court erred in not giving his requested instruction to the jury that it must first find beyond a reasonable doubt that he committed all the essential elements of the offenses charged before considering his plea of insanity. He relies upon State v. James, 83 N.M. 263, 490 P.2d 1236 (Ct.App.1971), wherein it was stated '* * * the jury should be instructed to consider first whether the defendant is guilty of the crime charged, without consideration of the question of insanity. * * *'

One of the court's instructions was in part as follows:

'8. If you are convinced beyond a reasonable doubt that the defendant committed the acts charged, there is another matter which you must consider before you can find him guilty. The defendant has entered a plea of not guilty by reason of insanity, thereby alleging that he was insane at the time of the commission of the offense. * * *'

Although this instruction did not expressly advise the jury that the first question it was to decide was whether defendant committed all the essential elements of the offense charged before considering the plea of insanity, the above quoted language from the court's instructions clearly implies this order of consideration. However, even if there should be doubt about this, the essential requirements of the instructions, insofar as the question now being considered is concerned, were that the jury was properly instructed as to the burden of proof, the essential elements of the crime charged, and the issue of insanity. The jury was instructed upon these issues, and the fact that it may possibly have considered the issue of sanity, before considering whether defendant had in fact committed the essential elements of the crimes charged, cannot be said to be reversible error. In order to convict defendant, the jury was required to consider each of these issues, and their order of consideration by the jury cannot logically be said to be essential to their correct consideration and determination. Insofar as State v. James, supra, states to the contrary, the decision in that case is overruled.

Although not expressly raised by his point relied upon for reversal and not argued, it is suggested by defendant that the trial court failed to instruct on all the essential elements of insanity. We disagree. The instruction given by the trial court on the elements of insanity is in accord with State v. White, 58 N.M. 324 at 330, 270 P.2d 727 (1954); State v. Roy, 40 N.M. 397 at 404, 60 P.2d 646 (1936); State v. James, supra.

Defendant next claims the trial court erred in refusing to set aside the jury verdict because of improper and prejudicial comments by the district attorney in the closing argument.

He has quoted approximately two pages of the argument which he claims was designed to mislead the jury, calculated to inflame the passions and prejudices of the jury, and which injected into the case the false issue of defendant's disposition if he were acquitted. He also urges that a reading of the entire closing argument demonstrates 'the prosecutor was acting in extreme bad faith.'

Even were we to concede the argument in some particulars exceeded the bounds of propriety, defendant is in no position to complain. No objections were made to any of the arguments about which he now complains on appeal. If he felt the remarks by the prosecutor exceeded the bounds of propriety, the burden was on him to make objection at the time the remarks were made, and not wait until the trial was concluded and then seek relief by asking that the verdict be set aside or the judgment entered thereon be reversed on appeal. Torres v. Territory, 16 N.M. 615, 121 P. 27 (1911); State v. Carmona, 84 N.M. 119, 500 P.2d 204 (Ct.App.1972); State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App.1971). We do not agree that the argument of the prosecutor shows he 'was acting in extreme bad faith.' We do not, however, wish to be construed as departing from the requirement that the prosecutor must...