State v. Wittgenstein
| Decision Date | 31 January 1995 |
| Docket Number | No. 15230,15230 |
| Citation | 1995 NMCA 10,893 P.2d 461,119 N.M. 565 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Herta WITTGENSTEIN, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Herta Wittgenstein (Defendant) appeals her convictions on one count of fraud over $2,500 and one count of attempting to evade taxes. The history of this prosecution may be unique. On July 31, 1986 Defendant was indicted on fifteen counts, including charges of unauthorized practice of medicine, fraud, and attempting to evade taxes. A few months later she was indicted on an additional three counts of fraud and attempted fraud. Defendant pleaded guilty on January 13, 1987 to one count of unauthorized practice of medicine and two counts of fraud, the other counts being dismissed as part of a plea agreement. She was sentenced on May 4, 1987 and promptly appealed. We affirmed her convictions in September 1987. In May 1988 Defendant petitioned the United States District Court for the District of New Mexico to set aside her guilty plea. The district court denied relief, but in November 1992 the United States Court of Appeals for the Tenth Circuit reversed and remanded for reconsideration. Spitzweiser-Wittgenstein v. Newton, 978 F.2d 1195 (10th Cir.1992). On July 12, 1993 the federal district court issued an order setting aside Defendant's 1987 guilty plea and requiring that any trial on the charges be commenced within 90 days. The dismissed counts were reinstated and Defendant was tried on seven of the counts in the indictments against her. The jury convicted her on two counts, acquitted her on four, and was unable to reach a verdict on the remaining count.
On appeal Defendant contends that (1) the counts in the indictment upon which she was convicted were unconstitutionally vague and should have been quashed; (2) the trial judge should have granted her motion to recuse himself; (3) there was insufficient evidence to sustain the jury verdicts; (4) the trial judge erred in allowing irrelevant testimony of witness Roger Thompson; (5) defense counsel was denied adequate time to prepare for trial; (6) the trial judge should have granted her motion for a mistrial when a witness testified about her prior invalidated guilty plea; (7) the charges should have been dismissed with prejudice because of the death of witnesses during the time between her invalidated guilty plea and the trial; and (8) the trial judge erred in refusing to give her credit on her sentence for presentence confinement served pursuant to her invalidated guilty plea. Most of the issues can be resolved summarily. We reject Defendant's first seven contentions and affirm the conviction. We agree, however, with her eighth contention and therefore remand to the district court to award proper credit toward her sentence for her presentence confinement.
Defendant contends that the two counts of the indictment upon which she was convicted did not describe her alleged misconduct with sufficient specificity to enable her to prepare a defense or to protect her against subsequent prosecution for the same offenses. See State v. Naranjo, 94 N.M. 407, 412, 611 P.2d 1101, 1106 (1980). This contention comes too late. In district court Defendant did not challenge the specificity of the indictment or request a statement of facts. Defendant's contention cannot be raised for the first time on appeal. See State v. Altgilbers, 109 N.M. 453, 467, 786 P.2d 680, 694 (Ct.App.1989), cert. denied, 109 N.M. 419, 785 P.2d 1038 (1990); State v. Martin, 94 N.M. 251, 253, 609 P.2d 333, 335 (Ct.App.), cert. denied, 94 N.M. 628, 614 P.2d 545 (1980).
Defendant's contention that the trial judge should have recused himself is predicated solely on comments by the judge made a few days before trial while conducting a hearing in another case. Defendant's brief does not explain why anything said by the judge would imply that he was not impartial. Our review of the judge's comments suggests that he was expressing sympathy rather than hostility. The judge denied having any bias against Defendant. We find no error in the district court's denial of the recusal motion. See Purpura v. Purpura, 115 N.M. 80, 83-84, 847 P.2d 314, 317-18 (Ct.App.), cert. denied, 115 N.M. 79, 847 P.2d 313 (1993).
Defendant devotes less than two pages of her brief in chief to her contention that there was insufficient evidence to sustain the verdicts against her. She ignores SCRA 1986, 12-213(A)(3) (Cum.Supp.1994), which requires that "[a] contention that a verdict ... is not supported by substantial evidence shall be deemed waived unless the summary of proceedings includes the substance of the evidence bearing upon the proposition...." We are reluctant to rely solely on this rule to address Defendant's sufficiency-of-the-evidence contentions because a conviction not supported by the evidence constitutes fundamental error. See State v. Doe, 92 N.M. 100, 102, 583 P.2d 464, 466 (1978). Nevertheless, the State's answer brief summarizes sufficient evidence to sustain the verdicts under the standard of review set forth in State v. Apodaca, 118 N.M. 762, 765-67, 887 P.2d 756, 759-61 (1994). Nothing in Defendant's brief in chief casts doubt on the State's summary, and Defendant has filed no reply brief. Under these circumstances we reject Defendant's contentions that the evidence was insufficient.
Defendant argues on appeal that witness Thompson was permitted to testify, over proper objection, "to irrelevant and prejudicial acts ascribed to Defendant." But her brief does not describe the testimony or identify the particulars that made it inadmissible. We refuse to speculate concerning Defendant's specific contentions on appeal, and therefore we will not reverse on this ground.
Defendant claims that her attorney did not have sufficient time to prepare for trial because he was appointed only three weeks before trial. Although framing her argument as a claim of denial of the right to a speedy trial, the proper formulation of her claim is that she was denied effective assistance of counsel. See State v. Hernandez, 115 N.M. 6, 13-18, 846 P.2d 312, 319-24 (1993); State v. Brazeal, 109 N.M. 752, 755-58, 790 P.2d 1033, 1036-39 (Ct.App.), cert. denied, 109 N.M. 631, 788 P.2d 931 (1990). Defendant fails to explain, however, why the circumstances of the case indicate that the three-week preparation time necessarily prejudiced the defense. See Hernandez, 115 N.M. at 14, 846 P.2d at 320; Brazeal, 109 N.M. at 756, 790 P.2d at 1037. Nor has Defendant indicated any way in which she suffered actual prejudice because of inadequate time for her counsel to prepare. We note that of the seven counts submitted to the jury, the jury acquitted Defendant of four and was unable to reach a verdict on a fifth. Thus, we find no basis for setting aside the verdicts on the ground that defense counsel lacked adequate time to prepare. See Hernandez; Brazeal.
When asked by the prosecutor how long he had known Defendant, witness Willem Malten answered, "From the end of 1984 to the time she pled guilty to the previous charges." Malten then proceeded to discuss how he and Defendant had met and other aspects of their relationship. Defense counsel did not notice the reference to Defendant's plea. When the trial judge, out of the presence of the jury, brought the reference to the attention of defense counsel, defense counsel moved for a mistrial. Both the judge and the prosecutor responded that the jury had not appeared to react to Malten's statement. The judge denied the motion. Defense counsel did not request a cautionary instruction or any relief besides a mistrial.
On appeal Defendant contends:
The prejudice to Defendant is not as clear-cut as she contends on appeal. If defense counsel did not notice the remark, one cannot presume that the jurors did. Given that the prosecutor made no attempt to emphasize Malten's comment, the jurors may have assumed that the witness had meant to say "pled not guilty". Even if the jurors concluded that Defendant had pleaded guilty to some of the charges involved in this case, they may have inferred that she was a person willing to admit guilt and therefore must have had sound reasons for demanding a trial on the charges before them. In this regard we note that earlier in the trial Defendant herself (apparently against the advice of her attorney) had requested that she be allowed to notify the jury of her prior guilty plea.
We defer to the sound discretion of the trial judge in deciding whether to grant a mistrial. See State v. Gibson, 113 N.M. 547, 556, 828 P.2d 980, 989 (Ct.App.), cert. denied, 113 N.M. 524, 828 P.2d 957 (1992). We give particular weight to his observation that the jury did not react to Malten's comment. Defendant's failure to request a cautionary instruction also weighs against reversal, because a well-constructed instruction can often dissipate prejudice. See id. Some after-the-fact support for the judge's decision can be found in the verdict reached by the jury: two verdicts of guilty, four verdicts of not guilty, and one indecision. This result is not one likely to have occurred if the sound judgment of the jurors had been overwhelmed by Malten's comment. We find no reversible error in the denial of Defendant's motion for a mistrial.
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1998 -NMSC- 26, State v. Arellano
...jurors returned the verdict because the trial court failed to swear in the jurors during the trial. See State v. Wittgenstein, 119 N.M. 565, 569, 893 P.2d 461, 465 (Ct.App.1995). We "will not disturb the trial court's ruling without a clear showing of abuse of discretion." State v. Lucero, ......
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