State v. Worley

Decision Date13 January 1984
Docket NumberNo. 14691,14691
Citation1984 NMSC 13,676 P.2d 247,100 N.M. 720
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Curtis WORLEY, Defendant-Appellant.
CourtNew Mexico Supreme Court
Janet E. Clow, Chief Public Defender, William P. Slattery, Asst. Appellate Defender, Santa Fe, for defendant-appellant
OPINION

STOWERS, Justice.

Defendant Curtis Worley was tried by jury and convicted in the District Court of Eddy County for one count of first degree murder and one count of criminal sexual penetration in the first degree. The jury did not find the aggravating circumstances of NMSA 1978, Section 31-20A-5(B) (Repl.Pamp.1981) that the murder was committed with intent to kill in the commission of criminal sexual penetration. The defendant was sentenced to life imprisonment for the conviction of first degree murder.

From this conviction defendant appeals. We affirm.

The issues on appeal are:

1. Whether the trial court abused its discretion in allowing the state to demonstrate the possible bias of a defense witness because of the witness's commission of a similar offense.

2. Whether the defendant was denied a fair trial by the actions of the prosecutor and the trial court concerning the testimony of co-defendant Carl Case.

The facts of this case have been set out in detail in State v. Case, 100 N.M. ---, 676 P.2d 241 1984).

Possible Bias of a Defense Witness.

During defendant's case in chief, Bobby Phillips (Phillips) was called as an alibi witness. Phillips testified that he, the defendant's brother, and the defendant were together on January 1, 1982 when the rape and murder of Nancy Mitchell was alleged to have occurred. Phillips further testified that they did not attend any parties that evening. Between direct and cross-examination of Phillips, a discussion was held out of the jury's presence regarding Phillips' prior juvenile adjudication. In 1980, Phillips had been adjudicated a delinquent for committing criminal sexual penetration. The trial court determined that the prosecutor could ask Phillips about commission of the act, provided he did not question the witness about the adjudication. On cross-examination, the prosecution asked Phillips a series of questions relating to January 1, 1982 and his whereabouts that day. Central to this line of questioning was whether he accurately remembered January 1, 1982 as the date he spent the evening with the defendant and defendant's brother. Phillips admitted he was unsure of the date until he talked to his parents and the defendant's brother who assured him that it was indeed January 1, 1982 when he spent the evening with the defendant and the defendant's brother. Phillips went on to testify that he was still not sure of the date. The final question asked of Phillips on cross-examination was as follows:

Mr. Phillips, isn't it true that you yourself have committed criminal sexual penetration?

Phillips answered yes to this question. No further questions were asked of this witness, nor was Phillips' conduct mentioned by the prosecutor in closing or rebuttal arguments.

The defendant argues that the trial court erred in allowing the State to impeach a key defense alibi witness with a specific act of misconduct which was not probative of truthfulness. Evidence of character and the conduct of witnesses is governed by NMSA 1978, Evid.Rule 608 (Repl.Pamp.1983). NMSA 1978, Evid.Rule 609 (Repl.Pamp.1983) involves impeachment by evidence of conviction of a crime. Although Rule 609(c) generally excludes evidence of juvenile adjudication from questioning concerning prior convictions, this exclusion does not prohibit questioning if probative of truthfulness or untruthfulness. State v. Wyman, 96 N.M. 558, 632 P.2d 1196 (Ct.App.1981). In the present case, however, the prosecutor's question concerned the commission of a specific instance of conduct, not an adjudication. The prosecutor argued that because Phillips committed one of the same offenses for which the defendant was on trial, this showed that Phillips attached minimal importance to the charge and would be willing to lie for the defendant. Extrinsic evidence of a motive of a witness to testify falsely is admissible. State v. Lovato, 91 N.M. 712, 580 P.2d 138, cert. denied, 91 N.M. 751, 580 P.2d 972 (1978); State v. White, 58 N.M. 324, 270 P.2d 727 (1954). This evidence is similar to evidence of a witness's bias or prejudice and a witness may be cross-examined as to such motive. State v. Lovato.

In this case, it was relevant to probe and determine the motive of the witness. This witness had previously committed criminal sexual penetration and was testifying for the defendant, who was also charged with the same offense. Therefore, it was relevant and proper to cross-examine Phillips to demonstrate truthfulness or untruthfulness, bias and prejudice. Moreover, the major focus of Phillips' cross-examination showed that he was unsure of the most critical element of his testimony--the date he was with the defendant and the defendant's brother.

Admission of evidence is entrusted to the discretion of the trial court, and rulings of the trial judge will not be disturbed absent a clear abuse of discretion. State v. Stout, 96 N.M. 29, 627 P.2d 871 (1981). Under these facts, we find the trial court did not abuse its discretion.

Testimony of Co-Defendant Carl Case.

As part of its case in chief, the State called co-defendant Carl Case (Case) to testify. Case had been convicted of the same charges in an earlier proceeding. The prosecutor tendered a limited use immunity order for Case which the trial court signed. Case was voir dired by defense counsel, and he stated that he understood how to invoke his privilege against self-incrimination. In response to the prosecutor's second question, Case stated he currently resides in the penitentiary. No objection was made by defense counsel. Case initially declined to answer whether he knew the defendant but subsequently admitted he did and then answered a series of questions concerning his own activities and those of the victim on the day in question. Case then refused to state what he did the evening of January 1, 1982, nor would he state who he was with that evening.

The trial court threatened to hold Case in contempt for each question he refused to answer, and to sentence him to consecutive one year sentences for each such instance of refusal. The trial court stated that the contempt sentences would be consecutive to the time Case was already serving. The defendant moved for a mistrial based on the trial court's reference to Case's trial and conviction. The trial court denied the defendant's motion, and Case was found in contempt of court for each failure to respond. See State v. Case, 100 N.M. 173, 667 P.2d 978 (Ct.App.1983) (refusals to answer by witness constituted but one contempt because there was but one subject of inquiry).

On cross-examination defense counsel first asked Case if he would refuse to answer any questions concerning testimony he gave at his own trial. Case stated that he would not answer, and defense counsel proceeded to ask five questions relating to his trial testimony. Case was found in contempt of court for each failure to answer. Case was later cited for contempt for failure to answer a question asked during redirect examination and for a question asked by the prosecution when Case was recalled as a rebuttal witness.

During defendant's trial, the trial court, both counsel as well as several witnesses, made numerous references to Case's trial without objection. Moreover, the eyewitnesses to the rape and murder of Nancy Mitchell all mentioned that Case was present and actively involved.

After both sides rested, the trial court admonished the jury not to discuss the contempt of Case at all during deliberation and not to consider Case's action in any way in deciding the guilt or innocence of the defendant. The trial court further instructed the jury not to consider any statements from the transcript of Case's trial read by either attorney, nor were they to consider the fact that Case did not answer certain questions. The trial court again admonished the jury following closing arguments and provided two instructions to the jury which instructed the jury again not to consider Case's contempt, the trial court's actions toward Case, or his refusals as evidence in determining the defendant's guilt or innocence.

The defendant argues that statements and actions of the trial court prejudiced him by allowing the jury to infer that Case had been convicted of the same crime for which defendant was on trial. The defendant contends that Case's previous conviction created the impression that defendant was also guilty and that the trial court gave this impression to the jury when citing Case for contempt. While it is true that the trial court's warning to Case concerning his testimony and the consequences of refusal refers to the fact that Case was already serving a sentence, the jury was already aware that Case was serving time. On direct examination, two preliminary questions regarding Case's incarceration were asked in the presence of the jury. The defendant did not object to these references. When the trial court later referred to Case's incarceration, the jury was told nothing new. In the present case, there were repeated references to Case's trial and his involvement in the attack on Nancy Mitchell. The jury knew that Case's term in the penitentiary resulted from a conviction for that crime.

We find that the trial court's actions, under these circumstances, were not in error. The trial court was faced with a difficult and recalcitrant witness who refused to answer certain relevant questions. Furthermore, the witness had no legal right to refuse to answer since he had already been tried on the same charges and had been granted immunity to testify. A trial court can...

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