State v. Zinn

• Decision Date: 02 December 1987
• Docket Number: No. 16817,16817
• Citation: 1987 NMSC 115,746 P.2d 650,106 N.M. 544
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Johnny Clifford ZINN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 650

746 P.2d 650

106 N.M. 544

STATE of New Mexico, Plaintiff-Appellee, v. Johnny Clifford ZINN, Defendant-Appellant.

No. 16817.

Supreme Court of New Mexico.

Dec. 2, 1987.

[106 N.M. 545] Jacquelyn Robins, Chief Public Defender, Kerry Kiernan, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Hank Farrah, Albuquerque, Trial Counsel.

Hal Stratton, Atty. Gen., Patricia Frieder, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SOSA, Senior Justice.

A jury convicted defendant Johnny Clifford Zinn (Zinn) of nineteen separate felonies, including murder, kidnapping, criminal sexual penetration, robbery, fraudulent use of a credit card, and extortion, along with conspiracy and solicitation to commit various of the above crimes. Zinn appeals the jury's verdict and the sentence--life plus ninety-six years. For the reasons stated below, we affirm.

FACTS

James Scartaccini (Scartaccini) came to know Zinn through Randy Pierce (Pierce) when the latter asked Scartaccini to help find for Zinn a woman who would be willing to perform sexual acts in front of movie cameras for a supposed pornography ring in Farmington. Police investigation carried out subsequent to the course of events discussed herein turned up no pornography ring. Scartaccini had never met Zinn, but Pierce had been living for some time under Zinn's roof. Pierce had approached the seventeen-year old Scartaccini in early January 1986, holding out the offer of $1500 for any "suitable" woman Scartaccini could find. Scartaccini later told his cousin, Thomas Sliger (Sliger), of Zinn's offer, and the latter joined forces with Scartaccini in attempting to find a woman who would accept Zinn's proposal.

Scartaccini and Sliger were unsuccessful in procuring a woman for Zinn, principally because Zinn either frightened away or repulsed the women whom Scartaccini and Sliger did manage to introduce to Zinn. Because of this failure, Zinn threatened Scartaccini and Sliger with death if they did not locate a woman by the weekend beginning Friday, January 10. Testimony of other witnesses who observed Scartaccini and Sliger during this time confirmed that the two men appeared terrified of Zinn. Upon Scartaccini's and Sliger's failure to find a woman by Saturday, January 11, Zinn instructed the two men to kidnap a woman, and thus Scartaccini and Sliger cooperated with Pierce in kidnapping a woman from an Albuquerque shopping center and taking her to a motel in Albuquerque, chosen by Zinn. After the victim had been brought to the motel, Zinn arrived and ordered the victim to disrobe. The four men then repeatedly raped and sodomized the victim while taking turns photographing her as she was being sexually assaulted. The photographs were later burned, and no record of them was found by the police. Zinn eventually left the room, placing Pierce in charge of the victim and of Scartaccini and Sliger. Scartaccini later contended that he had participated in the sexual assaults only at the behest of Zinn, but Sliger admitted voluntarily raping the victim on one occasion while his three accomplices were out of the room.

Zinn told Pierce to transport the victim out of Albuquerque. After loading the victim into Scartaccini's truck, Pierce drove the victim along with Scartaccini and Sliger to find Zinn in order to get further instructions. Following a meeting with Zinn at Jerry's Lounge, Pierce told Sliger and Scartaccini that Zinn had said to take the victim to the Jemez Mountains. During the drive to the Jemez Mountains, Pierce told Scartaccini and Sliger that "these girls don't come back to Albuquerque." Shortly after that statement, following a phone call from Pierce to Zinn, Pierce told Scartaccini and Sliger that Zinn had told him (Pierce) over the phone to "get rid of her." Pierce found a culvert in a deserted area, led the victim to it, and shot her in the head with Scartaccini's gun. Immediately after the killing, Pierce expressed anger to Scartaccini and Sliger, telling them he had never killed a woman before, and that Zinn would "have to pay" for putting him in a situation in which he (Pierce) had to kill a woman.

Earlier, while in the motel room, Zinn had taken the victim's "Amigo" bank card from her purse and had instructed Pierce and Sliger to take the card to a bank's automatic teller and withdraw funds. Their incompetent attempts to use the card put bank officials on notice, and at one "Amigo" station, a photograph was taken of Pierce. When the victim was reported as missing, Pierce's photograph was shown on television, and a former girlfriend of Scartaccini, who had seen Pierce, Sliger and Scarticcini together before the kidnapping, called the police. On Friday, January 17, 1987, Scartaccini and Sliger were arrested and placed in separate facilities--Sliger being taken to the county jail in Albuquerque and Scartaccini to the Juvenile Detention Center in the same city.

That Friday evening defense attorney Leon Taylor (Taylor) was retained by Scartaccini's and Sliger's parents to represent their sons, and thus Taylor went to interview Scartaccini and Sliger separately at the two detention facilities. On Sunday, January 19, Taylor returned to interview his clients more extensively, each man still being held in a separate facility. Taylor later testified that after the Sunday interview he realized that more than kidnapping was involved (the police at this point did not realize the victim had been murdered), and he requested and received a conference with the district attorney. Taylor's first offer to the district attorney was "complete immunity--no holds barred, bottom line." After the district attorney considered Taylor's proposal, he responded, as Taylor recalls it, with a counteroffer requiring that Taylor's "information * * * provide a conviction." Taylor and the district attorney then executed the following immunity agreement (Agreement # 1):

1. Your clients (sic) no involvement in criminal activity other than [the case at bar].

2. Provide us with all information indicated by Leon [Taylor], and information is truthful.

3. Give us one of following:

A. Return of [victim] alive

or

B. Conviction of her killers if [victim] is dead.

4. Premised on your clients'

A. Not being the killers

and

B. Presenting reasonable evidence of duress or coersion (sic) in their involvement of the [victim's murder].

5. Clients fully cooperate, including truthful testimony, in all cases of which they have knowledge.

If you agree to foregoing, we will agree not to prosecute your clients.

[signatures of Taylor and district attorney] 1-19-86 (emphasis added).

Subsequent to Agreement # 1, on February 28, 1986, another agreement was put into writing (Agreement # 2) that essentially presented the terms of Agreement # 1 in a more formal style, but which omitted any wording as to the conviction of the victim's killers. Further, whereas Agreement # 1 was executed by the attorneys for the parties without prior knowledge on the part of either Scartaccini or Sliger as to the terms, Agreement # 2 was executed by Scartaccini and Sliger along with Taylor and the district attorney.

After the execution of Agreement # 1, Taylor's associate, Daniel Rakes, met with Scartaccini and Sliger. Rakes testified as to this meeting as follows:

I met with the clients at the police sub-station and I informed them that we had a deal where they would be granted immunity if they would tell the truth and cooperate with the police as to their involvement in the * * * murder.

When asked if Scartaccini and Sliger had understood the terms of the agreement, Rakes testified:

Whether or not they understood, I really don't know. One of them had just been driving (sic) out of the detention center--he was asleep in the back of the police car and brought up and both of them were real hyper and excited and I tried to do my best to explain to them what was going on, but the main thrust of what I had told them was to tell the truth and cooperate with the police.

Shortly after Rakes met with Scartaccini and Sliger, at separate times and without the other present, each gave the police lengthy statements detailing the facts of the conspiracies, kidnapping, murder and sexual assaults. The statements were transcribed and later introduced into evidence. The statements, insofar as they pertained to Zinn's and Pierce's involvement in the crimes, did not deviate significantly from Scartaccini's and Sliger's later oral testimony presented both at the preliminary examination and at trial. Likewise, the statement of neither man differed significantly from the statement of the other.

At the preliminary hearing, when Taylor was asked by the trial court if it was his understanding that the absence of "conviction of her killers" from Agreement # 2 meant that if the killers were acquitted Scartaccini and Sliger "would still have their immunity," Taylor answered, "That's correct. My clients walk whether these people get convicted or not." When Scartaccini and Sliger were questioned at the preliminary examination as to their understanding of Agreement # 1, Scartaccini said nothing about the conviction requirement, while Sliger acknowledged his awareness of that provision. Both men stated they understood they were to tell the truth.

Pierce and Zinn were joined as co-defendants, but Pierce eventually entered a guilty plea and was sentenced to life imprisonment plus thirty-six years. Pierce did not testify at Zinn's trial. The following issues are before us on appeal.

I. DID THE IMMUNITY AGREEMENT AND RESULTING INCULPATORY TESTIMONY DEPRIVE ZINN OF A FAIR TRIAL?

On appeal, Zinn argues that Agreement # 1, premised as it was on "Return of [victim] alive or conviction of her killers," was an impermissible condition to the grant of immunity in that it coerced testimony calculated to return a guilty verdict against Zinn regardless of the actual facts. This is an issue of first impression in New Mexico, and the parties in their...