STATE V. WHEELER, 1980-NMCA-185, 95 N.M.
378, 622 P.2d 283 (Ct. App. 1980)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
ERIC WHEELER, a/k/a ROGER O. EDWARDS, a/k/a PATRICK A.
JORDAN, a/k/a ROGER DALE SHIPMAN, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1980-NMCA-185, 95 N.M. 378, 622 P.2d 283
Appeal from the District Court of Curry
County, Hendley, Judge.
THOMAS JOSEPH HORNE, Albuquerque, New
Mexico, Attorney for Appellant.
JEFF BINGAMAN, Attorney General, ART
ENCINIAS, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Appellee.
Hendley, J., wrote the opinion. WE.
CONCUR: B. C. Hernandez, J., Ramon Lopez, J.
{1} Convicted of one count of
fraud under $100.00 contrary to §
30-16-6, N.M.S.A. 1978, four counts of fraud
over $100.00 contrary to § 30-16-6,
supra, and one count of removal of
encumbered property contrary to §
30-16-18, N.M.S.A. 1978, defendant appeals.
He contends (1) the trial court erred in concluding that the husband-wife
privilege, N.M.R. Evid. 505, N.M.S.A. 1978, could not be claimed by defendant;
(2) the trial court erred in denying defendant's motion for suppression of
extra judicial photographic identifications and the subsequent in-court
identifications of the defendant by State's witnesses; and (3) the trial court
erred in issuing instruction No. 11 and refusing defendant's tendered
instruction, N.M.U.J.I. Crim. 1.08, N.M.S.A. 1978.
{2} Defendant met Ms. Shipman
in Dallas, Texas, around April 1, 1979. They lived together there and,
according to Ms. Shipman, became common-law husband and wife. They went to
Clovis, New Mexico, around August 1, 1979.
{3} The State's key witness
was Ms. Shipman. She testified that while in New Mexico she opened a bank
account with $50.00. That same evening, she purchased several money orders at
various Allsup's Convenience Stores. These were paid for by checks drawn on the
newly opened account. The checks exceeded the balance of $50.00. These money
orders were cashed at various
{*380} locations
during the following days. Ms. Shipman also testified to defendant's purchase
of a pickup truck (the subject matter of the § 30-16-18 count).
{4} Ms. Shipman testified
that she committed the above mentioned acts, and others, under duress.
Throughout her testimony, she described threats made to her by defendant and
acts of violence perpetrated by defendant upon her and her three children. She
also testified that defendant threatened many times to kill her, her three boys
and other members of her family.
{5} Defendant was tried in
March, 1980. At that time, N.M.R. Evid. 505, N.M.S.A. 1978, stated as follows:
Rule 505. Husband-wife privileges.
(b) General rule of privileges. (1) An accused spouse
in a criminal proceeding has a privilege to prevent the other spouse from
testifying against the accused.
(2) A person has a privilege in any proceeding to refuse to
disclose and to prevent another from disclosing a confidential communication by
the person to that person's spouse while they were husband and wife.
(d) Exceptions. There is no privilege under this rule:
(1) in proceedings in which one spouse is charged with a crime against the
person or property of the other spouse or a child of either, or with a crime
against the person or property of a third person committed in the course of
committing a crime against the other spouse[.] (Emphasis added.)
The amendment to Rule 505 excluding subsection (b)(1) became
effective July 1, 1980. See, 1980 Supp.
{6} At the beginning of Ms.
Shipman's testimony, defendant objected on the basis of the husband-wife
privilege. Defendant sought to prevent further testimony by the wife in
accordance with Rule 505(b)(1). For purposes of the objection, the trial court
assumed that defendant and Ms. Shipman had a common-law marriage under Texas
law, but concluded that the privilege was unavailable to defendant on the basis
of subsection (d)(1). The trial court concluded that the crimes for which
defendant was on trial were committed in the course of a crime committed
against Ms. Shipman--that crime being extortion. On that basis, Ms. Shipman was
permitted to testify against defendant.
{7} Defendant's resort to the
privilege and the trial court's assumption that defendant and Ms. Shipman had a
common-law marriage was proper.
See, Matter of Estate of Willard, 93
N.M. 352,
600 P.2d 298 (Ct. App. 1979). Her testimony was uncontraverted. Ms.
Shipman testified that she and defendant did have a common-law marriage. Under
Texas law, a common-law marriage exists where: (1) there is an agreement
presently to become husband and wife; (2) the man and woman live together
pursuant to the agreement; and (3) there is a holding out of each other to the
public as husband and wife. 1 V.T.C.A. Family Code, 1.91 (1975). The agreement
to be husband and wife, which can be expressed or implied, may be implied by
showing the existence of the second two elements. 38 Tex. Jur.2d, Marriage, §
15. The trial court properly assumed that defendant and Ms. Shipman were
husband and wife.
{8} For the purposes of this
opinion, we assume that the trial court was correct in holding that Ms. Shipman
was compelled to open the bank account, to purchase the money orders and to
write checks because of defendant's direct threats.
See, §
30-16-9,
N.M.S.A. 1978. We make this assumption even though Ms. Shipman pled guilty to
one count of uttering a worthless instrument--duress being a defense.
See,
Esquibel v. State, 91 N.M. 498,
576 P.2d 1129 (1978).
{9} Section 30-16-9,
supra,
states in part:
Extortion consists of the communication or transmission of
any threat to another by any means whatsoever with intent thereby to
wrongfully obtain anything of value or to wrongfully compel the person
threatened to do or refrain {*381} from
doing any act against his will. (Emphasis added.)
The crime of extortion is complete when a person makes the
threat, intending to compel the victim to do something he would not have done.
N.M.U.J.I. Crim. 16.32, N.M.S.A. 1978; State v. Barber, 93 N.M. 782, 606
P.2d 192 (Ct. App. 1979). The issue is then whether the fraudulent acts
committed by defendant were "committed in the course of committing"
extortion against Ms. Shipman. "[I]n the course of" has been defined
as referring to the time, place and circumstances of the event. See, Thigpen
v. County of Valencia, 89 N.M. 299, 551 P.2d 989 (Ct. App. 1976). It is
another way of saying "during". See, Black's Law Dictionary
4th Ed., "Course of Employment", p. 424 (1951).
{10} Applying the foregoing
definitions, the next question is whether the acts of fraud were committed
"in the course of committing a crime against the spouse." We think
not. Once the threats were made, the crime of extortion was complete. The crime
of extortion was not being committed when Ms. Shipman opened the bank account
or obtained funds from Allsup's. Crimes committed against third persons were
not committed "during" the crime against Ms. Shipman. The trial court
erred in admitting the testimony of Ms. Shipman.
{11} Since we reverse
defendant's conviction because of the foregoing and the cause must be retried,
we discuss defendant's pretrial motion to suppress certain photographs because
they were impermissibly suggestive when shown to the witnesses. The trial court
found "that the record is totally devoid of any impermissibly suggestive
showing of photographs of the Defendant to these three witnesses."
{12} The test in New Mexico
with respect to suppression of out-of-court photographic identifications is
two-prong.
State v. Baldonado, 82 N.M. 581,
484 P.2d 1291 (Ct. App.
1971), quoting from
Simmons v. United States, 390 U.S. 377, 88 S. Ct.
967, 19 L. Ed. 2d 1247 (1968), followed in
State v. Nolan, 93 N.M. 472,
601 P.2d 442 (Ct. App. 1979).
{13} With the foregoing test,
we discuss each of the witnesses who were shown defendant's picture:
Merle Bright. Mr. Bright, an employee of 4-Lane Auto Sales,
sold the pickup truck to defendant and Ms. Shipman. He was shown pictures of
defendant on two occasions prior to signing an affidavit for arrest on
September 16, 1979. This was the week before the suppression hearing. Mr.
Bright was not shown a picture of anybody else on either occasion. Mr. Bright
testified that viewing the pictures of defendant in September, 1979, did
refresh his memory as to defendant's identity and did help him in determining
what defendant looked like. Mr. Bright said the same was true of his
identification of defendant from the photograph shown the week before trial;
however, Mr. Bright did identify defendant prior to that at a deposition. While
defense counsel did elicit testimony from Mr. Bright that he knew that the
person at the deposition had to be the defendant and that the previous showing
of defendant's picture may have helped him identify defendant, Mr. Bright
testified that he did not think he was relying on the photographs when he
identified defendant. Mr. Bright said that he could remember defendant from
their transactions and that he felt "very strongly" that he could identify
defendant if he had not been shown the photographs.
Betty Wagner. Ms. Wagner testified that she was shown
pictures of defendant a few days prior to the motion to suppress hearing. Ms.
Wagner identified the pictures that were shown to her as mug shots with arrest
numbers. Ms. Wagner, an employee of Citizen's Bank at Texico, opened the
checking account for Ms. Shipman. She spoke with defendant at that time. Ms.
Wagner was fairly firm at the suppression hearing in her belief that the
pictures did not did aid her in her identification of defendant and that they
did not refresh her memory.
Don Boyd. Mr. Boyd, an employee of 4-Lane Auto Sales, saw a
picture of defendant in September, 1979, at the Sheriff's Department. Mr. Boyd
saw defendant on {*382} two occasions.
He was certain that the photographs did not help in his identification of
defendant and felt that he could have identified defendant without having seen
the photographs.
Jim Walker. Mr. Walker, an employee of Citizen's Bank, was
not able to identify defendant prior to being shown photographs of him the week
before trial. However, Mr. Walker was not asked to identify defendant at the
suppression hearing.
{14} The two photographs
shown to the witnesses a few days before the suppression hearing were police
photographs showing defendant with a rather large police identification tag
hanging from his neck.
See, State v. Gutierrez, 93 N.M. 232,
599 P.2d
385 (Ct. App. 1979), for use of police photographs at trial.
{15} Defendant was
apprehended in late September, 1979, and was in jail from that time to the date
of the hearing on his motion to suppress on March 24, 1980. The two photographs
of the defendant were shown to the witnesses the week before the suppression
hearing, which was held the morning before trial.
{16} In
Nolan, supra,
this Court concluded that there was a substantial likelihood of irreparable
misidentification. This conclusion was based upon the following facts: the
witness was not shown an array of photographs; the witness was able to view the
other items belonging to the suspect at the time she was shown the photograph
of the suspect; the witness testified that those items played a part in her
identification; and the witness knew she was going to Andrews for the purpose
of determining if defendant could identify the suspect. This Court concluded
that under these circumstances, to show the witness only one photograph could
not be justified. No urgency existed which might justify the procedure.
{17} Upon concluding that the
identification procedure was "impermissibly suggestive",
Nolan,
supra, requires the trial court to engage in a second determination. This
second prong of the analysis focuses on the issue of whether defendant will be
denied due process of law if evidence of the out-of-court identification is
introduced at trial or if the identifying witness is allowed to identify
defendant at trial.
{18} The issue in this case
[is] "whether the Due Process Clause of the Fourteenth Amendment compels
the exclusion, in a state criminal trial, apart from any consideration of
reliability, of pretrial identification evidence obtained by a police procedure
that was both suggestive and unnecessary." [
Manson v. Brathwaite,
432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)]... [T]he central question
[is] "'whether under the 'totality of the circumstances' the
identification was reliable even though the confrontation procedure was
suggestive.'" [
Id., citing
Neil v. Biggers, 409 U.S. 188,
93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).]
Nolan, supra.
{19} Manson v. Brathwaite,
supra, held:
We therefore conclude that reliability is the linchpin in
determining the admissibility of identification testimony for both pre- and
post- Stovall confrontations. The factors to be considered are set out
in Biggers. (Citations omitted.) These include the opportunity of the
witness to view the criminal at the time of the crime, the witness' degree of
attention, the accuracy of his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time between the crime and
the confrontation. Against these factors is to be weighed the corrupting effect
of the suggestive identification itself.
{20} The procedure of showing
only one photograph (here two) of the defendant to a victim or witness is
suspect in and of itself.
State v. Gilliam, 83 N.M. 325,
491 P.2d 1080
(Ct. App. 1971). In the instant case, there was no apparent reason for not
having a lineup. Certainly, ample time existed -- over four months. Further,
the trial court did not reach the second prong of the photograph identification
test, as set forth in
Manson, supra.
{21} We have considered
defendant's other arguments and find them to be without merit. Accordingly, the
cause is reversed and remanded
{*383} and
defendant is granted a new trial without the testimony of Ms. Shipman. Prior to
that trial, the trial court shall hold a hearing, based upon the evidence and
testimony adduced at the motion to suppress hearing, to determine the
photographic identification in light of the second prong of the test set forth
in
Nolan, supra, as announced in
Manson, supra.
WE CONCUR: B. C. Hernandez, J., Ramon Lopez, J.