STATE V. PEREA, 1981-NMCA-033, 95 N.M.
777, 626 P.2d 851 (Ct. App. 1981)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
JOE PEREA, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1981-NMCA-033, 95 N.M. 777, 626 P.2d 851
Appeal from the District Court of Santa
Fe County, Kaufman, Judge
Petition for Writ of Certiorari Denied
April 1, 1981
DONALD MONTOYA and DENNIS MURPHY,
MONTOYA, MURPHY AND KAUFFMAN, Santa Fe, New Mexico, Attorneys for Appellant.
JEFF BINGAMAN, Attorney General, REGINALD
J. STORMENT, Asst. Atty. General, Santa Fe, New Mexico, Attorneys for Appellee.
Walters, J., wrote the opinion. WE CONCUR:
B. C. Hernandez, C.J., Ramon Lopez, J.
{1} Charged on an open count
of murder, defendant was convicted of murder in the second degree. His appeal
lists ten points of error, some of which are further divided into subpoints. We
need not respond to all of the issues raised because we are persuaded that,
because of improper communications with and among the jury members, it was
error to deny a new trial to defendant.
{2} On the eighth day after
trial began and as the State neared the end of its case, one of the jurors
brought a newspaper into the jury room. It was discovered by a court employee
while the jury was absent from the courthouse. The court requested photographs
be made of the jury's conference table, and the photographs marked State's
Exhibits 2A, 3A and 4A clearly disclose that the July 31, 1979 issue of The New
Mexican,
{*778} Section B (State's
Exhibit 1A) was spread upon the jury table, surrounded by numerous soft drink
cans and bottles, coffee cups, and ashtrays. The front page of that section of
the paper carried a prominent headline reading "Arms expert implies Perea
shot Narvaez," and a three-column story accompanied the headline. The
article itself was highly favorable to the State's theory of guilt. The court
instructed counsel to consider overnight what steps they wished to take regarding
the possible taint of the jury by the newspaper and that he would handle it the
following morning when the settling of exhibits continued.
{3} During the course of
argument the next day, the bailiff handed a note to the court from one of the
jurors, which read:
I am the one who unwittingly brought in the newspaper. We all
avoided the article being fully aware of our responsibility as jurors. We all
felt that we should in accordance with your instructions. Possibly I
misinterpreted your instructions to exclude all parts of the paper -- but most
of us were reading it for the sales &, as women will do, for the coupons.
We all carefully avoided the article & after this point in time are fairly
well versed in the case.
I apologize for my stupidity & hope my mistake will not
cause a mistrial or undue acquittal or whatever its called.
{4} Prior to ruling on
defendant's immediate motion for mistrial or, alternatively, for excuse of the
offending juror and replacement by the alternate juror selected, the court
conducted an individual voir dire of each juror in the presence of one attorney
for the State and one for the defense. Every juror but one admitted seeing the
newspaper; eleven denied reading any of it; two admitted to reading the
headline but denied reading the article.
{5} It was learned through
the individual questioning of the jurors and from affidavits filed after trial
by several jury members that (1) the bailiff had told the jury that a defense
attorney had elatedly commented that defendant had won his case because of the
jury's exposure to the newspaper; (2) the bailiff didn't know what would happen
to him for allowing a newspaper to be carried into the jury room; (3) the
bailiff advised them that the judge intended to meet with each juror to
determine "the impact, if any, which the newspaper would have on reaching
an impartial verdict"; and (4) the juror who wrote the note to the judge
had stated to other jurors that she did not want an acquittal; that she then
prepared and read her note to the jurors and asked each juror to sign it, but
the other jury members considered the request "inappropriate." None
of the jurors believed these occurrences in any way would or did influence his
verdict.
{6} These disclosures,
together with the existence of the newspaper article in the jury room, the
tenor of the juror's note, and the comments of the bailiff, present influences
so corruptive of the sanitation within which a fair trial is supposed to
proceed that we are unable to accept the protestations of the State and the
assurances of the jurors that "each and every one" of the jury panel
was "totally free" from any contamination whatsoever.
State v.
McFall,
67 N.M. 260,
354 P.2d 547 (1960). Such "phlegmatic
detachment" is as "boggling" to us in this case as it appeared
to the Supreme Court when it reviewed the effect of circumstances known to a
jury member outside the evidence produced in court, in
Mares v. State,
83 N.M. 225,
490 P.2d 667 (1971). Here, the entire panel was subjected to a
series of outside mischief.
{7} One juror stated in his
affidavit that he felt the bailiff's comment regarding the defense attorney's
reaction to the newspaper in the jury room "may have had the potential of
prejudicing some of the jurors." Another said that the jurors were
"stunned and upset" and she "personally was angry that any
statement by any party regarding the case being won was made at all because the
case had not yet been concluded." The statement reflects resentment toward
the defense. Still another juror said that the offending juror announced to all
that she
{*779} did not want her act of
bringing the newspaper to the jury room "to reflect adversely" on the
bailiff. The note itself states the "hope" that the juror's
"mistake will not cause a mistrial or
undue acquittal." That
comment, read to all the jurors, is susceptible of only one meaning: there
existed a preconceived opinion of defendant's guilt in one juror's mind, and
that opinion was made known to every other juror at a stage of trial when only
the State's case had been heard.
{8} The court never did
inquire of the bailiff regarding his conversations with the jurors, even though
defense counsel requested that the bailiff be questioned on that matter.
Communications of considerably lesser seriousness have routinely been condemned
in New Mexico.
See, e. g., State v. McCarter,
93 N.M. 708,
604 P.2d 1242
(1980), and cases therein cited; and the discussion in
State v. McClure,
94 N.M. 440,
612 P.2d 232 (Ct. App.1980). Such communications are presumed
prejudicial.
McClure,
supra.
{9} The combination of all of
these circumstances and the pressures they exerted upon the jurors, as
articulated in the affidavits, compel our reversal. We do not doubt the
sincerity of each juror in asserting the impartiality he would observe and the
lack of any impact which the chain of events stemming from discovery of the
newspaper might have had upon him. Nevertheless, we are nagged by the awareness
that among the indisputable vagaries of human nature, self-examination and
self-accusation are difficult enough in the privacy of one's mind; they become
psychologically, nearly impossible of performance when one is alone in the
spotlight of scrutiny by those who will judge his fairness and impartiality.
See
Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961).
Jurors, even though they may have unconscious or subconscious prejudices,
see
United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), or admitted
biases, will "seldom admit inability to act impartially."
State v.
Sims,
51 N.M. 467,
188 P.2d 177 (1947);
State v. Huffman, 89 Mont.
194, 296 P. 789 (1931). A mistrial should have been ordered by the trial court.
{10} Defendant further argues
that the affidavit for search warrant was insufficient; therefore the evidence
obtained under the warrant should have been suppressed. We decide this and
other suppression issues to prevent re-argument upon remand of this matter.
{11} There is no claim that
the lack of specificity of the location of the residence to be searched made
the warrant a general warrant.
See State v. Ferrari,
80 N.M. 714,
460
P.2d 244 (1969). The face of the affidavit contains ample information and
description of the residence for accurate identification,
see State v.
Aragon,
89 N.M. 91,
547 P.2d 574 (Ct. App.1976), and the fact that the
affidavit implies a residential address for defendant different from a mailing
address does not detract from the affiant's assertion that the residence to be
searched was "believed to belong to Joe Perea." The totality of the
information in the four-page affidavit is not stale; the facts asserted by
affiant were sufficient to lead the magistrate to an independent conclusion
that probable cause existed to believe that the items sought were to be found
upon the premises described.
See Ferrari, supra.
{12} Likewise, defendant's
contention that defendant's shirt which was seized at the hospital should have
been suppressed, presents no error. The emergency room nurse at the hospital
took defendant's shirt into safekeeping. She did so as a matter of custom when
she believed a crime might be involved. She later turned the shirt over to
police. If there was any Fourth Amendment intrusion into defendant's rights, it
was not governmental intrusion.
See State v. Ryder, No. 4622 (Ct. App.),
filed January 27, 1981;
United States v. Gumerlock, 590 F.2d 794 (9th
Cir. 1979). An officer who is lawfully in a position which exposes evidence to
him does not need a warrant to seize it.
Rodriquez v. State,
91 N.M.
700,
580 P.2d 126 (1978).
{13} The last point requiring
discussion also relates to a motion to suppress. Defendant suggests that the
chemical tests
{*780} made upon his
hands at the hospital to determine presence of antimony and barium, absent a
search warrant, further violated his Fourth Amendment rights. The tests were
made by wiping defendant's hands with a cotton swab soaked in nitric acid
solution.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968), although concerned with the issue of stop and frisk, recognizes that
the reasonableness of a detention is determined by balancing the need to seize
for investigatory purposes against the intrusion which the detention entails.
Here there was no physical detention; defendant was near death in the hospital.
The intrusion was minimal; and because it was hospital procedure to immediately
wash and cleanse patients brought to the emergency room, exigent circumstances
existed, coupled with probable cause to believe defendant had committed a
crime, to allow a search for evidence likely to be imminently destroyed. Under
such conditions, acting to preserve possible evidence does not require a search
warrant.
Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900
(1973). The facts surrounding seizure of this evidence have no similarity to
the facts of
Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed.
2d 238 (1979), which defendant relies on.
{14} Because we feel the
trial court erred in permitting the trial to continue after the newspaper
episode occurred, we pass over other trial matters urged as presenting
cumulative error. We are confident that improper evidence volunteered by a
witness about which the trial court had to caution the jury, and improper
hypothetical questions posed by the State, will not be repeated at a second
trial.
{15} The conviction is
reversed. The matter is remanded for a new trial. It is so ordered.
HERNANDEZ, C.J., and LOPEZ, J., concur.