STATE V. OWENS, 1984-NMCA-105, 103 N.M.
121, 703 P.2d 898 (Ct. App. 1984)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
T. L. OWENS, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1984-NMCA-105, 103 N.M. 121, 703 P.2d 898
APPEAL FROM THE DISTRICT COURT OF LEA
COUNTY, Paul Snead, Judge
Petition for Writ of Certiorari Quashed
July, 9, 1985
J. W. NEAL, NEAL & NEAL, Hobbs, New
Mexico, JOHN QUINN, Santa Fe, New Mexico, NANCY AUGUSTUS, SINGLETON LAW
OFFICES, Santa Fe, New Mexico, Attorneys for Defendant-Appellant.
PAUL G. BARDACKE, Attorney General,
CHARLES D. NOLAND, Ass't Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee.
Bivins, J., wrote the opinion. WE CONCUR:
JOE W. WOOD, Judge, PAMELA B. MINZNER, Judge
{1} Defendant appeals his
convictions on twelve counts of commercial gambling in violation of NMSA 1978,
Section
30-19-3(B) (Repl. Pamp.1984), raising three issues. First, defendant
contends the trial court erred in holding that the statute setting forth
commercial gambling as a felony does not require proof that defendant was
involved in a gambling business having profit as its primary aim. Second, and
closely related to the first issue, defendant raises the question as to
whether, assuming the trial court was correct in its ruling, Section 30-19-3(B)
is unconstitutionally vague or whether it creates an irrational relationship to
a legitimate state goal. Finally, defendant contends the introduction of taped
conversations between himself and a third party violated defendant's right of
confrontation when the third party did not testify at trial. We will discuss
the first two issues together. Other issues listed in the docketing statement
but not
{*123} briefed are deemed
abandoned.
State v. Vogenthaler, 89 N.M. 150,
548 P.2d 112 (Ct.
App.1976).
{2} The state's evidence
consisted primarily of a series of tape recordings of telephone conversations
between defendant and a man by the name of Herbert "Speedy" Newman.
Mr. Newman's phone had been tapped under a court order based on information
provided by the Governor's Organized Crime Commission. Defendant's phone was
not tapped. A witness for the state, qualified as an expert in commercial
gambling, explained the terminology of commercial gambling, including such
terms as "the line," "over and under" bets,
"parlay" bets and "teaser" bets. He also explained how
commercial gamblers refer to given amounts of money. For example, a "nickel"
means five hundred dollars. This expert then analyzed each of the taped
conversations. He testified that twelve bets had been placed by Mr. Newman with
defendant on football games during a three-week period in late 1980 for a total
of $26,500.
{3} A state police officer
accompanied by a special agent of the F.B.I. went to defendant's house to make
the arrest. When they entered defendant was talking on one of five phones
installed in his house. The officers seized booklets, "line sheets" and
note pads. During the next hour the officers observed that defendant's phone
rang between fifteen and twenty times. One of the exhibits introduced was a
writing containing a series of bets between defendant and Newman which
corresponded with the bets made during the phone conversations.
{4} At the conclusion of the
state's case, defendant moved in chambers for a directed verdict on the ground
that the commercial gambling statute was unconstitutionally vague. The trial
court denied the motion and stated, during a colloquy with counsel, that the
only difference between "gambling" and "commercial
gambling" is that the former consists of making an offer to bet whereas
the latter consists of accepting an offer to bet. The trial court further
stated:
You are correct that I have ruled and will rule that the
distinction between that offense which is defined as commercial gambling and
that misdemeanor offense which is defined as gambling being the placing of a
bet does not depend upon the number of transactions, nor is it my view that
commercial gambling named as such requires that there be established that
betting was done as a profit making business or undertaking and I am prepared
to rule in respect to that and I am prepared to deal with your proposed
instructions addressing that issue squarely in holding that. I am going by the
plain language of the statute and propose to instruct on it.
{5} On the basis of the trial
court's ruling that the state did not have to establish a profit-making motive
and that a social bet could form the basis for a commercial gambling
conviction, defendant elected not to take the stand and testify. He made a
tender of proof that he would have testified that he did not operate a gambling
business and that he made only social bets for his own amusement.
{6} The trial court refused
defendant's requested instructions which drew a distinction between commercial
gambling and social gambling and defined commercial gambling as "a
business operation... having financial profit as it's [sic] [its] primary aim."
The trial court gave separate instructions for each of the twelve counts which
simply tracked the language of Section 30-19-3(B), included the date of each
alleged offense, and told the jury that to convict they need only find beyond a
reasonable doubt that defendant "did knowingly receive, record or forward
bets or offers to bet."
2. The Commercial Gambling Statute
(a) Claimed error in the trial court's interpretation of
Section 30-19-3(B)
{7} Section 30-19-3 reads in
pertinent part:
Commercial gambling consists of either:
{*124} B. receiving,
recording or forwarding bets or offers to bet;
Section 30-19-2 provides in pertinent part:
NMSA 1978, Section 30-19-2 (Repl. Pamp.1984).
{8} Commercial gambling is a
fourth degree felony, while gambling is a petty misdemeanor.
{9} Defendant argues that the
trial court's interpretation of commercial gambling would necessarily include
simple gambling; therefore, defendant did not take the stand because his
testimony would amount to an admission of guilt.
{10} Further, defendant
argues that to construe the "commercial gambling statute to include social
gambling would raise a host of constitutional problems," including
void-for-vagueness and an irrational relationship to a legitimate state goal.
Because we decide that commercial gambling under Section 30-19-3(B) requires
more than a single act of gambling under Section 30-19-2(A), we have eliminated
the premise for defendant's constitutional claims, even assuming he has
standing to raise them.
See State v. Marchiondo, 85 N.M. 627,
515 P.2d
146 (Ct. App.1973).
{11} We recognize that a
statute violates due process if men of ordinary intelligence must guess at its
meaning and differ as to its application.
State v. Carr, 95 N.M. 755,
626 P.2d 292 (Ct. App.1981). We also recognize that statutes which permit the
state to subject one person to the possibility of greater punishment than
another who has committed an identical act violate the equal protection clauses
of the state and federal constitutions.
State v. Chavez, 77 N.M. 79,
419
P.2d 456 (1966).
{12} Defendant would have us
exclude "social gambling" from Section 30-19-3(B) in order to prevent
unequal punishment for the same act and to clarify the legislature's intent in
enacting the two provisions. As we interpret the statute, however, the
legislature did not intend the distinction for which defendant contends.
{13} The trial court
commented that the only difference between Section 30-19-2(A) and Section
30-19-3(B) depends on whether the bet is offered or accepted. This
interpretation by the trial court is not reasonable. Section 30-19-2(A) makes
it a misdemeanor to
make a bet. NMSA 1978, Section
30-19-1(A) (Repl.
Pamp.1984) defines a "bet" as "a bargain in which the parties
agree that, dependent upon chance, even though accompanied by some skill, one
stands to win or lose anything of value specified in the agreement." Thus,
a bet is made when two or more people agree. By definition, a bet is made when
one
accepts an offer to bet. Under the trial court's definition, one who
makes the bet in a social context is guilty of a petty misdemeanor but one who
accepts the offer is guilty of a fourth degree felony. We agree with defendant
that in the context of social betting it is more often than not impossible to
differentiate making a bet from receiving a bet. Which participant is the
misdemeanant and which is the felon?
{14} The trial court's
comment that the distinction between gambling and commercial gambling
"does not depend upon the number of transactions" is likewise
incorrect. Section 30-19-3(B) clearly requires more than one bet or offer to
bet. While it takes two parties to make a bet under Section 30-19-2(A), one bet
or offer to bet received, recorded or forwarded does not constitute commercial
gambling under Section 30-19-3(B).
{15} In distinguishing
between gambling under Section 30-19-2(A) and commercial gambling under Section
30-19-3(B), defendant urges us to interpret commercial gambling as meaning
"gambling as a business operation, having financial profit as its primary
aim." He relies on Judge Sutin's specially concurring opinion in
State
v. Marchiondo, from which the quoted language is taken. 85 N.M. at 631,
515
P.2d 146. Defendant argues that in interpreting
{*125}
a statute, a court must give words their ordinary meaning.
State ex rel.
Bingaman v. Valley Savings & Loan Association, 97 N.M. 8,
636 P.2d 279
(1981). While we have no quarrel with that principle of statutory construction,
defendant's emphasis on the word "commercial" is misdirected.
{16} The word
"commercial" is used in the name of the offense "commercial
gambling." Commercial gambling may be committed in any of the six ways
stated in Section 30-19-3. Our concern is with the meaning of subsection B,
which, in contrast to subsection A (which refers to earnings) and subsection D
(which refers to gain), does not depend on earnings or gain and, in our
opinion, does not require a profit motive, although profit may be involved. We
have no authority to expand the offense to include a profit motive when the
substantive offense, as defined, does not include that language. Such would be
adding to the legislative definition.
State v. Ellenberger, 96 N.M. 287,
629 P.2d 1216 (1981). Nor can we even consider "commercial" in the
name to determine the meaning of the offense unless subsection B is ambiguous.
State
v. Ellenberger. What is covered in subsection B is not ambiguous. As stated
by the supreme court in
State v. Ellenberger: "[I]t is not the
business of the courts to look beyond the plain meaning of the words of a
clearly drafted statute in an attempt to divine the intent of the
Legislature." 96 N.M. at 288, 629 P.2d at 1216.
{17} Interpreting then the language
of the statute, we hold: First, gambling under Section 30-19-2(A) is
distinguished from commercial gambling under Section 30-19-3(B) in that while
one act may constitute a violation under the former, it cannot under the
latter. Under Section 30-19-3(B), there must be more than one act. Second, and
as a further distinction between the two provisions, one can violate Section
30-19-3(B) without ever accepting a bet. One must, however, either receive,
record or forward bets or offers to bet.
{18} In interpreting a
statute it is appropriate to consider the ends sought to be accomplished by the
legislature,
State ex rel. Newsome v. Alarid, 90 N.M. 790,
568 P.2d 1236
(1977), and to give effect to the legislative intent.
City of Albuquerque v.
Cauwels & Davis, Management Co., 96 N.M. 494,
632 P.2d 729 (1981). We
construe Section 30-19-3(B) to proscribe the activities of those persons whose
conduct falls within the purview of the statute. They are commonly known as
bookmakers.
See State v. Vlahos, 50 Wis.2d 609, 184 N.W.2d 817 (1971).
{19} This is different from
the casual bet between friends where the primary purpose is to heighten the
excitement or interest in an event such as a game. Parties who make a bet with
each other are engaged in simple gambling, because each stands to win or lose
on the basis of the agreement. One who receives, records or forwards bets or
offers does more than risk winning or losing on the basis of a single bet.
While it may be true that a casual social bettor may be the customer of one
engaged in commercial gambling, the former does not graduate from a
misdemeanant to a felon simply by accepting an offer to bet. Conversely the
status of a commercial gambler is achieved under Section 30-19-3(B) when a
person receives more than one bet (whether or not that person makes the bets)
or records or forwards bets or offers to bet. What matters under our statute is
the plural activity; it makes no difference whether the plural activity is or
is not "social." Defendant could be a social receiver, recorder or
forwarder and still be guilty of commercial gambling.
{20} The difference between
"commercial gambling" and "gambling" depends upon the facts
of each case. A review of the record before us reveals a number of
distinguishing characteristics that could be considered by the jury as pointing
to commercial gambling: Mr. Newman placed the bets with defendant; the latter
appeared to set the terms of the transactions; the amounts involved were
substantial; there were a number of telephones installed at defendant's house;
incriminating written
{*126} material
was seized; and the parties used esoteric terminology.
{21} Therefore, we hold the
trial court incorrectly interpreted the gambling statute; however, this does
not answer the question of whether a new trial is required.
(b) Is a new trial required?
{22} Defendant contends that
because the trial court's interpretation was incorrect, his convictions should
be set aside and the case remanded for new trial so the jury could decide
whether defendant's conduct amounted at most to social gambling, a misdemeanor
under Section 30-19-2(A).
{23} We reject this argument
for the following reasons. First, although the distinctions between gambling
and commercial gambling made by the trial court were erroneous, it correctly
instructed the jury in the language of the statute.
State v. Gunzelman,
85 N.M. 295,
512 P.2d 55 (1973).
{24} Second, the trial court
did not prevent defendant from testifying or from presenting a defense if he
had one. Defendant chose not to take the stand.
{25} Finally, defendant
suffered no prejudice. Based on the correct interpretation of the statute, his
testimony, as tendered, would not have constituted a defense. Still, he could
have testified and was not prevented from doing so.
{26} Given our interpretation
of Section 30-19-3(B) that it takes more than one act to violate that
provision, there may have been an issue as to the number of counts actually
involved. Defendant does not, however, attack the sufficiency of the evidence
or make any claim of merger. Therefore, the convictions must be affirmed unless
the confrontation issue requires a different result.
3. The Confrontation Issue
{27} The federal and state
constitutions guarantee an accused in a criminal proceeding "the right...
to be confronted with the witnesses against him." United States
Constitution, sixth amendment;
N.M. Const. art. II, § 14.
{28} Over defendant's
objection, the trial court allowed the introduction of the taped telephone
conversations between defendant and Mr. Newman. The state had subpoenaed Mr.
Newman to appear at trial, and had arranged to pay his air fare and expenses so
he could fly from Fresno, California, where the district attorney's office had
been in contact with him. The day before trial Mr. Newman telephoned the
district attorney's office from Las Vegas, Nevada to advise he was ill and
under doctor's orders not to travel.
{29} A two-pronged test for
the admissibility of hearsay evidence when the declarant is not present for
cross-examination at trial was enumerated in
Ohio v. Roberts, 448 U.S.
56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), as follows:
[W]hen a hearsay declarant is not present for
cross-examination at trial, the Confrontation Clause normally requires a
showing that he is unavailable. Even then, his statement is admissible only if
it bears adequate "indicia of reliability." Reliability can be
inferred without more in a case where the evidence falls within a firmly rooted
hearsay exception. In other cases, the evidence must be excluded, at least
absent a showing of particularized guarantees of trustworthiness.
448 U.S. at 66, 100 S. Ct. at 2539.
{30} Defendant does not
question the second prong, and appears to concede that the tapes fall outside
the hearsay rule. We agree. We are dealing with a conversation between two
people, one of whom is defendant. As to his part of the conversation, there is
no hearsay under NMSA 1978, Evid. Rule 801(d)(2) (Repl. Pamp.1983). As to
Newman's part of the conversation, this would be excepted from the hearsay rule
under NMSA 1978, Evid. Rule 804(b)(4) (Repl. Pamp.1983).
{31} Defendant asserts,
however, that under special circumstances, which he claims exist in his case, a
defendant should be entitled to cross-examine the declarant even though the
testimony at issue does not constitute hearsay. Specifically, defendant
{*127} claims he should be allowed to
cross-examine Mr. Newman concerning his intent to risk something of value as
required under the gambling statutes.
See § 30-19-1(A). He points out,
for example, that if neither Mr. Newman nor defendant ever intended to collect
on the purported bets, then the activity would not violate the gambling
statutes. This claim does not accurately reflect what occurred in the trial
court. In objecting to admission of the tapes, defendant affirmed that the
tapes showed "social bets" but claimed a denial of the right to
confrontation because he could not cross-examine Newman as to what Newman
"meant" in placing the social bets.
{32} The first prong of the
Roberts
test involves a determination of whether the declarant is unavailable in the
constitutional sense. This requires the state to demonstrate that a good-faith
effort has been made to secure the declarant's presence at trial.
Barber v.
Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 1968). The court in
Roberts,
however, noted that unavailability did not have to be demonstrated in every
case. 448 U.S. at 65, n. 7, 100 S. Ct. at 2538. The court cited
Dutton v.
Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970), in which a
plurality of the court held that the state was not required to produce an
out-of-court declarant where the utility of cross-examination was remote.
{33} We hold there was no
denial of the right to confront a witness for the following reasons. First, we
are dealing with an unavailable declarant in a constitutional sense.
See
State v. Martinez, 99 N.M. 48,
653 P.2d 879 (Ct. App.1982). We are
not
concerned with showing unavailability under an evidence rule,
cf. State v.
Mann, 87 N.M. 427,
535 P.2d 70 (Ct. App.1975), so as to admit hearsay. This
issue is presented on the basis that the statements on the tapes were not
hearsay. The prosecutor recited his efforts to have Newman present as a
witness. These efforts are not challenged factually; they show a good-faith
effort, in the constitutional sense, to have Newman available and that he was
unavailable. The reliability of the statements on the tapes is not challenged.
Confrontation requirements were satisfied.
{34} Second, the utility of
cross-examination was remote. Defendant wanted to cross-examine Newman as to
what Newman meant by placing social bets. What Newman meant in placing social
bets is not relevant to defendant's guilt in receiving, recording or forwarding
social bets.
{35} Finally, the proper
authentication of the recordings eliminated the need to cross-examine as to
memory, perception, etc. (
See State v. Baca, 82 N.M. 144,
477 P.2d 320
(Ct. App.1970) for the requirements of proper authentication of recordings.)
The combination of an authentic recording and the lack of relevance of the
desired cross-examination shows no confrontation violation.
{36} The trial court did not
err in admitting the tapes.
{37} Defendant's convictions
are affirmed.
WE CONCUR: WOOD, Judge, and MINZNER, Judge.