Court of Appeals of New Mexico

STATE of New Mexico, Plaintiff-Appellee,
vs.
Manuel CHAVEZ, Defendant-Appellant

No. 13,549

COURT OF APPEALS OF NEW MEXICO

1993-NMCA-102, 116 N.M. 807, 867 P.2d 1189

August 19, 1993, Decided

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY. BENJAMIN S. EASTBURN, DISTRICT JUDGE

Petition for Writ of Certiorari Denied January 10, 1994

COUNSEL

Tom Udall, Atty. Gen., Joel Jacobsen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, David Henderson, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

JUDGES

Black, Judge. Minzner, C.J., and Hartz, J., concur.

AUTHOR: BLACK

OPINION

{*809} OPINION

FACTS

THE FIRST MOTION FOR NEW TRIAL

1) The State either breached some duty or intentionally deprived the defendant of evidence;

2) The improperly "suppressed" evidence must have been material; and

3) The suppression of this evidence prejudiced the defendant.

96 N.M. at 661, 634 P.2d at 683 (citing State v. Lovato, 94 N.M. 780, 782, 617 P.2d 169, 171 (Ct.App.1980)). As we understand Chouinard, the substance of the meaning of the term "material" is consistent with the meaning adopted by the United States Supreme Court in applying Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We affirm because the suppressed evidence was not "material."

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

Id. at 682, 105 S. Ct. at 3383. The Supreme Court has recently reiterated that evidence is "material," and due process is violated, only if there is a reasonable probability that if the evidence had been disclosed to the defendant the result of the proceeding would have been different. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001, 94 L. Ed. 2d 40 (1987); Boyde v. California, 494 U.S. 370, 380 n. 4, 110 S. Ct. 1190, 1198 n. 4, 108 L. Ed. 2d 316 (1990). But see Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 Colum.L.Rev. 79, 107 (1988) (arguing because the Court has adopted rules with insufficient deterrent effect, the reliability of guilty verdicts is automatically implicated).

The court notes in so finding that the testimony of the witness, Stacey Chavez, at the time of trial, was essentially consistent with that evidence in testimony which she gave when she testified in the second preliminary hearing in this case. The court further finds that the fact of the grant of immunity on the part of the State in return for the testimony of the witness, Stacey Chavez, was adequately covered during the course of the trial, during the examination of the witness, Stacey Chavez, and that therefore, further impeachment in that regard would not have materially effected [sic] her credibility and therefore, would not have effected [sic] the outcome of the jury's verdict.

{*813} {24} Other courts faced with allegations of prosecutorial misconduct in withholding evidence of pressure on witnesses have found such evidence not to be material in analogous factual situations. See, e.g., United States v. Abello-Silva, 948 F.2d 1168 (10th Cir.1991), cert. denied, U.S., 113 S. Ct. 107, 121 L. Ed. 2d 65 (1992); cf. State v. Ruble, 372 N.W.2d 216 (Iowa 1985) (arrest of witness after testifying). We are not persuaded that the district court abused its discretion in ruling that evidence of Stacey's arrest would not have added anything to the information already before the jury.

{25} This should not, however, be misconstrued as approval of the prosecutor's conduct in this case. A lawyer is obligated to make a reasonably diligent effort to comply with a legally proper discovery request and may not obstruct another party's access to evidence. SCRA 1986, 16-304 (Repl.Pamp.1991). Nor may a lawyer engage in conduct which misleads the court. SCRA 1986, 16-102(D) (Repl.Pamp.1991).

SECOND MOTION FOR NEW TRIAL

{26} Defendant filed a second motion for new trial some ten months after his conviction, alleging newly discovered evidence. Defendant claimed that, in a taped telephone conversation with defense counsel, Stacey admitted she had lied under oath. On that tape, Stacey told defense counsel that Defendant was using their children to hurt her: "My daughter, she hates me because of things that [Defendant] tells her . . . ." Defense counsel suggested Defendant probably told their daughter "that you lied at trial and he ended up in jail and the fact of the matter is that you did lie at trial and he ended up in jail." Stacey replied, "Yeah, I did . . . ." The district court examined the new evidence and denied the motion, finding:

[T]he Court perceives nothing new. The fundamental problem is still the credibility of Stacy Chavez; the issue is not the message, it is the messenger . . . . Consequently, the Court finds that whatever Ms. Chavez may come up with can merely be impeaching, further contradictory, or both, is fundamentally nothing new, and will not likely change the result if a new trial is granted, and concludes that the Motions are not well taken.

{27} To receive a new trial based on newly discovered evidence, a defendant must demonstrate that the evidence will probably lead to a different outcome. See Volpato, 102 N.M. at 384, 696 P.2d at 472. After the trial court reviewed a redaction of the taped conversation between Stacey and defense counsel, it denied the motion on the grounds that Stacey's new comments, even if impeaching and contradictory, would not likely change the result if a new trial was granted. The trial court's decision is reviewed under the "arbitrary, capricious or beyond reason" standard of State v. Fero, 107 N.M. 369, 372, 758 P.2d 783, 786 (1988).

{28} Even if we assume that Defendant is correct in interpreting Stacey's comments to defense counsel as an admission she lied at trial, and that she was pressured to do so by the State, such evidence would merely be further impeachment and cumulative. Defendant argues that this new evidence is not merely impeaching because it is an admission that Stacey lied under oath rather than just circumstantial evidence of continuing dishonesty. As we have noted, Stacey repeatedly admitted she had lied to Defendant, police officers, and defense counsel. Absent the evidence's impeachment value it could not have any bearing on Defendant's innocence. Cf. Sierra Blanca Sales Co. v. Newco Indus., Inc., 84 N.M. 524, 541, 505 P.2d 867, 884 (Ct.App.) (newly discovered evidence not sufficient to require a new trial in civil case if it could only have been cumulative to impeachment testimony previously introduced at trial), cert. denied, 84 N.M. 512, 505 P.2d 855 (1972). The district court did not think such evidence would likely change the result if a new trial was granted, and we do not find this decision to be arbitrary, capricious, or beyond reason.

TESTIMONY IN VIOLATION OF SPOUSAL PRIVILEGE

{29} Pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), Defendant claims that Stacey's testimony as to three statements he made to her was admitted in violation of SCRA 1986, 11-505. Defendant does not explain how this contention was preserved, {*814} nor does he argue that admission of the testimony was fundamental error. Accordingly, we affirm on this issue. See SCRA 1986, 12-216(A) (Repl.1992) (to preserve a question for review, it must appear that a ruling by the trial court was fairly invoked).

SUFFICIENCY OF THE EVIDENCE

{30} While Defendant argues that the State failed to present substantial evidence, he does not relate his argument to the convictions for tampering with evidence and conspiracy to tamper with evidence. Accordingly, we affirm those convictions. See Wilburn v. Stewart, 110 N.M. 268, 272, 794 P.2d 1197, 1201 (1990) (issues raised in passing without citation to authority will not be reviewed on appeal).

{31} With respect to the charge of second degree murder, Defendant's principal contention is that the jury could not reasonably rely on Stacey's testimony because it was inherently improbable and unsubstantiated by other evidence. We recognize that Stacey did acknowledge doubt as to her ability to perceive and recall the events at issue. However, she also testified that she was clear enough in her own mind to know and observe what was going on, believed that she knew what happened, and had no doubt that she saw Defendant shoot Les Hall.

{32} In our view, Defendant's argument that Stacey's testimony was inherently improbable focuses on her equivocation on cross-examination and ignores her statements at trial that she believed her trial testimony was accurate and truthful. The standard set forth in State v. Till, 78 N.M. 255, 430 P.2d 752 (1967), appeal dismissed and cert. denied, 390 U.S. 713, 88 S. Ct. 1426, 20 L. Ed. 2d 254 (1968), limits inherently improbable testimony to: (1) statements which are physically impossible, and (2) statements the falsity of which is apparent without resort to inferences or deductions. The applicability of the first category in Till is not at issue here. Nor can we say, based on Stacey's complete testimony, that the second category applies.

{33} Defendant's relationship with Stacey was violent. Defendant admitted he sometimes hit Stacey and that she went to Durango in the fall of 1989 in order to receive counseling for battered wives. Stacey also testified Defendant had beaten her prior to the time he shot Les Hall. Stacey's different versions of the New Year's Eve events, based on her relationship with Defendant, follow a pattern: when she was living with Defendant, she followed his instructions and testified in ways to help his case. This hardly proves her testimony was unreliable in toto. See Mascarenas v. Jaramillo, 111 N.M. 410, 412, 806 P.2d 59, 61 (1991) (trier of facts weighs the testimony, determines credibility of witnesses, reconciles inconsistent or contradictory statements of a witness, and determines where the truth lies).

{34} The State also introduced additional evidence which dovetails with, and strongly supports, the version of events Stacey related at trial. For example, Debbie McDaniel also testified that Hall was sixteen feet away from his truck when she saw him lying on the ground, not moving. This is evidence which corroborates Stacey's testimony that Hall did not pose a threat and which rebuts Defendant's testimony that Hall was within arm's reach of his own gun when Defendant grappled with him.

{35} Darl "Pops" Hicks testified that he heard a lot of foul language but no threats after Defendant threw Hall out the front door. When Hicks went outside he saw Defendant and Hall fighting. Hall was lying on the ground, on his back, and Defendant was "probably sitting on top of him." Again, this is consistent with Stacey's, not Defendant's, version of the shooting.

{36} Dr. Sparks Veesey, the forensic pathologist who performed the autopsy on Hall, concluded that Hall was paralyzed by the bullet, losing the ability to control his lower body. This is inconsistent with Defendant's testimony that Hall continued to fight and cuss him after the shot and consistent with Stacey's testimony Hall lay still after the shot.

{37} Lauren Gardner, another resident of the trailer park, testified that she heard gunshots, and then a yell that she described as "frantic, very loud, very frantic, terrorized, I don't know, just a horrible type of yell." The person screamed "Medic!" This testimony is {*815} also more consistent with Stacey's testimony than Defendant's testimony that Hall continued to struggle after being shot.

{38} Defendant admitted he hit Hall twice in the head with the butt of a shotgun to "find out if he was faking." Defendant testified that he struck Hall to "wake him up," and he chose to strike Hall with a shotgun rather than another implement because "gunplay is gunplay." This testimony, along with Defendant's admission that he kicked Hall in the stomach after shooting him, is corroborative evidence of his murderous intent.

{39} Defendant admitted that he and the others created the false story that Hall left the party and never came back. There was also evidence Defendant attempted to bribe a prosecution witness, the teenage babysitter who was at the party early in the evening of December 31. Defendant also acknowledged his role in disposing of both his gun and Hall's, as well as Hall's body. This was evidence from which the jury could have inferred that Defendant was conscious of his guilt. See State v. Vallejos, 98 N.M. 798, 800, 653 P.2d 174, 176 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982).

{40} On cross-examination, Defendant said that he felt remorse about the killing. He also denied bragging about the incident and agreed that bragging would not show remorse. However, the State introduced rebuttal testimony to the effect that Defendant bragged repeatedly to others about his role in killing Hall. During a disturbance at a local bar when Defendant threatened to kill another patron, the bartender quoted Defendant as saying, "he shot before and he could shoot again." Defendant told the officer who investigated the bar fight, "I have a reputation in this town that I live up to"; Defendant then tried to "stare down" the police officer. Defendant also said, "I killed for my old lady (or wife), and I'll kill for her again because I intend to get her back." This is consistent with testimony that Defendant found out Stacey was involved in a relationship with Hall.

{41} We hold that Stacey's testimony is not inherently improbable and that, in combination with other evidence admitted at trial, it was sufficient to enable the jury to conclude that the State proved each element of second degree murder beyond a reasonable doubt. See State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (standard of review).

THE PROSECUTOR'S CLOSING ARGUMENT

{42} Defendant argues the case should be reversed "because of cumulative, fundamental error in the prosecutor's closing argument." The prosecutor characterized Defendant as a "loose cannon," a "macho tough guy," and a "very, very dangerous" person who was "perfectly capable of doing what Stacey told you he did." The language used here is not as abusive as the comments in State v. Diaz, 100 N.M. 210, 214, 668 P.2d 326, 330 (Ct.App.1983) (prosecutor referred to the defendant as a "yo yo," "stupid," a "thief," and a "crook"). Moreover, in view of facts in evidence regarding Defendant's bragging about the killing and his ability to kill again, the prosecutor's language could arguably be justified. See id. (even abusive language may be proper if appropriate to the facts in evidence).

{43} The prosecutor also told the jury that if it did not intervene, "he'll do it again." Defendant himself testified that he would kill again in the same circumstances and said he did not know if there would be a "next time." This argument could, then, be seen as fair comment on the evidence. See State v. Hernandez, 104 N.M. 268, 275, 720 P.2d 303, 310 (Ct.App.), cert. denied, 104 N.M. 201, 718 P.2d 1349 (1986).

{44} The prosecutor further argued, "Defendant is the one who suffers the most from the truth in a criminal trial. It is axiomatic if you think about it. He always suffers from the truth. And he wants you to ignore the truth. He wants you to ignore the testimony of Stacey . . . ." We do not see this argument as an impermissible attempt to shift the burden of proof. In our view, this is no more than an argument that the incriminating evidence introduced at trial, including Stacey's testimony, was truthful and adequate to meet the State's burden of proof. "A prosecutor may make comments about the evidence, and is given latitude in his closing argument, in which he may discuss inferences which can {*816} be drawn from the evidence." State v. Calvillo, 110 N.M. 114, 119, 792 P.2d 1157, 1162 (Ct.App.), cert. denied, 110 N.M. 72, 792 P.2d 49 (1990).

{45} Defendant contends that the prosecutor impermissibly told the jury that it should consider evidence that Defendant had previously bragged about killing Hall and that Defendant had previously committed domestic violence against Stacey, as evidence of his guilt. We are not persuaded. When evidence is admissible as to one purpose but not another the judge, upon request, shall restrict the evidence to its proper purpose and instruct the jury accordingly. SCRA 1986, 11-105; State v. Wyman, 96 N.M. 558, 560, 632 P.2d 1196, 1198 (Ct.App.1981). There is no indication that a limiting instruction was requested to limit the purposes of this evidence.

{46} Defendant characterizes the argument that Stacey was a resolute witness as error because the prosecutor knew that Stacey had equivocated about testifying as recently as the weekend before trial. However, the prosecutor did not argue that Stacey was resolute in her decision to testify against Defendant. Rather, he argued that Stacey was adamant, unshakable, and resolute with respect to her answers at trial.

{47} Since we hold that none of the prosecutor's arguments constituted error, there can be no cumulative error. See State v. Larson, 107 N.M. 85, 86, 752 P.2d 1101, 1102 (Ct.App.), cert. denied, 107 N.M. 74, 752 P.2d 789 (1988).

{48} We affirm.

{49} IT IS SO ORDERED.