STATE V. LUCERO, 1974-NMSC-075, 86 N.M.
686, 526 P.2d 1091 (S. Ct. 1974)
CASE HISTORY ALERT: affected by
1975-NMSC-040
see ¶18 - affects 1974-NMCA-019
STATE of New Mexico, Plaintiff-Appellee,
vs.
Tomas LUCERO, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
1974-NMSC-075, 86 N.M. 686, 526 P.2d 1091
Larry N. Smith, Santa Fe, for
defendant-appellant.
David L. Norvell, Atty. Gen., Santa Fe,
Prentis Reid Griffith, Jr., Special Asst. Atty. Gen., for plaintiff-appellee.
ZINN, D.J., wrote the opinion. McMANUS,
C.J., and MONTOYA, J., concur.
{*687} ZINN, District
Judge.
{1} Tomas Lucero, appellant,
was convicted of first degree murder on July 27, 1972. On August 15, 1972, he
was sentenced to life imprisonment.
{2} He asks that his
conviction be reversed, that his sentence be set aside and that he be granted a
new trial.
{3} Reversal is sought on
several grounds. The absence of a material witness is the one upon which
appellant chiefly relies.
{4} The conviction is
reversed and the judgment and sentence is set aside, with directions that a new
trial be granted appellant.
{5} The ground for our
reversal is the failure of the trial court to grant the continuance sought by
appellant for lack of an important material witness. The only person alive who
witnessed the events out of which the prosecution arose, other than the
defendant, was his thirteen-year-old daughter. This child was residing in
Indiana at the time of trial. Counsel for defendant initiated action under the
provisions of § 41-12-13 et seq., N.M.S.A. 1953, relating to securing the
attendance of witnesses from other states, and the Indiana court issued its
subpoena. The subpoena was apparently received by the witness on July 16, 1972,
but she did not appear in response. The motion to dismiss or to vacate the
trial setting for lack of the witness was filed on July 24, 1972, the day the
trial commenced. The trial judge denied the motion on a tentative basis on the
opening day of the trial. A jury was selected and the actual trial begun the
following day. The matter of the absent witness was raised intermittently
throughout the trial by defense counsel. During the presentation of the
prosecution testimony, the court refused to let defense counsel cross-examine a
police officer about information that he had obtained from the absent witness,
noting that it was hearsay and not mentioned on direct testimony.
{6} The court considered the
problem of the absent witness at some length, then permitted the police officer
who interviewed the daughter to testify. It consisted of summaries from a
report that he had written following his interview with the child. The court,
before and after the officer's testimony was received, advised the jury that it
was a very unusual procedure.
{7} The motion for
continuance and the affidavit made as a part of it complied substantially with
the requirements of § 21-8-10, N.M.S.A. 1953. This was a trial rule
subsequently repealed but applicable to this case. The court made no ruling
indicating any insufficiency of the application for continuance. There was no
action taken by the prosecution as allowed under § 21-8-11, N.M.S.A. 1953, to
obviate the continuance by admitting the facts stated in the affidavit to be
the substance of the witness' proposed testimony, to allow it to be considered
by the jury. The net result of these omissions places the matter squarely
within the rulings of State v. Sibold,
83 N.M. 678,
496 P.2d 738 (Ct.
App.1972); State v. Gallegos,
46 N.M. 387,
129 P.2d 634 (1942); State v.
Riddel,
37 N.M. 148,
19 P.2d 751 (1933). The court had no discretion to
exercise in this situation. The continuance was a matter of right, and the
failure to grant it was error, requiring reversal.
{8} Appellant raises other
points for reversal. Those challenging a failure to instruct on defense of
habitation and the offense of manslaughter cannot be answered except by
speculating as to what the testimony of the absent witness would be. This we
cannot do.
{9} A question of cumulative
error was raised. In view of the reversal, this need not be answered.
{10} Appellant claims error
in the court allowing him but five peremptory challenges to jurors. He contends
twelve was the proper allowance for the crime of first degree
{*688} murder under Rule of Criminal Procedure
39(d)(1)(i) [§ 41-23-39(d)(1)(i), N.M.S.A. 1953 (Supp.1973)].
{11} The Rules of Criminal
Procedure were not applicable to the trial of cases initiated before their
effective date, July 1, 1972. The provisions of § 41-10-3, N.M.S.A. 1953, apply
to this case. That rule limits peremptory jury challenges to five for
defendants in cases not punishable by death. The crime of which appellant was
accused occurred during that hiatus in the laws of this state when capital
punishment did not obtain for this crime.
{12} Complaint is made of a
failure to supply the appellant's counsel with a copy of the testimony before
the grand jury. This denial was correct in the absence of a showing of a
particularized need, the basis for such a motion at that time. State v.
Tackett,
78 N.M. 450,
432 P.2d 415 (1967). If raised by appellant upon a new
trial, this will need to be evaluated by the trial judge in light of the current
decisions on this point. See State v. Felter,
85 N.M. 619,
515 P.2d 138 (1973);
State v. Vigil,
85 N.M. 735,
516 P.2d 1118 (1973); State v. Baca,
85 N.M. 55,
508 P.2d 1352 (Ct. App.1973).
{13} A further point relates
to the refusal to hear testimony of a polygraph examiner who had administered a
test to appellant to aid in evaluating his capacity to stand trial and his
defense of exculpable insanity.
{14} The testimony was
offered in conjunction with the testimony of the psychologist who testified to
the court on the issue of the appellant's present capacity to be tried. The
court heard the testimony as a tender, then rejected it. This tender of the
polygraph examiner's testimony came as a part of the hearing before the court
without a jury.
{15} Objection was made to
the testimony before the tender by the prosecution. The tender included
questions of the witness as to his personal education, training and experience
in the field. He described the operation of the polygraph in general. He
related the questioning of the defendant and demonstrated the responses as they
appeared on the test chart. He expressed his interpretation of the test
response to certain questions.
{16} No questions were asked
of the witness as to his view of the reliability of the test procedure in
general or as to the validity of his results on the appellant. There was no
attempt made by defense counsel to offer the polygraph operator's testimony to
the jury at the trial which followed.
{17} The failure to accept
the testimony of the polygraph test was not error. This court has held to the
rule which admits polygraph test results when each of these requirements are
met: 1. The tests were stipulated to by both parties to the case; 2. When no
objection is offered at trial; 3. When the court has evidence of the
qualifications of the polygraph operator to establish his expertise; 4.
Testimony to establish the reliability of the testing procedure employed as
approved by the authorities in the field; and 5. The validity of the tests made
on the subject. State v. Chavez,
82 N.M. 238,
478 P.2d 566 (Ct. App.1970);
State v. Chavez,
80 N.M. 786,
461 P.2d 919 (Ct. App.1969); Chavez v. State, 456
F.2d 1072 (10th Cir. 1972); State v. Varos,
69 N.M. 19,
363 P.2d 629 (1961);
State v. Trimble,
68 N.M. 406,
362 P.2d 788 (1961).
{18} To the extent that the
opinions in State v. Alderete,
86 N.M. 176,
521 P.2d 138 (Ct. App.1974), depart
from this rule, they are hereby overruled.
{19} The conviction and
sentence is reversed. The cause is remanded with instructions to vacate the
conviction, judgment and sentence and to grant the defendant a new trial.
McMANUS, C.J., and MONTOYA, J., concur.