State v. Atwood

492 P.2d 1279, 83 N.M. 416

• Court: New Mexico Court of Appeals
• Decided: December 3, 1971
• Docket: 685
• Status: Published

Opinions

OPINION

WOOD, Chief Judge

Convicted of arson, defendant appeals. The issues are: (1) venue; (2) unauthorized contact with a juror; (3) sufficiency of the evidence; and (4) sequestration of the jury.

Venue.

Defendant moved for a change of venue, alleging an impartial jury could not be obtained because of “public excitement or local prejudice.” The trial court held a hearing on the motion. Defendant’s evidence was to the effect that articles in the Roswell newspaper had prejudiced the residents of Chaves County against defendant so that an impartial jury could not be obtained. The State introduced evidence to the contrary. The trial court denied the motion. No findings of fact on the question of venue were requested and none were made. On the morning of trial, defendant renewed the motion, supporting the renewal with a Roswell newspaper article about the hearing on the venue motion and its denial. The trial court denied the renewed motion.

Where, as here, there was. conflicting evidence, it is within the discretion of the trial court to grant or deny the motion for change of venue. State v. Vaughn, 82 N.M. 310, 481 P.2d 98 (1971), cert. denied, 403 U.S. 933, 29 L.Ed.2d 712, 91 S.Ct. 2262 (1971). Defendant contends the trial court abused its discretion in denying the motion. The basis of this argument is that the trial court should have believed the defendant’s witnesses and exhibits. Where, as here, the trial court’s ruling is supported by substantial evidence, the trial court did not abuse its discretion in not accepting as true the evidence introduced in support of the motion. See Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969). The fact that newspaper articles were introduced in support of the motion does not change the rule. Even with the newspaper articles in support of the motion, the trial court, on the evidence presented, could properly deny the motion. State v. Foster, 82 N.M. 573, 484 P.2d 1283 (Ct.App.1971); State v. Herrera, 82 N.M. 432, 483 P.2d 313 (Ct.App.1971). This is also true as to the renewal of the motion, where there was one newspaper article in support of the motion and no opposing evidence. The uncontested newspaper article supporting the renewed motion did not require that venue be changed because the article in itself did not establish public excitement or prejudice. State v. Foster, supra.

The foregoing assumes the venue issue is properly before this court even though findings were neither requested nor made. See State v. Fernandez, 56 N.M. 689, 248 P.2d 679 (1952); State v. Mosier, (Ct.App.), 83 N.M. 213, 490 P.2d 471, decided September 17, 1971.

Unauthorized contact with a juror.

A witness, on the stand immediately prior to the noon recess on the first day of trial, rode in a car with some of the jurors who were being taken to lunch. Upon arrival at the cafe, the witness sat down at a table where some of the jurors were seated. Upon being informed of this, the trial court interrogated four of the jurors and the witness. They were interrogated one at a time, in private. The interrogation was by the judge and by defense counsel.

The testimony at the interrogation was that there was no conversation about the case either in the ride to the cafe or at the cafe. There is evidence that some comment was made about the weather, and possibly, that the witness remarked that it was hard to pick a jury. The evidence is that little, if any, conversation could have occurred at the cafe because as soon as the witness sat down the bailiff moved him away.

After the above evidence was received, defendant moved for a mistrial, which was denied. Defendant claims the trial court erred in denying the motion for a mistrial. He asserts that the contacts between the witness and some of the jurors raised a presumption that defendant was prejudiced and that the State failed to overcome the presumption.

We agree that the unauthorized contacts between the witness and some of the jurors raised a presumption of prejudice. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967). We also agree that the burden was on the State to overcome the presumption. State v. Gutierrez, supra. Compare State v. Dickson, 82 N.M. 408, 482 P.2d 916 (Ct.App.1971). The trial court’s denial of the motion for mistrial was, in effect, a ruling that the presumption had been overcome. State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.App.1969), cert. denied 398 U.S. 942, 90 S.Ct. 1860, 26 L.Ed.2d 279 (1970).

Defendant’s claim is that the interrogation by the court was insufficient to overcome the presumption of prejudice. He claims the questioning should have been more extensive, and implies that the number of jurors questioned was insufficient. We disagree. Jurors questioned included one who sat by the witness in the car and one beside whom the witness seated himself in the cafe. The four jurors interrogated, as well as the witness, all testified there had been no discussion of the case being tried. The evidence taken by the court is sufficient to sustain the trial court’s ruling. State v. McFerran, 80 N. M. 622, 459 P.2d 148 (Ct.App.1969); State v. Thayer, 80 N.M. 579, 458 P.2d 831 (Ct.App.1969); State v. Gutierrez, supra. Compare State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970).

Here, as in the first issue discussed, we have assumed the issue is properly before us. The record fails to show, however, that defendant’s claim, that the interrogation was insufficient, was ever called to the trial court’s attention; rather, it is raised here for the first time. Compare State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970).

Sufficiency of the evidence.

The arson statute, § 40A-17-5(A), N.M. S.A.1953 (Repl.Vol. 6, Supp. 1971) reads:

“Arson consists of maliciously or willfully starting a fire or causing an explosion with the purpose of destroying or damaging any building, occupied structure or property of another, or bridge, utility line, fence or sign; or with the purpose of destroying or damaging any property, whether the person’s own or another’s, to collect insurance for such loss.”

The instructions told the jury that a material allegation was that defendant “. . . did maliciously or- willfully start a fire or cause an explosion with the purpose of destroying or damaging a building located at 802 South Main Street, Roswell, belonging to the New Mexico Savings and Loan Association or with the purpose of destroying or damaging property to collect insurance for such loss.” Three “ors” are found within this material allegation. Thus, various alternatives were charged.

No claim is made that the alternative charge was erroneous. See State v. Hollowell, 80 N.M. 756, 461 P.2d 238 (Ct.App.1969). The alternatives in the charge are pointed out because defendant challenges the sufficiency of the evidence. If the evidence is sufficient as to one of the alternatives, defendant’s attack on the evidence fails.

One of the alternatives charged is that defendant -willfully caused an explosion with the purpose of damaging the building of the savings and loan' association. This alternative does not involve insurance and the evidence pertaining to insurance will not be reviewed.

Defendant’s business (television sales and service) was located in the building of the savings and loan association. There was an explosion and fire at defendant’s business at approximately 2:00 a. m. on August 5, 1970. There is evidence that the explosion and fire resulted from the use of dynamite and gasoline. Evidence of bottles filled with gasoline, primer cord and the physical arrangement of these items inside defendant’s business permits the inference that the explosion was willfully caused and was for the purpose of damaging the building. Specifically, the evidence fully supports a determination that arson did occur under the alternative charge that we are reviewing. Defendant does not claim that arson did not occur.

Defendant’s claim is that the evidence is insufficient to show that he was the person who committed the arson. This claim has four aspects: direct evidence that defendant was the arsonist; circumstantial evidence that defendant was the arsonist; direct evidence that defendant aided and abetted the arsonist; circumstantial evidence that defendant aided and abetted the arsonist. As to the first three aspects, we agree that the evidence is insufficient to connect defendant with the arson. We disagree as to the fourth. We hold that the circumstantial evidence that defendant aided and abetted the arsonist, who is unknown, is sufficient to sustain the conviction.

The circumstantial evidence of aiding and abetting follows. The explosion at defendant’s business occurred at approximately 2:00 a. m. on Wednesday, August S, 1970. The building was locked at the time and there is evidence of no forcible entry into the building. Investigators found a. five gallon water bottle filled with gasoline with primer cord wrapped around it. A', “cap” was attached to the primer cord. This bottle was intact. A second bottle was also found, but it was broken. There is evidence that a similar bottle had been on the premises prior to the arson. Sometime in July, defendant had borrowed another similar bottle from a business acquaintance.

There is evidence that sometime in July, prior to the arson, defendant contacted Mr. Sparks in Hobbs and asked him to come to Roswell. When defendant met Sparks in Roswell, defendant asked Sparks if Sparks could get defendant some fuse and caps. Sparks said he could get whatever defendant wanted. Subsequently, Sparks purchased some caps, dynamite and fuse.

On the Tuesday evening prior to the arson, defendant was in Hobbs. Defendant met with Sparks and asked Sparks if he had any caps. “He told me that his friend was ■ ready for them.” According to Sparks, he sold defendant one stick of dynamite, two feet of fuse and about five caps for a price of $100.00. Defendant would not, however, handle these items, but insisted that Sparks bring these items to Roswell. The result was that Sparks rode to Roswell in a car driven by defendant. Sparks had the “stuff” in his pocket. Upon arriving at Roswell, defendant took Sparks to a motel where Sparks registered under an assumed name. As to the items that Sparks sold to defendant: “Well, Atwood told me to just leave it outside the door. The party would pick it up.” Defendant left in his car and Sparks, on foot, went to get something to eat. Sparks identified the cap found attached to the primer cord wrapped around the unbroken water bottle as a dynamite cap of the “same type” that he sold to defendant.

The motel operator testified that Sparks registered at the motel about 11 o’clock. He was brought to the motel in a car driven by another man (defendant). Another witness testified that he observed defendant, in defendant’s car, at the motel about midnight. At this time a woman was with defendant in the car.

An employee of defendant testified that on Tuesday morning preceding the arson he found six caps similar to the dynamite cap found attached to the primer cord. These items were found on the floor of the premises scattered around the leg of defendant’s workbench when the employee came to work that morning. This employee also testified that another employee had found caps, of the same type, that Tuesday morning.

To be an aider and abetter one must share the criminal intent of the principal; there must be a community of purpose in the unlawful undertaking. State v. Harrison, 81 N.M. 324, 466 P.2d 890 (Ct.App.1970). Aiding and abetting may be shown by evidence of acts, conduct, words, signs, or any means sufficient to incite, encourage or instigate commission of the offense. State v. Ochoa, 41 N.M. 589, 72 P. 2d 609 (1937). In this case, the evidence that defendant borrowed a water bottle when one was already at his business, purchased dynamite, fuse and caps for a friend “ready for them,” caused these items to be left outside a motel room in Roswell where “[t]he party would pick it up,” and was at the motel an hour later (after the material was left outside the motel room door) is sufficient to establish that he aided and abetted the arson at his place of business two hours after he was observed at the motel.

This evidence, of course, is circumstantial and to be sufficient must exclude every reasonable hjqpothesis other than the guilt of defendant. State v. Hardison, 81 N.M. 430, 467 P.2d 1002 (Ct.App.1970). There is evidence in the record to the effect that defendant did not commit arson; that he was not in Roswell when the explosion' occurred. The evidence that defendant did not commit the arson does not, however, provide a reasonable hypothesis that he did not aid and abet the crime.

The hypotheses advanced by defendant that he did not aid and abet the arson are: that there was no motive for defendant to do so (there is evidence that his business was profitable); that other people (employees) had keys to the business; that another person had been seen entering the business earlier in the summer at an improper hour. In our opinion, none of these hypotheses are reasonable in the light of the evidence that defendant procured materials of the type used in the arson, the evidence of the time when these materials were procured, and the time of the arson itself.

The circumstantial evidence is sufficient to sustain defendant’s conviction as an aider and abetter.

Sequestration of the jury.

After the jury had been deliberating for some time (the record does not show the hours involved), the trial court decided to allow the jurors to go home for the night and resume their deliberation the following morning. Defendant moved that the jury be kept together “. . . apart from their families and any publicity media. . . .” The motion was denied. Before allowing the jurors to separate, the trial court admonished the jurors “strongly” that: “. . . [y]ou do not talk to anyone or permit anyone to talk to you. Don’t talk to each other in pairs or threes or fours. . . . [Particularly do not let your wife or husband talk to you about it. And, do not read the newspaper or listen to the radio or TV reporters. . . . [D]o not read the local newspaper or listen to news reports. . . .”

In his motion, defendant opposed separation of the jury “. . .in light of the repeated appearance on the front page of the daily newspaper of the stories concerning this case.” He asserts that it was error to allow the jury to separate because of the “publicity surrounding the trial;” “. . . that it would be virtually impossible for members of the jury if not sequestered, to be kept free from hearing, reading, or overhearing comments concerning the progress of the trial, notwithstanding the Courts [sic] admonitions to the contrary. . . .”

Defendant’s opposition to allowing separation is that the jurors might be exposed to publicity about the case. There is no claim that the jurors were so exposed. Thus, the basis for opposing separation is not established and we cannot say the trial court erred in denying the motion on the grounds asserted by defendant. See State v. Sanchez, 79 N.M. 701, 448 P.2d 807 (Ct.App.1968).

A more basic question is whether the jury may be permitted to separate after the cause is submitted to them for decision. During the course of a trial it is, discretionary with the trial court as to whether the jurors may be permitted to separate. Even unauthorized separations during trial is not error unless there is a showing that the defendant is prejudiced, State v. Embrey, 62 N.M. 107, 305 P.2d 723 (1956); United States v. Cook, 15 N.M. 124, 103 P. 305 (1909); Territory v. Chenowith, 3 N. M. (Gild.) 318, 5 P. 532 (1885); or that the jury flagrantly disregarded their duties, United States v. Spencer, 8 N.M. 667, 47 P. 715 (1896).

Two New Mexico decisions indicate that separation of the jury after submission raises a presumption of an improper verdict “. . . when there is nothing in the record showing the harmlessness of the separation, . . .” and that it is the State’s burden to overcome this presumption. United States v. Spencer, supra; United States v. Swan, 7 N.M. 306, 34 P. 533 (1893). Spencer and Swan were, however, distinguished in United States v. Cook, supra.

Concerning separation of jurors after submission, Territory v. Chenowith, supra, states:

“. . . the well-settled doctrine in substantially all the states of the union, as well as in England, now is, that even in cases of capital felony, it is in the sound discretion of the court as to whether the jury, during the trial, may be permitted to separate. It would have been different had the jury been permitted to separate without leave of the court, after the case had been given to them in charge, and before the rendition of their verdict. But, even in such case, before a verdict will be set aside, it must be shown that the prisoner was in some way prejudiced by the separation.”

United States v. Cook, supra, approved the foregoing quotation. State v. Romero, 34 N.M. 494, 285 P. 497 (1930) and State v. Blancett, 24 N.M. 433, 174 P. 207 (1918), appeal dismissed, 252 U.S. 574, 40 S.Ct. 395, 64 L.Ed. 723 (1920), held that temporary separation of some jurors after submission was not, in itself, error; an affirmative showing of prejudice was required. State v. Romero, supra, and Territory v. Chenowith, supra, imply that separation of jurors after submission is within the trial court’s discretion.

From the foregoing, and finding no statute to the contrary, we hold that it is within the trial court’s discretion to permit the separation of jurors after submission of the cause to the jurors. Defendant not having shown any prejudice resulting from the permitted separation in this case, defendant’s contention is without merit.

The judgment and sentence is affirmed.

It is so ordered.

HENDLEY, J., concurs.