State v. Christopher

615 P.2d 263, 94 N.M. 648
CourtNew Mexico Supreme Court
DecidedAugust 7, 1980
Docket12718
StatusPublished
Cited by10 cases

This text of 615 P.2d 263 (State v. Christopher) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Christopher, 615 P.2d 263, 94 N.M. 648 (N.M. 1980).

Opinion

OPINION

FEDERICI, Justice.

Defendant-appellant was tried and convicted for first degree murder of his wife. He was sentenced to life imprisonment. He appeals.

The following issues are before this Court:

1. Whether statements contained in the “Juror’s Handbook” were prejudicial.

2. Whether cross-examination of character witnesses concerning 23-year old convictions of the defendant was relevant.

3. Whether cross-examination of character witnesses concerning an alleged beating by defendant of his wife was properly admitted.

4. Whether a mistrial should have been granted when the prosecutor asked for a second time a question involving hearsay to which a previous objection had been sustained.

We affirm the trial court on Points 1 and 4 and reverse on Points 2 and 3.

Prior to impanelment prospective jurors were given a “Juror’s Handbook” designed to acquaint them with jury service. During voir dire, all but two panel members indicated they had read the handbook. Defendant moved to strike for cause all jurors who had read the handbook. The motion was denied, defendant exhausted his peremptory challenges, and jurors who had read the handbook were impaneled.

During the trial, defendant presented six character witnesses to testify to his peacefulness. None of them had known him for more than six years. The prosecutor, on cross-examination, asked each of these witnesses whether he or she had heard or had knowledge of defendant’s 1957 convictions for rape, assault with intent to commit armed robbery, and two armed robberies. Only one of the witnesses had knowledge of any of the convictions. Defendant objected to all of the questions concerning the 1957 convictions.

Two of the character witnesses were also asked, during cross-examination, whether they knew about a recent incident in which defendant had beaten his wife; they answered in the negative. On redirect, both witnesses stated that they were unaware of a polygraph test indicating defendant had not beaten his wife on the occasion in question. On recross, the prosecutor then asked one of the witnesses whether she was “aware that photographs were taken of [his wife] with the injuries.” The witness stated that she was not.

After the defense rested, the State called a police officer who testified about a disturbance involving defendant and his wife, in which the State elicited information showing defendant’s wife had informed the officer about a gun in the house. Defendant was sustained on a hearsay objection to this testimony. A few minutes later, the prosecutor elicited this same information from the officer. An objection was again sustained, and the jury was told to disregard the question. Defendant’s motion for a mistrial was denied.

I.

The statements in the “Juror’s Handbook” of which defendant complains read:

If a jury cannot arrive at a verdict within a reasonable time and the judge is so advised, he can, in his discretion, order the jury dismissed with the result that another trial of the case usually follows with consequent added expense to all parties. It is, therefore, highly advisable that a verdict be rendered if that can be done with the sincere and honest judgment of the required number of jurors.

These statements represent part of a paragraph from a 12-page booklet distributed by the Fifth Judicial District to prospective jurors. Defendant alleges that the above statements amount to an “Allen ” charge to the jury, and such statements require reversal of the trial court because they allegedly created prejudice to defendant.

An “Allen ” charge is an instruction given by a judge to the jury during the course of deliberations, when the jury has failed to reach a verdict. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). It was first approved by the Supreme Court of the Territory in Territory v. Donahue, 16 N.M. 17, 113 P. 601 (1911). Since Donahue, it has been greatly criticized, and this Court has severely limited its use. See State v. McCarter, 93 N.M. 708, 604 P.2d 1242 (1980). In McCarter, three important factors were present: the jury sent a note to the trial judge during deliberations informing the judge of the numerical division of the jury; the judge sent a note back to the jury mandating them to consider further deliberations; and, the defendant was not present during the above proceedings. We held that the trial court should have granted a new trial because that situation created a presumption of prejudice which the State did not sufficiently rebut.

The McCarter standard can only apply to the present case if we determine that the statements amounted to an “Allen ” charge. They differ significantly. The handbook is given to prospective jurors pri- or to impanelment for trial, as an informative guide. It includes information on many aspects of a trial to familiarize jurors with the trial process. An “Allen ” charge is given by a judge to the jury at a crucial period of a trial. The primary purpose of the “Allen ” charge is to encourage further deliberations in an attempt to prevent a mistrial. The statements from the “Juror’s Handbook” do not constitute a charge to the jury nor are they given in the context of a charge. The statements in the “Juror’s Handbook” do not amount to an “Allen ” charge. Therefore, the burden is upon defendant to show specifically how the statements prejudiced the deliberations of the jury. State v. White, 74 Wash.2d 386, 444 P.2d 661 (1968). See also People v. Lopez, 32 Cal.2d 673, 197 P.2d 757 (1948). Here, defendant has not shown that the jury either deliberated hastily or was coerced into unanimity because of wording in the handbook. The trial court was correct in denying the motion for a mistrial on these grounds.

II.

Defendant objects to the State’s cross-examination of his character witnesses concerning convictions twenty-three years pri- or to the present trial. He states that the prior convictions are not relevant and even if they are, their prejudicial effect outweighs any probative value.

Admissibility of evidence on relevancy grounds is controlled by N.M.R.Evid. 402, N.M.S.A.1978. It requires that evidence must be relevant to be admissible. N.M.R. Evid. 401, N.M.S.A.1978, defines relevant evidence as: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Here, we have six witnesses who testified to the defendant’s reputation for peacefulness. In such a situation, the prosecutor is permitted to test the witnesses’ grounds of knowledge. 3A Wigmore, Evidence § 988 (Chadbourn Rev.1970) at 912. See N.M.R.Evid. 405, N.M.S.A.1978.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Jimenez
New Mexico Court of Appeals, 2017
State v. Sanchez
2015 NMCA 077 (New Mexico Court of Appeals, 2015)
State v. Johnson
2010 NMSC 016 (New Mexico Supreme Court, 2010)
State v. BALENQUAH
2009 NMCA 055 (New Mexico Court of Appeals, 2009)
State v. Garcia
2005 NMCA 042 (New Mexico Court of Appeals, 2005)
State v. McClanahan
454 S.E.2d 115 (West Virginia Supreme Court, 1994)
Jaramillo v. Fisher Controls Co., Inc.
698 P.2d 887 (New Mexico Court of Appeals, 1985)
State v. Wyman
632 P.2d 1196 (New Mexico Court of Appeals, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
615 P.2d 263, 94 N.M. 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-christopher-nm-1980.