State v. Gardner

706 P.2d 862, 103 N.M. 320
CourtNew Mexico Court of Appeals
DecidedAugust 8, 1985
Docket7997
StatusPublished
Cited by26 cases

This text of 706 P.2d 862 (State v. Gardner) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gardner, 706 P.2d 862, 103 N.M. 320 (N.M. Ct. App. 1985).

Opinion

OPINION

DONNELLY, Chief Judge.

Defendant, Donald Ray Gardner, appeals from convictions on five felony charges: one count of fraudulent sale or offer of securities; one count of conspiracy to commit fraud; one count of criminal solicitation; and two counts of criminal fraud over $2,500.

Two issues are raised on appeal: (1) error in denial of mistrial; and (2) error in denial of directed verdict. Other issues listed in the docketing statement but not briefed by defendant on appeal are deemed abandoned. State v. Doe, 101 N.M. 363, 683 P.2d 45 (Ct.App.1983), cert. denied, 101 N.M. 276, 682 P.2d 61 (1984). We affirm.

FACTS

Defendant was employed as a sales manager by Ruidoso Condo Share Vacation Club (RCSVC), a New Mexico corporation, to sell time-share units in a condominium project in Ruidoso. The time-share project was initiated by co-defendant, Jim Vincent, who had obtained financial backing from his father-in-law, Dr. James Monahan, and Dr. Thomas Aspell. Monahan and Aspell formed a limited partnership called Sierra Santa Development, Ltd.

Defendant was charged by grand jury indictment with securities fraud, failure to register securities, fraud over $2,500, embezzlement, solicitation, conspiracy, tampering with evidence, and attempted fraud. Co-defendants Jim Vincent, Pamela Vincent, and Dean Shade, were also charged. Defendant’s trial was severed from the remaining defendants.

Following the submission of the case to the jury, verdicts were returned acquitting defendant of Count 1 (offer or sale of unregistered securities), and Count 14 (attempt to commit fraud in excess of $2,500). Defendant was convicted of Count 3 (fraudulent practices in connection with the offer or sale of securities), Count 5 (conspiracy to commit fraud), Count 7 (criminal solicitation), and Counts 11 and 12 (fraud over $2,500).

After defendant’s convictions, a supplemental criminal information was filed charging him as an habitual offender and alleging that he had previously been convicted of a felony consisting of securities fraud in the Federal District Court of Louisiana in 1978. Defendant admitted the allegations contained in the supplemental information.

I. DENIAL OF MISTRIAL

During jury selection, the court asked members of the prospective jury panel whether any of them were acquainted with defendant. One of the panel members, Wilma Sandoval, stated that she had read newspaper articles about the case. Later, during further voir dire examination by the trial court, the panel was asked whether there “was anything to lead you to believe you could not sit fairly and impartially in this cause.” Wilma Sandoval responded that five or six years ago defendant had attempted to purchase a cash register from her. Sandoval stated that defendant wanted to pay for the cash register “in two or three different payments ... [but] it was a cash only deal, and he came in with all these grandiose ideas, and I didn’t trust him then, and I told my boss I would not sell it to him except for cash.”

Defendant contends that the comments of Wilma Sandoval, concerning her prior contact with defendant, voiced during voir dire, were heard by other prospective jury members, conveyed a prejudicial impression of defendant, and served to deprive him of a fair trial. Defendant also asserts that Sandoval’s remarks constituted testimony concerning defendant’s character and that he had no opportunity to cross-examine Sandoval, resulting in a denial of defendant’s constitutional right of confrontation.

Following the remark by Wilma Sandoval, defendant moved for a mistrial. The motion was denied by the trial court; however, the court offered to allow defense counsel to question Sandoval further on voir dire. Defendant declined to do so. Immediately thereafter, the court met with counsel and defendant in chambers and allowed counsel to exercise challenges to prospective jurors. At this time, the trial judge indicated that he was willing to ask members of the jury whether Sandoval’s remarks had served to prejudice them against defendant. The court offered to question the prospective jurors either individually or as a panel. Defense counsel indicated that he did not feel this was necessary. Defense counsel later responded that he had not followed up with further questions at this time because he had not wanted to increase the potential risk of prejudicing the jury further. Sandoval was then stricken for cause.

Thereafter, a jury was selected including an alternate. After the jury was sworn, one juror, David Anderson, called Judge Doughty at home that evening. Anderson told the judge that after being selected as a juror he had reflected on it further and felt that he could not sit as a juror because his business partner was leaving town and because he had prior plans to go with his family to Mexico. The following morning the trial judge advised counsel for each of the parties about the phone conversation and, in the presence of counsel and defendant, summoned Anderson into chambers, where the juror was questioned further. Anderson stated that he was biased against defendant, based upon things that he had heard several months previously. When Anderson was asked why he had not disclosed this information during voir dire of the prospective jury panel, he stated, “Well, I didn’t want tb do what that girl did yesterday by standing up and saying something about the man and swaying everybody to that effect.” We assume, but do not decide, that Anderson was referring to Wilma Sandoval. Following further questioning of the juror in chambers, Anderson was excused from the jury panel and an alternate juror took his place.

The decision of whether to grant a mistrial rests within the sound discretion of the trial court and is reviewable only for an abuse of discretion. State v. Simonson, 100 N.M. 297, 669 P.2d 1092 (1983); State v. Perrin, 93 N.M. 73, 596 P.2d 516 (1979).

The denial of the mistrial was not error in the present case. The response of Wilma Sandoval to the questions posed by the court on voir dire was unexpected and unsolicited. The trial court promptly offered to admonish the prospective jury panel to disregard the remark. Sandoval’s statement was susceptible to being cured by an admonition or cautionary instruction to the jury. As observed in State v. Vialpando, 93 N.M. 289, 297, 599 P.2d 1086 (Ct.App.), cert. denied, 93 N.M. 172, 598 P.2d 215 (1979), appellate courts in New Mexico have “frequently held that a prompt admonition from the court to the jury to disregard and not consider inadmissible evidence sufficiently cures any prejudicial effect which otherwise might result.” (Citations omitted.) The court in Vialpando further stated:

[TJhis court has ruled that an offer to admonish, even though declined, is sufficient to support denial of a motion for mistrial. State v. Carlton, 83 N.M.

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

Related

State v. Hixon
New Mexico Court of Appeals, 2023
State v. Ashley
New Mexico Court of Appeals, 2015
State v. Hornbeck
2008 NMCA 039 (New Mexico Court of Appeals, 2008)
State v. Christmas
2002 NMCA 020 (New Mexico Court of Appeals, 2001)
State v. Pacheco
1998 NMCA 164 (New Mexico Court of Appeals, 1998)
State v. Aragon
861 P.2d 972 (New Mexico Court of Appeals, 1993)
State v. Orgain
847 P.2d 1377 (New Mexico Court of Appeals, 1993)
State v. Trejo
825 P.2d 1252 (New Mexico Court of Appeals, 1991)
Callaway v. State
785 P.2d 1035 (New Mexico Supreme Court, 1990)
State v. Callaway
787 P.2d 1247 (New Mexico Court of Appeals, 1989)
State v. Crews
799 P.2d 592 (New Mexico Court of Appeals, 1989)
State v. Newman
784 P.2d 1006 (New Mexico Court of Appeals, 1989)
State v. Gallegos
781 P.2d 783 (New Mexico Court of Appeals, 1989)
State v. Higgins
762 P.2d 904 (New Mexico Court of Appeals, 1988)
State v. Price
726 P.2d 857 (New Mexico Court of Appeals, 1986)
State v. Shade
726 P.2d 864 (New Mexico Court of Appeals, 1986)
State v. Ross
715 P.2d 471 (New Mexico Court of Appeals, 1986)
State v. Chambers
714 P.2d 588 (New Mexico Court of Appeals, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
706 P.2d 862, 103 N.M. 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gardner-nmctapp-1985.