State v. Gonzales

817 P.2d 1186, 112 N.M. 544
CourtNew Mexico Supreme Court
DecidedAugust 19, 1991
Docket18955
StatusPublished
Cited by50 cases

This text of 817 P.2d 1186 (State v. Gonzales) 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. Gonzales, 817 P.2d 1186, 112 N.M. 544 (N.M. 1991).

Opinion

OPINION

SOSA, Chief Justice.

Defendant, Raymond L. Gonzales, appeals his 1989 convictions of felony murder and armed robbery. He was sentenced to nine years on the robbery conviction to run concurrent with life imprisonment on the murder conviction. Defendant alleges error concerning jury selection, admission and exclusion of certain evidence, and jury instructions, and raises other issues of alleged prosecutorial misconduct, improper communication by one juror, whether a taint hearing should have been held, and whether reversible cumulative error occurred. We affirm.

Toby Grogg and Kathy Chavez were stabbed to death in December 1987. Defendant and Richard M. Ortega were arrested for the killings, indicted on counts of murder, kidnapping, robbery, and conspiracy, and were tried separately with Ortega being tried first. 1 Defendant testified in Ortega’s 1988 trial under a grant of use and derivative use immunity pursuant to SCRA 1986, 5-116 and 11-412. The immunity agreement provided that defendant would be charged only with felony murder and armed robbery of Toby Grogg. Defendant admitted he was present when victim Grogg was killed, but maintained he was an innocent bystander and did not participate. According to defendant, Ortega solely was responsible for the robbery and murder of both victims. The state argued the impossibility of Ortega committing both murders without defendant’s assistance.

Defendant’s June 1989 trial resulted in a mistrial because certain tape-recorded interviews with witnesses were provided to the defense on the eve of the trial. A second jury trial began in November with a verdict entered on November 21, 1989, and an amended judgment and sentence filed December 15, 1989. On appeal, defendant alleges the following errors:

(1) the district court erred in not holding a taint hearing prior to defendant’s trial;
(2) defendant was denied a fair and impartial jury by the manner in which the venire and jury were selected;
(3) defendant was denied a fair trial due to prosecutorial misconduct in voir dire and closing argument;
(4) the district court erred by admitting defendant’s testimony concerning his probation on an unrelated charge, the video deposition of witness Chavez, statements concerning threats by Ortega against witness Chavez, and evidence and argument concerning victim Chavez, which unfairly prejudiced defendant and denied him a fair trial;
(5) the district court erred in excluding evidence of threats against defendant’s life made by Ortega and a prior inconsistent statement by witness Casaus;
(6) the district court erred in giving vague and unconstitutional jury instructions regarding aiding and abetting;
(7) defendant was denied a fair trial due to improper contact between the court and a deliberating juror; and,
(8) cumulative error deprived defendant of a fair trial. We address defendant’s claims of error seriatim.

TAINT HEARING

Defendant claims fundamental error occurred by the court’s failure to sua sponte order a taint hearing to determine if the state’s evidence derived from sources independent of his immunized testimony given in Ortega’s trial and at a pretrial deposition. Defendant argues the prosecution reviewed exhibits from Ortega’s trial that included those testified to by defendant, and complains the record lacks certification by the state of its independent sources of its evidence. This issue is raised for the first time on appeal. See State v. Jaramillo, 85 N.M. 19, 508 P.2d 1316 (Ct.App.) (fundamental error doctrine allows court to reach questions that were not preserved properly for appeal in order to prevent miscarriage of justice when defendant has been deprived of rights essential to the defense), cert. denied, 85 N.M. 5, 508 P.2d 1302, cert. denied, 414 U.S. 1000, 94 S.Ct. 353, 38 L.Ed.2d 236 (1973).

Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), is the seminal case addressing the prohibition on prosecutors from using immunized testimony in any respect, direct or indirect, which may lead to the infliction of criminal penalties on the witness. “Kastigar requires that a defendant only show that he has testified under a grant of immunity. The prosecuting authorities then ‘have the burden of showing that their evidence is not tainted [by exposure to prior immunized testimony] by establishing that they had an independent, legitimate source for the disputed evidence.” State v. Munoz, 103 N.M. 40, 42, 702 P.2d 985, 987 (1985) (quoting Kastigar, 406 U.S. at 460, 92 S.Ct. at 1665); Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609-10, 12 L.Ed.2d 678 (1964) (defendant must demonstrate he testified under a grant of immunity before burden shifts to prosecution).

One raising a claim under [the immunity] statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.

Kastigar, 406 U.S. at 461-62, 92 S.Ct. at 1665.

It is uncontroverted that defendant, either before, during or after trial, failed to alert the court of his concern that the prosecution’s evidence might have been derived from his immunized testimony given in Ortega’s trial, nor did he object or question the source of the prosecution’s evidence to adduce that it was untainted by his immunized testimony. Nevertheless, despite the lack of a Kastigar hearing, precautions were in place to avoid possible taint arising from defendant’s immunized testimony. Two special prosecutors from the Fifth Judicial District, who had no connection to the Ortega trial, were appointed to try defendant’s case. See Munoz, 103 N.M. at 45, 702 P.2d at 990 (different prosecutor than one who elicits immunized testimony should handle prosecution of person who gave immunized testimony; steps should be taken to insulate such prosecutor and staff from exposure to immunized testimony); see generally 22 C.J.S. Criminal Law § 79 (1989). Further, the record indicates that a pretrial conference was held after jury selection wherein the defense attorney, prosecutors, and trial judge recognized that defendant’s immunized testimony could not be used in his trial. During the discussions, prosecutor Plath expressed concern with “Defendant’s use of the fact that he testified against Mr. Ortega to his own benefit in this case, in this trial.” Defense counsel stated, and all agreed, that “[i]t’s clear it [defendant’s immunized testimony] shall not be used.”

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Cite This Page — Counsel Stack

Bluebook (online)
817 P.2d 1186, 112 N.M. 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzales-nm-1991.