State v. Hall

704 P.2d 461, 103 N.M. 207
CourtNew Mexico Court of Appeals
DecidedJuly 18, 1985
Docket7927
StatusPublished
Cited by9 cases

This text of 704 P.2d 461 (State v. Hall) 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. Hall, 704 P.2d 461, 103 N.M. 207 (N.M. Ct. App. 1985).

Opinion

OPINION

BIVINS, Judge.

Defendant appeals from convictions for promoting prostitution and conspiracy to promote prostitution, raising four issues:

1. Whether the trial court abused its discretion in refusing to sever defendant’s case from the other defendants’ cases;

2. Whether the presence of an attorney for one of the co-defendants in the grand jury room required dismissal of the indictment;

3. Whether a police officer should have been permitted to give his opinion that the Club of Albuquerque was a front for prostitution; and

4. Whether there was sufficient evidence to support the convictions.

Issues listed in the docketing statement, but not briefed, are abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). We affirm.

FACTS

Charles Holman operated the Club of Albuquerque, whose membership numbered between one and two thousand persons. The Club promoted “parties” for individuals inclined toward the “swinging” life-style. Evidence reflected that the term “party” had two distinct meanings: social intercourse and sexual intercourse. Defendant acted as bouncer at the Club house. He and other codefendants were tried together.

DISCUSSION

1. Severance.

Defendant contends that his case, involving only three counts of the indictment, should have been severed from the cases of the other sixteen defendants who were charged in the thirteen-count indictment.

There is no record of the original hearing on the severance motions. It is defendant’s burden to insure that this court has a record adequate to review the issues, Berlint v. Bonn, 102 N.M. 394, 696 P.2d 482 (Ct.App.1985), and, in the absence of a record, there is nothing to review, State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App.1975).

Defendant attempts to avoid this rule by requesting that the court review the trial record. See State v. Martinez, 94 N.M. 436, 612 P.2d 228 (1980). If it is defendant’s contention that the prejudice from lack of a severance became apparent during trial, it was incumbent on him to renew his motion for severance during trial, or at the close of evidence, State v. Garcia, 84 N.M. 519, 505 P.2d 862 (Ct.App.1972), and to point out in his brief where he had done so. State v. Martin, 90 N.M. 524, 565 P.2d 1041 (Ct.App.1977). Failing that, defendant has waived any error. Garcia; Martin. See also State v. Gammill, 102 N.M. 652, 699 P.2d 125 (Ct.App.1985).

Defendant finds himself in a situation similar to that which confronted the defendants in State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971). In that case defendants sought review of the denial of their motions to sever, but without a record. This court refused to review the issue there, and we refuse to do so here.

2. Grand jury.

Relying on the rule of Davis v. Traub, 90 N.M. 498, 565 P.2d 1015 (1977), that the presence of an unauthorized person before the grand jury requires dismissal of the indictment without the necessity of showing prejudice, defendant claims the presence of Lynn Thornton’s attorney at the grand jury proceedings mandates that result.

An attorney for a target witness is a person permitted to be present during the taking of testimony by the grand jury. NMSA 1978, § 31-6-4(B) (Repl.Pamp.1984). Therefore, the issue turns on whether Lynn Thornton was a target witness.

Defendant claims Thornton was not a target witness because, prior to giving her testimony before the grand jury, she “firmed up a deal” with the prosecutor whereby if she would plead guilty to one count of promoting prostitution, she would receive no jail time, and she would be given absolute immunity as to any other charges. Defendant’s contention rests on his assertion that, “A target is one who may eventually be tried for an indictment.” No authority is cited for this statement. To the contrary, our cases, while not expressly defining a target witness, seem to embrace a broader definition. In State v. Cruz, 99 N.M. 690, 662 P.2d 1357 (1983), and Rogers v. State, 94 N.M. 218, 608 P.2d 530 (Ct.App.1980), a target was the defendant, a person to be indicted. In State v. Gonzales, 96 N.M. 513, 632 P.2d 748 (Ct.App.1981), a target was anyone who was the focus of a grand jury’s investigation.

Under any of these definitions, Thornton was a target. She was named in three counts of the prosecutor’s proposed indictment. She was read her rights as a target. She was indicted on the three counts. She pleaded guilty to one of the counts. The nolle prosequi on the other counts was not entered until months later. Her deal required certain performances on her part in return for which the prosecutor would do certain things and make certain recommendations. At the time she testified, she was indeed a target, a person to be indicted.

Accordingly, her attorney was authorized to be present, Section 31-6-4, and the indictment did not have to be dismissed. Compare Davis v. Traub.

3. Opinion testimony.

Joseph Polisar, a police officer, investigated the case. Among other things, he posed as a businessman and responded to one of the Club’s ads. He tape recorded his dealings with club employees. The state qualified Polisar as an expert in the investigation of prostitution, as follows: Polisar had experience in investigating hundreds of prostitution cases; he had investigated street prostitution, massage parlors, escort services, and more organized businesses; he also keeps up on techniques by reading publications and communicating with law enforcement agencies throughout the country; he has attended seminars and schools on the subject and is the training coordinator for New Mexico; and he is familiar with all aspects of prostitution and has been declared an expert on the matter before.

Outside of the presence of the jury, on tender, Polisar explained how business entities run as fronts for prostitution and attempt to avoid detection and liability. First, they screen their customers, typically by requiring the customer to call on the telephone and leave a name and number. Then, the business will call the customer back to verify that the customer is where and who he says he is.

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Bluebook (online)
704 P.2d 461, 103 N.M. 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hall-nmctapp-1985.