State v. Watley

788 P.2d 375, 109 N.M. 619
CourtNew Mexico Court of Appeals
DecidedDecember 28, 1989
Docket10539
StatusPublished
Cited by49 cases

This text of 788 P.2d 375 (State v. Watley) 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. Watley, 788 P.2d 375, 109 N.M. 619 (N.M. Ct. App. 1989).

Opinion

OPINION

MINZNER, Judge.

The convictions in this case arose out of a series of incidents in Albuquerque’s Northeast Heights area during January through September 1986. Convicted of various counts of aggravated burglary, kidnapping, and criminal sexual penetration with a deadly weapon in connection with five separate victims, defendant appeals, raising twelve issues. He contends the trial court erred in (1) precluding certain alibi testimony as a sanction for late disclosure; (2) admitting serological evidence that the police department allowed to deteriorate; (3) failing to instruct the jury regarding the state’s failure to preserve the serological evidence; (4) running his parole periods consecutive to one another; and (5) failing to suppress evidence and testimony obtained as a result of the stop and search of his vehicle. He also contends (6) there was prosecutorial misconduct in referring to hair comparisons as “identical” and error in admission of hair comparison evidence and that the trial court erred in (7) denying his motion for severance; (8) admitting certain identification testimony; (9) admitting certain testimony from a court services employee; and (10) failing to excuse two jurors for cause. Finally, he contends (11) that there was not sufficient evidence to support his convictions; and (12) that this court should reverse on the basis of cumulative error. Other issues listed in the docketing statement but not briefed are abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985).

Since the application of law to the facts concerning many issues is clear, only part of this opinion warrants publication. The remainder of the opinion, which is incorporated by reference, will be a memorandum opinion and may not be cited as precedent. We discuss issues (1) through (6) in the portion of the opinion that will be published. We discuss issues (7) through (12) in the portion of the opinion that is not to be published. For the reasons set out below, we affirm defendant’s convictions but reverse the judgment and sentence and remand for entry of an amended judgment and sentence.

(1) Preclusion of Alibi Testimony

The prosecutor and defense counsel interviewed Dennis Baca on the evening of the tenth day of trial. During the interview Baca stated that he had attended a March 15, 1989 party in Albuquerque and that defendant was also present at the same party. Baca stated that he had only recently recollected this information. On the morning of the eleventh day of trial, the state moved to exclude Baca’s alibi testimony. Defense counsel argued that the testimony should be allowed because both the state and defendant found out about the testimony at the same time. Defense council stated defendant would not object if the court granted a recess in order to allow the state sufficient time to respond to this testimony. The prosecutor objected to permitting defendant to call Baca as an alibi witness on the grounds that Baca had been on defendant’s witness list for about one month and that he was not listed on an alibi notice, including the updated version; therefore, his testimony should be prohibited. The prosecutor also informed the trial court that the state would be required to re-interview all of the witnesses who were at the party, approximately ten to fifteen people, because Baca’s testimony made them all potential alibi witnesses, and it would also seek to recall the victim as a rebuttal witness. The prosecutor indicated that it could take a substantial amount of time for the state to prepare to respond to Baca’s testimony if the trial court allowed the alibi testimony.

The trial court ruled that Baca would not be allowed to offer alibi testimony, noting that the rules requiring notice of alibi were designed to exclude this sort of “eleventh hour problem.” Defense counsel made an offer of proof outside the presence of the jury during which Baca testified that in the early morning of March 15, 1986 he was at a party at which defendant was present. Baca further testified that he left the party shortly before sunrise and defendant was still present at the party.

It is clear that a trial court does have discretion to preclude defense testimony as a sanction for failure to comply with a demand for notice of alibi. SCRA 1986, 5-508(C). In deciding whether to admit alibi evidence when a proper notice has not been served by the defendant, the trial court “should balance the potential for prejudice to the prosecution against the impact on the defense and whether the evidence might have been material to the outcome of the trial.” McCarty v. State, 107 N.M. 651, 653, 763 P.2d 360, 362 (1988). In considering the potential for prejudice to the prosecution, the trial court must take into account not only the prejudicial effect of noncompliance on the immediate case, but also the necessity to enforce the rule to preserve the integrity of the trial process. The trial judge should consider whether noncompliance was a willful attempt to prevent the state from investigating necessary facts. Ultimately the court must weigh the resulting prejudice to the state against the materiality of the precluded testimony. Compare Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (holding that the compulsory process clause of the sixth amendment does not create an absolute bar to the preclusion of a defense witness’s testimony as a sanction for violating a discovery rule requiring disclosure of witnesses) and McCarty v. State (applying Taylor to preclusion under the notice-of-alibi discovery rule).

Defendant relies on McCarty to support his contention that the trial court abused its discretion in excluding Baca’s alibi testimony, but McCarty is distinguishable. In McCarty the prosecutor admitted that the state was not prejudiced by the late disclosure because the prosecutor had spoken to each of defendant’s two witnesses about particular times that defendant was with them. After discussing the issue of prejudice, the prosecutor in McCarty even offered to withdraw her objection to the admission of the alibi testimony. In holding that it was error to exclude such testimony, the supreme court noted that the state was cognizant of the particular times defendant’s witnesses would testify that McCarty was present with them. The court found that “under the facts and circumstances of this case it would be unreasonable to weigh the balance against the defendant.” Id. at 655, 763 P.2d at 364.

In the case at hand, the state was not aware that Baca would give alibi testimony and indicated to the trial court that it would be prejudiced in that it would have to re-interview ten to fifteen witnesses in order to adequately respond to Baca’s alibi testimony. A continuance would have been necessary to complete these interviews. The issue arose two days after the state had rested its case. Under these circumstances, the trial court was entitled to conclude that granting the request would prejudice the state.

In addition, the alibi testimony excluded was of questionable probative value. Baca’s testimony was that defendant was at a party shortly before sunrise on the morning of March 15. The victim testified that the perpetrator woke her in her apartment at 4:29 a.m.

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Cite This Page — Counsel Stack

Bluebook (online)
788 P.2d 375, 109 N.M. 619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-watley-nmctapp-1989.