State v. Quintana , 86 N.M. 666 ( 1974 )

OPINION

LOPEZ, Judge.

As the result of an altercation in a bar in which Roberto Roybal was killed by gunshot wounds, the defendant was charged with murder, contrary to § 40A-2-1, N.M.S.A.1953 (2d Repl.Vol. 6). He was convicted of second degree murder.

From judgment and sentence against him, he appeals raising issues concerning: (1)substantial evidence; (2) criminal discovery; (3) right to counsel; and (4) instructions.1 We affirm.

Substantial evidence

The defendant moved for a directed verdict at the close of the state’s case in chief. He contended that theré was insufficient circumstantial evidence and no direct evidence to the effect that he shot the deceased. He asserts the denial of the motion as an independent point on appeal.

After the denial of the motion, defendant took the stand, admitted that he fired the shot and asserted the defense of self-defense. In so doing he waived the error, if any, in the denial of. his motion. State v. Lard, 86 N.M. 71, 519 P.2d 307 (Ct.App.1974).

Defendant also argues that, “ * * * [ajll of the evidence pointed to * * * self-defense * * *,” and that therefore there was insufficient evidence to imply malice. We disagree. Malice may be implied by the use of a deadly weapon. State v. Anaya, 80 N.M. 695, 460 P.2d 60 (1969); State v. Ochoa, 61 N.M. 225, 297 P.2d 1053 (1956).

Defendant also claims an insufficiency of evidence at the close of the defense case. This contention involves the malice claim which we have answered. This contention also is directed to the credibility of the witnesses. Credibility of the witnesses was for the jury. Testimony as to the circumstances immediately prior to the shooting, together with defendant’s testimony, is substantial evidence supporting the conviction.

Criminal discovery

Pursuant to defendant’s motion, the trial court ordered compliance with Rules 27 and 29, N.M.R.Cr.P., §§ 41-23-27 and 41-23-29, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973), relating to criminal discovery. Alleging that the state failed to comply with the order in a timely and satisfactory manner, the defendant moved alternatively for an order prohibiting the state from introducing any evidence or for a continuance. Defendant appeals from the denial of that motion. Specifically, he alleges that he was prejudiced by the state’s failure to comply with respect to a list of witnesses, FBI ballistics and fingerprint reports on the gun and bullet and an FBI report matching blood types of specimens found on the deceased’s tee-shirt and the defendant’s vest.

In State v. Billington, 86 N.M. 44, 519 P.2d 140 (Ct.App.1974), we held that the failure of the state to notify the defendant until the day of trial that it intended to use the testimony of a critical witness prejudiced the conduct of the defense. While the district attorney’s failure to strictly comply with the rules and the court’s order in the instant case cannot be condoned, we do not feel that substantial rights of this defendant have been prejudiced.

The state failed to supply the defendant with the, “ * * * list of the names and addresses of all witnesses which the district attorney intends to call * * *contemplated by Rule 27(b), supra. However, most of the witnesses eventually called either had their names endorsed on the back of the information or testified at the preliminary hearing. There is no factual basis in the record indicating that the state did not intend to call these witnesses. Cf. State v. Billington, supra.

In Billington, we stated that the purpose of Rule 27(b), supra, are as follows: (1) to facilitate plea discussions; (2) to facilitate preparation for cross-examination; and (3) to allow the taking of a.deposition or statement. There is no showing that the state’s failure to strictly comply with the' rule interfered with any of these purposes. Well before trial, defense knew of the existence of the witnesses who were endorsed or who testified in pre-trial proceedings. Counsel could have taken and in some instances did take statements or depositions of these witnesses to learn the substance of their testimony. The rule was substantially complied with as to these witnesses.

Three witnesses who were not listed on the information or who did not testify earlier also testified at trial. One was Charles Dunn. He was an employee of the funeral home where the deceased’s body was taken. His testimony related solely to the chain of custody of the decedent’s tee-shirt, which was later introduced into evidence. His testimony was merely technical. The second witness was Dr. James Saltz. He testified as to the medical cause of death. His testimony was merely technical and cumulative. The jury could have inferred that death was caused by the bullet from other testimony. We indicated in Billington that before defendant could be prejudiced, the testimony of the omitted witness must be important and critical, not technical or cumulative.

The third witness, James Porter, presents a more difficult problem. He was an FBI agent who performed blood-grouping tests upon deceased’s tee-shirt and defendant’s vest. The conclusion of the tests and the substance of his testimony was that Type A human blood was found on both garments. The state verbally informed defense counsel of the test results. It did not list Mr. Porter as a witness. It did not provide written copies of the test results nor did it make the specimens available for independent testing by the defense.

We feel, nevertheless, that the failure to comply with the rules was not prejudicial to the conduct of the defense. The defense was aware of the test results so they were able to prepare for cross-examination to some extent. We do not feel that more intensive cross-examination, even to the extent of proving the test results inconclusive, would have materially aided the defense. It certainly would not have altered the verdict. By the time the case went to the jury, the defendant had already admitted shooting the deceased. The purpose of Agent Porter’s testimony was to help prove that fact. No claim is made that had the test results been inconclusive, the defendant would have changed his strategy and not claimed self-defense.

An intensive cross-examination likewise would not have aided the defense in pressing its motion for a directed verdict at the close of the state’s case in chief. The testimony of Agent Porter on direct examination would have still stood as substantial evidence no matter how much doubt could have been placed upon it by an effective cross-examination. A jury question would still have existed. Furthermore, we do not think that the results of the blood grouping tests were critical. The critical fact was that both the deceased and the defendant had substantial amounts of blood on their clothing after shots were heard. This evidence tends to place the defendant in close physical proximity to the deceased at the time of or immediately after the shooting. The jury would have been entitled to infer without the benefit of Agent Porter’s testimony that the blood found on defendant’s vest did not come from a source other than the deceased. That testimony merely confirmed the obvious and made the inference irresistible. The case would have gone to the jury with or without his testimony.

As to the FBI tests on blood, fingerprints and ballistics and as to tangible objects recovered at the scene of the crime, there is no factual basis in the record showing that the state did not comply with the trial court’s order. The order required the state to, “[pjroduce and permit the Defendant to inspect . . . ,” the relevant tangible objects and test results. The rule does not necessarily contemplate the physical delivery of the items into the hands of defense counsel. Rule 27, supra, contemplates a request specifying, “. . . a reasonable time, place and manner of making the inspection and, performing the related acts.” The defendant did not make such a request but instead went directly to the trial court and obtained an order. The order made no such specification. There is no showing that the defense counsel sought to arrange and have the state produce and permit inspection of the items. Had he either done that or strictly complied with the rule, the problem would not have arisen. On this record, he cannot complain.

The defendant finally claims a violation of the state’s continuing duty to disclose a beer can introduced into evidence. See Rule 30, N.M.R.Cr.P., § 41-23-30, N. M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). There was no objection to the introduction of this evidence on the basis of duty to disclose.

Right to counsel

Defendant claims the trial court erred in holding an arraignment and setting bond for defendant on February 13, 1973, in the absence of counsel. Defendant does not have his facts straight. The record shows the February 13th hearing was defendant’s first appearance in court. At this first appearance, the trial court proceeded in accordance with § 41-23-19, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973).

The trial court informed defendant of his right to bail and set bond at $20,000.00 “at the present time.” It stated that if counsel wished to bring the matter of bail to the court’s attention, a hearing would be held. No issue was thereafter raised'concerning the bail bond. The record indicates defendant was out on bail pending the trial. Defendant is in no position to complain of the trial court setting a bond at the first appearance rather than waiting until counsel appeared in the case.

Defendant was not arraigned at this first appearance. When arraigned, defendant was represented by counsel.

Instructions

Defendant claims the instructions overemphasized the charges against him, that the instructions were “top-heavy” in repeating “the elements and facts” of each charge, that the instructions were repetitious and redundant. We disagree.

Four charges were submitted to the jury. Five instructions dealt with first degree murder. One of the five gave the statutory definition of the crime, two of the five defined elements of the crime, one stated the material allegations required to be proved, and one applied the previous instructions to the facts. The instructions on second degree murder, voluntary manslaughter and involuntary manslaughter defined those offenses, stated the material allegations of the offense and applied the instructions on those offenses to the facts.

There was no overemphasis, repetition or redundancy in the instructions given. The judgment is affirmed.

It is so ordered.