State v. Curtis

OPINION

HENDLEY, Judge.

Convicted of burglary contrary to § 40A-16-3, N.M.S.A.1953 (2d Repl.Vol. 6, 1972) defendant appeals asserting nine points for reversal. We reverse on the point relating to the restriction and deprivation of defendant’s right of cross-examination.

The state attempted to prove that defendant and another, a juvenile, burglarized a liquor store in the early morning hours of August 20, 1973. The state’s witnesses related the manner of the burglary, the fact of defendant being shot, treated and subsequent apprehension later in the day. The state also presented the juvenile who was the only witness placing defendant inside the building and committing the burglary.

Defendant’s defense was that the juvenile and the juvenile’s brother were the burglars; that the defendant was at the scene for other reasons, but was not in the store or participating in the burglary; that when the police arrived, the defendant got frightened and ran (hence, the gunshot wound) ; and that the juvenile implicated the defendant in order to protect his (juvenile’s) brother.

The trial court permitted the juvenile to testify provided that his testimony and cross-examination thereto would be strictly limited to events which occurred with relation to this particular crime. The defendant attempted to establish his theory of the case and impeach the juvenile through cross-examination which delved into the activities of the defendant, the juvenile, the juvenile’s brother and others in the days and hours immediately preceding the burglary. The juvenile repeatedly declined to answer these questions in the proper exercise of his Fifth Amendment right to incriminate himself. The defendant’s motion for a mistrial, on the grounds that he was denied his right of cross-examination of the juvenile, was denied.

While the extent to which cross-examination may be allowed is largely within the discretion of the trial court, the right to cross-examine cannot be so restricted as to wholly deprive a party of the opportunity to test the credibility of a witness. State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949); State v. Talamante, 50 N.M. 6, 165 P.2d 812 (1946); see State v. Rogers, 80 N.M. 230, 453 P.2d 593 (Ct. App.1969). In the instant case, the juvenile’s testimony was virtually immune from the test of credibility. Due to the juvenile’s refusal to answer, implication of other crimes, the defendant was effectively denied the opportunity to show: (a) that the juvenile might be lying or (b) a reason why he might want to lie in order to protect his brother.

The state would have us take as a given right the right of the juvenile to give direct testimony and then have us balance the juvenile’s Fifth Amendment right against self-incrimination against the defendant’s Sixth Amendment right to be confronted with the witnesses against him with regard to cross-examination. We agree with the state that, absent an immunity statute, a person’s right not to incriminate himself is sacred. However, we do not view the problem as one of balancing constitutional rights. Here both rights stand on an equal footing. Neither is more important than the other. The proper remedy, when two rights of equal standing are involved, is to resolve the issue in favor of both rights.

Accordingly, it was error to allow the juvenile’s testimony to be used. Since the juvenile was the only witness to place the defendant in the building and committing the burglary in the early morning hours of August 20th, the restriction and deprivation of cross-examination was prejudicial. See State v. Talamante, supra. Defendant’s motion for a mistrial should have been granted.

Defendant also contends that the indictment is jurisdictionally void for disjunctive allegations of intent and that the trial court erred in denying his motion to suppress physical evidence. The indictment was valid under Rules 7, 8 and 9 of the Rules of Criminal Procedure. Sections 41-23-7, 41-23-8 and 41-23-9, N.M.S.A. 1953 (2d Repl.Vol. 6, Supp.1973). The motion to suppress was correctly denied because the evidence seized was in the plain view of a police officer. State v. Miller, 80 N.M. 227, 453 P.2d 590 (Ct. App.1969).

Reversed and remanded for a new trial.

It is so ordered.

LOPEZ, J., concurs. SUTIN, J., dissents.