State v. Armstrong

OPINION

HERNANDEZ, Judge.

Defendant was convicted after trial by jury on one count of rape (§ 40A-9-2, N. M.S.A.1953 (2d Repl. Vol. 6)) and one count of sodomy (§ 40A 9-6, N.M.S.A. 1953 (2d Repl.Vol. 6)).

On the night of October 3, 1971 at about 11:15 the prosecutrix was returning home. She had parked and locked her car when another car drove up and stopped behind hers. A man, later identified as the defendant, got down and called to her and as she turned he walked up and took her by the arm. He had a knife in his hand which he held close to her stomach. He ordered her to get back into her car on the passenger side. Defendant then got in and drove to an isolated area east of Albuquerque where the acts complained of were committed.

Defendant does not dispute the fact that the sexual acts complained of took place. Instead, he contends that: (1) the New Mexico sodomy statute under which he was convicted, § 40A-9-6, supra, is unconstitutional because it is overly broad; (2) that the trial court erred in refusing to give two requested instructions relating to a defense of consent on the rape count; and (3) that his motion to suppress evidence of an out-of-court photographic identification of defendant by the prosecutrix and her subsequent in-court identification was improperly denied.

We affirm.

We discuss the points in inverse order.

(1) Denial of the motion to suppress the photographic identification and the in-court identification.

The prosecutrix was shown a group of photographs including one of defendant sometime during the course of the investigation. Defendant asserts that the identification of the defendant by the prosecutrix at trial was tainted by the previous photographic identification because there was a “complete lack of similarities between the persons [in the photographs] shown the complainant * * * [and] [s]uch a lack of similarities clearly creates a substantial likelihood of misidentification.” The photographs themselves were not introduced into evidence at the trial, nor was the earlier photographic identification alluded to in the presence of the jury.

The trial court reviewed the photographs at trial and denied the motion to suppress. The test in New Mexico with respect to suppression of out-of-court photographic identifications is whether the “ ‘photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” State v. Baldonado, 82 N.M. 581, 484 P.2d 1291 (Ct.App.1971); State v. Gilliam, 83 N.M. 325, 491 P.2d 1080 (Ct.App.1971). The photographs are of individuals of about the same age, hirsuteness and color as the defendant and there is nothing about them, in our opinion, that is “impermissibly suggestive” or would lead to an “irreparable misidentification.”

Moreover, the facts of this case lead inescapably to the conclusion that whatever impact the earlier photographic identification had upon the prosecutrix, her in-court identification was independent of the earlier showing of photographs. The prosecutrix was abducted at about 11:00 p. m. and not released until shortly before 3:00 a. m. When asked to identify the defendant in court her identification was unhesitating :

“Q. Did you have occasion to see that man’s face at that time or later in the evening?

“A. Yes, sir.

“Q. Are you able to identify him ?

“A. Most definitely.”

Under these circumstances we must conclude that the in-court identification of defendant was independent of the earlier photographic identification. State v. McCarty, 82 N.M. 515, 484 P.2d 357 (Ct.App.1971); State v. Morales, 81 N.M. 333, 466 P.2d 899 (Ct.App.1970), cert. denied, 400 U.S. 842, 91 S.Ct. 84, 27 L.Ed.2d 77 (1970).

(2) Refusal to give the two requested instructions on consent as a defense to the charge of rape.

At the conclusion of the evidence, defendant submitted two requested instructions on the defense of consent:

“2. To constitute the crime of rape, it must be without the consent of the complainant. If you find that there was no actual consent, then you must ask yourselves whether a reasonable man in the same or similar circumstances as the defendant would have thought that the complainant was consenting. If a reasonable man in the same or similar circumstances as the defendant would have thought the complainant was consenting, then you must find him not guilty of the crime of rape.

“3. You are instructed that a reasonable belief that the complainant is consenting is a defense to the crime of rape even though she may not have actually consented.”

The trial court gave as its instruction No. 3 the following:

“You are instructed that ‘rape’ is defined as a male causing a female other than his wife to engage in sexual intercourse with him without her consent when the female’s resistance is forcibly overcome.”

Defendant alleges that he was entitled to have his instructions given because the prosecutrix’ actions were consistent with a reasonable belief that she was consenting to the acts of sexual intercourse. The only witness at trial who testified as to the sexual relations was the pro'secutrix.

. She testified that when defendant entered the car the first time, she initially attempted to converse with him “rationally”, because “I was scared to the point if I did anything to upset him he would hurt me.” When asked, “Did you make any forceful physical attack; did you use any force toward him?”, she replied, “I was trying to push him away.” After defense counsel inquired further as to her actions she states:

“ * * * I tried to push him away from me, keep him away from me. I did no more. There was not much room. I couldn’t move anymore. I told him I did not want to participate, it was his game, not mine.”

She further stated that when defendant was attempting rectal intercourse, “ * * * I protested harshly * * * He did it anyway and said ‘Shut up and do what I tell you.’ ”

As a general rule, a defendant is entitled to an instruction supporting his theory of the case when there is evidence to support it. State v. Garcia, 79 N.M. 367, 443 P.2d 860 (1968); State v. Parker, 80 N.M. 551, 458 P.2d 803 (Ct.App.1969). Here, a review of the record and a thorough examination of the prosecutrix’ testimony, as shown above, does not even raise a slight inference of consent on the part of the victim. Having failed to have some evidence upon which to support an instruction on his theory of the case (consent) it was not error for the trial court to deny defendant’s requested instruction.

(3) The overbreadth of the New Mexico sodomy statute.

Defendant argues that the sodomy statute in this state is unconstitutional because the language of the statute is overbroad and may be used to punish as crimes private sexual acts between consenting adults, including, conceivably, acts between husband and wife. He asserts that such a statute violates a marital right of privacy as set out in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), that it violates a similar right of privacy granted to unmarried persons and persons of the same sex, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and finally, that because the sodomy statute makes criminal certain tenets held by various religious groups it thereby constitutes an “establishment” of religion in violation of the First Amendment of the United States Constitution.

We do not reach these contentions because we conclude that defendant does not have standing to challenge the constitutionality of the statute. The constitutional attack on the sodomy statute here is substantially the same as the challenge interposed in State v. Kasakoff, 84 N.M. 404, 503 P. 2d 1182 (Ct.App.1972). In Kasakoff, we held with respect to defendant’s standing to attack the statute on constitutional grounds:

“Since the state’s evidence was that the act was committed by force * * * he cannot now argue that the incident was a consensual act between two adult persons.

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“Since the defendant does not claim nor argue that he is a member of the class discriminated against by the sodomy statute or that his rights have been impaired by the application of the statute to him, he lacks standing to challenge ■the constitutionality of the act.”

Defendant’s acts were committed with force and without the consent of the prosecutrix. The defendant and the victim were not husband and wife. The defendant here like the defendant in Kasakoff is attempting to challenge the statute on grounds not properly raised by the facts of this case. We hold that he has no standing to challenge the constitutionality of the sodomy statute.

Affirmed.

It is so ordered.

HENDLEY, J., concurs. SUTIN, J., concurs in part and dissents in part.