{
  "id": 1588692,
  "name": "STATE of New Mexico, Petitioner, v. Gene Curtis BALLINGER, Respondent",
  "name_abbreviation": "State v. Ballinger",
  "decision_date": "1984-01-05",
  "docket_number": "No. 14873",
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    "name": "Supreme Court of New Mexico"
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  "casebody": {
    "judges": [
      "FEDERICI, C.J., and PAYNE and RIORDAN, JJ., concur.",
      "DAN SOSA, Jr., Senior Justice, not participating."
    ],
    "parties": [
      "STATE of New Mexico, Petitioner, v. Gene Curtis BALLINGER, Respondent."
    ],
    "opinions": [
      {
        "text": "OPINION\nSTOWERS, Justice.\nThe State of New Mexico petitioned this Court on a writ of certiorari to review the opinion of the Court of Appeals on remand in State v. Ballinger, 99 N.M. 707, 663 P.2d 366 (Ct.App.1983). This Court originally granted certiorari in this matter following the first Court of Appeals decision filed July 6,1982. State v. Ballinger, No. 14,440, 21 SBB 1222 (1982). By order of this Court dated February 28, 1983, the case was remanded to the Court of Appeals with instructions to withdraw the opinion filed July 6, 1982. The Court of Appeals made some minor but not sufficient modifications in its remand instructions to the trial court and refiled its opinion.\nThe question presented for review is whether the testimony of a former co-defendant who turned state\u2019s evidence waived the attorney-client privilege as to the communications with his former attorney, and if it did, what was the extent of the waiver.\nThe respondent and John Rizzo were indicted for the murder of Warren Uecker. Rizzo was originally represented by J. Wayne Woodbury. Woodbury subsequently withdrew when Leon Taylor entered his appearance. In exchange for a grant of immunity, Rizzo agreed to testify against Ballinger. Following the trial court\u2019s order granting Rizzo immunity, the respondent moved to prohibit Rizzo from testifying unless attorney Woodbury could be examined about what Rizzo told him when Woodbury represented Rizzo. Rizzo and Woodbury asserted the attorney-client privilege as to all communications. The trial court denied respondent\u2019s motion. This Court subsequently denied the respondent\u2019s petition for a writ of prohibition regarding the trial court\u2019s ruling. Ballinger v. Hodges, S.Ct. No. 13,771 (filed July 17, 1981).\nAt trial, Rizzo testified on direct examination that he had not told his story until a year after Uecker\u2019s death for fear that he would be killed and because his first attorney did not explain to him the effect of turning state\u2019s evidence. Rizzo claimed that he took this term to mean confessing to do something he did not do. Prior to cross-examination on this matter, the defense asked leave to make an offer of proof, through both Woodbury and Rizzo, as to certain communications regarding what Woodbury had told Rizzo about turning state\u2019s evidence. The trial court refused to allow the offer of proof. On cross-examination, Rizzo again testified that Woodbury did not explain or that he did not understand Woodbury\u2019s explanation of the meaning of turning state\u2019s evidence.\nIn its first opinion, filed July 6, 1982, the Court of Appeals ruled that respondent\u2019s conviction should be reversed and remanded for a new trial:\n[I]n which Rizzo could be examined regarding the entire subject matter of immunity and the facts suggesting it which were discussed with his first attorney.\nState v. Ballinger, 21 SBB at 1226.\nAfter granting the State\u2019s first petition for writ of certiorari, this Court on February 28, 1983 ordered the Court of Appeals to withdraw its first opinion and remand the case to the trial court:\n[F]or the limited purpose of allowing the trial court to take evidence with regard to any immunity granted to Rizzo which specifically related to the issues in this cause, and determine whether it would require a new trial.\nThe Court of Appeals subsequently withdrew its original opinion. In a substantially identical document, differing only in the remedy ordered, the Court of Appeals filed an opinion on remand which states as follows:\nWe therefore remand this case to the district court for the limited purpose of receiving evidence from Rizzo and his first attorney, and any other witnesses, on the entire subject matter of immunity and the facts suggesting it which were discussed between' themselves, or with others in a position to seek or grant immunity to Rizzo.\nState v. Ballinger, 99 N.M. at 712, 668 P.2d at 371. (Emphasis added.)\nHaving reviewed the opinion of the Court of Appeals on remand in light of this Court\u2019s order entered on February 28,1983, we find that the Court of Appeals has not complied with the instructions of this Court. The opinion of the Court of Appeals on remand is altogether too expansive because it allows the trial court to receive additional evidence \u201con the entire subject matter of immunity and the facts suggesting it.\u201d Furthermore, the Court of Appeals would allow on remand, testimony not only from Rizzo and Woodbury but from \u201cany other witness\u201d including \u201cothers in a position to seek or grant immunity.\u201d\nWe determine that because Rizzo testified that his prior attorney had not explained the meaning of turning state\u2019s evidence to him, the respondent was only entitled to inquire whether Woodbury had explained immunity to Rizzo.\nThe opinion of the Court of Appeals on remand is reversed insofar as it relates to the issue of the attorney/client privilege. This cause is hereby remanded to the Court of Appeals with instructions to withdraw their second opinion and to remand this cause to the trial court:\n[F]cr the limited purpose of allowing the trii.l court to take evidence with regard to any immunity granted to Rizzo which specifically relates to the issues in this cause, and determine whether it would require a new trial.\nThe evidence to be taken shall relate to and is limited to only those conversations that John Rizzo had with his first attorney, J. Wayne Woodbury, regarding what turning state\u2019s evidence meant, and John Rizzo\u2019s understanding of that explanation.\nIT IS SO ORDERED.\nFEDERICI, C.J., and PAYNE and RIORDAN, JJ., concur.\nDAN SOSA, Jr., Senior Justice, not participating.",
        "type": "majority",
        "author": "STOWERS, Justice."
      }
    ],
    "attorneys": [
      "Paul Bardacke, Atty. Gen., William Lazar, Asst. Atty. Gen., Santa Fe, for petitioner.",
      "Janet Clow, Chief Public Defender, Lynn Corr, Asst. Appellate Defender, Santa Fe, for respondent."
    ],
    "corrections": "",
    "head_matter": "673 P.2d 1316\nSTATE of New Mexico, Petitioner, v. Gene Curtis BALLINGER, Respondent.\nNo. 14873.\nSupreme Court of New Mexico.\nJan. 5, 1984.\nPaul Bardacke, Atty. Gen., William Lazar, Asst. Atty. Gen., Santa Fe, for petitioner.\nJanet Clow, Chief Public Defender, Lynn Corr, Asst. Appellate Defender, Santa Fe, for respondent."
  },
  "file_name": "0583-01",
  "first_page_order": 615,
  "last_page_order": 617
}