{ "id": 716957, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Martin GONZALES, Defendant-Appellant", "name_abbreviation": "State v. Gonzales", "decision_date": "1990-05-24", "docket_number": "No. 18459", "first_page": "166", "last_page": "169", "citations": [ { "type": "official", "cite": "110 N.M. 166" }, { "type": "parallel", "cite": "793 P.2d 848" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "738 P.2d 125", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1987, "opinion_index": 0 }, { "cite": "106 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "year": 1987, "opinion_index": 0 }, { "cite": "106 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708122 ], "weight": 2, "pin_cites": [ { "page": "47" }, { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0042-01" ] }, { "cite": "100 N.M. 210", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588539 ], "weight": 2, "pin_cites": [ { "page": "212" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0210-01" ] }, { "cite": "815 F.2d 597", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 519596 ], "weight": 2, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/f2d/815/0597-01" ] }, { "cite": "749 F.2d 607", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 633053 ], "opinion_index": 0, "case_paths": [ "/f2d/749/0607-01" ] }, { "cite": "97 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555211 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "237" }, { "page": "1082" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0235-01" ] }, { "cite": "93 N.M. 708", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568664 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "712" }, { "page": "1246" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0708-01" ] }, { "cite": "561 P.2d 1347", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 209", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868552 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0209-01" ] }, { "cite": "580 P.2d 972", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "91 N.M. 751", "category": "reporters:state", "reporter": "N.M.", "year": 1978, "opinion_index": 0 }, { "cite": "92 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557086 ], "weight": 2, "pin_cites": [ { "page": "15" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0007-01" ] }, { "cite": "622 P.2d 1046", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1981, "opinion_index": 0 }, { "cite": "95 N.M. 426", "category": "reporters:state", "reporter": "N.M.", "year": 1981, "opinion_index": 0 }, { "cite": "95 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575611 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0433-01" ] }, { "cite": "89 N.M. 568", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868612 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0568-01" ] }, { "cite": "447 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183056 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/447/0231-01" ] }, { "cite": "104 N.M. 247", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594973 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/104/0247-01" ] }, { "cite": "100 N.M. 498", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588679 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nm/100/0498-01" ] }, { "cite": "100 N.M. 18", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588629 ], "weight": 2, "pin_cites": [ { "page": "24-25" }, { "page": "286-87" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0018-01" ] } ], "analysis": { "cardinality": 642, "char_count": 11833, "ocr_confidence": 0.798, "pagerank": { "raw": 5.208096139639209e-08, "percentile": 0.32918367055376585 }, "sha256": "4c93505f963da4c1b16b70702d1fbafe3dfcb9f136c81fc958d95cc95bb2f373", "simhash": "1:cf6911365b301de4", "word_count": 1904 }, "last_updated": "2023-07-14T22:33:30.469339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RANSOM and BACA, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Martin GONZALES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSOSA, Chief Justice.\nDefendant-appellant, Martin Gonzales, was convicted by a jury of first-degree murder and discharging a firearm at an occupied vehicle. Appellant was tried jointly with his father, Pedro Gonzales. Appellant shot and killed one Michael Sandoval. Sandoval had been a passenger in the pickup truck of Ben Rivera. Appellant and Rivera on several occasions had exchanged threats. On the night of the killing, Rivera had followed Appellant to Appellant\u2019s home after Appellant allegedly made an obscene gesture at Rivera. As Rivera\u2019s truck, with the victim inside, passed by Appellant\u2019s house, Appellant shot toward the truck, hitting the victim. According to Appellant, he fired his rifle toward the truck because Rivera had a gun in his hand and he thought Rivera was going to shoot at him. Appellant acknowledges that the vehicle was moving away when he fired at it.\nOn appeal, Appellant alleges the following errors:\n(1) The State improperly shifted the burden of proof to Appellant on self-defense. In closing argument the prosecutor stated; \u201cThe State is certainly not offering here to you today, even though you have the instruction on self-defense that was also given to you, that that\u2019s a proper verdict in this case, that the evidence supports that verdict beyond a reasonable doubt.\u201d Defense counsel did not object to the prosecutor\u2019s statement. The State argues that the prosecutor\u2019s words were an \u201cinadvertent misstatement of the law\u201d that neither constituted fundamental error nor prejudiced Appellant\u2019s case.\n(2) The trial court improperly joined Appellant and his father as defendants. The defendants had not been indicted jointly. Appellant objected at trial to joint prosecution and moved for a severance. The State argues that joinder was within the discretion of the trial court and that Appellant suffered no prejudice because of joinder. The State relies on State v. Segotta, 100 N.M. 18, 24-25, 665 P.2d 280, 286-87 (Ct.App.), rev\u2019d on other grounds, 100 N.M. 498, 672 P.2d 1129 (1983).\n(3) The trial court erred in excluding evidence of Ben Rivera\u2019s juvenile conviction of armed robbery. Appellant had offered to introduce this evidence on grounds that it substantiated self-defense in that Appellant alleged he was protecting himself from Rivera\u2019s aggression. Appellant argues that Rivera\u2019s juvenile conviction was admissible as evidence of a character trait, which constituted an element of his theory of self-defense and which properly could be proven by specific instances of conduct. He relies on State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (Ct.App.1986). The State argues that \u201cevidence of juvenile adjudications generally is not admissible\u201d under SCRA 1986, 11-609. Nor is evidence of Rivera\u2019s offense admissible as a character trait under SCRA 1986, 11-404(A)(2). The State also argues that Gallegos was decided wrongly and should not be followed as precedent to support Appellant\u2019s argument. The State argues that in Gallegos the testimony of the victim\u2019s ex-wife should not have been admissible absent a showing that defendant knew of the prior violent acts the ex-wife was relating.\n(4) The trial court erred in admitting into evidence over Appellant\u2019s objection the pri- or recorded statement of Judy Carillo, Appellant\u2019s common-law wife. The wife had given the statement at a preliminary hearing for Appellant\u2019s father. Appellant\u2019s counsel did not have the opportunity to appear at the hearing to examine the wife. The State argues that, once the wife asserted her fifth amendment privilege at trial not to testify, her previous testimony became admissible against Appellant\u2019s father under SCRA 1982, 11-804(B)(1). The court, at Appellant\u2019s request, initially agreed to instruct the jury to consider the statement only in the father\u2019s case. The State notes that, once the recording of the wife\u2019s testimony had been played to the jury, Appellant\u2019s counsel asked to have the jury consider the testimony in Appellant\u2019s case as well as in the father\u2019s case, because the testimony appeared to help Appellant\u2019s case. Because of defense counsel\u2019s request, the court did not issue its limiting instruction. The State contends that the wife\u2019s testimony helped Appellant and caused him no prejudice.\n(5) The prosecution\u2019s conduct constituted prejudicial error, namely, placing a number of weapons not marked as evidence on a table before the jury, commenting on Appellant\u2019s silence by references to his and his family\u2019s failure to call the police after the crime, and making negative comments about Appellant\u2019s family. The State notes that the weapons were removed once the court was asked by defense counsel to remove them and that Appellant does not state which weapon(s) explicitly prejudiced his case or why. The State also argues that questions about prearrest silence are proper, relying on Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), and that no objections were made at trial to questions about the family\u2019s or Appellant\u2019s failure to call police. Further, the State points out that no objection was made to the prosecutor\u2019s comments in closing argument about Appellant\u2019s family. The State contends the comments were pertinent to the case.\n(6) The trial court erred in submitting to the jury both of the State\u2019s theories of first-degree murder \u2014 deliberate, premeditated killing and depraved-mind murder\u2014 on the same verdict form. Appellant concedes that, if both theories were supported by substantial evidence, there is no error, but points out that, if either theory was not supported by substantial evidence, the verdict form introduced a false issue to the jury and the verdict must be reversed. State v. Hicks, 89 N.M. 568, 555 P.2d 689 (1976). Here, Appellant argues that there was substantial evidence to instruct the jury on neither of the two theories of murder. We note that defense counsel failed to object at trial to use of the single jury form. The State argues, moreover, that substantial evidence supported each of the two theories of murder submitted to the jury.\n(7) The trial court erred in admitting the prior recorded testimony of Regina Gonzales. It is alleged that the testimony was hearsay and prejudicial. The State argues that the witness was unavailable owing to her three different versions of testimony given on three separate occasions, that defense counsel stipulated that transcript of the witness\u2019 testimony at Appellant\u2019s preliminary hearing could be marked and given to the jury, and that defense counsel requested no limiting instruction.\nHaving considered the record and taped transcript, briefs of counsel and oral arguments, we affirm.\nAppellant links the court\u2019s refusal to admit evidence of Ben Rivera\u2019s prior conviction with the prosecutor\u2019s erroneous statement on the burden of proof for self defense. Appellant concedes that, in and of itself, the court\u2019s refusal to admit the evidence does not constitute reversible error. Yet, when taken together with the prosecutor\u2019s erroneous argument, Appellant contends, fundamental error is shown. We disagree.\nSpecific instances of a person\u2019s conduct may be introduced to show character when \u201ccharacter or a trait of character of a person is an essential element of a charge, claim or defense.\u201d SCRA 1986, 11-405(B); see State v. Montoya, 95 N.M. 433, 622 P.2d 1053 (Ct.App.) (discussing relationship between Rules 11-404(B) and 11-405), cert. denied, 95 N.M. 426, 622 P.2d 1046 (1981); State v. Herrera, 92 N.M. 7, 15, 582 P.2d 384, 392 (Ct.App.) (distinction between proof of reputation and proof of specific acts not applied when pertinent trait of character offered by accused as essential element of defense), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978); State v. Bazan, 90 N.M. 209, 561 P.2d 482 (Ct.App.) (absent claim of self-defense, evidence of specific prior acts by assault victim not admissible under Rule 11-405(B) to prove victim's character for aggressiveness or recklessness), cert. quashed, 90 N.M. 254, 561 P.2d 1347 (1977).\nHowever, the defendant who asserts self-defense must first show that he knows of the acts that are alleged to be probative of the character trait of violence. State v. McCarter, 93 N.M. 708, 604 P.2d 1242 (1980). Once a defendant establishes that he knew of the violent act(s), the trial court in its discretion may still rule evidence of the act(s) inadmissible. State v. Ewing, 97 N.M. 235, 237, 638 P.2d 1080, 1082 (1982), further proceedings sub nom., Ewing v. Winans, 749 F.2d 607 (10th Cir.1984). Here, it is conceded that Appellant did not know of Rivera\u2019s juvenile conviction. Even if he had, however, we cannot conclude that the trial court abused its discretion in disallowing introduction of the evidence, especially when it is considered that Appellant fired at the vehicle while it was moving away. We do not read State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (Ct.App.1986), as detracting from the rule established in McCarter, 93 N.M. at 712, 604 P.2d at 1246. See also Trujillo v. Sullivan, 815 F.2d 597, 613 (10th Cir.1987).\nNor did the trial court abuse its discretion in disallowing introduction of the evidence under SCRA 1986, 11-609(C). By that rule \u201cevidence of juvenile adjudications is generally not admissible\u201d unless it is offered in a criminal case against a witness other than the accused and \u201cif conviction of the offense would be admissible to attack the credibility of an adult and the judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.\u201d Id. By this standard, the trial court properly disallowed introduction of the evidence.\nWe thus find no error in the court\u2019s refusal to admit evidence of Rivera\u2019s prior conviction. Nor do we find error, fundamental or otherwise, in the prosecutor\u2019s erroneous statement as to the burden of proof for self-defense. The defense did not object to the statement. \u201cGenerally, appellate courts will not review an allegedly improper remark by a prosecutor unless the defendant timely objects. An exception to the general rule applies when a case involves fundamental error.\u201d State v. Diaz, 100 N.M. 210, 212, 668 P.2d 326, 328 (Ct.App.1983) (citations omitted). We fail to see how the prosecutor\u2019s remark amounts to fundamental error. Given the context of the prosecutor\u2019s argument, the erroneous statement was not harmful to Appellant. It was made in rebuttal to an argument by defense counsel that the State had submitted a \u201claundry list\u201d of crimes and was asking the jury to pick out the most appealing one. The prosecutor argued, \u201cI was merely explaining to you the instructions the court has given you ... I am not vouching to you that the State believes that the proper verdict is any one of the above.\u201d Further, the court instructed the jury, \u201cIn considering this defense [of self-defense] and after considering all the evidence in this case, if you have a reasonable doubt as to defendant\u2019s guilt, you must find him not guilty.\u201d See State v. Ramming, 106 N.M. 42, 47, 738 P.2d 914, 919 (Ct.App.) (\u201cWe must consider [the prosecutor\u2019s erroneous comment] in the context in which it was made.\u201d), cert denied, 106 N.M. 7, 738 P.2d 125 (1987).\nWe agree substantially with the State\u2019s position on the remaining challenges and shall not consider them here, as they are without merit.\nFor the foregoing reasons we affirm the judgment entered by the district court.\nIT IS SO ORDERED.\nRANSOM and BACA, JJ., concur.", "type": "majority", "author": "SOSA, Chief Justice." } ], "attorneys": [ "Jacquelyn Robins, Chief Public Defender and Jerry Todd Wertheim, Asst. Public Defender, Santa Fe, for defendant-appellant.", "Hal Stratton, Atty. Gen. and Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "793 P.2d 848\nSTATE of New Mexico, Plaintiff-Appellee, v. Martin GONZALES, Defendant-Appellant.\nNo. 18459.\nSupreme Court of New Mexico.\nMay 24, 1990.\nJacquelyn Robins, Chief Public Defender and Jerry Todd Wertheim, Asst. Public Defender, Santa Fe, for defendant-appellant.\nHal Stratton, Atty. Gen. and Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0166-01", "first_page_order": 194, "last_page_order": 197 }