{ "id": 2740693, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Chris ANAYA and Eloy Quintana, Defcndants-Appellants", "name_abbreviation": "State v. Anaya", "decision_date": "1968-03-15", "docket_number": "No. 90", "first_page": "43", "last_page": "47", "citations": [ { "type": "official", "cite": "79 N.M. 43" }, { "type": "parallel", "cite": "439 P.2d 561" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "78 N.M. 529", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326479 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0529-01" ] }, { "cite": "150 Colo. 64", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 5313553 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/colo/150/0064-01" ] }, { "cite": "45 P. 1118", "category": "reporters:state_regional", "reporter": "P.", "year": 1896, "opinion_index": 0 }, { "cite": "8 N.M. 538", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4663495 ], "year": 1896, "opinion_index": 0, "case_paths": [ "/nm/8/0538-01" ] }, { "cite": "34 P. 448", "category": "reporters:state_regional", "reporter": "P.", "year": 1893, "opinion_index": 0 }, { "cite": "7 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4657555 ], "year": 1893, "opinion_index": 0, "case_paths": [ "/nm/7/0241-01" ] }, { "cite": "57 N.M. 36", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841229 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0036-01" ] }, { "cite": "238 F.2d 145", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 422976 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/f2d/238/0145-01" ] }, { "cite": "423 P.2d 202", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1967, "opinion_index": 0 }, { "cite": "56 Cal.Rptr. 274", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1967, "opinion_index": 0 }, { "cite": "65 Cal.2d 768", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2326768 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/cal-2d/65/0768-01" ] }, { "cite": "157 P. 160", "category": "reporters:state_regional", "reporter": "P.", "year": 1915, "opinion_index": 0 }, { "cite": "21 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2388553 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nm/21/0556-01" ] }, { "cite": "55 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582982 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0150-01" ] }, { "cite": "183 P. 433", "category": "reporters:state_regional", "reporter": "P.", "year": 1919, "opinion_index": 0 }, { "cite": "25 N.M. 395", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4733271 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nm/25/0395-01" ] }, { "cite": "189 P. 1111", "category": "reporters:state_regional", "reporter": "P.", "year": 1920, "opinion_index": 0 }, { "cite": "26 N.M. 160", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841500 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/nm/26/0160-01" ] }, { "cite": "77 N.M. 441", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805745 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0441-01" ] }, { "cite": "78 N.M. 136", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327299 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0136-01" ] }, { "cite": "51 N.M. 501", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578133 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/51/0501-01" ] }, { "cite": "64 N.M. 168", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344008 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/64/0168-01" ] }, { "cite": "41 N.M. 589", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571433 ], "weight": 3, "year": 1937, "opinion_index": 0, "case_paths": [ "/nm/41/0589-01" ] } ], "analysis": { "cardinality": 646, "char_count": 11858, "ocr_confidence": 0.676, "pagerank": { "raw": 4.7337268192254085e-07, "percentile": 0.9295630749128617 }, "sha256": "7272bc2a1a4b2dba1ecfbd86b186fe980a8d399e8b370ed96000cf165c3ddb11", "simhash": "1:1e8b8082746c2c35", "word_count": 1985 }, "last_updated": "2023-07-14T18:21:18.946358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and ARMIJO, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Chris ANAYA and Eloy Quintana, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nConvicted of aggravated assault, defendant Anaya appeals. He raises issues concerning: (1) aiding and abetting, (2) an asserted agreement not to submit the aggravated assault charge to the jury, (3) reference to a prior conviction, (4) proceedings in connection with a juror found in contempt of court, (5) the State\u2019s closing argument and (6) cumulative error.\nAiding and Abetting.\nState v. Ochoa, 41 N.M. 589, 72 P.2d 609 (1937), states \u2022\n\u201cBefore an accused may become liable as an aider and abettor, he must share the criminal intent of the principal.\u201d\nAlthough charged as a principal, defendant\u2019s theory is that he did not directly commit the offense of aggravated assault. If guilty, he asserts it must be on the basis that he aided and abetted its commission. Section 41-6-34, N.M.S.A. 1953. Defendant contends proof is lacking that he shared the criminal intent of his codefendant.\nFrom the evidence the jury could find: Jerry Lopez and Leo Otero were seated in the front seat of a car. Defendants Anaya and Quintana got into the back seat. Anaya pulled a gun, pointed it at Otero and asked for money. Otero \u201cwas worried\u201d when the gun was pulled; he saw that it was loaded. Otero handed over his money. Anaya then pointed the gun at Lopez and asked for money. Lopez handed over his money \u201cbecause he had a gun.\u201d Quintana then grabbed the gun, saying in Spanish, \u201cHand it over, I will show you how to use a gun.\u201d Quintana then shot Lopez.\nSection 40A-3-l(B), N.M.S.A. 1953, defines assault as:\n\u201c[A]ny unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; * * * ft\nSection 40A-3-2(A), N.M.S.A. 1953, states that aggravated assault consists of \"unlawfully assaulting * * * another with a deadly weapon.\u201d\nThe above evidence is sufficient to sustain Anaya\u2019s conviction as a person who directly committed the offense of aggravated assault when the money was taken. Since there is evidence to sustain the conviction of Anaya as one who directly committed aggravated assault, it is unnecessary to pass upon the sufficiency of the evidence to sustain the theory that Anaya aided and abetted Quintana in the shooting of Lopez. State v. Ochoa, supra.\nAgreement Not to Submit the Aggravated Assault Charge.\nDefendants were charged in three counts. The third count is the aggravated assault charge. Anaya contends that, as to him, there was an agreement that Count three would not be submitted to the jury. He bases this contention on the following question by the trial judge:\n\u201cWe are agreed * * * to instruct on Count one as to both Defendants and on Count three as to the Defendant, Quintana, alone?\u201d\nAttorneys for all of the parties replied in the affirmative.\nThe foregoing supports Anaya\u2019s contention that an understanding not to submit Count three existed at that time. However, Count three was not dismissed.\nThe trial court and counsel then proceeded to prepare the instructions. The record shows that Anaya\u2019s counsel received and examined a set of the instructions which the court planned to give to the jury. These instructions clearly state that Count three is submitted as to both defendants.\nCounsel stated:\n\u201cFor the Defendant, Anaya, we abide by these instructions. We have no objections to them and we will not submit additional ones.\u201d\nWe do not consider whether the court was bound by the alleged agreement. Defendant cannot complain about the instruction submitting Count three since he had no objection to its submission. State v. Baize, 64 N.M. 168, 326 P.2d 367 (1958).\nReference to a Prior Conviction.\nAnaya contends that the trial court should have granted his motion for a mistrial. The motion was made after the State, on cross-examination, asked Anaya if he were the same Anaya who had been sentenced in Santa Fe County to a penitentiary term of one to five years. Defendant asserts that he was prejudiced by this reference to his former conviction and that the prejudice was not effectively removed by the trial court\u2019s admonition.\nIn Anaya\u2019s direct examination he testified that previously he had been sent to the Penitentiary for a term of one to five years for aggravated assault. Cross-examination extends to matters that may modify, supplement, contradict, rebut or make clearer the facts testified to by the witness on direct examination. State v. Wilcoxson, 51 N.M. 501, 188 P.2d 611 (1948) ; see State v. Garcia, 78 N.M. 136, 429 P.2d 334 (1967). The State\u2019s question was within the realm of permissible questions on cross-examination.\nThe trial court advised the jury that the question had been stricken because the form of the question was improper. It admonished the jury to disregard the question and put it out of their minds. The trial court then explained that testimony as to prior criminal offenses of each of the defendants was for impeachment purposes; \u201cit is not offered to show and it does not tend to prove guilt on these charges.\u201d If the question on cross-examination could be considered as having a prejudicial effect, such effect was cured by the striking of the question and the admonition to the jury. State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967).\nContempt of Court by a Juror.\nThe reading of the instructions to the jury was interrupted and the jury retired to the jury room. One juror was brought into the courtroom. It was determined from his actions and his breath that he had been drinking. The court held the juror in contempt for \u201clying to the Court.\u201d This occurred when questioned, under oath, concerning his drinking.\nCiting State v. Hunt, 26 N.M. 160, 189 P. 1111 (1920), Anaya contends that it is improper for the judge to have any communication with the jury unless the defendant is present. He asserts that the record does not affirmatively show that defendant was present when the intoxicated juror was questioned.\nWe do not decide whether State v. Hunt, supra, is applicable to the facts of this case. The bill of exceptions settled by the trial judge, with the approval of Anaya\u2019s attorney, affirmatively states that defendant was personally present during the trial of the case. Thus, he was present when the reading of the instructions was interrupted and the intoxicated juror was questioned.\nThe trial court informed the jury that the intoxicated juror had been held in contempt of court, would be punished for the contempt and was remove^ from the jury. An alternate juror was., directed to take the place of the intoxicated juror.\nAnaya moved for a mistrial on the ground that the judge\u2019s comments concerning the intoxicated juror were prejudicial to him. In support of this motion, Anaya asserted that the comments left the implication that unless the jury returned a guilty verdict, they \u201cmay suffer the same penalty.\u201d\nThe motion was denied; however, the trial court admonished the jury. The judge told the jury that nothing he had done in connection with the intoxicated juror was intended to influence their conduct or action's as jurors; that the action taken was not intended to influence their deliberations or verdict.' The judge stated, \u201cWe can\u2019t let a drunk man sit on a jury to pass upon the guilt or innocence of two defendants.\u201d\nState v. Parks, 25 N.M. 395, 183 P. 433 (1919) states:\n\u201c* * * it is improper for the court, during the progress of the -trial, to make any \u00fannecess\u00e1ry comments, or to take any unnecessary action, which might tend to prejudice the rights of either of the parties litigant; but, when it becomes unavoidable during the progress of the trial, the court has the right to impose a fine upon any person connected therewith, even though it be in the presence of the jury, and such action cannot of itself cause a mistrial, merely because the occurrence might have some influence on the minds of the jury * * See State v. Sheffield, 55 N.M. 150, 228 P.2d 431 (1951).\nCertainly the trial court is not required to disregard the drunkenness of a juror. There is no claim that the actions of the trial court with regard to this juror were either improper or unnecessary. We-do not perceive how the judge\u2019s comments, left an implication that the jury might be punished if they returned a verdict of not guilty. The jury acquitted defendant of the charge of armed robbery and found him guilty of the lesser charge of aggravated assault. If, however, \u25a0 the jury were influenced by the comments of the judge, this did not provide, a basis for a mistrial. State v. Parks, supra. If there was prejudice resulting from the remarks, the prejudicial effect was cured by the admonition. State v\u201e Ferguson, supra.\nClosing Argument.,\nAnaya contends that the District Attorney made prejudicial statements in closing argument \u201cwithout proper admonition from the court.\u201d He relies on two instances.\nIn reference to the two defendants the District Attorney stated, \u201cif they had two guns, in my opinion, two guns would have been used.\u201d The trial court sustained the objection to the remark, told the jury to disregard it and directed the District Attorney to confine himself to the facts. The admonition was proper.\n. The District Attorney, commented \u201cthese two prosecuting witnesses are not hoodlums.\u201d Anaya asserts \u201cthe plain import of the words wa's that the defendants were-hoodlums.\u201d\nWe assume that the import of the words\u2019 is as contended; It is within - the range of legitimate argument for counsel to discuss all inferences which may be drawn from the evidence. State v. Graves, 21 N.M. 556, 157 P. 160 (1915); People v. Arguello, 65 Cal.2d 768, 56 Cal.Rptr. 274, 423 P.2d 202 (1967). Both defendants, in their direct examination testified as to prior offenses. One could infer from the defendants\u2019 testimony that they, in fact, were hoodlums. See Sanders v. United States, 238 F.2d 145 (10th Cir. 1956).\nAlthough the \u201choodlum\u201d remark was within the range of the evidence, the question is: Did the remark influence the jury so as to deprive Anaya of a fair and impartial trial? See State v. Cummings, 57 N.M. 36, 253 P.2d 321 (1953).\nChacon v. Territory, 7 N.M. 241, 34 P. 448 (1893), states:\n\u201c * * * The trial court enjoys peculiar facilities for observing the propriety or impropriety of forensic arguments, and its discretion, when invoked, should rarely be interfered with, in the absence of obvious or probable injury.\u201d\nThere is no suggestion in the \u201choodlum\u201d remark that the jury should deal unfairly with Anaya because of his prior criminal record. We cannot say that Anaya was denied a fair and impartial trial by the remark which has an evidentiary basis in defend.ant\u2019s own testimony. Here, there is neither obvious nor probable injury. The trial court\u2019s discretion in overruling the objection to the remark will not be interfered with. Territory v. Chamberlain, 8 N.M. 538, 45 P. 1118 (1896).\nCumulative Error.\nAnaya asserts that his conviction should be reversed because of cumulative error resulting (a) from the two remarks of the District Attorney discussed above and (b) from all of the \u201cerror\u201d asserted and discussed in this opinion. He relies on Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962). \u25a0Oaks stated that numerous formal irregularities, in themselves harmless, may in the .aggregate show the absence of a fair trial.\nNone of the points relied on by Anaya demonstrate that he was denied a fair trial. The doctrine of cumulative error is not applicable, State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (N.M.App.1967),\nThe judgment and sentence are affirmed.\nIt is so ordered.\nSPIESS, C. J., and ARMIJO, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Elaine Hatch, Prince & Hatch, Santa Fe, for appellants.", "Bostoru E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "439 P.2d 561\nSTATE of New Mexico, Plaintiff-Appellee, v. Chris ANAYA and Eloy Quintana, Defendants-Appellants.\nNo. 90.\nCourt of Appeals of New Mexico.\nMarch 15, 1968.\nElaine Hatch, Prince & Hatch, Santa Fe, for appellants.\nBostoru E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0043-01", "first_page_order": 75, "last_page_order": 79 }