{ "id": 5330664, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Barry Lee FOSTER, Defendant-Appellant", "name_abbreviation": "State v. Foster", "decision_date": "1971-04-23", "docket_number": "No. 637", "first_page": "573", "last_page": "578", "citations": [ { "type": "official", "cite": "82 N.M. 573" }, { "type": "parallel", "cite": "484 P.2d 1283" } ], "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": "81 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370995 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0550-01" ] }, { "cite": "81 N.M. 631", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358645 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0631-01" ] }, { "cite": "79 N.M. 347", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2746750 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0347-01" ] }, { "cite": "81 N.M. 521", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0521-01" ] }, { "cite": "81 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360257 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/81/0556-01" ] }, { "cite": "82 N.M. 569", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331133 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0569-01" ] }, { "cite": "80 N.M. 227", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5357376 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0227-01" ] }, { "cite": "56 N.M. 65", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584736 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0065-01" ] }, { "cite": "81 N.M. 508", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361544 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0508-01" ] }, { "cite": "257 F.2d 93", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 454662 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/f2d/257/0093-01" ] }, { "cite": "9 A.L.R.2d 899", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1950, "opinion_index": 0 }, { "cite": "403 F.2d 977", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2129336 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/403/0977-01" ] }, { "cite": "26 L.Ed.2d 62", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "90 S.Ct. 1692", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "398 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176032, 6174945, 6174817, 6175331, 6174598, 6175593, 6175757, 6175917, 6175185, 6174707, 6175481, 6175069 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/398/0904-12", "/us/398/0904-04", "/us/398/0904-03", "/us/398/0904-07", "/us/398/0904-01", "/us/398/0904-09", "/us/398/0904-10", "/us/398/0904-11", "/us/398/0904-06", "/us/398/0904-02", "/us/398/0904-08", "/us/398/0904-05" ] }, { "cite": "81 N.M. 173", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358615 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0173-01" ] }, { "cite": "80 N.M. 77", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5357675 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0077-01" ] } ], "analysis": { "cardinality": 674, "char_count": 14477, "ocr_confidence": 0.693, "pagerank": { "raw": 2.028092714099632e-07, "percentile": 0.7462371358330158 }, "sha256": "74145589af763a9619d8fbb0198e7b62fcbea3f339416819d90c1e43d9b70cfd", "simhash": "1:8fe4f42260350856", "word_count": 2368 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and HENDLEY, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Barry Lee FOSTER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nConvicted of robbery and aggravated battery, defendant appeals. Sections 40A-16-2, N.M.S.A.1953 (Repl.Vol. 6) and 40A-3-5, N.M.S.A.1953 (Repl.Vol. 6, Supp. 1969). The issues concern: (1) change of venue; (2) various evidentiary matters; and (3) a trial amendment to the aggravated battery charge.\nChange of venue.\nDefendant moved for a change of venue claiming that because of public excitement or local prejudice an impartial jury could not be obtained in Bernalillo County. The basis for the motion was \u201cextensive publicity resulting from the case\u201d and \u201cextensive publicity resulting from his conviction\u201d in another case a few weeks earlier.\nAt the hearing on the motion defendant introduced, as evidence, copies of newspaper articles. These articles were mostly concerned with accounts of testimony given at the earlier trial. One of the articles also states: \u201cPending against Foster are robbery and aggravated battery charges stemming from a May 27 service station holdup which saw the attendant doused in gasoline and set afire by the fleeing robber.\u201d Defendant characterizes the quoted material as \u201c[tjypical of the publicity that was given.\u201d Defendant asserts the publicity was by newspaper articles, television stories and \u201cshots of Mr. Foster taken by T.V. reporters.\u201d\nIn denying the motion, the trial court found that the evidence did not justify a change of venue, and there was no public excitement or local prejudice that would indicate an impartial jury could not be obtained in Bernalillo County. The trial court could properly reach this result because the evidence presented by defendant was limited to the newspaper articles and because those articles, in themselves, neither' established public excitement nor prejudice, making a fair trial impossible. Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969); State v. Lindsey, 81 N.M. 173, 464 P.2d 903 (Ct.App.1969), cert. denied, 398 U.S. 904, 90 S.Ct. 1692, 26 L.Ed.2d 62 (1970).\nDefendant does not attack the decisions in Deats and Lindsey. Instead, he contends that evidence, introduced by the State in opposition to the motion, had no probative value. We are not concerned with the quality of the evidence offered by the State, because the trial court could deny the motion on the basis of the evidence offered by defendant. Defendant had the burden of persuasion, and defendant\u2019s evidence was not persuasive of the probability that a fair trial could not be obtained in Bernalillo County. Deats v. State, supra.\nEvidentiary matters.\n(a) Admission of photographs.\nDefendant complains of the admission of five photographs which show portions of the service station where the robbery took place. He asserts the photographs were improperly admitted because there was no showing as to who took the photographs, when they were taken and whether they accurately and fairly represented the scene at the time of the crime. It is doubtful that all of these objections were presented to the trial court; however, we will assume all of these objections are properly before us.\nThe victim of the crime had described its occurrence, testifying as to the location of various items in the service station; the location of the robber and the victim\u2019s location when certain events occurred. The victim did not know who took the photographs or when they were taken (he was in the hospital), but he did testify that each of the photographs fairly and accurately represented the things shown in the photographs and fairly and accurately represented what he had described in his testimony. This was sufficient foundation for the admission of the photographs. United States v. Hobbs, 403 F.2d 977 (6th Cir. 1968), Annot., 9 A.L.R.2d 899 (1950); Millers\u2019 Nat. Ins. Co., Chicago, Ill. v. Wichita Flour Mills Co., 257 F.2d 93 (10th Cir. 1958); compare State v. Webb, 81 N.M. 508, 469 P.2d 153 (Ct.App.1970), and cases cited therein.\n(b) Admission of evidence about blood.\nThe first officer to arrive at the service station after the crime testified that three of the photographs of the station showed blood. He also testified that a wrench, which he found at the scene, had a substance on it which \u201cappeared to be blood.\u201d Defendant contends this testimony should not have been admitted because of lack of a proper foundation.\nNo scientific tests were made to establish the identity of the substance testified to be blood. Defendant complains that the officer\u2019s testimony was improperly admitted because it was not shown that the officer \u201cwas able to form such an opinion.\u201d This contention misconstrues the evidence.\nThe officer testified that upon arrival he saw the victim who had been burned, and who was bleeding. He observed \u201c * * * blood splattered all over the floor and the walls, on items, on the cash box, on the counter, * * * \u201d and a large trail of blood leading from the cash box towards the rear of the office. He had seen fresh blood in numerous investigations. It was bright red when he saw it. He testified: \u201cIt was blood. I saw it.\u201d He \u201cpreserved\u201d the scene, and observed the photographs being taken.\nHis testimony that the photographs showed blood, and that there was blood on the wrench was properly admissible. The foundation for this testimony was based on his observations and his experience. This foundation was sufficient. Compare Reid v. Brown, 56 N.M. 65, 240 P.2d 213 (1952); State v. Miller, 80 N.M. 227, 453 P.2d 590 (Ct.App.1969).\n(c) Identification evidence.\nDefendant complains of the admission of various testimony going to the identification of defendant. This testimony involves (1) the victim identifying defendant from photographs; (2) the victim identifying defendant at a lineup; (3) a witness identifying the defendant at a lineup; (4) the persons in the lineup not being the same as those in the photographs; (5) the persons in the lineup and the persons in the photographs not having the identical hair-style as defendant. Defendant asserts that showing the photographs to the victim and the witness before conducting the lineup \u201cimprinted\u201d a suggestion that defendant was the person who committed the crimes.\nAll of these complaints are of no avail to defendant. No objection was made to the admission of the testimony about which defendant now complains for the first time. Since the complaints now made were not presented to the trial court, they have not been preserved for review. State v. Chavez (Ct.App.), 82 N.M. 569, 484 P.2d 1279, decided March 19, 1971; State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970).\nFurther, our review of the record shows identification of defendant was not suggested by the photographs, nor to the persons identifying defendant in the lineup, nor by the lineup procedures; nor were any of these items conducive to irreparable mistaken identification. See State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970). The record before us shows a fair police investigative procedure.\nThe victim and the witness were shown seven photographs. The victim identified defendant; the witness was not sure. The victim and the witness viewed the lineup separately and identified defendant in the lineup independent of one another. Both had been told, by the police, that the persons in the lineup were not necessarily the same persons as those in the photographs. The hair-styles were not sufficiently distinct, except in one of the photographs (which was not defendant), to suggest an identification. No extreme variation in height nor body build is shown by the lineup photograph.\n(d) Sufficiency of the evidence.\nDefendant contends that if the foregoing evidence is excluded the evidence is insufficient to sustain the conviction. We have held the foregoing evidence was properly admitted over claims made for its exclusion. However, even if the foregoing evidence had never been presented, the evidence is sufficient.\nThe victim, a service station attendant, was robbed, beaten and set on fire with gasoline. This took place about 4:00 a. m. No one else was present at the station when a person drove into the lighted area of the station and asked to have the car\u2019s oil checked. This customer stood within six or seven feet of the attendant while the oil was checked and followed the attendant into the station when the attendant went after oil. The crime then occurred. The attendant testified that he recognized the customer as one who had been to the station before; that he had a good look at him before he went for the oil; and that defendant was the person involved. Compare State v. Carrothers, 79 N.M. 347, 443 P.2d 517 (Ct.App.1968).\nDefendant seems to assert that his alibi evidence, to the effect that he was in Hobbs, New Mexico when the crime occurred, should have been believed. Both the victim, and the witness who identified defendant as being at another service station one-half mile from the station involved two hours before the crime, contradicted the alibi. The issue was one of credibility and was for the jury. State v. Ford, supra.\nTrial amendment to the charges.\nThe aggravated battery charge in the indictment was that defendant \u201c * * * did inflict' bodily harm or death could be inflicted by setting the said Arthur Jerry Wallace afire.\u201d A doctor testified as to the victim\u2019s injuries. He testified there was some permanent disfigurement as a re-suit of the burns. He testified, in answer to a hypothetical question, that the burns \u25a0could have caused death or serious bodily injury. He also testified that in this case the victim did not have that type of injury because he did not inhale the gases from the fire, \u201c * * * but patients with this hind of burn frequently are very severely injured.\u201d The doctor also testified that at time of trial the victim was not disabled.\nAt the conclusion of the doctor\u2019s testimony, and for the purpose of having the indictment conform to the evidence, the State moved to amend the aggravated battery charge. The motion was granted. As amended, defendant was charged with committing the aggravated battery * * * in a manner whereby great bodily harm or death can be inflicted, * * See \u00a7 40A-3-5(C), supra. The amendment is authorized by \u00a7 41-6-37, N.M.S.A.1953 (Repl.Vol. 6).\nDefendant does not claim the trial court erred in authorizing the amendment. The issue under this point involves the denial of two defense motions, both of which are based on \u00a7 40A-3-5(B), supra. This portion of the aggravated battery statute makes the crime a misdemeanor, instead of a felony, where the injury inflicted \u201c * * * is not likely to cause death or great bodily harm. * * * \u201d\nDefendant moved that the indictment be dismissed on the basis that the doctor\u2019s evidence showed the victim\u2019s injuries were not disabling and \u201c * * * the prosecution has failed to prove that the defendant is guilty of any charge other than a misdemeanor, * * * \u201d By defendant\u2019s own argument, the trial court properly refused to dismiss the indictment, as amended. If, as defendant asserts, the doctor\u2019s testimony \u201cproved\u201d an aggravated battery that was a misdemeanor, rather than a felony, this would only go to limiting the issues to be submitted to the jury. If the misdemeanor was proved, the indictment should not be dismissed. Compare \u00a7 41-6-33, N.M.S.A.1953 (Repl.Vol. 6). Another answer to this question is that it was for the jury to determine whether the injuries inflicted were not likely to cause death or great bodily harm (the misdemeanor), or whether the aggravated battery was committed in a manner whereby great bodily harm or death could be inflicted (the felony).\nDefendant also moved for a continuance and for leave to have the victim examined by a physician to determine the extent of the injury. Defendant asserts his motion for continuance was for the purpose of determining strategy to meet the \u201csurprise\u201d testimony of the doctor. The trial court denied the motion for continuance on the basis that the defendant had not been prejudiced in his defense upon the merits. See \u00a7 41-6-37, supra.\nAsserting the trial court erred in refusing to grant a continuance, defendant contends there was \u201csufficient question\u201d concerning the injuries; that he should have been permitted to have the victim examined by a physician of his own choice in order to meet the amended indictment. We disagree.\nThere is nothing to show that the defense was surprised by the doctor\u2019s testimony, nothing to show that the defense did not know what the doctor\u2019s testimony would be or could not have learned about the testimony in advance of trial. Trial was on September 28th; the last examination on which the doctor\u2019s testimony was based was September 13th. No claim is made that defendant was unable to learn what the doctor\u2019s testimony would be in advance of trial. Compare State v. Mora, 81 N.M. 631, 471 P.2d 201 (Ct.App.1970); State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970).\nNor is there anything in the record showing defendant was prejudiced in his defense on the merits. Even if the doctor\u2019s testimony might be read to raise a question as to the degree of the aggravated battery, this could have favored the defendant because, if so read, it opened the possibility that defendant\u2019s crime was a misdemeanor rather than a felony.\nFurther, the question of the injury inflicted in committing the aggravated battery was involved in the charge prior to the trial amendment. Since the trial amendment did no more than clarify the ambiguous language of the original indictment, and since the manner of committing the aggravated battery was an issue in the case\u2019 from the beginning, defendant\u2019s effort to have the case continued to have the victim examined by a doctor was an effort to do what could have been done prior to trial.\nSection 41-6-37(4), supra, states: \u201cNo appeal * * * based on any such * * * variance shall be sustained unless it is affirmatively shown that the defendant was in fact prejudiced thereby in his defense upon the merits.\u201d Here, there is no affirmative showing of .prejudice; the only showing in the record is that the defendant was not prejudiced by the amendment to the indictment.\nThe judgment and sentence is affirmed.\nIt is so ordered.\nSPIESS, C. J., and HENDLEY, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Ray Tabet, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Frank N. Chavez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "484 P.2d 1283\nSTATE of New Mexico, Plaintiff-Appellee, v. Barry Lee FOSTER, Defendant-Appellant.\nNo. 637.\nCourt of Appeals of New Mexico.\nApril 23, 1971.\nRay Tabet, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Frank N. Chavez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0573-01", "first_page_order": 629, "last_page_order": 634 }