{ "id": 5333582, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Pete GARCIA, Defendant-Appellant", "name_abbreviation": "State v. Garcia", "decision_date": "1971-07-30", "docket_number": "No. 648", "first_page": "51", "last_page": "54", "citations": [ { "type": "official", "cite": "83 N.M. 51" }, { "type": "parallel", "cite": "487 P.2d 1356" } ], "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": "82 N.M. 371", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5328719 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0371-01" ] }, { "cite": "57 N.M. 257", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841670 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0257-01" ] }, { "cite": "55 N.M. 382", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582937 ], "weight": 3, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0382-01" ] }, { "cite": "77 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808337 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0124-01" ] }, { "cite": "81 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365344 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/81/0450-01" ] }, { "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": "152 P. 1139", "category": "reporters:state_regional", "reporter": "P.", "year": 1915, "opinion_index": 0 }, { "cite": "21 N.M. 110", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2387867 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nm/21/0110-01" ] }, { "cite": "80 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0472-01" ] }, { "cite": "214 P. 899", "category": "reporters:state_regional", "reporter": "P.", "year": 1923, "opinion_index": 0 }, { "cite": "28 N.M. 518", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842973 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nm/28/0518-01" ] }, { "cite": "198 P. 529", "category": "reporters:state_regional", "reporter": "P.", "year": 1921, "opinion_index": 0 }, { "cite": "27 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841575 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nm/27/0145-01" ] }, { "cite": "34 N.M. 65", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556038 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0065-01" ] }, { "cite": "216 P. 1048", "category": "reporters:state_regional", "reporter": "P.", "year": 1923, "opinion_index": 0 }, { "cite": "28 N.M. 641", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843551 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nm/28/0641-01" ] }, { "cite": "2 N.M. (Gild.) 391", "category": "reporters:state", "reporter": "N.M. (Gild.)", "year": 1883, "pin_cites": [ { "page": "454" } ], "opinion_index": 0 }, { "cite": "160 P. 362", "category": "reporters:state_regional", "reporter": "P.", "year": 1916, "opinion_index": 0 }, { "cite": "22 N.M. 223", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4724176 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nm/22/0223-01" ] } ], "analysis": { "cardinality": 589, "char_count": 11157, "ocr_confidence": 0.682, "pagerank": { "raw": 3.8117487821919077e-07, "percentile": 0.8979015765011783 }, "sha256": "f3f9e33929e26fb1d72c1edabd8ed3d3ec013797fb13a44c69bc89c96606bf54", "simhash": "1:b34804f89aaef96d", "word_count": 1827 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and SUTIN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Pete GARCIA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant, charged with murder in the death of Julian Narvaez, was convicted of voluntary manslaughter. Section 40A-2-3(A), N.M.S.A.1953 (Repl.Vol. 6). Only limited reference is made to the facts because we reverse the conviction for errors occurring at the trial. Since the cause is to be remanded for a new trial, we discuss three errors. We express no opinion as to the other issues raised in the appeal. We discuss: (1) admissibility of defendant\u2019s threat; (2) reference to collateral criminal offenses and (3) an instruction on self-defense.\nAdmissibility of defendant\u2019s threat.\nThe trial court permitted a State Police agent, \u201cassigned to narcotics,\u201d to testify that defendant said to' the agent: \u201c \u2018 * * * If yon or any narco ever stop me and I am loaded, you had better be prepared to shoot it out because I will kill you.\u2019 \u201d This statement was made approximately fourteen months prior to the homicide. The agent testified that \u201cnarco\u201d designated a police officer that works strictly in narcotics and that \u201cloaded\u201d means carrying narcotics. What connection did this threat to a narcotics agent have to the homicide charge against defendant? This question of relevancy must be examined from the viewpoint of deceased and of defendant.\nThe State asserts the threat went to the issue of why deceased acted as he did when he confronted defendant.. We disagree. If defendant had threatened deceased, or a class of which deceased was a member, and deceased knew of the threat, then the threat would be relevant to deceased\u2019s actions when he encountered defendant. State v. Pruett, 22 N.M. 223, 160 P. 362, L.R.A.1918A, 656 (1916). If, however, deceased did not know of the threat, the unknown threat had no bearing on deceased\u2019s actions and was irrelevant. Territory of New Mexico v. Yarberry, 2 N.M. (Gild.) 391 at 454 (1883). There is no evidence that deceased knew of the threat; it was not admissible to show why deceased acted as he did.\nThe threat, even though uncommunicated to deceased, might have a bearing on defendant\u2019s actions toward deceased. Whether the threat has such a bearing depends on who was threatened. If the threat was against deceased, it would be relevant. State v. Ardoin, 28 N.M. 641, 216 P. 1048 (1923). If the threat was against a class of persons to which deceased belonged, it would be admissible on the question of defendant\u2019s actions. State v. Stewart, 34 N.M. 65, 277 P. 22 (1929). In addition, the threat might be admissible because of the relationship between defendant and deceased under the circumstances of the case. State v. Bailey, 27 N.M. 145, 198 P. 529 (1921).\nHere, there is no evidence that defendant made a threat against deceased personally. The evidence is that deceased was not a narcotics agent; he was a sergeant in the patrol division of the Bernalillo County Sheriff\u2019s office. Deceased was not a member of the class that was threatened.\nThe State does claim a relationship in this case which, it asserts, made the statement admissible. It is that deceased was a police officer and the threat could be taken as not limited to police officers \u201cwho are solely involved in narcotics.\u201d If the threat were susceptible of such an interpretation, the threat would be admissible, and it would be for the jury to determine the meaning of the words used in the threat. State v. Todd, 28 N.M. 518, 214 P. 899 (1923). Plere, the words used cannot be taken as applying to police officers generally because they are specific. The threat was against \u201cyou or any narco.\u201d The threat was against narcotics agents.\nWe hold that the defendant\u2019s threat against narcotics agents, fourteen months earlier, does not point with any reasonable certainty to deceased individually, or as a member of a class. State v. Todd, supra. The threat was not admissible as bearing on defendant\u2019s actions toward deceased.\nSince a basic contention is that defendant acted in self-defense, admission of the testimony as to defendant\u2019s threat was prejudicial error.\nReference to collateral criminal offenses.\nThere were numerous references to defendant as a narcotics addict throughout the trial. Defendant presents a serious question as to the fairness of his trial because of these comments by the prosecutor. We do not decide this question since references to defendant as a narcotics pusher and as a heroin smuggler are in themselves reversible error.\nPrior to the opening statement, defendant sought a ruling \u2019 from the trial court prohibiting the prosecution from referring to him as a narcotics pusher. Defendant\u2019s motion was'denied and in the opening-statement the' pr'ds\u00e9cutor told the jury that defendant was \u201can admitted narcotics pusher.\u201d The remark raises a question of improperly injecting defendant\u2019s character in the case, see State v. Alberts, 80 N.M. 472, 457 P.2d 991 (Ct.App.1969), and of prosecutor misconduct either on the ground of bad faith or an improper reference in an opening statement to facts which the prosecutor would be unable to prove. State v. McDonald, 21 N.M. 110, 152 P. 1139 (1915); State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970). However, the remark clearly is a reference to criminal conduct since it characterizes defendant as an admitted felon. See \u00a7 54-7-14, N.M.S. A.1953 (Repl.Vol. 8, pt. 2). We consider the remark on that basis.\nA doctor called by the defense testified concerning defendant\u2019s intent to kill at the time the fat\u00e1l shot was fired. The prosecutor, cross-examining the doctor concerning physical facts bearing on defendant\u2019s intent, suddenly asked:\n\u201cQ You are aware, are you not, that Mr. Garcia was convicted of smuggling heroin in 1965, I believe, are you aware of that?\u201d\nIn the arguments on defendant\u2019s motion for a mistrial, the prosecutor attempted to justify the question on the ground he was \u25a0 entitled to find out the basis of the doctor\u2019s opinion. The trial court denied the motion for a mistrial, but refused to permit the question to be answered and instructed the jury to disregard the question.\nThe State asserts the cross-examination question was proper, relying on State v. Turner, 81 N.M. 450, 468 P.2d 421 (Ct.App.1970). Turner held cross-examination of expert witnesses concerning collateral offenses was proper in that case; that the expert could be cross-examined as to the facts on which his opinion was based. The cross-examination in Turner was held not to be error because of the \u201cnovel procedure followed.\u201d There, the parties had stipulated that experts could express their opinion \u201c * * * as to whether defendant\u2019s denial of the [collateral] charges was truthful. * * * \u201d Here, we have no such stipulation; no such novel procedure. 'Turner is not applicable. The prosecutor\u2019s question interjected an alleged prior criminal conviction into the case; it did so by a question directed to a witness, not \"the defendant.\" We consider the question on the basis of the reference to the alleged prior conviction, and without regard to the prosecutor\u2019s good or bad faith in asking the question.\nA person, put on trial for an offense, is to be convicted, if at all, on evidence showing he is guilty of that offense. The defendant is not to be convicted because, generally, he is a bad man, or has committed other crimes. Evidence of other offenses tends to prejudice the jury against the accused and predispose the jury to a belief in defendant\u2019s guilt. Thus, the established New Mexico procedure, with certain exceptions not here applicable, is that proof of separate criminal offenses is not admissible and it is prejudicial error to admit such proof. State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966); compare State v. Turner, supra.\nHere, we are not concerned with proof of prior convictions but with the interjection of criminal offenses in the opening statement and on cross-examination. Neither the opening statement remark nor the cross-examination question had a direct bearing on the homicide involved. There is neither evidence nor suggestion that the pushing or smuggling of heroin had anything to do with the fight which involved the fatal shooting of deceased and the serious wounding of defendant, and resulted in the homicide charge against defendant. The remark and the question were irrelevant to the case and under State v. Rowell, supra, were prejudicial to defendant. The trial court\u2019s admonition to the jury in connection with the question did not cure the prejudice under the circumstances of the case. State v. Rowell, supra.\nInstruction on self-defense.\nThe question of whether the shooting of deceased was in self-defense was submitted to the jury. The jury was instructed on the rule of \u201capparent necessity,\u201d and that the reasonableness of defendant\u2019s belief was to be determined from the viewpoint of an ordinarily reasonable person under the existing circumstances. See State v. Beal, 55 N.M. 382, 234 P.2d 331 (1951) and cases therein cited.\nAfter these instructions, which are not in issue here, the jury was instructed that even though the jury found that defendant was not the aggressor, and even though defendant was in fear of his life or great bodily harm:\n\u201c * * * he [defendant] had no legal excuse to continue the combat or take any further action after Julian Narvaez was no longer able to continue the conflict or present a danger to Pete Garcia.\"\nThis instruction told the jury that if in fact decedent no longer presented a danger, the defendant had no legal excuse to take further action. It apparently contradicts, it clearly confuses, the rule that the apparent necessity for the killing is to be judged on the reasonableness of defendant\u2019s belief as an ordinarily reasonable person in the existing circumstances. State v. Beal, supra.\nThus, the issue is: What results when instructions are given which apparently conflict with, and certainly confuse, other admittedly correct instructions? Since we are unable to determine whether the confusing instruction was followed by the jurors, and since this is a homicide case where the theory of self-defense is a critical issue, the confusing instruction was error requiring reversal. See State v. Horton, 57 N.M. 257, 258 P.2d 371 (1953); State v. Buhr, 82 N.M. 371, 482 P.2d 74 (Ct.App.1971).\nAlthough not raised as an issue, the record shows the following elapsed times in this appeal. Notice of Appeal was filed December 17, 1969. The transcript was not docketed in this court until February 16, 1971 or a time lapse of 426 days. Filing of briefs by attorneys was not completed until June 7, 1971; an elapsed time of 111 days. The case was submitted after oral argument on June 15, 1971. From date of submission to date of opinion is 45 days.\nThe judgment and sentence is reversed. The cause is remanded with instructions to give defendant a new trial.\nIt is so ordered.\nHENDLEY and SUTIN, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Charles Driscoll, Dan A. McKinnon, III, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Ray Shollenbarger, Sp. Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "487 P.2d 1356\nSTATE of New Mexico, Plaintiff-Appellee, v. Pete GARCIA, Defendant-Appellant.\nNo. 648.\nCourt of Appeals of New Mexico.\nJuly 30, 1971.\nCharles Driscoll, Dan A. McKinnon, III, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Ray Shollenbarger, Sp. Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0051-01", "first_page_order": 177, "last_page_order": 180 }