{ "id": 5336330, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Loarn Anthony BISWELL, Defendant-Appellant", "name_abbreviation": "State v. Biswell", "decision_date": "1971-07-16", "docket_number": "No. 611", "first_page": "65", "last_page": "70", "citations": [ { "type": "official", "cite": "83 N.M. 65" }, { "type": "parallel", "cite": "488 P.2d 115" } ], "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. 637", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362478 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0637-01" ] }, { "cite": "58 N.M. 486", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587693 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0486-01" ] }, { "cite": "81 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5366684 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/81/0145-01" ] }, { "cite": "252 P. 987", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 1552967, 1552975 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/32/0189-01", "/nm/32/0210-01" ] }, { "cite": "32 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552967 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/32/0189-01" ] }, { "cite": "80 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353367 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/80/0380-01" ] }, { "cite": "80 N.M. 95", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360546 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0095-01" ] }, { "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": "82 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333146 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0537-01" ] }, { "cite": "79 N.M. 578", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740138 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0578-01" ] }, { "cite": "80 N.M. 521", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363285 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0521-01" ] }, { "cite": "80 N.M. 247", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353731 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0247-01" ] } ], "analysis": { "cardinality": 564, "char_count": 12491, "ocr_confidence": 0.646, "pagerank": { "raw": 2.3396941674916363e-07, "percentile": 0.7920340143382877 }, "sha256": "c64ce4a72112aebfd1b1a2b31af466b759628ed5633154df08378497931eb35a", "simhash": "1:266afd52746c2b3e", "word_count": 2019 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD and SUTIN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Loarn Anthony BISWELL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nDefendant was convicted of receiving stolen property valued in excess of $100.00 in violation of \u00a7 40A-16-11, N.M.S.A.1953 (Supp.1969). Defendant appeals contending that the trial court erred in permitting the district attorney to cross-examine him in regard to certain convictions of city ordinances and a federal firearms act violation.\nWe affirm.\nDefendant\u2019s first contention regards the district attorney\u2019s cross-examination as to whether defendant had been convicted of a federal firearms act violation and his comments in connection therewith. Defendant asserts that the district attorney\u2019s statement in this regard was so prejudicial that he was denied his constitutional right to a fair and impartial trial.\nThe record regarding this matter is as follows:\n\u201cQ. Have you been convicted of a federal firearms act violation?\n\u201cA. Convicted? No.\n\u201cMR. EASLEY: Court please, the District Attorney is trying \u2014 I object to the question, for the reason that he has not phrased it and has not asked when, where and what court.\n\u201cQ. On the 25th of May, 1970, here in the Federal Court, on a charge of federal firearms violation? I believe the specific charge is failure to have a firearms license, federal firearms license, and you were represented by\nMr. Easley.\n\u201cMR. EASLEY: Court please, the District Attorney knows there has been no conviction in that case. I am sure he is well aware of it, and I think it is highly prejudicial to the Defendant at this time, and I move that the Court so instruct the Jury to disregard any reference to it.\n\u201cMR. HANAGAN: My understanding is that there was a conviction. It is on appeal, but the conviction still remains in effect until such time as the appeal overturns it, and it is a proper question.\n\u201cMR. EASLEY: If the Court please, that is not right, and at this time I would like to make a motion, your honor.\n\u201cTHE COURT: Well, just let me inquire. Mr. District Attorney, do you have any authority that supports your position that if the matter is on appeal, that you have a right to make inquiry about it?\n\u201cMR. HANAGAN: Your honor, it is my understanding that the conviction remains in effect until such time as the appeal does away with it.\n\u201cTHE COURT: I don\u2019t know if that is true or not. Absent some authority, I am going to rule that the question is improper. The Jury will disregard the question having to do with the firearms violation, and will not use that in any manner in your consideration of this case and will wholly disregard any reference to such a conviction.\n\u201cMR. EASLEY: Court please, May I make an additional motion?\n\u201cTHE COURT: You may.\n\u201cMR. EASLEY: Court please, I move that the Court declare a mis-trial in this case, for the reason that the inquiry that has been made by the District Attorney here, is so highly prejudicial to the Defendant, that it can not \u2014 the content of the examination can not be readily dismissed from the minds of these Jurors sitting in this case, and that it would be an impossible \u25a0 \u2014 be an impossibility for them to dismiss this from their minds.\n\u201cTHE COURT: Motion will be denied.\u201d\nWe agree with defendant that when a witness denies a conviction that under \u00a7 20-2-3, N.M.S.A.1953 (Repl. Vol. 1970) the opposite party may prove such conviction. We further agree that such proof was never tendered. We, however, fail to see how the failure to prove the conviction and the colloquy quoted above was so prejudicial to the defendant that he was denied his constitutional right to a fair and impartial trial.\nThis case is controlled by State v. Garcia, 80 N.M. 247, 453 P.2d 767 (Ct.App.1969) wherein it stated:\n\u25a0:\u201c * * * If a prosecutor inquires concerning a prior conviction and is unable - to prove the conviction, a determination \u2022 as to whether he acted improperly de- ' pends on the facts and circumstances. Here the record does not show whether \u25a0. the District Attorney was able to refute \u25a0 the denial. In fact, the record does not disclose the nature of the District Attorney\u2019s information concerning the prior forgery conviction. Accordingly, we do \u25a0 not have sufficient information before us \u2022 to hold, as a matter of law, that the Dis- . trict Attorney acted improperly in asking about \u2018any other\u2019 convictions.\u201d\nSee also State v. Paul, 80 N.M. 521, 458 P.2d 596 (Ct.App.1969). Here, the record does not disclose the nature of the district attorney\u2019s information so we cannot say the district attorney proceeded either improperly or in bad faith in asking the question.\nAlthough defendant\u2019s position in the colloquy is ambiguous, the trial judge understood defendant\u2019s position to be that the State cannot cross-examine a defendant about a conviction pending on appeal. We do not answer this question, however, see State ex rel. Chavez v. Evans, 79 N.M. 578, 446 P.2d 445 (1968). We do not reach this question because the record does not show there .was a conviction pending on appeal. The colloquy assumes such a conviction but there is nothing in the record which shows this. See State v. Carlton, 82 N.M. 537, 484 P.2d 757 (Ct.App.1971). Apart from the district attorney\u2019s \u201cunderstanding\u201d on this question, the record is silent. The district attorney\u2019s \u201cunderstanding\u201d does not establish that such a conviction existed. See State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970). As to the district attorney\u2019s questioning concerning a conviction he \u201cunderstood\u201d to be pending on appeal, we cannot say he proceeded in bad faith in light of State ex rel. Chavez v. Evans, supra.\nDefendant asserts that the trial court\u2019s admonition was insufficient to cure the \u201chighly prejudicial\u201d effect of the question asked by the district attorney. We cannot say from this record that the district attorney\u2019s question was either proper or improper, thus, we cannot say that defendant was prejudiced. Thus we do not reach the question of whether the admonition \u201ccured\u201d the asserted prejudice. Defendant also asserts the district attorney\u2019s \u201ccomments\u201d during the colloquy were prejudicial. We do not consider this argument because it is raised for the first time on appeal.\nDefendant also urges other New Mexico cases dealing with the limits of cross-examination going beyond the bounds of the name of the particular offense and fact of conviction. These cases are not applicable since the record here clearly shows that cross-examination of the district attorney concerned itself solely with the fact of conviction. All other statements made in this context were addressed to the court as legal argument on the question whether the conviction could be used while appeal is pending.\nDefendant\u2019s other two points are that the trial court -permitted questions, for impeachment purposes, which went to convictions of violating city ordinances and in so permitting the court did not weigh the illegitimate tendency of such questions to prejudice and this failure constituted a violation of defendant\u2019s right to a fair and impartial trial.\nOnce the possibility of prejudice is called to the attention of the trial court it has an affirmative duty to exercise its discretion to weigh the probative value of the evidence versus the illegitimate tendency to prejudice. State v. Coca, 80 N.M. 95, 451 P.2d 999 (Ct.App.1969). While the record shows that as to one prior conviction, the city ordinance question was raised, it does not show that defendant invoked a ruling of the trial court on the possibility of prejudice from cross-examination concerning prior offenses. Assuming, however, that the question of prejudice was raised, our review of the record shows the trial court ruled on each objection made and, generally, supervised the cross-examination concerning prior offenses. The record does not support a claim that the trial court did not exercise its discretion.\nDefendant places much reliance on State v. Waller, 80 N.M. 380, 456 P.2d 213 (Ct.App.1969). In Waller this court reversed a conviction in which the trial court ruled that under \u00a7 20-2-3, supra, cross-examination for impeachment purposes could extend to \u201cany unlawful act.\u201d In this case, the court ruled that the violation of a city ordinance of that kind was admissible to show a specific act of wrongdoing by the defendant. This, defendant asserts \u201cis much the same as saying that he could be cross-examined on \u2018any unlawful act.\u2019 \u201d We do not agree. The court here specified that the kind of ordinance conviction about which it would permit defendant to be cross-examined. Compare State v. Knowles, 32 N.M. 189, 252 P. 987 (1927). We do not see that the court permitted questions that were not limited in extent, range, and form. State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970). In addition there was neither denial by defendant nor was there suggestive repetition. Compare State v. Hargrove, supra; State v. Waller, supra.\nThe trial court is vested with broad discretion in allowing cross-examination to test the credibility of a witness. State v. Moultrie, 58 N.M. 486, 272 P.2d 686 (1954). In reviewing this record we find none of the extremes which were condemned by Coca and Waller.\nDefendant claims that the trial court erred in permitting questions concerning convictions of city ordinances. In most of the questioning, the record does not show that the conviction was under a city ordinance. References are made to magistrate court. Magistrate courts are part of the judicial department of the State, \u00a7 36-1-1, N.M.S.A.1953 (1969 Supp.), and their criminal jurisdiction does not specifically refer to municipal ordinances. See \u00a7 36-3-4, N.M.S.A.1953 (1969 Supp.). Section 37-1-1, N.M.S.A.1953 (1969 Supp.) establishes municipal courts, and these courts have jurisdiction over alleged violations of municipal ordinances. Section 37-1-2, N.M.S.A.1953 (1969 Supp.). The record here does not show, except in one instance, that defendant was questioned concerning a conviction under a city ordinance. Defendant claims that it was the State\u2019s obligation to show the convictions, about which defendant was questioned, were for ordinance violations. We disagree. It was defendant\u2019s obligation to demonstrate his asserted error, and, thus, to show that ordinances were involved. State v. Knowles, supra. Defendant has not done so; his claim of general questioning concerning convictions for violating city ordinances is not reviewable under the record before us.\nIn one instance, the record shows defendant was questioned as to a conviction in the \u201cCity Court of Hobbs.\u201d The court ruled that \u201c * * * conviction of violating a City Ordinance of that kind, is admissible for the purpose of showing a specific act of wrongdoing.\u201d Thus, the trial court did not permit the question under \u00a7 20-2-3, supra, which authorizes questions concerning convictions of felonies and misdemeanors. The question was permitted under \u00a7 20-2-4, N.M.S.A.1953 (Repl. Vol. 4, 1970) which permits impeachment by showing \u201cbad moral character.\u201d Such character may be shown by specific acts of misconduct. State v. Sharpe, 81 N.M. 637, 471 P.2d 671 (Ct.App.1970).\nDefendant contends the question should have been directed to the specific misconduct rather than conviction of a city ordinance. The contention is directed to a semantic nicety that, in our opinion, is without merit. Defendant was asked if he was found guilty of \u201cfailure to maintain records.\u201d Thus, the specific misconduct was identified. The trial court\u2019s ruling permitting questioning concerning an ordinance \u201cof that kind\u201d is also directed to the specific conduct involved. The reference to the conviction showed the specific act of wrongdoing. There was no error in referring to an ordinance conviction in this context.\nDefendant further contends the State failed to prove the ordinance conviction. This argument overlooks the procedure under \u00a7 20-2-4, supra. Denials under this section are binding on the cross-examiner. State v. Hargrove, supra. Compare \u00a7 20-2-3, supra. Here, the defendant gave a hesitant \u201cyes\u201d to the question. Being bound by the answer, the State would not have been permitted to \u201cprove\u201d the ordinance conviction under \u00a7 20-2-4, supra.\nAffirmed.\nIt is so ordered.\nWOOD and SUTIN, JJ., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Mack Easley, Easley & Reynolds, Hobbs, for defendant-appellant.", "David L. Norvell, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "488 P.2d 115\nSTATE of New Mexico, Plaintiff-Appellee, v. Loarn Anthony BISWELL, Defendant-Appellant.\nNo. 611.\nCourt of Appeals of New Mexico.\nJuly 16, 1971.\nCertiorari Denied Aug. 17, 1971.\nMack Easley, Easley & Reynolds, Hobbs, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0065-01", "first_page_order": 191, "last_page_order": 196 }