{ "id": 5338898, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Rumaldo DURAN, Defendant-Appellant", "name_abbreviation": "State v. Duran", "decision_date": "1972-04-14", "docket_number": "No. 823", "first_page": "700", "last_page": "703", "citations": [ { "type": "official", "cite": "83 N.M. 700" }, { "type": "parallel", "cite": "496 P.2d 1096" } ], "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": "80 N.M. 622", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353327 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0622-01" ] }, { "cite": "80 N.M. 695", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354466 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0695-01" ] }, { "cite": "81 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5366684 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0145-01" ] }, { "cite": "83 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335909 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0644-01" ] }, { "cite": "81 N.M. 52", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362531 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0052-01" ] }, { "cite": "81 N.M. 674", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5366107 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/81/0674-01" ] }, { "cite": "83 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333582 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0051-01" ] }, { "cite": "360 P.2d 637", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2719740 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0219-02" ] }, { "cite": "68 N.M. 219", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718170, 2719740 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0219-01", "/nm/68/0219-02" ] }, { "cite": "82 N.M. 17", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327629 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0017-01" ] }, { "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": "81 N.M. 623", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370694 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/81/0623-01" ] }, { "cite": "82 N.M. 573", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5330664 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0573-01" ] } ], "analysis": { "cardinality": 549, "char_count": 9885, "ocr_confidence": 0.673, "pagerank": { "raw": 2.716271753630593e-07, "percentile": 0.8297586075481621 }, "sha256": "7ee6fe75eb30e74542daa5ca9ca007ba625f5694a9628f2ae6991b99fa4d5479", "simhash": "1:b72ffaf7dcef48e0", "word_count": 1628 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN and COWAN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Rumaldo DURAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant appeals his conviction of murder in the second degree. Section 40A-2-1, N.M.S.A.1953 (Repl.Vol. 6). The issues concern:\u2019 (1) admissibility of lay testimony concerning the condition of the victim\u2019s right arm; (2) the constitutionality of \u00a7 20-2-3, N.M.S.A.1953 (Repl.Vol. 4); (3) admissibility of rebuttal testimony as to prior statements and conduct of defendant; and (4) \u00bfhe- propriety, of an instruction on implied rualice.. .-\nDefendant had been going with Pamela Torres, a stepdaughter of Nash Lucero. Accompanie'd by two of his brothers, he went to the\u2019Lucero residence. Judy Jones, another stepdaughter of Nash, came out and conversed with defendant. During this conversation, the brother driving the Duran car raced its'engine. Nash came out of the house.- and asked that they be quiet.\nBenerito' Lucero, Nash\u2019s brother, followed Nash from the house. After Nash\u2019s request for quiet, the Duran brothers started to leave.\u2019 Benerito made a remark and the Duran brothers got out of their car. A fight ensued between two of the Duran brothers, (one of which was defendant) and Benerito and Nash. Benerito received two stab .wounds, in the. fight, one of which caused his death.\nThe evidence is in dispute as to what Benerito said and as to the details of the fight. However, there .is substantial evidence that defendant had a knife and used that knife-.to stab Benerito.\nAdmissibility of lay testimony.\nNash Lucero\u2019s wife testified that Benerito had \u201cone bad arm;\u201d\u2019 that he \u201cdidn\u2019t have no strength,\u201d and that he had had an operation on his elbow. Nash Lucero also testified t\u00f3 the\u2019 operation and that Benerito couldn\u2019t work very much because: \u201cHis right arm, he couldn\u2019t handle that very well,\u201d\nDefendant claims this evidence was inadmissible.. \u201c * * * as the witnesses were not qualified to express an opinion as to the extent the impairment interfered with the Decedent\u2019s ability to use the arm in a fight. * * * \u201d The answer is that neither witness expressed\u2019 such an opinion. When the State started to elicit such an opinion,\u2019 the defense objection was sustained. \u25a0\nDefendant also claims the evidence set forth above was inadmissible \u201c * * * because no evidence was offered as to the capacity of the victim to engage in physical combat * * * \u201d and because there is no evidence that either defendant or his brother knew of the condition or considered it when they responded to Benerito\u2019s remark and allegedly threatening gestures. Neither of these claims were presented to the trial court; they are raised here for the first time. Accordingly, they will not be reviewed. State v. Foster, 82 N.M. 573, 484 P.2d 1283 (Ct.App.1971); State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct.App.1970).\nConstitutionality of Section 20-2-3, supra.\nSection 20-2-3, supra, permits a witness to be questioned as to prior convictions. By pre-trial motion, defendant requested the court to hold \u00a7 20-2-3, supra, to be unconstitutional. Defendant states this motion was denied when the trial court \u201c* * * granted Defendant\u2019s Motion For Discovery of Prior Convictions. * * * \u201d We accept defendant\u2019s characterization of the record.\nDefendant, during his direct examination at trial, testified to a prior conviction. He states that he was forced to introduce this evidence himself in order to diminish the prejudicial effect of the State doing so during his cross-examination. His claim is that \u00a7 20-2-3, supra, violates due process because testimony as to prior convictions prejudices his right to testify in his own behalf. He cites McCormick, Law of Evidence, at 93-94 (1954) in support of his claim of prejudice.\nAware that 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) is contrary to this contention, defendant seeks to distinguish Lindsey on the basis that it \u201c * * * did not relate to the balance between Defendant\u2019s rights to testify and the State\u2019s rights to impeach. * * *\u201d We disagree. Lindsey states:\n\u201cWe concede an accused may hesitate to take the witness stand if his past criminal record is such that his credibility will probably be completely destroyed in the eyes of the jury if this record is made known to the jury. However, this in no way impairs his right against self-incrimination, his right not to be deprived of his life, liberty or property without due process of law, nor his right to a public trial by an impartial jury.\n\u201cWhen an accused takes the witness stand he is in the same position as any other witness.. Section 20-2-3, supra. He is not entitled to have his testimony falsely cloaked with reliability by having his credibility protected against the truth-searching process of cross-examination. * * *\u00bb\nSee State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App.1970).\nRebuttal testimony as to prior statements and conduct of defendant.\nOn cross-examination, the State asked defendant if he had seen Judy Jones the night before the fight. Defendant stated he thought it was a week before the fight. Defendant was asked, and he denied, that he \u201cpulled a knife\u201d at this meeting with Judy. He was asked, and he denied, that he had mistaken Judy for Pamela. He was asked, and he denied, that he had threatened to kill anyone he found with Pamela. On rebuttal, Judy testified that \u25a0on the evening before the fight defendant was holding a knife five or six inches long, that she asked what he was going to do with it and that defendant said: \u201c * * * he thought Pam was with some other guy and that he was going to get the guy. I asked him if he was going to hurt Pam and he said no, that he wouldn\u2019t hurt Pam.\u201d\nDefendant contends Judy\u2019s testimony about the knife was inadmissible. We disagree. The testimony as to the size of the knife at his meeting with Judy was material to the size of the knife that defendant had on the night of the fight. The size of the knife was material because of the pathologist\u2019s testimony as to the depth of the fatal wound and because of defendant\u2019s characterization of his knife as \u201clittle bitty.\u201d\nDefendant also contends that Judy\u2019s testimony as to defendant\u2019s threat toward any \u201cguy\u201d with Pamela was inadmissible. As to the merits of this contention see State v. Thompson, 68 N.M. 219, 360 P.2d 637 (1961); State v. Garcia, 83 N.M. 51, 487 P.2d 1356 (Ct.App.1971). We do not reach the merits of this claim because the contention made on appeal was never presented to the trial court. Defendant\u2019s only objection was a general one which was made after Judy testified to the date, time and place of the meeting between defendant and Judy, but prior to her testimony, outlined above, as to the details of the meeting.\nThe general objection was \u201c * * * to this entire line of questioning on the grounds that it is irrelevant and immaterial to any issue, that it is an attempt to impeach on collateral matters not relevant or material and that it shows evidence of another crime without there first being a conviction.\u201d Such an objection clearly did not alert the trial court to defendant\u2019s threat and, thus, did not preserve the question of its admissibility for review. State v. Zarafonetis, 81 N.M. 674, 472 P.2d 388 (Ct.App.1970); State v. Harrison, supra; State v. Anaya, 81 N.M. 52, 462 P.2d 637 (Ct.App.1969). The general objection was insufficient. State v. Carlton, 83 N.M. 644, 495 P.2d 1091 (Ct.App.), decided January 21, 1972.\nDefendant asserts that Judy\u2019s rebuttal testimony was inadmissible because it was for the purpose of impeaching defendant on the basis of specific acts of wrongdoing after defendant had denied those specific acts. Thus, defendant would invoke cases interpreting \u00a7 20-2-4, N.M.S.A.1953 (Repl.Vol. 4) which hold that the cross-examiner is bound by the answers to questions concerning specific acts of misconduct and may not introduce independent evidence as to that misconduct. See State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970).\nThe act of wrongdoing referred to in Judy\u2019s rebuttal testimony was the threat. Defendant\u2019s general objection cannot be fairly read as alerting the trial judge to a claim that testimony as to the threat was inadmissible on the basis the State was bound by defendant\u2019s denials and could not introduce independent evidence as to the wrongdoing denied. The contention now made is not properly before us for review. State v. Zarafonetis, supra; State v. Harrison, supra.\nInstruction on implied malice.\nAfter the trial court defined malice and explained the basis for finding malice, it instructed the jury:\n\u201cIt is within the province of the jury to imply malice in a case where a killing with a deadly weapon is established.\n\u201cYou may imply malice in this case if you find beyond a reasonable doubt that the killing was perpetrated by means of a deadly weapon.\u201d\nDefendant contends that the instruction is incomplete and provides a lesser standard for malice than that established by \u00a7 40A-2-2, N.M.S.A.1953 (Repl. Vol. 6). As to the merits of this contention, the instruction was approved in State v. Anaya, 80 N.M. 695, 460 P.2d 60 (1969) and State v. McFerran, 80 N.M. 622, 459 P. 2d 148 (Ct.App.1969).\nFurther, the objection to the instruction was: \u201c * * * that this instruction allows the jury to imply malice in a case of a killing with a deadly weapon and that malice is a specific state of mind that cannot be implied by acts done.\u201d The contention now made was not presented to the trial court. State v. Harrison, supra.\nThe judgment and sentence are affirmed.\nIt is so ordered.\nSUTIN and COWAN, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Joseph D. Beaty, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "496 P.2d 1096\nSTATE of New Mexico, Plaintiff-Appellee, v. Rumaldo DURAN, Defendant-Appellant.\nNo. 823.\nCourt of Appeals of New Mexico.\nApril 14, 1972.\nCertiorari Denied May 4, 1972.\nJoseph D. Beaty, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0700-01", "first_page_order": 826, "last_page_order": 829 }