{ "id": 2769610, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Johnny HERRERA, Defendant-Appellant", "name_abbreviation": "State v. Herrera", "decision_date": "1972-05-19", "docket_number": "No. 853", "first_page": "46", "last_page": "50", "citations": [ { "type": "official", "cite": "84 N.M. 46" }, { "type": "parallel", "cite": "499 P.2d 364" } ], "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": "30 L.Ed.2d 271", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "92 S.Ct. 309", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 955", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6414789, 6414505, 6414674, 6414612, 6414904, 6414393 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0955-05", "/us/404/0955-02", "/us/404/0955-04", "/us/404/0955-03", "/us/404/0955-06", "/us/404/0955-01" ] }, { "cite": "81 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358960 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0324-01" ] }, { "cite": "43 N.M. 71", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568273 ], "weight": 2, "year": 1938, "opinion_index": 0, "case_paths": [ "/nm/43/0071-01" ] }, { "cite": "54 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582027 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/nm/54/0302-01" ] }, { "cite": "38 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559180 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/38/0003-01" ] }, { "cite": "91 P. 731", "category": "reporters:state_regional", "reporter": "P.", "year": 1907, "opinion_index": 0 }, { "cite": "14 N.M. 288", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 204500 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/nm/14/0288-01" ] }, { "cite": "83 N.M. 128", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332364 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0128-01" ] }, { "cite": "83 N.M. 9", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333409 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0009-01" ] }, { "cite": "82 N.M. 466", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326071 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0466-01" ] }, { "cite": "83 N.M. 213", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332755 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0213-01" ] }, { "cite": "83 N.M. 603", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337587 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0603-01" ] }, { "cite": "81 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369693 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0185-01" ] }, { "cite": "80 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363538 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0364-01" ] }, { "cite": "404 U.S. 189", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171662 ], "weight": 4, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0189-01" ] } ], "analysis": { "cardinality": 529, "char_count": 9438, "ocr_confidence": 0.696, "pagerank": { "raw": 3.1871753552252413e-07, "percentile": 0.8649093055232178 }, "sha256": "7c47400a9550f27872e9ef7b7aa9b8961795f2020883cf221f49e6ab6c20054d", "simhash": "1:871af66a71cf95ac", "word_count": 1523 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN, and PIERNANDEZ, JJ, concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Johnny HERRERA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of burglary, defendant appeals. The applicable statute is \u00a7 40A-16-3, N.M.S.A.1933 (Repl.Vol. 6) as it existed prior to its amendment by Laws 1971, ch. 58. However, the statutory language is not material to the appeal. The issues concern: (1) denial of defense counsel\u2019s request for a record of closing arguments of counsel; (2) alleged prosecutor misconduct by misstating testimony in closing argument; and (3) leading questions and hearsay evidence.\nRecord of closing argument.\nDefendant\u2019s counsel asked that a record be made of closing arguments \u201c. . .so possible error could be preserved for appeal.\u201d The trial court refused the request, stating: \u201c * * * this is a simple criminal case, and if the prosecutor steps out of line the Court will admonish him. * * * \u201d Defendant claims this refusal was error because \u201c * * * it effectively denied Appellant of his absolute right to a meaningful appeal.\u201d\nN.M.Const. Art. VI, \u00a7 2 states that \u201c * * * an aggrieved party shall have an absolute right to one appeal.\u201d Appeals are limited to the record presented for review. Section 21-2-1(17) (1), N.M.S.A. 1953 (Repl.Vol. 4). For the review on appeal to be meaningful there must be a record of sufficient completeness to permit proper consideration of an appellant\u2019s claims. Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971). This does not require a complete verbatim transcript, alternative methods may be employed. Any alternative method must, however, afford an adequate and effective appellate review. Mayer v. Chicago, supra.\nSubsequent to trial, defendant moved for diminution of the record and correction thereof by the trial court. This motion set forth five items for inclusion in the record. After hearing, the trial court agreed that four of the five items should be included. The item excluded can be decided by review of trial testimony. In this case the record is sufficiently complete for an adequate and effective review. Because the record provides a basis for review of defendant\u2019s claims, the trial court did not commit reversible error in denying defendant\u2019s request for a record of the closing arguments.\nAlleged prosecutor misconduct.\nThe record, as enlarged and corrected by the trial court pursuant to defendant\u2019s motion, shows:\n(a) During closing arguments the assistant district attorney told the jury that \u201c * * * Officer Jasler had testified * * * [that he] had seen Defendant Herrera run out of the house of Jack Archer.\u201d\n(b) At the time of the prosecutor\u2019s statement, defendant objected \u201c* * * on the grounds that that was not what-Jasler testified to but rather that Jasler had testified that on the day and at the time of the alleged offense in question Jasler had seen Defendant Herrera run from Jack Archer\u2019s yard.\u201d\n(c) The trial court overruled the objection and stated that was for the jury to decide.\n(d) The jury deliberated two hours and forty minutes before returning its verdict of guilty.\nThe item in defendant\u2019s motion which the trial court refused to include as part of the record is: \u201cOne of the major arguments of defense counsel * * * during his closing argument * * * was that the evidence showed that Defendant Herrera may have run through the yard of Jack Archer * * * but that Defendant Herrera had not run out of the house of Jack Archer.\u201d As to this item, for purposes of review, we assume that this was one of defendant\u2019s main arguments to the jury.\nThe claim of misconduct by the prosecutor is based on the asserted misstatement as to Officer Jasler\u2019s testimony. The comment by the prosecutor was that the officer had seen defendant \u201crun out of\u201d the house. Officer Jasler testified: \u201cI heard the door slam on the house on the easterly side and saw two male subjects run from the house. * * * \u201d The asserted prejudicial misstatement, then, is based on the difference between \u201crun out of\u201d and \u201crun from\u201d the house of the victim of the crime.\nCounsel are \u201c * * * entitled to a reasonable measure of latitude in closing remarks to a jury. * * * \u201d State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969). \u201cStatements having their basis in the evidence, together with reasonable inferences to be drawn therefrom, are permissible and do not warrant reversal. * * * \u201d State v. Santillanes, 81 N.M. 185, 464 P.2d 915 (Ct.App.1970). The prosecutor\u2019s remark in this case was a permissible comment. State v. Madrid (Ct.App.), 83 N.M. 603, 495 P.2d 383, decided March 3, 1972.\nEven though permissible, defendant argues he was prejudiced by the prosecutor\u2019s statement. He claims prejudice is shown by the fact that the jury deliberated two hours and forty minutes before returning its verdict. This time factor, in itself, does not demonstrate prejudice. State v. Mosier, 83 N.M. 213, 490 P.2d 471 (Ct. App.1971); see State v. Burk, 82 N.M. 466, 483 P.2d 940 (Ct.App.1971), cert. denied, 404 U.S. 955, 92 S.Ct. 309, 30 L.Ed.2d 271 (1971).\nDefendant also claims he was prejudiced because the trial court remarked that it was for the jury to decide. He contends this remark of the trial court left it for the jury to decide the credibility of the prosecutor. This is not correct. The trial court\u2019s remark was in response to the defense objection that the prosecutor had misstated Officer Jasler\u2019s testimony. The issue was the testimony of the officer. The jury had been instructed \u201c * * * to depend for the evidence upon your memories and not upon the statements of counsel. The arguments of counsel are not evidence. . . .\u201d See N.M. U.J.I. 17.7.\nWe hold defendant was not prejudiced by the prosecutor\u2019s permissible comment on the evidence. See State v. Martinez, 83 N.M. 9, 487 P.2d 919 (Ct.App.1971). Nor was the defendant prejudiced by the trial judge\u2019s comment in overruling defendant\u2019s objection to the prosecutor\u2019s comment. See State v. Foster, 83 N.M. 128, 489 P.2d 408 (Ct.App.1971).\nAlleged leading questions and hearsay evidence.\nLeading questions.\nOn direct examination, Archer, whose house was burglarized, was asked: \u201cDid you lock your doors ?\u201d He was also asked: \u201cWas this window in the same shape as you left it that morning?\u201d Defendant objected on the basis that each question was leading. Each time the trial court overruled the objection.\nThe allowance of leading questions is discretionary with the trial court. Territory v. Meredith, 14 N.M. 288, 91 P. 731 (1907); see Hot Springs Plumbing & Heating Co. v. Wallace, 38 N.M. 3, 27 P.2d 984 (1933). Defendant recognizes the trial court\u2019s discretion, but asserts the trial court abused its discretion in overruling his objections.\nWe disagree. The issue at trial was whether defendant was the burglar; there was no issue as to whether a burglary had occurred at the Archer residence. The questions to which defendant objected went to establishing that a burglary had in fact occurred. There was no abuse of discretion in permitting the questions.\nPlearsay evidence.\nOn direct examination, Archer testified, over defendant\u2019s objection, that: \u201cI got a phone call from the police saying my house had been broken into.\u201d The trial court agreed that this answer was hearsay but overruled the objection and remarked that \u201cit doesn\u2019t hurt anything.\u201d We agree. The fact of the burglary was not an issue.\nOfficer Jasler went to the Archer residence; saw two male subjects run from the house; pursued them on foot and ordered them to halt. They kept running. Jasler returned to his patrol car and broadcast a description of the subjects.\nOfficer Moore testified he received information by police radio and proceeded to the area to assist Officer Jasler. Moore testified he had received a description of the two men; that they had left a residence and were fleeing on foot in an easterly direction.\nCross-examination established that Officer Moore\u2019s information that two persons had left a certain address (the Archer residence) was obtained from the police radio. Defendant asked that this be stricken because it was hearsay. The trial court overruled the objection because it had already been testified to by the other officer.\nOfficer Moore\u2019s testimony that two subjects had left the residence was hearsay and would not have been admissible if objected to when this testimony was given on his direct examination. See State v. Walker, 54 N.M. 302, 223 P.2d 943 (1950). His answer on direct examination clearly establishes the hearsay. Moore testified that: \u201cOfficer Jasler had reported via radio * * * the physical description of two subjects that had left a residence. . . .\u201d There being no objection to this hearsay at the time, it was within the trial court\u2019s discretion to strike it when defendant subsequently made his\n84 New Mexico \u2014 4 motion to strike. State v. Shults, 43 N.M. 71, 85 P.2d 591 (1938); see State v. Harrison, 81 N.M. 324, 466 P.2d 890 (Ct.App. 1970). The trial court did not abuse its discretion because the hearsay to which Officer Moore testified was already in evidence through the testimony of Officer Jasler.\nThe judgment and sentence are affirmed.\nIt is so ordered.\nSUTIN, and PIERNANDEZ, JJ, concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Joseph Warner, III, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Frank N. Chavez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "499 P.2d 364\nSTATE of New Mexico, Plaintiff-Appellee, v. Johnny HERRERA, Defendant-Appellant.\nNo. 853.\nCourt of Appeals of New Mexico.\nMay 19, 1972.\nRehearing Denied June 15, 1972.\nCertiorari Denied July 10, 1972.\nJoseph Warner, III, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Frank N. Chavez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0046-01", "first_page_order": 202, "last_page_order": 206 }