{ "id": 2823260, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Grady Lee BILLINGTON, Defendant-Appellant", "name_abbreviation": "State v. Billington", "decision_date": "1974-02-06", "docket_number": "No. 1285", "first_page": "44", "last_page": "49", "citations": [ { "type": "official", "cite": "86 N.M. 44" }, { "type": "parallel", "cite": "519 P.2d 140" } ], "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": "384 U.S. 855", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047997 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "875" }, { "page": "1851" } ], "opinion_index": 0, "case_paths": [ "/us/384/0855-01" ] }, { "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": "258 So. 2d 43", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9738883 ], "opinion_index": 0, "case_paths": [ "/so2d/258/0043-01" ] }, { "cite": "474 F.2d 689", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1251888 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/474/0689-01" ] }, { "cite": "83 N.M 678", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5338801 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0678-01" ] }, { "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": "413 F.2d 244", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2184174 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/f2d/413/0244-01" ] }, { "cite": "209 Kan. 526", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 81616 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/kan/209/0526-01" ] }, { "cite": "20 Okla.L.Rev. 422", "category": "journals:journal", "reporter": "Okla. L. Rev.", "year": 1967, "opinion_index": 0 }, { "cite": "353 U.S. 657", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6161923 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/us/353/0657-01" ] }, { "cite": "360 U.S. 343", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9045 ], "weight": 3, "year": 1959, "pin_cites": [ { "page": "362-66" } ], "opinion_index": 0, "case_paths": [ "/us/360/0343-01" ] }, { "cite": "331 F.Supp. 723", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3567019 ], "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/f-supp/331/0723-01" ] }, { "cite": "81 N.M 631", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358645 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/81/0631-01" ] }, { "cite": "83 N.M 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335909 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/83/0644-01" ] }, { "cite": "276 F.Supp. 798", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 2746225 ], "pin_cites": [ { "page": "822" } ], "opinion_index": 1, "case_paths": [ "/f-supp/276/0798-01" ] }, { "cite": "321 F.Supp. 1269", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3195186 ], "opinion_index": 1, "case_paths": [ "/f-supp/321/1269-01" ] }, { "cite": "277 F.Supp. 371", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5332779 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/f-supp/277/0371-01" ] }, { "cite": "81 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5366684 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/81/0145-01" ] }, { "cite": "81 N.M 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370995 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/81/0550-01" ] } ], "analysis": { "cardinality": 704, "char_count": 15508, "ocr_confidence": 0.802, "pagerank": { "raw": 1.4769692452791894e-07, "percentile": 0.6603740218059045 }, "sha256": "5d48965d18c28432e84d5f62a0fbba2386806476cb1774c68a8369b0e2614dbc", "simhash": "1:a7ead86271204b71", "word_count": 2606 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Wood, C. J., filed dissenting opinion.", "LOPEZ, J., concurs." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Grady Lee BILLINGTON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nDefendant was convicted of perjury in violation of \u00a7 40A-25-1, N.M.S.A. 1953 \\f\u00bf\u00e1 Repl. Vol. 6). Defendant appeals. We reverse.\n(1) The trial court abused its discretion in denying defendant a continuance.\nOn November 10, 1972, defendant filed a motion for disclosure of names of witnesses the State intended to call at trial pursuant to Rule 27 (b) of the Rules of Criminal Procedure [\u00a7 41-23-27(b), N.M.S.A. 1953 (2d Repl. Vol. 6, 1973 Supp.)]. On January 5, 1973, the State voluntarily furnished a list of witnesses which did not include an important witness whose testimony was critical, not technical or cumulative.\nOn March 21, 1973, at a hearing before the trial court, defendant\u2019s attorney stated:\nI ass'ume no other witnesses since January 3rd have been added to this list and under the circumstances, I\u2019m satisfied.\nThe State: That\u2019s correct, Your Honor.\nThe Court: Well, if they haven\u2019t been added, they\u2019re not going to get added if they don\u2019t do it and advise you about it, so you are that far ahead. All right. * * * [W]e will proceed to trial then tomorrow on this case * * *\nThe next day, on March 22, 1973, out of the presence of the jury panel, the State moved to add the name of an important witness which the State had disclosed to defendant\u2019s attorney by telephone the day before. The defendant objected. Over objection, the trial court allowed defendant\u2019s attorney to question the State\u2019s witness for a few minutes. Thereafter, defendant moved the trial court \u201cfor a continuance until such time as is needed to obtain a deposition of the witness * The motion was overruled. The trial court abused its discretion, and defend\u00bb*, was entitled to a continuance as a matter of law.\nRule 30 [\u00a7 41-23-30, N.M.S.A. 1953 (2d Repl. Vol. 6, 1973 Supp.)] reads as follows :\nIf, subsequent to compliance with a request or order for discovery under Rules 27 or 28 [41-23-27 or 41-23-28], and prior to or during trial, a party discovers additional material or witnesses which he would have been under a duty to produce or disclose at the time of such previous compliance if it were then known to the party, he shall promptly give written notice to the other party or the party\u2019s attorney of the existence of the additional material or witnesses. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from calling a witness not disclosed, or introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate under the circumstances. [Emphasis added].\nThis rule is the same as Rule 16(g) of the Federal Rules of Criminal Procedure. 18 U.S.C.A. Rule 16(g).\nRule 29, supra, allows the defendant to take the deposition of any person. This right of discovery by deposition would have aided the defense.\nThe American Bar Association\u2019s Advisory Committee on Pretrial Proceedings\u2019 Standards Relating to Discovery and Procedure Before Trial, \u00a7 2.1(a) (i) provides that the prosecuting attorney shall disclose to defense counsel \u201cthe names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial * * * * \u201d United States v. Leichtfuss, 331 F.Supp. 723, 733 (N.D.Ill.1971).\nThe Commentary, p. 56, says:\nThis subsection not only facilitates plea discussions and agreements but also goes to the heart of the general proposition that defense counsel must be permitted to prepare adequately to cross-examine the witnesses against the accused and otherwise test their credibility, as well as to produce other evidence relevant to the facts in issue. See \u00a7\u00a7 1.1 (a) (iii), 1.2. It has been suggested that the right to advance notice of witnesses against one and their prior statements may be required by the sixth amendment and by due process. Palermo v. United States, 360 U.S. 343, 362-66 [79 S.Ct. 1217, 3 L. Ed.2d 1287] (1959); see Jencks v. United States, 353 U.S. 657 [77 S.Ct. 1007, 1 L.Ed.2d 1103] (1957); Note, 20 Okla.L.Rev. 422 (1967).\nSee, State v. Jones, 209 Kan. 526, 498 P.2d 65 (1972).\nThe defendant is entitled to a fair trial. One of the purposes of a deposition is to permit the defendant to seek avenues of impeachment of the State\u2019s witness on cross-examination during trial. Rule 29 (n) (5), supra.\nThe State\u2019s witness had testified at a prior trial in which the defendant was a witness. The defendant had no reason to prepare cross-examination of this State\u2019s witness because his name was not disclosed. Even if defendant was familiar with this witness\u2019 trial testimony, defendant had the right to take the deposition of this witness to determine whether his prior testimony was true, to test his credibility, to seek impeachment, to produce other evidence, to seek discovery, all for the orderly administration of criminal procedures prior to trial. Rule 30, supra, was violated.\nIf, after the deposition is taken, the defendant believes that he will be proven guilty, he may enter into plea bargaining or plead guilty to avoid the necessity and expense of a jury trial. United States v. Isa, 413 F.2d 244, 248 (7th Cir. 1969).\nDistrict attorneys should not have the right to \u201cinadvertently\u201d overlook disclosing important witnesses until the day before trial, the morning of trial, or during trial.\nState v. Maes, 81 N.M 550, 469 P.2d 529 (Ct.App.1970) quoted the following with approval:\nWhen it is made to appear that testimony of the witness is such that it cannot be reasonably anticipated, postponement or continuance of the hearing is available to the defendant to meet it and if application therefor is denied, prejudice being shown, reversal will follow.\nDefendant was entitled to a continuance as a matter of law. See, State v. Sibold, 83 N.M 678, 496 P.2d 738 (Ct.App.1972); United States v. Kasouris, 474 F.2d 689 (5th Cir. 1973); Sheridan v. State, 258 So. 2d 43 (Fla.App.1971).\nThe trial court abused its discretion. State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970); United States v. Isa, supra. The error was so prejudicial to the substantial rights of the defendant as to necessitate a reversal. United States v. Kasouris, supra. \u201cIn our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.\u201d Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966).\n(2) Defendant was not entitled to a directed verdict.\nDefendant contends he was entitled to a directed verdict because the evidence was insufficient to sustain the conviction. We have reviewed the record and we find the evidence sufficient to sustain the conviction for perjury.\nThe purpose of this opinion is not to assist the defendant, but to improve the administration of justice.\nReversed.\nIt is so ordered.\nLOPEZ, J., concurs.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "WOOD, Chief Judge\n(dissenting).\nThe issue is the State\u2019s late disclosure of the name of a witness and the consequences which follow from the late disclosure. This involves Rules 27 and 30 of the Rules of Criminal Procedure. Sections 41-23-27 and 41-23-30, N.M.S.A. 1953 (2d Repl.Vol. 6, Supp.1973).\nUnder Rule 27(b), a defendant may \u201cserve\u201d on the district attorney a request to produce a written list of witnesses which the district attorney intends to call at the trial. Rule 27(d) provides for the district attorney\u2019s written response. Rule 27(e) provides for a hearing if the district attorney fails to respond.\nDefendant, by formal motion filed subsequent to the information, sought an order requiring the State to furnish a list of witnesses the State intended to call at the trial. The State contends there is no showing that this motion was \u201cserved\u201d on the State and, thus, the defendant was not entitled to a list of the State\u2019s witnesses. The State contends there is no issue concerning late disclosure because it was not required to disclose any witness. The contention is without merit. .The record shows that defendant\u2019s disclosure motion had been \u201cdisposed ofthat the State had furnished a list of witnesses. Because the record shows a response by the State, the \u201cno service\u201d claim does not avoid the issue of late disclosure. Although the majority opinion does not discuss this contention, I agree with the majority that the late disclosure issue is to be decided.\nThe majority opinion does not state the full sequence of events. The State\u2019s list of witnesses had been furnished in January, 1973. On March 20, 1973, by letter, the assistant district attorney requested the clerk of court to endorse on the information, as a witness, the name of O\u2019Neal. The endorsement occurred on the same date. \u201cBy oversight,\u201d defendant was not provided a copy of this letter. At a hearing on March 21, 1973, the assistant district attorney assured defendant that no new witnesses had been added to the witness list supplied in January. However, by telephone, on March 21st, defendant was notified of the endorsed witness.\nImmediately prior to trial on March 22, 1973, defendant objected to the endorsement of O\u2019Neal as a witness and claimed that O\u2019Neal should not be permitted to testify. The trial court overruled these contentions.\nDefendant contends the State violated either Rule 27 or Rule 30. Representations made to the trial court indicate the State may have violated Rule 27. Defendant, however, did not rely on Rule 27 before the trial court. Although the majority opinion does not discuss this contention, I agree with the majority approach in deciding the appeal on the basis of Rule 30.\nThere are two violations of Rule 30. Once the State made its decision to call O\u2019Neal as a witness it violated the rule in failing to give defendant prompt notice of its decision. The notice, when given, was oral. The rule requires written notice.\nWhat follows from these violations? The rule authorizes the trial court to grant a continuance, to prohibit the party from calling the undisclosed witness or to enter such other order as the court deems appropriate under the circumstances. This wording leaves sanctions for violation of Rule 30 to the discretion of the trial court. The appellate issue is whether the trial court abused its discretion. The majority opinion uses this standard.\nAn abuse of discretion is an erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts and circumstances before the court. State v. Hargrove, 81 N.M 145, 464 P.2d 564 (Ct.App.1970).\nThe majority hold that the trial court abused its discretion in failing to grant defendant\u2019s motion for a continuance. The majority state the failure to grant a continuance was prejudicial because the late disclosure of O\u2019Neal as a witness deprived defendant of the opportunity to depose O\u2019Neal and because of the late disclosure the defendant had no opportunity to prepare a cross-examination of O\u2019Neal. The showing in the record does not support the majority.\nOnce the late disclosure was brought to the trial court\u2019s attention, defendant\u2019s position was that it became the State\u2019s duty to show why the State needed O\u2019Neal as a witness and why the State failed to disclose his name to the defendant. The validity of this procedure is not an issue because the State proceeded to make such a showing. In doing so, the State stated it had no objection to a delay in the trial to allow defense counsel to talk to the witness because \u201chis testimony will be the same as in the prior trial.\u201d\nThe trial court approved the endorsement of O\u2019Neal as a witness. Defendant continued his objection to allowing O\u2019Neal to testify.\nThrough this point in the proceedings the only claim made by the defense was that the State was required to justify the use of O\u2019Neal as a witness. After the trial court\u2019s ruling, defendant continued his objection. This can only be interpreted as a claim that the State\u2019s justification was insufficient. No such claim is made in the appeal.\nAfter the trial court\u2019s ruling, defendant moved for a continuance until such time as is needed to obtain a deposition of O\u2019Neal. The majority hold that denial of a continuance was an abuse of discretion. In so doing, the majority refer to Rule 29 of the Rules of Criminal Procedure. Section 41-23-29, N.M.S.A. 1953 (2d Repl.Vol. 6, Supp.1973). The majority state: \u201cThis right of discovery by deposition would have aided the defense.\u201d\nThe majority err because there is no \u201cright\u201d to take depositions in criminal cases. Rule 29(a) states when the taking of a deposition is allowed. There must be a showing that the testimony is material and relevant to the offense charged. The State\u2019s, not the defendant\u2019s, showing at the hearing on defendant\u2019s objection to allowing O\u2019Neal to testify supplied this showing.\nRule 29(a) also requires a showing: \u201cthat it is necessary to take his deposition to prevent injustice, and either (1) the person will not co-operate in giving a voluntary, signed, written statement to the moving party, or (2) the person may be unable to attend trial or a hearing.\u201d\nDepositions in criminal cases may be taken only on order of the court and not as a matter of right. United States v. Massi, 277 F.Supp. 371 (W.D.Ark. 1968). Since defendant was the party seeking to depose O\u2019Neal, the burden was on defendant to make the showing required by Rule 29(a). United States v. Bronston, 321 F.Supp. 1269 (S.D.N.Y.1971). It is not error to refuse to authorize the taking of a deposition, if the showing required by Rule 29(a) has not been made. United States v. Birrell, 276 F.Supp. 798, at 822 (S.D.N.Y.1967).\nThe record shows that O\u2019Neal was present at the trial. Defendant never claimed that O\u2019Neal\u2019s deposition was necessary to prevent injustice. Defendant failed to make the showing required by Rule 29(a) for taking O\u2019Neal\u2019s deposition. Accordingly, the trial court did not err in refusing a continuance to allow the taking of a deposition when the requirements for authorizing a deposition had not been met.\nThe majority also hold the trial court abused its discretion in not allowing a continuance because the late disclosure of O\u2019Neal as a witness deprived defendant of the opportunity to prepare his cross-examination. This then is a holding that defendant was prejudiced by the late disclosure. It is not supported by the record.\nDefendant did not claim that he was suprised that O\u2019Neal would be called as a witness. He did not claim that O\u2019Neal\u2019s testimony could not be reasonably anticipated. He did not claim that he did not know the content of O\u2019Neal\u2019s testimony; he admitted that he had a transcript from the prior trial at which O\u2019Neal testified. Compare State v. Carlton, 83 N.M 644, 495 P.2d 1091 (Ct.App.1972); 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) and decisions cited in those cases. The record negates any prejudice in allowing O\u2019Neal to testify.\nAny basis for reversal in this record is a chimera.\nI dissent.", "type": "dissent", "author": "WOOD, Chief Judge" } ], "attorneys": [ "James E. Templeman, Sanders, Snipes & Templeman, Lovington, for appellant.", "David L. Norvell, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "519 P.2d 140\nSTATE of New Mexico, Plaintiff-Appellee, v. Grady Lee BILLINGTON, Defendant-Appellant.\nNo. 1285.\nCourt of Appeals of New Mexico.\nFeb. 6, 1974.\nWood, C. J., filed dissenting opinion.\nJames E. Templeman, Sanders, Snipes & Templeman, Lovington, for appellant.\nDavid L. Norvell, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0044-01", "first_page_order": 74, "last_page_order": 79 }