{ "id": 2828208, "name": "STATE of New Mexico, Plaintiff-Appellee, v. John David ROMERO, Defendant-Appellant", "name_abbreviation": "State v. Romero", "decision_date": "1974-02-20", "docket_number": "No. 1239", "first_page": "99", "last_page": "104", "citations": [ { "type": "official", "cite": "86 N.M. 99" }, { "type": "parallel", "cite": "519 P.2d 1180" } ], "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": "86 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2821351 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/86/0134-01" ] }, { "cite": "411 U.S. 423", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9798 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/411/0423-01" ] }, { "cite": "84 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766431 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/84/0259-01" ] }, { "cite": "82 N.M. 513", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332833 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/82/0513-01" ] }, { "cite": "83 N.M. 13", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341994 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0013-01" ] }, { "cite": "65 N.M. 342", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845467 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0342-01" ] }, { "cite": "85 N.M. 484", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770740 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0484-01" ] }, { "cite": "84 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765703 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0005-01" ] }, { "cite": "85 N.M. 401", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773638 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0401-01" ] }, { "cite": "85 N.M. 208", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772333 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0208-01" ] }, { "cite": "84 N.M. 760", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771364 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0760-01" ] }, { "cite": "84 N.M. 402", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765269 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0402-01" ] }, { "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": "83 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5339743 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0225-01" ] }, { "cite": "84 N.M. 776", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765063 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0776-01" ] }, { "cite": "135 P. 1177", "category": "reporters:state_regional", "reporter": "P.", "year": 1913, "opinion_index": 0 }, { "cite": "18 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4695668 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nm/18/0211-01" ] }, { "cite": "401 P.2d 95", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5370808, 5374101 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0105-01", "/nm/75/0106-01" ] }, { "cite": "75 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5374101 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0106-01" ] }, { "cite": "85 N.M. 753", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771435 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0753-01" ] } ], "analysis": { "cardinality": 707, "char_count": 14392, "ocr_confidence": 0.817, "pagerank": { "raw": 1.998229539313708e-07, "percentile": 0.7426328716461847 }, "sha256": "87a30c1b3ad6504d28e4dfd06b0b441e6ee9aefcc5709a3f87e7800c0f4ad89b", "simhash": "1:86fdb462312db8e5", "word_count": 2351 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. John David ROMERO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant appeals his conviction of trafficking in a controlled substance (heroin). Section 54-11-20 (A) (2), N.M.S.A.1953 (Repl. Vol. 8, pt. 2, Supp.1973). The issues concern: (1) jurisdiction; (2) subject and title of the statute; (3) false answer by a juror; (4) admissibility of certain evidence; (5) heroin as a narcotic drug; (6) entrapment as a matter of law; and (7) lesser included offense.\nJurisdiction.\nDefendant asserts that a natural person is not included within the definition of \u201cperson\u201d set forth in \u00a7 54-11-2 (R), N. M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp. 1973). On this basis he asserts the trial court had no jurisdiction. This point was decided adverse to defendant\u2019s contention in State v. McHorse, 85 N.M. 753, 517 P. 2d 75 (Ct.App.1973).\nSubject and title of the statute.\nDefendant claims the trial court erred in denying his motion to dismiss the indictment on the ground that the statute, of which \u00a7 54-11-20 (A) (2), supra, is a part, violates the requirements of N.M.Const., Art. IV, \u00a7 16. The statute is Laws 1972, ch. 84. There are two points to this contention ; both are without merit.\nThe title reads:\n\u201cAn Act Relating To Drugs; Defining Controlled Substances And Dangerous Drugs; Providing For Administration ; Providing Penalties; Amending And Repealing Certain Sections; And Declaring An Emergency.\u201d\nThe first point relies on the constitutional provision which states that \u201cno bill embracing more than one subject shall be passed.\u201d Defendant claims that the statute involved embraces more than one subject. For example, he asserts that the statute is concerned with \u201cdrugs\u201d and with \u201ccosmetics.\u201d He contends that cosmetics and drugs are two subjects. We do not agree. Portions of the statute amend sections of New Mexico\u2019s Drug and Cosmetic Act, but changes made by the amendments are concerned with drugs. Various sections within Laws 1972, ch. 84 amend other laws, but the amendments are concerned with drugs.\n\u201cSubject\u201d in the constitutional provision \u201cis to be given a broad and extended meaning so as to authorize the legislature to include in one act all matters having a logical or natural connection.\u201d Silver City Consol. Sch. Dist. No. 1 v. Board of Regents, 75 N.M. 106, 401 P.2d 95 (1965). If the details within the body of the legislative act are \u201crelative directly, or indirectly, to the main subject, having a mutual connection, and not foreign to the main subject, or so long as the provisions are of the some [sic] nature and come legitimately under one general denomination or subject, the act cannot be held unconstitutional.\u201d State v. Ingalls, 18 N.M. 211, 135 P. 1177 (1913).\nUnder the above quoted meaning of \u201csubject,\u201d Laws 1972, ch. 84 'does not contain more than one subject.\nThe second point of the. title contention involves \u00a7 54-11-20, supra. This section is concerned with trafficking in controlled substances. Defendant claims that \u201ctrafficking\u201d is not included in the title of the statute.\nCity of Albuquerque v. Garcia, 84 N.M. 776, 508 P.2d 585 (1973) states that the title need not set forth the details of an enactment; however, statutory details must be germane or related to the subject matter expressed in the title. The prohibition on trafficking is a detail germane to drugs, their-'administration and penalties. There is no constitutional violation.\nFalse answer by juror.\nAfter the jury had been selected and sworn, defendant raised the possibility that one of the jurors may have responded inaccurately or untruthfully to a question asked of the entire jury panel during voir dire. The asserted question went to whether any of the panel had ever been a military policeman. According to defendant, he subsequently learned that one of the jurors, in another case, had stated he had been a military policeman. Also, according to defendant, the juror made no response when the question was addressed to the panel in this case.\nThe prospective juror has a duty to make full and truthful answers to questions that are asked. Mares v. State, 83 N.M. 225, 490 P.2d 667 (1971). On this record, we cannot say this duty was violated. The questions to and answers of the prospective jurors were not recorded. Defendant admitted to the trial court that he was uncertain as to the exact language of his question. In addition, all we have is counsel\u2019s assertion as to the juror\u2019s failure to respond to the question. The record is not established by statements of counsel. State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970). There is no basis for holding that the juror failed to respond fully and truthfully to an asserted question not supported by the record.\nDefendant\u2019s contention is not based on the alleged question and the alleged lack of response by the juror. Defendant\u2019s claim is that he raised the possibility of an inaccurate response to the trial court and having raised that possibility, the trial court erred in failing to inquire further into that possibility. Defendant asserts the lack of inquiry by the trial court denied him the right to an impartial jury.\nDefendant never asked the trial court to inquire further. Once the possibility of an inaccurate response was raised, the prosecutor stated he had no objection to the trial court questioning the juror. Defendant\u2019s position in the trial court was that because the possibility of an inaccurate response existed, the juror \u201ccannot serve as a fair and impartial juror.\u201d That possibility provided no factual basis for discharge of the juror.\nThe issue, then, is limited to the question of whether the trial court erred in failing to make an inquiry that defendant did not ask it to make. Since a request for an inquiry was never presented to the trial court, the error claimed is being raised for the first time on appeal. Accordingly it will not be decided. See State v. Lopez, 84 N.M. 402, 503 P.2d 1180 (Ct.App.1972).\nAdmissibility of Evidence\nThree items of evidence are contested.\nThe first item is Exhibit 1A. This exhibit was a plastic bag containing nine tin foil packets. The contents of the packets were identified as heroin. Defendant asserts the chain of custody was not established and that Exhibit 1A was improperly admitted. The contention is based on the fact that Investigator Lino Martinez testified he delivered the exhibit to Investigator Freddie Martinez. Freddie denied that he received Exhibit 1A from Lino; rather, he testified that he received, and delivered to the court Exhibit 1. The evidence is that Exhibit 1, delivered by Lino to Freddie, was a manila envelope. This manila envelope was opened during the trial. It contained Exhibit 1A. There was no break in the chain of custody and Exhibit 1A was properly admitted under State v. Chavez, 84 N.M. 760, 508 P.2d 30 (Ct.App.1973).\nThe second item concerns testimony of a witness that defendant stated he knew where a person could purchase heroin. Defendant argues that the statement was inadmissible on several grounds. We consider only the contention made to the trial court. State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973). The objection to admissibility at trial was that the statement was hearsay. A statement is not hearsay if the statement is offered against a party and is the party\u2019s own statement made in his individual capacity. Rule 801(d)(2)(A), New Mexico Rules of Evidence. See Proposed Rules of Evidence for United States Courts and Magistrates, Advisory Committee Note to Rule 801 (d)(2)(A). Compare State v. Aragon, 85 N.M. 401, 512 P.2d 974 (Ct.App.1973).\nThe third item pertains to testimony concerning a threat made by defendant slightly more than a month after the heroin offense involved in this appeal. The threat was to the effect that if the witness had turned defendant in for the sale of heroin, defendant would kill the witness. Defendant objected that the testimony was hearsay. The discussion in the preceding paragraph answers this contention; it was not hearsay. Defendant also objected that the testimony was irrelevant to the heroin charge committed more than a month earlier. Relevancy is that which tends to establish a material proposition. State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct.App.1972). The testimony as to the threat tended to establish that defendant had in fact sold heroin. This was a material proposition because defendant was charged with unlawful trafficking in heroin. The testimony was relevant.\nHeroin as a Narcotic Drug\nBy motion for directed verdict and by requested instructions defendant raised the question as to whether heroin was a narcotic drug. The trial court denied the motion and refused the requests. The jury was instructed that heroin was a narcotic drug. Defendant claims all the foregoing was error; he asserts that whether heroin is a narcotic drug is a factual question for the jury to determine from evidence introduced at trial.\nThe answer is provided by the statutes. Section 54-11-2(P), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973) includes opium and any derivative of opium within the definition of narcotic drug. Section 54\u2014 11-6(B) (10), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973), lists heroin as one of the opium derivatives. By statutory definition, heroin is a narcotic drug. State v. Atencio, 85 N.M. 484, 513 P.2d 1266 (Ct.App. 1973). The trial court did not err in its handling of the various requests of defendant raising this issue, and did not err in instructing the jury, as a matter of law, that heroin was a narcotic drug.\nEntrapment as a Matter of Law\nDefendant moved for a directed verdict on the basis that the evidence shows entrapment as a matter of law. He claims the trial court erred in denying this motion.\nThe basic issue presented is the legal definition of entrapment. Applying State v. Roybal, 65 N.M. 342, 337 P.2d 406 (1959) in prior cases, this court was concerned with a defendant\u2019s predisposition to commit the offense and with whether law enforcement personnel had used undue persuasion or enticement to induce defendant to commit the crime. State v. Martinez, 83 N.M. 13, 487 P.2d 923 (Ct.App.1971); State v. Sena, 82 N.M. 513, 484 P.2d 355 (Ct.App.1971). Our concern with \u201cpredisposition\u201d and \u201cundue persuasion or enticement\u201d was based on the fact that \u201c[ejntrapment does not occur unless the criminal conduct was the product of the creative activity of law enforcement officials.\u201d State v. Sena, supra. In State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (Ct.App.1972), we held the State\u2019s creative activity had reached an intolerable level and that there was entrapment as a matter of law.\nDefendant urges that State v. Sainz, supra, applies and is controlling. The State urges that the Federal authority relied on in Sainz, supra, was reversed in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), that we should reconsider Sainz, supra, and follow the prt-Sainz entrapment decisions of this court. The different positions are on the basis that Sainz places primary emphasis on the conduct of law enforcement personnel while pre-Sama decisions were primarily concerned with defendant\u2019s predisposition to commit the crime,\nIt is unnecessary to resolve the different positions in this case. Here there were factual questions concerning defendant\u2019s predisposition to commit the crime, and concerning the extent of the law enforcement activity. Consequently, under any definition of entrapment advanced by the parties, the issue of entrapment' was for the jury to resolve. Although no issue is raised concerning the entrapment instruction given, we note that the jury was instructed concerning defendant\u2019s predisposition, concerning undue persuasion or inducement by law enforcement representatives, and as to whether government participation had reached an intolerable degree. The trial court did not err in refusing to rule there was entrapment as a matter of law.\nLesser Included Offense\nThe trafficking offense charged involves the distribution, sale, barter or giving away of a specified controlled substance. See \u00a7 54-11-20 (A) (2), supra. The trial court instructed the jury as to the material elements of that offense\nDefendant requested that the jury be instructed concerning a lesser included offense. According to defendant, the lesser included offense is possession of a controlled substance. See \u00a7 54 \u2014 11\u201423(B) (5), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp. 1973). In urging the refusal of the requested instruction was error, defendant cites decisions from other jurisdictions which tend to support his claim that \u201cpossession\u201d is a lesser offense included within the trafficking offense. We assume that possession is a lesser included offense and that there was evidence supporting the lesser charge. These assumptions do not benefit defendant in this case.\nFor the preservation of error in the case of failure to instruct on an issue, a corrrect written instruction must be tendered before the jury is instructed. Section 41-23^-1 (g), N.M.S.A.1953 (2nd Repl.Vol. 6, Supp.1973). The failure to instruct on a lesser included offense is not error because a correct written instruction was not tendered. The tendered instruction was incorrect in that it would have submitted to the jury, as a factual question, whether heroin was a narcotic drug. Earlier in this opinion we pointed out that heroin is a narcotic drug as a matter of law. The trial court did not err in refusing the incorrect requested instruction. So holding, we do not consider the effect of defendant\u2019s admission to the jury that he had in fact trafficked in a controlled substance.\nOn the issues presented, the judgment and sentence is affirmed.\nIn so holding, we recognize that the validity of defendant\u2019s sentence is affected by State v. Herrera (Ct.App.), 86 N.M. 134, 520 P.2d 554, decided January 23, 1974. An application for certiorari was filed with the New Mexico Supreme Court on January 28, 1974. Any action in connection with defendant\u2019s sentence should be deferred pending New Mexico Supreme. Court action in Herrera, supra.\nIt is so ordered.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Peter B. Shoenfeld, Santa Fe, for defendant-appellant.", "David L. Norvell, Atty. Gen., Agust\u00edn T. Gurule, Jane E. Pendleton, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "519 P.2d 1180\nSTATE of New Mexico, Plaintiff-Appellee, v. John David ROMERO, Defendant-Appellant.\nNo. 1239.\nCourt of Appeals of New Mexico.\nFeb. 20, 1974.\nPeter B. Shoenfeld, Santa Fe, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Agust\u00edn T. Gurule, Jane E. Pendleton, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0099-01", "first_page_order": 129, "last_page_order": 134 }