{
  "id": 2862939,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Rod O. DOAK and Lloyd R. Blakey, Defendants-Appellants",
  "name_abbreviation": "State v. Doak",
  "decision_date": "1976-09-14",
  "docket_number": "No. 2493",
  "first_page": "532",
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  "last_updated": "2023-07-14T20:56:52.908635+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "HENDLEY and LOPEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Rod O. DOAK and Lloyd R. Blakey, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nEach defendant was charged with the felony offenses of battery upon a peace officer and assault with intent to kill or commit mayhem. Sections 40A-22-23 and 40A-3-3, N.M.S.A.1953 (2d Repl. Vol. 6). The jury convicted each defendant of the lesser misdemeanor offenses of assault upon a peace officer and simple assault. Sections 40A-22-20 and 40A-3-1, N.M.S.A. 1953 (2d Repl. Vol. 6). Defendants\u2019 appeal raises numerous issues; two issues are dispositive. They are: (1) death pending appeal, and (2) Evidence Rule 408.\nDeath Pending Appeal\nThe trial court\u2019s judgment sentenced Doak to a term in the county jail for each offense. A fine was imposed upon Doak for one of the offenses. In addition, the judgment provides that Doak was to bear \u201chis share\u201d of certain court costs.\nThe State has informed this Court that Doak died while the appeal was pending. What is the effect of the death upon the various provisions in the judgment?\nAnnot. 83 A.L.R.2d 864 states:\n\u201c. . . [M]ost of the few courts which have considered the matter have recognized the rule that the death pending appeal of a defendant convicted of a criminal offense abates not only the appeal, but likewise all proceedings had in the prosecution from its inception.\u201d\nFootnote 1 to the annotation, at page 864, indicates that the abatement applies to the verdict of guilty, the judgment of conviction, the imposition of a fine and the taxation of costs.\nThe rule in federal courts is the same. \u201c. . . [Djeath pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.\u201d Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971).\nIn State v. Crump, 24 N.M. 331, 171 P. 502 (1918), the defendant had been convicted of assault with a deadly weapon. The judgment imposed a fine and taxed costs. Crump died pending the appeal. The opinion states: \u201c[A] judgment imposing a fine in a criminal case abates on the death of the defendant pending an appeal or writ of error, and the fine imposed cannot be enforced against the estate.\u201d Although the Crump decision does not specifically deal with costs, the ruling that the judgment abates and that a fine cannot be enforced against the estate indicates that costs also abate.\nWe hold that the New Mexico rule is the same as that stated in the above-quoted authorities. Death pending the appeal of a criminal conviction abates all proceedings had in the prosecution from its inception. Doak having died pending the appeal, the verdict of guilty, the judgment of conviction, the sentence, the fine, and the costs are abated. Section 21-7-4, N. M.S.A.1953 (Repl.Vol. 4) is not to the contrary because that section does not apply to appeals of criminal convictions.\nEvidence Rule 408\nDuring cross-examination of the complaining witness Muse, the attorney for defendants asked:\n\u201cDid you tell the District Attorney, Mr. Muse, that you would be willing for this case to be dismissed if Mr. Doak, Mr. Blakey give you $20,000.00 ?\u201d\nThe district attorney objected, asked that the question be withdrawn from consideration by the jury, and asked that defense counsel be reprimanded for asking the question. The basis of the district attorney\u2019s contention was that offers of compromise were not admissible and defense counsel knew it. Defense counsel replied that this was not an offer of compromise; that his understanding was that Muse had offered to dismiss the case for $20,000.00.\nThe trial court sustained the objection and admonished the jury to disregard the question. The following occurred at proceedings outside the presence of the jury.\nDefense counsel stated that the district attorney had informed him by telephone that Muse would have no objection to dismissal of the cases against Doak and Blakey if he were paid $20,000.00. According to defense counsel, the district attorney stated that he would have no objection if this occurred. Defense counsel stated that his only response to this information was \u201cshit\u201d because he was concerned that to become involved would be compounding a felony. See \u00a7 40A-22-6, N.M.S.A.1953 (2d Repl. Vol. 6) for the definition of \u201ccompounding a crime\u201d.\nThe district attorney then stated that he and defense counsel had had several conversations about how to settle the case to the benefit of both the State and defendant. He stated that Muse was contemplating a civil suit for damages against the defendants, that he contacted Muse with the knowledge of defense counsel to explore possibilities of settlement. On appeal, the State argues that the settlement discussion involved only the civil suit. This is inaccurate. The district attorney informed the trial court of his discussion with Muse in these words: \u201cI said could we settle this matter, the criminal and civil by payment of money and get this thing off the docket, and he [Muse] talked with his wife and they gave me a figure that we would be happy to settle both . . . . \u201d The district attorney then agreed with defense counsel as to defense counsel\u2019s response when this information was imparted to defense counsel.\nThe State asserts that the above matters dealt with an offer of compromise and that cross-examination as to the above matters was prohibited by Evidence Rule 408. We disagree.\nOur concern is with Evidence Rule 408 prior to the amendment on April 1, 1976 (the amendment is not applicable). The Rule reads:\n\u201cEvidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.\u201d\nThis evidence rule is the same as proposed Rule 408 of the Federal Rules of Evidence. The advisory committee\u2019s note to proposed Federal Rule 408 states:\n\u201cThe final sentence of the rule serves to point out some limitations upon its applicability. Since the rule excludes only when the purpose is proving the validity or invalidity of the claim or its amount, an offer for another purpose is not within the rule. The illustrative situations mentioned in the rule are supported by the authorities. As to proving bias or prejudice of a witness, see Annot., 161 A.L.R. 395, contra, Fenberg v. Rosenthal, 348 Ill.App. 510, 109 N.E.2d 402 (1952), and negativing a contention of lack of due diligence in presenting a claim, 4 Wigmore \u00a7 1061. An effort to \u2018buy off\u2019 the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule of exclusion. McCormick \u00a7 251, p. 542.\u201d\nThe record shows that the proposed cross-examination was not for the purpose of proving the validity or invalidity of either the criminal charge or the prospective civil suit. The statements of the district attorney indicate that a \u201cbuying off\u201d of the criminal charge was involved in the discussion between the district attorney and Muse. Defense counsel expressly informed the trial court that his proposed cross-examination concerning the $20,000.-00 figure was for the purpose of showing the \u201cbias and circumstances of the lack of credit of the witness\u201d.\nUnder the foregoing circumstances, Evidence Rule 408 did not prohibit the proposed cross-examination. See 2 Weinstein\u2019s Evidence, \u00a7\u00a7 408[01] and 408[02]; McCormick on Evidence (1972), p. 665. We are not concerned here with the propriety of the discussions. See State v. Odom, 86 N.M. 761, 527 P.2d 802 (Ct.App.1974). Our concern is with the right to cross-examine concerning the credibility of the witness. See State v. Santillanes, 86 N.M. 627, 526 P.2d 424 (Ct.App.1974). Defendant had the right to cross-examine the witness as to his credibility. The trial court erred in ruling that the first sentence of Evidence Rule 408 prohibited such cross-examination and that the last sentence of the rule was inapplicable. Blakey\u2019s conviction is reversed.\nOral argument is unnecessary. The cause is remanded to the trial court with these instructions: 1. Enter an order setting aside the verdict and judgment against Doak, and abating all proceedings against Doak from their inception. 2. Enter an order setting aside the verdict and judgment against Blakey and awarding Blakey a new trial.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Dan B. Buzzard, Clovis, for defendants-appellants.",
      "Toney Anaya, Atty. Gen., Paquin M. Terrazas, Tony Tupler, Asst. Attys. Gen., Santa Fe, for plaintif f-appejlee."
    ],
    "corrections": "",
    "head_matter": "554 P.2d 993\nSTATE of New Mexico, Plaintiff-Appellee, v. Rod O. DOAK and Lloyd R. Blakey, Defendants-Appellants.\nNo. 2493.\nCourt of Appeals of New Mexico.\nSept. 14, 1976.\nDan B. Buzzard, Clovis, for defendants-appellants.\nToney Anaya, Atty. Gen., Paquin M. Terrazas, Tony Tupler, Asst. Attys. Gen., Santa Fe, for plaintif f-appejlee."
  },
  "file_name": "0532-01",
  "first_page_order": 568,
  "last_page_order": 571
}