{ "id": 2871158, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Ralph HERRERA, Defendant-Appellant", "name_abbreviation": "State v. Herrera", "decision_date": "1977-03-15", "docket_number": "No. 2679", "first_page": "306", "last_page": "309", "citations": [ { "type": "official", "cite": "90 N.M. 306" }, { "type": "parallel", "cite": "563 P.2d 100" } ], "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. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363538 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0364-01" ] }, { "cite": "57 N.M. 36", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841229 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0036-01" ] }, { "cite": "86 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824753 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0595-01" ] }, { "cite": "84 N.M. 662", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771045 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0662-01" ] }, { "cite": "90 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872642 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0087-01" ] }, { "cite": "84 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768111 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0125-01" ] }, { "cite": "83 N.M. 484", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336402 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0484-01" ] }, { "cite": "84 N.M. 146", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771937 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/84/0146-01" ] }, { "cite": "76 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501837 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0273-01" ] }, { "cite": "87 N.M. 12", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835575 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0012-01" ] }, { "cite": "87 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831328 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/87/0074-01" ] }, { "cite": "509 P.2d 893", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2768514 ], "opinion_index": 0, "case_paths": [ "/nm/85/0126-01" ] }, { "cite": "89 N.M. 91", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867978 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0091-01" ] }, { "cite": "86 N.M. 71", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2828365 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0071-01" ] }, { "cite": "89 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868394 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0150-01" ] } ], "analysis": { "cardinality": 611, "char_count": 10721, "ocr_confidence": 0.801, "pagerank": { "raw": 2.224066729371302e-07, "percentile": 0.7779509538973122 }, "sha256": "8fe6e2138a0023ca72ac41ea3e83b2b47b9ea6955ac2fe65fca6939244c41df8", "simhash": "1:afab1122bb6e8dd3", "word_count": 1746 }, "last_updated": "2023-07-14T21:34:48.706767+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. Ralph HERRERA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of trafficking in heroin. His appeal raises issues as to: (1) sufficiency of the evidence and (2) judicial misconduct. Other issues listed in the docketing statement have not been briefed. They are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).\nSufficiency of the Evidence\nThis issue is before us even though no motion for a directed verdict was made at the close of the evidence. State v. Lard, 86 N.M. 71, 519 P.2d 307 (Ct.App.1974).\nSearching for heroin pursuant to a search warrant, officers searched the house and curtilage of defendant. See State v. Aragon, 89 N.M. 91, 547 P.2d 574 (Ct.App.1976). Under a boat trailer, in a \u201cfreshly dug earth spot\u201d, a vial was found which contained heroin. Defendant and his wife were arrested; subsequently, the wife pled guilty to possession of heroin.\nDefendant claims the evidence is insufficient to show that he possessed the heroin that was found. Since he was not in physical possession of the heroin when it was found by the officers, defendant must have constructively possessed the heroin. By constructive possession, we mean knowledge of the presence of the heroin and control over it. State v. Montoya, 85. N.M. 126, 509 P.2d 893 (Ct.App.1973).\nDefendant was not in exclusive possession of the premises; his wife resided with him. Because defendant was not in exclusive possession, an inference of constructive possession cannot be drawn unless there are incriminating statements or circumstances tending to support the inference. State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct.App.1974); State v. Baca, 87 N.M. 12, 528 P.2d 656 (Ct.App.1974). Such additional evidence is present in this case.\nInside the house officers found numerous \u201ctinfoils\u201d approximately one and one-half inches square. The tinfoil was unused. There is evidence that \u201ccaps\u201d are usually wrapped in tinfoil of this size. On the way to the police station, the wife remarked that \u201c \u2018You got everything that we had, that\u2019s all that we had\u2019 \u201d. (Our emphasis.) Defendant told his wife to keep her mouth shut. This evidence sustains the inference that defendant constructively possessed the heroin that was found.\nDefendant claims the evidence was insufficient to show trafficking because the evidence is insufficient to show that he intended to distribute the heroin. Section 54-11-20 N.M.S.A.1953 (Repl. Vol. 8, pt. 2, Supp. 1975).\nThere is evidence that the heroin weighed 3.3 grams and was 16 percent pure. There is evidence that the usual purity of street heroin is 3 to 5 percent and that street heroin is packaged in weights of 20 to 40 milligrams. Reduction of the heroin which was found to street purity, packaged for street sale, would result in at least 264 caps of heroin. There is evidence that heroin is generally packaged for resale on the street in small tinfoil packets, called caps. There is evidence that the search failed to disclose paraphernalia indicating use of the heroin on the premises. This evidence, together with the large number of tinfoil squares, permits the inference that defendant intended to distribute the heroin. See State v. Bowers, supra.\nThe evidence is sufficient to sustain the conviction.\nJudicial Misconduct\n(a) Remarks Concerning Witnesses\nThe defense called Tartaglia as a witness. Tartaglia, an employee of an Albuquerque drug rehabilitation program, testified as to street usage and practices in connection with heroin. On cross-examination, the State asked Tartaglia whether defendant or defendant\u2019s wife was a member of \u201cyour program\u201d. Defense counsel, stating no reasons, objected and moved for a mistrial. Tartaglia stated that under federal law he could not give information \u201con any of the clients on the program\u201d without permission of the client.\nDefense counsel then interrupted, stating that Tartaglia\u2019s testimony was not the law. Defense counsel proceeded to make a speech about federal law and regulations. In the speech, defense counsel stated that the director of the program, Richard Gomez, was \u201cout in the hall\u201d, and would have information about the program and what could not be revealed under federal law. The trial court remarked: \u201cYou shouldn\u2019t be calling people like that as a witness.\u201d\nDefendant again moved for a mistrial, stating no grounds. On appeal, defendant asserts the \u201cunnecessary remarks concerning the calling of witness Tartaglia\u201d amounted to judicial misconduct. This is incorrect. The context shows the trial court\u2019s remark referred to Gomez and not Tartaglia.\nIn cross-examining Tartaglia, the State asked a series of questions concerning Tartaglia\u2019s unwillingness to testify in cases involving heroin users because such testimony would cause people on a methadone maintenance program to distrust Tartaglia. Defense counsel objected \u201cto this line of questioning\u201d as irrelevant and hypothetical. The trial court remarked: \u201cIf you don\u2019t want your witnesses cross-examined, don\u2019t call them. Objection overruled.\u201d Defense counsel objected to the remarks and moved for a mistrial. Defendant asserts this remark also amounted to judicial misconduct.\nNeither of the remarks was a display of bias against or in favor of a party. State v. Sedillo, 76 N.M. 273, 414 P.2d 500 (1966); State v. Mireles, 84 N.M. 146, 500 P.2d 431 (Ct.App.1972); State v. Clark, 83 N.M. 484, 493 P.2d 969 (Ct.App.1971). Neither of the remarks amount to an undue interference by the trial court or show such a severe attitude that proper presentation of the case was prevented. In Re Will of Callaway, 84 N.M. 125, 500 P.2d 410 (1972).\nThe remarks do indicate impatience on the part of the trial court. However, when considered in context, we cannot say that the remarks deprived defendant of a fair trial. State v. Gurule, 90 N.M. 87, 559 P.2d 1214 (Ct.App. decided January 4, 1977).\n(b) Interruption of Closing Argument\nIn cross-examining an officer, the defense brought out that the officer told the grand jury that he seized approximately an ounce of heroin. The trial evidence shows that the weight was 3.3 grams or less than one-seventh of an ounce. The officer explained the discrepancy on the basis that he had not weighed the heroin prior to his grand jury testimony.\nDuring closing argument by the defense, the following occurred:\n\u201cThe big thing about this case, something called a Grand Jury. You can\u2019t bring somebody in here unless he has been indicted by a Grand Jury, you\u2019ve got to have that much testimony presented to the Grand Jury and this man Ortiz, with seven years\u2019 experience went before that Grand Jury, six or seven weeks after he dug this stuff up out of the ground, and told them that he dug up an ounce, which .is ten times as much as this is in that bottle, and because he told them he dug up an ounce, they indicted this man with possession to _ _ _\n\u201cTHE COURT: Counsel, that is not a proper statement, not a proper argument as to what happened at the Grand Jury and why the Grand Jury did something. That is not material, and you know that is not why the Grand Jury did it and refrain from any further comments along that line.\u201d\nDefendant moved for a mistrial because of the interruption by the trial court. He claims his \u201cargument to the jury was entirely proper, yet the outburst left the jury with the impression that defense counsel was guilty of some gross, intentional misconduct.\u201d The argument was improper; it argued the evidentiary basis for the grand jury indictment. The evidentiary basis for the grand jury indictment is not a matter for judicial review. State v. Ergenbright, 84 N.M. 662, 506 P.2d 1209 (1973); State v. Elam, 86 N.M. 595, 526 P.2d 189 (Ct.App.1974). The evidentiary basis for the indictment is also not a matter for argument to the trial jury because it is irrelevant to the question of guilt or innocence. It is the trial court\u2019s \u201cduty to see that no improper statements are made likely to influence the jury in their verdict, and that the cause is tried upon the sworn testimony of the witnesses.\u201d State v. Cummings, 57 N.M. 36, 253 P.2d 321 (1953).\nThe trial court could properly interrupt counsel\u2019s argument and require that the argument stay within matters pertinent to the trial. See State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969). The interruption did not amount to judicial misconduct nor deny defendant a fair trial.\nDefendant asserts that the \u201coutburst by the court and the denial of defendant\u2019s mistrial motion were reversible error because it deprived defendant of his right to comment on the credibility of witnesses against him \u2014 the right to put on a complete defense.\u201d This contention is fiction. Nothing was said about commenting on the discrepancy between the officer\u2019s grand jury and trial testimony. The exchange between the trial court and defense counsel, out of the presence of the jury, went only to \u201cwhy the Grand Jury did something.\u201d\n(c) Cumulative Error\nDefendant claims that the combination of the trial court\u2019s remarks during the testimony of Tartaglia and the interruption of defense counsel\u2019s closing argument amounted to cumulative error. There being no error, there was no cumulative error. State v. Mireles, supra.\n(d) Trial Court\u2019s Manner\nWe have previously quoted defendant\u2019s brief referring to the interruption of closing argument as an \u201coutburst\u201d. The brief also characterizes the trial court\u2019s remarks during the interruption as a \u201ctirade\u201d. The brief states that the trial court\u2019s remarks during the testimony of Tartaglia were shouted in an extremely loud and angry voice. Transcript references in support of these characterizations are to defendant\u2019s motion for a new trial. The docketing statement characterizes the trial court as \u201cbellowing.\u201d\nThe transcript is typewritten. As stated in In Re Will of Callaway, supra: \u201c[A] cold, bare transcript sometimes does not reflect the total atmosphere of a trial.\u201d The transcript here does not show the alleged mannerisms of the trial court. We cannot determine either whether the trial court indulged in the asserted mannerisms or whether counsel have made improper charges against the trial court. State v. Gurule, supra. We do note that, to date, claims based on trial court mannerisms have not been raised in appeals where the trial proceedings were taped.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Jan A. Hartke, Chief Public Defender, Reginald J. Storment, Appellate Defender, Santa Fe, for defendant-appellant.", "Ralph W. Muxlow, II, Asst. Atty. Gen., for plaintiff-appellee." ], "corrections": "", "head_matter": "563 P.2d 100\nSTATE of New Mexico, Plaintiff-Appellee, v. Ralph HERRERA, Defendant-Appellant.\nNo. 2679.\nCourt of Appeals of New Mexico.\nMarch 15, 1977.\nWrit of Certiorari Denied April 20, 1977.\nJan A. Hartke, Chief Public Defender, Reginald J. Storment, Appellate Defender, Santa Fe, for defendant-appellant.\nRalph W. Muxlow, II, Asst. Atty. Gen., for plaintiff-appellee." }, "file_name": "0306-01", "first_page_order": 342, "last_page_order": 345 }