{ "id": 2871724, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Johnny Kent BLAKLEY, Defendant-Appellant", "name_abbreviation": "State v. Blakley", "decision_date": "1977-08-09", "docket_number": "No. 2852", "first_page": "744", "last_page": "749", "citations": [ { "type": "official", "cite": "90 N.M. 744" }, { "type": "parallel", "cite": "568 P.2d 270" } ], "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": "90 N.M. 256", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872048 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0256-01" ] }, { "cite": "86 N.M. 335", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822429 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0335-01" ] }, { "cite": "90 N.M. 360", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867238 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0360-01" ] }, { "cite": "90 N.M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871158 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/90/0306-01" ] }, { "cite": "90 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872642 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0087-01" ] }, { "cite": "88 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2842147 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0541-01" ] }, { "cite": "86 N.M. 44", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823260 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0044-01" ] }, { "cite": "89 N.M. 631", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865410 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0631-01" ] }, { "cite": "83 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332666 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0001-01" ] }, { "cite": "89 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866147 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/89/0194-01" ] } ], "analysis": { "cardinality": 687, "char_count": 14259, "ocr_confidence": 0.821, "pagerank": { "raw": 1.351011388791366e-07, "percentile": 0.6335388665516792 }, "sha256": "a348a812135733c7ab98b53f15eaa206890cb7d20908ea27ba26c779b5090413", "simhash": "1:af608a68537f49e1", "word_count": 2341 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and HERNANDEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Johnny Kent BLAKLEY, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nCount I charged homicide by vehicle while driving recklessly. Sections 64-22-1 and 64-22-3, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2). Count II charged failure to stop and remain at the scene of an accident. Section 64-17-1, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2). Count III charged driving while license was suspended or revoked. Section 64-13-68, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2). Defendant was found guilty of each of the charges; he appeals. The claim that a verdict should have been directed because of insufficient evidence is frivolous; substantial evidence supports the verdicts of guilty. We discuss: (1) validity of the indictment; (2) severance; (3) deposition and testimony of a late discovered witness; (4) trial court\u2019s comments; (5) admission of exhibits; and (6) instructions and closing argument.\nValidity of the Indictment\nDefendant moved to dismiss the indictment, asserting it was not returned in accordance with law. There are two contentions under this issue: (a) the time when the indictment was \u201creturned\u201d, and (b) the number of jurors making the \u201creturn\u201d.\n(a) Time of the Return\nAt the hearing on the motion to dismiss, defendant\u2019s position was that \u201cthe entire grand jury voted the indictment Friday night\u201d but the indictment was not \u201creturned\u201d until Monday morning. \u201cFriday night\u201d was August 27, 1976. The indictment is dated August 30,1976 and was filed by the district court clerk at 10:46 a.m. on August 30, 1976.\nSection 41-5-5, N.M.S.A.1953 (2d Repl. Vol. 6) states: \u201cIndictments shall be returned by the grand jury, within twenty-four [24] hours following the day when the indictment is voted.\u201d Defendant asserts that the interval between Friday evening and the following Monday morning violated this statute. We disagree.\nSection 41-5-4, N.M.S.A.1953 (2d Repl. Vol. 6) states: \u201cThe grand jury shall conduct its hearing during the usual business hours of the court which convened it.\u201d (Our emphasis.) The trial court ruled that court was not in session during the intervening Saturday and Sunday, and that the indictment had been returned on the next court day following the voting of the indictment. The twenty-four-hour period of \u00a7 41-5-5, supra, does not include Saturdays and Sundays if the court which convened the grand jury was not in session on those days. The return of the indictment on the following Monday complied with \u00a7 41-5-5, supra. Compare N.M.Crim.App. 302(a).\n(b) Number of Jurors Making the Return\nSection 41-5-5, supra, states that indictments shall be \u201creturned by the grand jury\u201d. Defendant\u2019s contention is: \u201c. at the time of the return, only the foreman and about three or four of the other members of the grand jury were present. It was not returned by the grand jury itself.\u201d\nSection 41-5-2, N.M.S.A.1953 (2d Repl. Vol. 6) provides: \u201cThe foreman will sign all reports, indictments or other undertakings of the grand jury.\u201d State v. Ellis, 89 N.M. 194, 548 P.2d 1212 (Ct.App.1976) holds that court need not be formally convened to receive an indictment; that indictments need not be returned in open court. Under State v. Ellis, supra, the filing of the indictment with the district court clerk, is sufficient.\n\u201c[R]eturned by the grand jury\u201d in \u00a7 41-5-5, supra, means an indictment voted by the grand jury, signed by the foreman and filed either with the court clerk or the judge. The indictment was properly \u201creturned\u201d in this case. The fact that the entire grand jury was not present at the time of the \u201creturn\u201d did not invalidate the indictment.\nDefendant claims that \u201cless than the statutory minimum number of jurors returned the indictment.\u201d The concurrence of eight grand jurors is required to vote an indictment. N.M.Const., Art. II, \u00a7 14; \u00a7 41-5-10, N.M.S.A.1953 (2d Repl. Vol. 6). In the trial court, defendant\u2019s position was that \u201cthe entire grand jury voted the indictment\u201d. There is no factual basis for the claim that less than eight grand jurors voted the indictment.\nThe motion to dismiss was properly denied.\nSeverance\nDefendant moved that Count I, the homicide by vehicle charge, be severed from Counts II and III, the charges of failure to stop and remain at the accident scene and driving while his license was suspended or revoked. The motion alleged that one trial on all three counts would prejudice him and was based on Rule of Criminal Procedure 34(a). Two claims of prejudice were asserted.\nThe first claim was that he wished to testify in defense of Count I, but did not wish to testify as to Counts II and III. The contention was that a failure to sever would either deprive him of his constitutional right to remain silent as to Counts II and III, or deprive him of his right to testify as to Count I. This claim is meritless; defendant was not legally prejudiced by the failure to sever on the basis of this first claim. State v. Silver, 83 N.M. 1, 487 P.2d 910 (Ct.App.1971).\nThe second claim was that evidence concerning Counts II and III would prejudice his defense of Count I. The contention was that even if evidence concerning Counts II and III was relevant to the Count I charge, the probative value of such evidence was substantially outweighed by the danger of unfair prejudice to the defense of Count I. Evidence Rule 403. The appellate issue is whether the trial court abused its discretion in denying severance on the basis of this claim. State v. McGill, 89 N.M. 631, 556 P.2d 39 (Ct.App.1976). Neither prejudice nor abuse of discretion has been shown.\nThe motion to sever was properly denied.\nDeposition and Testimony of a Late Discovered Witness\nA general discovery order required each party to disclose to the other, ten days prior to trial, a list of witnesses the party intended to call at the trial.\nThe State was aware of a motorcyclist who witnessed the accident but had been unable to locate this witness during its investigation. The witness was not identified in the police files on defendant\u2019s case.\nOn the evening of December 14, 1976 the prosecutor reviewed the case with police officers. During that review, a statement by the witness was found in a police file on the accident victim. On the morning of December 15, 1976 at approximately 10:00 a.m., the prosecutor telephoned defense counsel and gave defense counsel the name and telephone number of the witness. The prosecutor then interviewed the witness and on the evening of December 15th, gave defense counsel a copy of the witness\u2019s statement. In addition, the prosecutor read to defense counsel, the prosecutor\u2019s notes of the interview with the witness.\nWhen trial began on the morning of December 16, 1976, defendant sought to prevent the witness from testifying and asked that he be permitted to depose the witness.\nRule of Criminal Procedure 29(a) states the showing required before the trial court may order the taking of a deposition in a criminal case. Defendant did not show that the deposition was necessary to prevent injustice, did not show that the witness would not cooperate in giving a voluntary, signed, written statement, and did not show that the witness might be unable to attend the trial. The only showing is that, after being informed as to where the witness might be located, defendant made no effort to interview the witness. The witness testified at trial.\nThe trial court did not err in refusing to authorize the deposition. See dissenting opinion in State v. Billington, 86 N.M. 44, 519 P.2d 140 (Ct.App.1974).\nThe showing to the trial court was that the prosecutor gave oral notice to defendant promptly after the prosecutor learned the witness\u2019s name and on the same day furnished defendant with the information the prosecutor had acquired. These circumstances do not show that the trial court abused its discretion in permitting the witness to testify. Rule of Criminal Procedure 30; State v. Smith, 88 N.M. 541, 543 P.2d 834 (Ct.App.1975).\nTrial Court\u2019s Comments\nOn appeal, defendant asserts that four comments by the trial court deprived him of a fair trial. No issue as to the appropriateness of the comments was raised in the trial court. State v. Gurule, 90 N.M. 87, 559 P.2d 1214 (Ct.App.1977). Compare State v. Herrera, 90 N.M. 306, 563 P.2d 100 (Ct.App.1977) where such an issue was raised. Accordingly, this issue need not be considered. N.M.Crim.App. 308.\nIn addition, the claim is without merit. The first alleged remark concerns the credibility of a witness. No such comment was made. The second remark was that a witness, a nurse, was the most qualified person in the courtroom to testify that on the night of the accident defendant did not appear in a state of shock. This remark was inappropriate and should not have been made. However, when the remark is considered in context \u2014 counsel\u2019s objection to the nurse testifying as to the nurse\u2019s observations \u2014 the remark did not deprive defendant of a fair trial. State v. Herrera, supra.\nThe third remark, made twice, was directed to defense counsel and was \u201c[sjtraighten your questions out\u201d. The remark came during defendant\u2019s cross-examination of a witness concerning the point on defendant\u2019s car where the car came into contact with the victim. The questioning was misleading. The trial court\u2019s remark was appropriate under Evidence Rule 611(a) inasmuch as the remark was the exercise of reasonable control to make the interrogation \u201ceffective for the ascertainment of the truth\u201d.\nThe fourth remark occurred during defendant\u2019s cross-examination of another witness. The prosecutor objected to a question; the trial court remarked: \u201cYou have a right to lead, but you do not have a right to put words in his mouth. Ask him what the man was doing.\u201d While this remark should not have been phrased as it was phrased, it nevertheless was appropriate under Evidence Rule 611(a).\nThe remarks, considered singly or cumulatively, did not deprive defendant of a fair trial. State v. Herrera, supra; State v. Gurule, supra.\nAdmission of Exhibits\n(a) Two color photographs were admitted showing blood on the underside of defendant\u2019s vehicle. A black and white photograph was admitted which showed the body of the victim at the accident scene. The three photographs illustrated, clarified, and corroborated the testimony of various witnesses. Admission of the photographs was not an abuse of discretion. State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977).\n(b) An exhibit consisting of five pages was certified by an officer of the division of motor vehicles as a true and correct copy of original records in the custody of the officer. The certification bears the seal of the motor vehicle division. The exhibit is a copy of public records concerning the revocation of defendant\u2019s driver\u2019s license. The exhibit was relevant to Count III, see Evidence Rule 401. It was admitted only in connection with Count III and the jury was so instructed. Evidence Rule 106. The exhibit was properly admitted under Evidence Rules 902(4) and 1005.\nInstructions and Closing Argument\nThe trial court instructed the jury as follows:\n\u201cFor you to find the defendant guilty of homicide by vehicle as charged in Count I, The State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n\u201c1. The defendant operated a motor vehicle recklessly.\n\u201c2. The defendant thereby caused the death of Aubrey Gene McGuffin.\n\u201c3. This happened in New Mexico on or about the 7th day of July, 1976.\u201d\n\u201cFor you to find that the defendant was driving recklessly, you must find that he drove with a total disregard or indifference for the safety of others.\u201d\nThese are approved instructions, being U.J.I. Crim. 2.60 and 2.61.\nThe trial court refused to give two requested instructions. One of the refused instructions defined reckless driving in accordance with \u00a7 64-22-3(A), supra. The other refused instruction defined \u201cwillful and wanton conduct\u201d in conformity with U.J.I. Civil 12.9.\nDefendant claims the refusal of his requested instructions was error because the instructions given, U.J.I. Crim. 2.60 and 2.61, do not \u201cdefine the elements of the crime\u201d. He asserts that the jury was not instructed on an essential element of the crime\u2014willful and wanton conduct.\nThe Commentary to U.J.I. Crim. 2.61 indicates that the prior practice of instructing on willful and wanton conduct was not considered to be helpful and was deliberately omitted from the instructions. We agree. The instructions quoted above adequately instructed the jury on reckless driving. The instructions given having adequately instructed on reckless driving, refusal of the requested instructions was not error. State v. Beal, 86 N.M. 335, 524 P.2d 198 (1974).\nIn addition, the trial court properly refused the requested instructions because U.J.I. Crim. instructions were applicable, and the trial court was bound to follow the Supreme Court order directing that the uniform instructions be used without substantive modifications or substitution. State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App. 1977).\nAfter the requested instructions were refused, defendant asked if he would be permitted \u201cto argue the statute [\u00a7 64-22-3(A), supra] to the jury\u201d. The trial court replied: \u201cNo, sir. You will be permitted to argue the instructions to the jury.\u201d\nDefendant ^asserts this ruling denied him the right to defend against the State\u2019s accusation. This contention bottoms on the view that reckless driving requires willful and wanton conduct. The instructions given, defining reckless driving in terms of a total disregard or indifference to the safety of others, encompass willful and wanton conduct. To permit argument on a statutory wording not used in the instructions would have been confusing. Defendant was permitted to argue from the instructions and, thus, was permitted to argue the offense charged.\nThe judgment and sentences are affirmed.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Jan A. Hartke, Chief Public Defender, Douglas A. Barr, Asst. Appellate Defender, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Toney Tupler, Asst. Dist. Atty., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "568 P.2d 270\nSTATE of New Mexico, Plaintiff-Appellee, v. Johnny Kent BLAKLEY, Defendant-Appellant.\nNo. 2852.\nCourt of Appeals of New Mexico.\nAug. 9, 1977.\nJan A. Hartke, Chief Public Defender, Douglas A. Barr, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Toney Tupler, Asst. Dist. Atty., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0744-01", "first_page_order": 780, "last_page_order": 785 }