{ "id": 1571013, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Michael L. JOHNSON, Defendant-Appellant", "name_abbreviation": "State v. Johnson", "decision_date": "1977-09-13", "docket_number": "No. 2927", "first_page": "148", "last_page": "153", "citations": [ { "type": "official", "cite": "91 N.M. 148" }, { "type": "parallel", "cite": "571 P.2d 415" } ], "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. 498", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822607 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0498-01" ] }, { "cite": "86 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824260 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0282-01" ] }, { "cite": "90 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869702 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0134-01" ] }, { "cite": "90 N.M. 256", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0256-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "422 U.S. 590", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9639 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0590-01" ] }, { "cite": "88 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840190 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0619-01" ] }, { "cite": "90 N.M. 160", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872968 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0160-01" ] }, { "cite": "86 N.M. 713", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2825455 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0713-01" ] }, { "cite": "83 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335699 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0327-01" ] }, { "cite": "18 L.Ed.2d 605", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "87 S.Ct. 1495", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "386 U.S. 1039", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6386657, 6385793, 6387429, 6386181, 6386024, 6387592, 6386892, 6386322, 6385621 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/1039-06", "/us/386/1039-02", "/us/386/1039-08", "/us/386/1039-04", "/us/386/1039-03", "/us/386/1039-09", "/us/386/1039-07", "/us/386/1039-05", "/us/386/1039-01" ] }, { "cite": "77 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806707 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0039-01" ] }, { "cite": "86 N.M. 666", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2821276 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0666-01" ] }, { "cite": "88 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837200 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0116-01" ] }, { "cite": "88 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2842147 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/88/0541-01" ] } ], "analysis": { "cardinality": 698, "char_count": 14415, "ocr_confidence": 0.829, "pagerank": { "raw": 1.829613270212374e-07, "percentile": 0.7205373749589262 }, "sha256": "3ace016d2e3098fad5e03d017fa3d155139644a44cdbd30a510ba9044ba91ff1", "simhash": "1:0e0856e872cdb872", "word_count": 2328 }, "last_updated": "2023-07-14T15:07:42.064818+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. Michael L. JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant appeals his conviction of forgery. We discuss: (1) discovery; (2) corpus delicti and sufficiency of the evidence; (3) scope of search; (4) refused instruction; and (5) prosecutor\u2019s comments.\nSeveral checks, credit cards and a CB radio were stolen from a car. Subsequently, one of the stolen checks was transferred at a music store for records and cash. The police received information that defendant was the one who transferred the check. A search warrant was obtained. During the search of defendant\u2019s residence, defendant made an oral incriminatory statement to Officer Pacheco. The first three issues concern the admissibility of the officer\u2019s testimony concerning defendant\u2019s oral statement.\nDiscovery\nThe trial court had ordered the State to furnish defendant, ten days prior to trial, a list of the names and addresses of witnesses the State intended to call at trial. This was not done. Defendant objected to Officer Pacheco testifying because of the violation of the trial court order. The propriety of the trial court permitting the officer to testify involves Rule of Criminal Procedure 30.\nThe consequences of violating a discovery order are discretionary with the trial court. It may order the party to permit the discovery, grant a continuance, prohibit the nondisclosed witness from testifying or \u201center such other order as it deems appropriate under the circumstances.\u201d Rule of Criminal Procedure 30. State v. Smith, 88 N.M. 541, 543 P.2d 834 (Ct.App.1975); State v. Wilkins, 88 N.M. 116, 537 P.2d 1012 (Ct.App. 1975). The issue on appeal is whether the trial court abused its discretion. State v. Quintana, 86 N.M. 666, 526 P.2d 808 (Ct. App.1974).\nDefendant asserts that the trial court erred in failing to grant a continuance to allow him sufficient time to properly investigate the testimony of the nondisclosed witnesses. Defendant sought such a continuance for two nondisclosed witnesses, but the trial court did not permit those two witnesses to testify. State v. Wilkins, supra. Defendant never sought a continuance in connection with the testimony of Officer Pacheco. State v. Smith, supra. The failure to grant a continuance which was not sought is not error.\nDefendant did seek to prevent Officer Pacheco from testifying. There were four nondisclosed witnesses, including the two which the trial court would not permit to testify. The State had informed defendant that these witnesses would be called \u201csome four days ago \u2014 actually only some two or three working days ago\u201d.\nThree other counts of the information had been severed from the forgery count a few days before trial. Officer Pacheco\u2019s name had been listed on the information as a witness prior to the order which resulted in a trial solely on the forgery count. It is undisputed that defendant \u201cwas aware of the witnesses endorsed on the Criminal Information, and we assumed that \u2014 quite reasonably, that those were the witnesses they intended to call at this trial.\u201d (Our emphasis.) Defendant would not give any effect to this statement because Officer Pacheco\u2019s testimony at the preliminary hearing did not involve the forgery. However, defendant overlooks the fact that he assumed that Officer Pacheco would be a witness and, after being told that Officer Pacheco would be a witness, defendant never sought to interview Officer Pacheco.\nThe foregoing circumstances do not show an abuse of discretion by the trial court in permitting Officer Pacheco to testify. In these circumstances, there would not have been an abuse of discretion in denying a continuance if a continuance had been sought.\nCorpus Delicti and Sufficiency of the Evidence\nThe forgery charged was \u00a7 40A-16-9(B), N.M.S.A.1953 (2d Repl. Vol. 6). Defendant asserts that an essential element of the crime was \u201cthat the check was passed by someone with knowledge that it was forged.\u201d He claims that no evidence was introduced concerning this essential element other than Officer Pacheco\u2019s testimony concerning defendant\u2019s oral statement.\nDefendant claims that the \u201cknowledge\u201d element was a part of the corpus delicti which could not be proved by his extra judicial statement. The contention is that because of the absence of other evidence, defendant\u2019s oral statement should not have been admitted or alternatively, that even if the statement was properly admitted, the only proof of knowledge is the oral statement and, therefore, the evidence is insufficient to sustain the conviction.\nIt is undisputed that defendant is the person who transferred the stolen check. There is evidence, independent of defendant\u2019s oral statement, concerning defendant\u2019s knowledge. Defendant\u2019s written statement is that he sold two \u201cmag\u201d wheels to a customer at a service station where defendant was working and received the check in payment. When defendant transferred the check at the music store, he told the assistant manager that it \u201cwas a payroll type check\u201d. It is undisputed that no payee was named in the check. Defendant explained to the assistant manager that the payee was left blank because \u201cthe next day was to be a bank holiday and he needed the cash\u201d. Defendant filled in the name of the music store as the payee. The check is described as not having the appearance of a payroll check and that the names of the payee and maker appear to have been written with the same pen and \u201clooked pretty much the same\u201d.\nThe foregoing evidence permits the inference that defendant knew the check was forged. To the extent that evidence of defendant\u2019s knowledge, independent of the oral statement, was required to establish the corpus delicti, that evidence exists. However, we do not agree that defendant\u2019s knowledge was part of the corpus delicti.\n\u201cThe corpus delicti of a particular offense is established simply by proof that the crime was committed; the identity of the perpetrator is not material.\u201d State v. Nance, 77 N.M. 39, 419 P.2d 242 (1966), cert. denied, 386 U.S. 1039, 87 S.Ct. 1495, 18 L.Ed.2d 605 (1967). The corpus delicti of the forgery charged in this case was established by proof that a forged instrument was knowingly transferred with intent to defraud. Evidence of defendant\u2019s knowledge was not required to establish that the crime occurred. The corpus delicti was established in this case by proof that a stolen check, with the maker\u2019s signature forged, was transferred with the representation that the check was a payroll check (thus a good check). State v. Gruender, 83 N.M. 327, 491 P.2d 1082 (Ct.App.1971).\nScope of Search\nThe search warrant authorized a search for items stolen from the car, and the instrumentalities and fruits of the crime. No claim is made that the search warrant was invalid. The claim is that in executing the warrant, the officers exceeded the scope of the search authorized and turned the search into an unauthorized general search. Defendant does not claim that his oral statement was involuntary; his claim is that his oral statement was a \u201cfruit\u201d of an unauthorized general search and, thus, Officer Pacheco\u2019s testimony concerning the oral statement should not have been admitted.\nDefendant also claims that his written statement should not have been admitted. This claim must have been the result of inadvertence by appellate counsel; the written statement was admitted without objection. See State v. Sanchez, 86 N.M. 713, 526 P.2d 1306 (Ct.App.1974).\nThe scope of the search claim is directed to the admissibility of defendant\u2019s oral statement and not to items seized during the search. We discuss the items seized because they are pertinent to the scope of the search.\nThe officers seized the three records defendant obtained from the music store and the driver\u2019s license used by defendant for identification in transferring the check. These items were within the scope of the search warrant.\nDuring his search, Deputy Hall came upon a typewriter. The type closely resembled \u201cmarkings\u201d in letters involved in another forgery case he was investigating. The uncontradicted showing is that the deputy removed this typewriter from the premises with defendant\u2019s consent for comparison purposes. The transcript shows the typewriter was taken by consent and not under authority of the warrant. No \u201csearch\u201d issue arises from these facts.\nDeputy Hall seized a Polaroid Land camera at some undisclosed time during the course of the search which lasted some two hours. He did so on the basis that it was a camera which had been reported as stolen. The testimony concerning the camera is insufficient for us to determine whether it was seized as known or only suspected stolen property. The testimony does not show how the camera was discovered. Not knowing when the camera was taken in relation to the oral statement, and with an insufficient record to determine how the camera was discovered or whether the camera was taken as known or suspected stolen property, we cannot say the camera was improperly seized or that there was any relationship between the camera and defendant\u2019s oral statement.\nState Police Sergeant Sedillo went to the residence with the search party in order to pursue his investigation of a shooting incident. He took the opportunity to search defendant\u2019s residence for a weapon, although he did not have probable cause to search for a weapon. On the record presented, Sergeant Sedillo\u2019s weapon search was beyond the scope of the search authorized by the warrant. See State v. Bell, 90 N.M. 160, 560 P.2d 951 (Ct.App.1977). Sergeant Sedillo found three weapons, but the return does not indicate they were seized. Sergeant Sedillo also questioned defendant about additional weapons and recorded the serial number of a rifle that was not present. We do not review the evidence concerning this questioning because its propriety in connection with any charge involving the rifle is not involved in this case. The question of Sergeant Sedillo\u2019s unauthorized search is pertinent only insofar as it relates to defendant\u2019s oral statement. As to that relationship, there is nothing. There is nothing showing whether the weapon search or the questioning concerning the rifle occurred before or after the oral statement. Assuming Sergeant Sedillo\u2019s activities were illegal, there is nothing relating those illegal activities to defendant\u2019s oral statement.\nWhile searching, Detective O\u2019Bryon came upon a leather key holder, approximately 4X5 inches in size. He opened it. Inside was a clear plastic bag containing three tinfoil packets. The contents of one packet was tested; the result was positive for heroin. The heroin was found about thirty minutes after the search began. Upon discovery of the heroin, defendant was advised of his \u201cconstitutional rights\u201d. Within minutes thereafter, Officer Pacheco talked to defendant about the \u201ccheck\u201d, and defendant made his oral incriminating statement. The foregoing indicates a relationship between the heroin and the oral statement.\nDid the discovery of the heroin result from a search beyond the scope of the warrant? No. The officers were authorized to search for checks; the key holder was of a size to contain checks and could properly be searched for that purpose. When contraband is discovered during the course of a lawful search, the contraband may be seized. See State v. Alderete, 88 N.M. 619, 544 P.2d 1184 (Ct.App.1976) and cases therein cited.\nThe incidents upon which defendant relies, reviewed above, either do not amount to an unlawful search or when the search is shown to be unlawful, there is no showing of the relationship between the incident and defendant\u2019s oral statement. In these circumstances, the cases relied on by defendant are inapplicable. Those cases are Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).\nRefused Instruction\nThe Use Note to U.J.I.Crim. 40.01 states that no instruction on circumstantial evidence is to be given. In spite of this direction, defendant complains of the trial court\u2019s refusal to instruct on circumstantial evidence. We are bound to following the directions of the Supreme Court on this matter. State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App.1977). In addition, State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977) indicates approval of this specific Use Note. There was no error in refusing the requested instruction.\nProsecutor\u2019s Comments\n(a) During the direct examination of Deputy Hall, the prosecutor stated:\n\u201cQ Now, Mr. Hall, let me interrupt you right here before your proceed any further. I only want you to relate any facts as they relate specifically to this particular case, and I would appreciate your avoiding any comments that would not be matters taken up in this particular case. Now, if you will proceed on the search warrant, please.\n\u201cA We subsequently obtained a search warrant, and searched the residence of Michael Johnson.\u201d\nDefendant asserts the clear implication is that at least one other case was pending against defendant and that the prosecutor\u2019s statement deprived defendant of a fair trial. He claims the trial court erred in denying his motion for a mistrial. We disagree.\nThe context of the deputy\u2019s testimony preceding the comment by the prosecutor indicates there was a danger that the deputy would testify about matters not involving the forgery charge. We agree with the trial court that the prosecutor\u2019s comment may have avoided more serious problems. A motion for a mistrial is addressed to the trial court\u2019s discretion. The appellate issue is whether the trial court abused its discretion by denying the motion. State v. Padilla, 86 N.M. 282, 523 P.2d 17 (Ct.App.1974). An abuse of discretion is not shown.\n(b) During closing argument the prosecutor remarked that he relied on and trusted Officer Pacheco. We do not decide whether this was improper comment. Defendant did not object to the comment when it was made but waited until the jury had begun its deliberations. The objection was untimely. State v. Seaton, 86 N.M. 498, 525 P.2d 858 (1974).\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Robert Suzenski, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Dennis Murphy, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "571 P.2d 415\nSTATE of New Mexico, Plaintiff-Appellee, v. Michael L. JOHNSON, Defendant-Appellant.\nNo. 2927.\nCourt of Appeals of New Mexico.\nSept. 13, 1977.\nRobert Suzenski, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Dennis Murphy, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0148-01", "first_page_order": 184, "last_page_order": 189 }