{
  "id": 1571089,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Pat VIGIL, Defendant-Appellant",
  "name_abbreviation": "State v. Vigil",
  "decision_date": "1977-10-25",
  "docket_number": "No. 2957",
  "first_page": "156",
  "last_page": "158",
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    "name_abbreviation": "N.M. Ct. App.",
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    "name_long": "New Mexico",
    "name": "N.M."
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      "year": 1973,
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    {
      "cite": "127 Mont. 265",
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      "year": 1953,
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  "last_updated": "2023-07-14T15:07:42.064818+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Pat VIGIL, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nConvicted of possession of heroin, defendant appeals. The sole issue involves recross-examination of witnesses called by the prosecution. Defendant asserts he was not allowed to recross-examine and this denied him due process and the right to confront witnesses against him.\n2 Wharton\u2019s Criminal Evidence (13th ed., Torcia) \u00a7 454 states:\nAlthough, ordinarily, recross-examination will not be allowed, whenever clarification or explanation is required of answers given on redirect examination, the cross-examining party will be allowed to recross-examine, limiting himself to the matter brought out on redirect examination. If no new matter had been brought out on redirect examination, recross-examination will be refused.\nSee VI Wigmore on Evidence, 3rd ed., \u00a7 1897; State v. McSloy, 127 Mont. 265, 261 P.2d 663 (1953).\nA party has a right to recross-examination only where new matter is brought out on redirect examination. United States v. Morris, 485 F.2d 1385 (5th Cir. 1973). \u201cMore strictly than with cross-examination, a court may limit recross to the subject matter of redirect and may exercise extensive discretion over its scope.\u201d United States v. Honneus, 508 F.2d 566, 573 (1st Cir. 1974).\nOn the basis of the foregoing, we hold that: (1) a party\u2019s right to recross-examination is limited to new matters brought out on redirect examination, and (2) the scope of recross-examination as to new matters is subject to the discretionary control of the trial court. Compare State v. Sanchez, 87 N.M. 140, 530 P.2d 404 (Ct.App. 1974). This holding is consistent with Evidence Rule 611 which provides that the trial court \u201cshall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence\u201d.\nThe asserted improper limitation of recross-examination goes to the four witnesses called by the prosecution. As to two of those witnesses (the two chemists), defendant made no attempt to recross-examine while the witnesses were on the witness stand. As to the witness Aragon, defendant indicated that he wanted to recross-examine on certain exhibits. Informed by the trial court that the exhibits had not been admitted into evidence, defendant replied: \u201cOkay, fine.\u201d At the conclusion of the redirect examination of witness Noedel, the following occurred:\nTHE COURT: The witness is excused. There\u2019s no recross. There\u2019s no basis for it. If you want to call him as your own witness you can.\nMR. TAYLOR: I had a few more questions.\nTHE COURT: If you want to call him as your own witness you can. We\u2019ll take a ten minute recess.\nAfter the State rested its case-in-chief, defendant moved for a mistrial asserting the improper denial of recross-examination. During argument of the motion, defendant claimed an improper denial of recross as to the chemists and Noedel; ho claim was made that recross of Aragon was improperly restricted. The first intimation to the court of what would have been covered by recross came during this argument.\nThere being no claim in the trial court that recross of Aragon was improperly restricted, there is no issue to review as to this witness. N.M.Crim.App. 308.\nAssuming, but not deciding, that new matters were developed on the redirect of the chemists and Noedel, defendant did not timely inform the trial court as to these matters. This case involves the exclusion of evidence; defendant did not make the substance of the evidence known to the trial court until the witnesses had left the stand. Evidence Rule 103. He cannot claim error in the absence of a timely objection. State v. Trimble, 78 N.M. 346, 431 P.2d 488 (1967). See State v. Kendall, 90 N.M. 236, 561 P.2d 935 (Ct.App.1977); State v. Burrell, 89 N.M. 64, 547 P.2d 69 (Ct.App. 1976).\nThe issue then, as to the chemists and Noedel, is whether they should have been recalled for recross. This was a matter for the trial court\u2019s discretion. State v. Sanchez, supra. No abuse of discretion has been shown.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Terry M. Word, Albuquerque, for defendant-appellant.",
      "Toney Anaya, Atty. Gen., Don Montoya, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "571 P.2d 423\nSTATE of New Mexico, Plaintiff-Appellee, v. Pat VIGIL, Defendant-Appellant.\nNo. 2957.\nCourt of Appeals of New Mexico.\nOct. 25, 1977.\nTerry M. Word, Albuquerque, for defendant-appellant.\nToney Anaya, Atty. Gen., Don Montoya, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0156-01",
  "first_page_order": 192,
  "last_page_order": 194
}