{ "id": 1571144, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jerry Wayne TRAXLER, Defendant-Appellant", "name_abbreviation": "State v. Traxler", "decision_date": "1977-12-06", "docket_number": "No. 3038", "first_page": "266", "last_page": "268", "citations": [ { "type": "official", "cite": "91 N.M. 266" }, { "type": "parallel", "cite": "572 P.2d 1274" } ], "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": "49 A.L.R.3d 121", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1970, "opinion_index": 0 }, { "cite": "82 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5328432 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/82/0120-01" ] }, { "cite": "74 N.M. 530", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2799054 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0530-01" ] }, { "cite": "167 P. 426", "category": "reporters:state_regional", "reporter": "P.", "year": 1917, "opinion_index": 0 }, { "cite": "23 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2394087 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nm/23/0156-01" ] }, { "cite": "90 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872642 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0087-01" ] }, { "cite": "90 N.M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871158 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0306-01" ] }, { "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. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832148 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0140-01" ] }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "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": 470, "char_count": 7924, "ocr_confidence": 0.802, "pagerank": { "raw": 1.3961566612555549e-07, "percentile": 0.6438035576591531 }, "sha256": "7c183406df6d141f67e02baa11292a87b718bd5012f5ccf3d439f905840cdd76", "simhash": "1:d37ec04d739fd8a8", "word_count": 1313 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jerry Wayne TRAXLER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of armed robbery of Jay\u2019s Lounge in Lovington, defendant appeals. Two issues have been briefed. Issues listed in the docketing statement, but not briefed have been abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). The two issues involve: (1) the trial court\u2019s questioning of a witness; and (2) the trial court\u2019s refusal to give U.J.I.Crim. 40.11. Both issues involve Detective Thomas who was called as a witness by both the prosecution and the defense.\nTrial Court\u2019s Questioning\nAs a prosecution witness, Thomas testified that Bailey had confessed to the robbery and had also implicated defendant. On cross-examination, the defense brought out that Bailey had wanted to get a \u201cpackage deal\u201d for the armed robbery and other felonies that he had committed. Before Thomas was excused as a witness, the trial court questioned Thomas as to \u201cthe two other charges you were referring to\u201d. This questioning brought out that two counts of armed robbery, separate from the armed robbery of Jay\u2019s Lounge, had been reduced to one charge of attempted armed robbery.\nTHE COURT: The point I am making is, it is to the discretion of the Court and you have no discretion over this at all?\nTHE WITNESS: Yes, sir.\nTHE COURT: In fact, I was the Judge and you know that?\nTHE WITNESS: I don\u2019t recall, sir.\nAfter a recess (see Evidence Rule 614(c)), defendant objected to the trial court\u2019s questions which brought out that Judge Neal was the judge who had sentenced Bailey. The trial court explained that it had asked the questions because of the implication made by defendant in his opening statement. \u201cWhat I am saying to you is that I was straightening your remarks out. . If you do it again, your client or anyone, I want you to use court records. I don\u2019t want you misstating facts.\u201d The defense objections were overruled and the defense motion for a mistrial was denied.\nDefendant contends the questioning by the trial court showed bias against the defendant. That is incorrect. The remarks were directed to Bailey\u2019s plea bargain, they were not directed toward defendant.\nDefendant also contends that the trial court\u2019s questions exceeded the court\u2019s right to question witnesses. Defendant argues that his defense was that Bailey was unworthy of belief because Bailey was offered leniency in return for his promise to testify against defendant. He argues that the trial court\u2019s questions were to the effect that the plea bargain was approved by the trial court \u201cand thus free from any improprieties such as a promise of leniency in return for testimony from Mr. Bailey implicating Defendant in the crime.\u201d\nDefendant\u2019s contention lacks a factual predicate. The evidence is that there was no promise of leniency. There is no evidence that Bailey testified against defendant as part of a plea bargain. Bailey could not remember the fact of his testifying ever being mentioned. Thomas\u2019 testimony is set forth in the discussion of the second issue.\nThe trial court explained why he asked the questions \u2014 to correct misstatements made by defense counsel in the opening statement. We cannot determine whether misstatements were in fact made because the opening statements are not included in the appellate transcript. See State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967); State v. Sanchez, 87 N.M. 140, 530 P.2d 404 (Ct.App.1974).\nOn the record before us, the trial court\u2019s questions did not amount to an implied comment on the evidence and did not favor either the prosecution or the defense. Rather, the questions were proper under Evidence Rule 614(b) and State v. Sedilio, 76 N.M. 273, 414 P.2d 500 (1966). See State v. Herrera, 90 N.M. 306, 563 P.2d 100 (Ct. App.1977); State v. Gurule, 90 N.M. 87, 559 P.2d 1214 (Ct.App.1977).\nRefusal to Give U.J.I.Crim. 40.11\nThe trial court refused to give U.J.I.Crim. 40.11, which reads:\nTestimony given by a witness at a [preliminary hearing] [deposition] [previous trial] [has been read to you from the reporter\u2019s transcript of that proceeding][has been presented by tape recording]. You are to give such testimony the same consideration as the testimony of witnesses who have testified here in court.\nThe Use Note to the instruction states:\n1. This instruction shall be used only when the prior testimony has been admitted as substantive evidence, not when it is admitted solely for impeachment or as a prior consistent statement.\n2. Use applicable description of source of prior testimony.\n3. Use applicable type of presentation. There are three aspects to this issue.\n(a) Defendant contends the trial court denied defendant a reasonable opportunity to tender the instruction. This is incorrect. The instruction was tendered to, and refused by the trial court. The transcript shows that the trial court cut off defendant\u2019s argument as to why the requested instruction should be given. This did not harm defendant since the \u201cfailure to instruct\u201d issue was preserved by tendering a correct written instruction before the jury was instructed. Rule of Crim.Proc. 41(d).\n(b) Defendant contends he was entitled to the instruction. The evidence asserted to support this argument is the testimony of Thomas when-called as a defense witness. It reads:\nQ All right, did you ever tell him [Bailey] you would like for him to testify against other people?\nA Specifically like that, I don\u2019t know.\nQ Let me ask you this. You do recall testifying at the preliminary hearing in this case?\nA Yes, sir.\nQ Do you recall me asking you this question and you giving this answer? \u201cYou didn\u2019t promise him he would have to testify or testifying against other people, was that mentioned? I don\u2019t think that was a condition of him. I told him we would like for him to.\u201d Is that what you stated?\nA Apparently. I don\u2019t recall the exact words of it.\nThe above questions show the defendant used Thomas\u2019 preliminary hearing testimony for purposes of impeachment\u2014 were you asked this question and did you make this answer. Thomas\u2019 answer did not distinctly admit the question and answer were accurate. At that point, defendant could have introduced the question and answer as substantive evidence. State v. Rodriquez, 23 N.M. 156, 167 P. 426 (1917), L.R.A. 1918A, 1016 (1918); see Evidence Rule 613(b). Defendant did not offer the question and answer into evidence. Compare Franklin\u2019s Earthmoving, Inc. v. Loma Linda Park, Inc., 74 N.M. 530, 395 P.2d 454 (1964). No preliminary hearing testimony having been admitted as substantive evidence, there was no basis for giving U.J.I. Crim. 40.11.\n(c) Assuming, but not deciding, that U.J.I.Crim. 40.11 should have been given, what would be the consequence of the failure to give an instruction that the General Use Note to U.J.I. Criminal states \u201cmust be used\u201d? Such a situation would be judged on the same basis as the mandatory instructions of U.J.I. Civil. Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296, 49 A.L.R.3d 121 (1970) states:\n[Although the use of U.J.I. is mandatory, we did not intend to place form above substance in adopting the instructions. The standards there set forth will be our first consideration, and any deviation from them shall be held to be error. In determining whether it is reversible error, we will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice.\nHere the slightest evidence of prejudice is missing because there is nothing casting any doubt oh the evidence that Bailey did not testify against defendant as part of a plea bargain.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Bruce A. Larsen, Hobbs, for defendant-appellant.", "Toney Anaya, Atty. Gen., Sam J. G. Quintana, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "572 P.2d 1274\nSTATE of New Mexico, Plaintiff-Appellee, v. Jerry Wayne TRAXLER, Defendant-Appellant.\nNo. 3038.\nCourt of Appeals of New Mexico.\nDec. 6, 1977.\nBruce A. Larsen, Hobbs, for defendant-appellant.\nToney Anaya, Atty. Gen., Sam J. G. Quintana, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0266-01", "first_page_order": 302, "last_page_order": 304 }