{ "id": 1571098, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Lloyd Wayne JACOBS, Defendant-Appellant", "name_abbreviation": "State v. Jacobs", "decision_date": "1978-01-31", "docket_number": "No. 3169", "first_page": "445", "last_page": "451", "citations": [ { "type": "official", "cite": "91 N.M. 445" }, { "type": "parallel", "cite": "575 P.2d 954" } ], "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": "568 P.2d 1233", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2867153 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0787-01" ] }, { "cite": "90 N.M. 787", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872120, 2867153 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0787-02", "/nm/90/0787-01" ] }, { "cite": "82 N.M. 526", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332351 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0526-01" ] }, { "cite": "76 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503847 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0595-01" ] }, { "cite": "85 N.M. 401", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773638 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0401-01" ] }, { "cite": "90 N.M. 481", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871246 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0481-01" ] }, { "cite": "84 N.M. 2", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769940 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0002-01" ] }, { "cite": "46 A.L.R.3d 1148", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "pin_cites": [ { "page": "\u00a7 2" } ], "opinion_index": 0 }, { "cite": "417 U.S. 211", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519759 ], "weight": 4, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/417/0211-01" ] }, { "cite": "159 P. 674", "category": "reporters:state_regional", "reporter": "P.", "year": 1916, "opinion_index": 0 }, { "cite": "22 N.M. 107", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4725670 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nm/22/0107-01" ] }, { "cite": "90 N.M. 12", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873968 ], "weight": 5, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/90/0012-01" ] }, { "cite": "78 N.M. 32", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324500 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0032-01" ] }, { "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": "89 N.M. 737", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2864880 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0737-01" ] }, { "cite": "79 N.M. 117", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2739347 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0117-01" ] }, { "cite": "79 N.M. 344", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2743219 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0344-01" ] }, { "cite": "9 Ariz.App. 253", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1204095 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ariz-app/9/0253-01" ] }, { "cite": "83 N.M. 208", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337230 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0208-01" ] } ], "analysis": { "cardinality": 735, "char_count": 17216, "ocr_confidence": 0.84, "pagerank": { "raw": 2.6627936968981475e-07, "percentile": 0.8250899955943377 }, "sha256": "82070039195d7c91619f65d5f86fe4e02ee71a96f59a0b0b546eb2135b687bd8", "simhash": "1:ae9aa3a0a35e0172", "word_count": 2771 }, "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. Lloyd Wayne JACOBS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant, another male, and a female were charged with conspiracy to obtain Preludin, a controlled substance, by misrepresentation, fraud or forgery. Convicted, defendant appeals. We discuss: (1) mug shots to prove identity; (2) evidence of conspiracy and the coconspirator rule; (3) hearsay and the right of confrontation; and (4) motion to amend the docketing statement.\nIt is uncontradicted that two forged prescriptions were used in attempts to obtain Preludin from various pharmacies in Clovis. All the attempts were unsuccessful..\nMug Shots to Prove Identity\nState\u2019s Exhibit No. 3 consists of two photographs of an adult male; one is a front view, the other is a profile. Information appearing in both photographs shows they were taken at the Clovis police department on February 25, 1977.\nThe photographs show a long-haired, bearded person wearing what appears to be a T-shirt. The photographs are consistent with the testimony of various witnesses describing the male who attempted to purchase Preludin. In addition, various witnesses stated that the male represented in the photographs was the male attempting to make the purchase.\nDefendant claims the admission and use of the photographs at trial 'was error. He argues: (a) a tainted identification; the \u201cin-court identification based on a \u2018mug shot\u2019 photographic identification which was so suggestive that it could only encourage an irreparable misidentification of the Defendant constitutes a violation of Appellant\u2019s entitlement to due process\u201d; (b) use of the mug shots tended to strip defendant of his presumption of innocence and suggest prior criminal activity; and (c) use of the mug shots had a clearly prejudicial impact upon the jury, and permitting their use was an abuse of the trial court\u2019s discretion.\nAll of the above claims disregard how the photographs were used at trial. The trial court pointed out that \u201cthe appearance of the defendant has drastically changed from the time he was here three weeks ago as a witness.\u201d Pharmacist Bell, asked by the female to fill one of the forged prescriptions, testified that two long-haired, bearded men entered his store with the female. He could not identify anyone in the courtroom as being one of the men. However, he did identify Exhibit No. 3 as the picture of one of the men who came in with the female. Specifically, Bell\u2019s testimony did not include any in-court identification of defendant; his testimony went no further than to identify a photograph. There is nothing suggestive of misidentification in the testimony that went no further than stating the exhibit was the picture of the man who entered the store.\nUse of the exhibit did not destroy any presumption of innocence or suggest prior criminal activity. The information appearing in the photographs is consistent with the testimony of police witnesses that the photographs were taken after defendant\u2019s arrest on the charge for which he was being tried.\nThere was no abuse of discretion in admitting photographs showing defendant\u2019s appearance at the time of his arrest when defendant had drastically altered his appearance subsequent to arrest. The photographs confirmed the descriptions given by various witnesses and were relevant to the identity of the offender.\nAdmission of, and use of the photographs was not error. State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (Ct.App.1971); see State v. Cumbo, 9 Ariz.App. 253, 451 P.2d 333 (1969). The mug shot discussion in State v. Tapia, 79 N.M. 344, 443 P.2d 514 (Ct.App. 1968) is not in point.\nAfter receipt of testimony that the offender was the person portrayed in the photographs, the State established identity through evidence that the defendant was the person appearing in the photographs. Compare State v. Miller, 79 N.M. 117, 440 P.2d 792 (1968).\nEvidence of Conspiracy and the Coconspirator Rule\nThe defense put on no evidence; it rested at the close of the State\u2019s case-in-chief. Defendant then moved for a directed verdict which was denied. On appeal, defendant asserts this was error because the evidence of conspiracy was circumstantial and this circumstantial evidence was insufficient to establish defendant\u2019s guilt beyond a reasonable doubt. This claim not only disregards trial court proceedings, it disregards applicable New Mexico law.\nDefendant\u2019s argument concerning circumstantial evidence is that it fails to exclude every reasonable hypothesis of innocence. The circumstantial evidence rule is no more than a special application of the rule concerning reasonable doubt; it is not independent of the question of whether there is substantial evidence to support the verdict. Even if the evidence is circumstantial, if the circumstantial evidence substantially supports the verdict, the verdict will not be set aside. State v. Adams, 89 N.M. 737, 557 P.2d 586 (Ct.App.1976); see State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977).\nThe evidence of conspiracy is not entirely circumstantial. There is testimonial, State v. Hinojos, 78 N.M. 32, 427 P.2d 683 (Ct. App.1967), or direct, see U.J.I.Crim. 40.00, evidence of conspiracy. This testimony came from the female and, in itself, substantially establishes the conspiracy.\nDefendant\u2019s appellate claim is that the female\u2019s testimony should not be considered until other evidence established a prima facie case of conspiracy. See State v. Armijo, 90 N.M. 12, 558 P.2d 1151 (Ct.App. 1976). No such claim was raised in the trial court. The motion for directed verdict asserted only \u201cthat the State has failed to prove its case as charged.\u201d This motion was properly denied because the female\u2019s testimony established the conspiracy and defendant made no objection to this testimony. The motion for directed verdict did not assert that, if the female\u2019s testimony were not considered, the evidence of conspiracy was insufficient. This issue not having been raised in the trial court, it is not before us for review. State v. Orfanakis, 22 N.M. 107, 159 P. 674 (1916).\nOn the merits, the appellate claim shows a misunderstanding of the coconspirator rule. The rule involves the admissibility of declarations of a coconspirator. State v. Armijo, supra, questioned, but did not decide, whether the rule also applied to \u201cacts\u201d of a coconspirator. The rule, its reason, and the exclusion of \u201cacts\u201d from the rule is discussed in Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974) as follows:\nThe doctrine that declarations of one conspirator may be used against another conspirator, if the declaration was made during the course of and in furtherance of the conspiracy charged, is a well-recognized exception to the hearsay rule which would otherwise bar the introduction of such out-of-court declarations. . [T]he requirement that out-of-court declarations by a conspirator be shown to have been made while the conspiracy charged was still in progress and in furtherance thereof arises only because the declaration would otherwise be hearsay. The ongoing conspiracy requirement is therefore inapplicable to evidence, such as that of acts of alleged conspirators, which would not otherwise be hearsay. Thus . . acts of one alleged conspirator could be admitted into evidence against the other conspirators, if relevant to prove the existence of the conspiracy\nThe coconspirator rule was designed to meet the problem of hearsay. Thus, Evidence Rule 801(d)(2)(E) defines as \u201cnot hearsay\u201d a statement made by a coconspirator of a party during the course and in furtherance of the conspiracy.\nState v. Armijo, supra, recognizes that there must be prima facie proof of the conspiracy independent of testimony admissible under the coconspirator rule. Annot., 46 A.L.R.3d 1148, \u00a7 2[a] at page 1155 points out, consistent with Anderson v. United States, supra, that the coconspirator rule applies to extrajudicial (out-of-court) declarations of a coconspirator. The eoconspirator rule does not apply to the in-court testimony of a conspirator who testifies about his own activities. State v, Robinson, 84 N.M. 2, 498 P.2d 694 (Ct.App.1972). Compare State v. Armijo, supra, where the issue involved the admissibility of an agent\u2019s testimony concerning conspirator Blea when the testimony was being offered against defendant as a coconspirator.\nIn this case, the female\u2019s in-court testimony was to the effect that she conspired with defendant and another to obtain the Preludin. Her in-court testimony as to what she did does not involve the coconspirator rule. Her testimony was independent evidence of the existence of the conspiracy.\nThe female testified as to certain acts of defendant which she observed\u2014defendant filled out a prescription, signed the physician\u2019s name and handed the forged prescription to her. These \u201cacts\u201d did not involve the coconspirator rule; they were, however, independent evidence of the existence of the conspiracy.\nThe female testified as to conversations between herself and the two men. These conversations were to the effect that the female was to go into a drug store and use a forged prescription to obtam Preludin, that she should not carry identification in case she \u201cgot caught\u201d.\nTo the extent these conversations involved declarations of defendant, the coconspirator rule applied. Under that rule the declarations of defendant would not be considered in determining the sufficiency of the evidence unless there was prima facie proof of the conspiracy independent of defendant\u2019s declarations. Both the female\u2019s testimony as to the conspiracy and her testimony as to defendant\u2019s acts were such proof.\nHearsay and the Right of Confrontation\nThe female was arrested after attempting to obtain Preludin from Pharmacist Bell by using a forged prescription. Subsequently, defendant unsuccessfully attempted to obtain Preludin from Pharmacist Ingle. In this attempt defendant used a prescription similar to the forged prescription he used in an attempt to obtain Preludin at still another pharmacy.\nDuring the direct examination of Ingle, over defendant\u2019s objection, the trial court permitted testimony as to a conversation between Bell and Ingle. The substance of this conversation was that Bell asked Ingle if Ingle had Preludin, that Ingle said he would check and see but advised Bell not to fill the prescription after Bell said he did not know the person trying to obtain Preludin. \u201cAnd he called me back later and said that it was forged out of Albuquerque.\u201d The evidence indicates that defendant\u2019s attempt to obtain Preludin from Ingle occurred subsequent to this conversation.\nThe prosecutor informed the trial court that \u201cthe testimony of the witness Ingle as to what Mr. Bell stated to him was not offered for the truth of the matter asserted, but only to show reason for Mr. Ingle\u2019s actions at the time he was presented with the prescription in order to give relevance to his conduct.\u201d Ingle\u2019s conduct was: (a) to refuse to fill the prescription, (b) to call the police, and (c) to send an employee to try to get the license plate number of defendant\u2019s car.\nSeveral times defendant objected that testimony as to Bell\u2019s conversation with Ingle was hearsay. Defendant also pointed out that Bell had previously testified as a witness and had been excused.\nIf the witness Bob Bell had not been dismissed then in turn I can say we would have the opportunity to bring him back before this Court for cross examination, but due to the fact that he has been dismissed we have no witness to put on to this trial to rebutt [sic] what this man says that Mr. Bell said to him. To that extent it is hearsay and it should be excluded and we so move.\nTo the extent defendant\u2019s objection was that the conversation was hearsay, the objection was meritless. The conversation was not offered for the truth of its content; accordingly, it was not hearsay. Evidence Rule 801(c); State v. Padilla, 90 N.M. 481, 565 P.2d 352 (Ct.App.1977); State v. Aragon, 85 N.M. 401, 512 P.2d 974 (Ct.App. 1973). The fact that Bell had been excused as a witness did not make the testimony hearsay.\nOn appeal, defendant asserts the admission of Bell\u2019s conversation denied defendant the right to confront and cross-examine the witnesses against him. Defendant\u2019s objection, quoted above, is directed to a claim of hearsay and cannot fairly be said to have informed the trial court that a confrontation claim was being raised. However, this need not be decided because the appellate claim is that admission of Bell\u2019s conversation was fundamental error. We disagree with this claim.\nThe prosecutor offered the conversation testimony to show the reason for Ingle\u2019s actions when defendant attempted to obtain Preludin from Ingle. The situation is similar to an utterance by Bell, offered to show Ingle\u2019s state of mind as a result of the utterance. See Glass v. Stratoflex, Inc., 76 N.M. 595, 417 P.2d 201 (1966). Defendant clearly could cross-examine Ingle as to his state of mind and did so. The content of the conversation was not admitted for its truth. Since the truth of the content of the conversation is not involved, defendant\u2019s inability to cross-examine Bell as to the conversation does not involve the accuracy of the truth-determining process in a criminal case. There was no denial of the right of confrontation by admission of a conversation offered only to explain Ingle\u2019s actions. See State v. Lunn, 82 N.M. 526, 484 P.2d 368 (Ct.App.1971).\nMotion to Amend Docketing Statement\nThe preceding issue, involving Ingle\u2019s testimony as to Bell\u2019s conversation was not raised as an issue in the docketing statement. Defendant\u2019s motion to amend the docketing statement to include this issue was denied as untimely. His brief claims this denied him due process of law. This point is not concerned with the merits of the issue; we decided the merits in the immediately preceding issue. This discussion is concerned only with the right to amend the docketing statement.\nN.M.Crim.App. 205 contemplates that, in most cases, the trial attorney will file the docketing statement. The trial attorney filed the docketing statement in this case and did not raise an issue concerning Bell\u2019s conversation with Ingle. The docketing statement did raise an issue concerning a conversation but this issue involved a police officer\u2019s testimony and a claim that what \u201cBell and/or Berry stated to him . was hearsay\u201d. The motion to amend asserts this wording was a mix-up and the conversation with Ingle was the conversation intended. We accept that explanation. However, the issue listed in the docketing statement asserted only that the conversation was improperly admitted hearsay. This is consistent with our reading of defendant\u2019s objections at trial; that the objections went only to hearsay. The confrontation issue appears for the first time in the motion to amend.\nThe docketing statement was filed on August 15, 1977; the appeal was assigned to a limited calendar on August 18, 1977. The transcript was filed in this Court on October 4, 1977. On October 6, 1977, Barbara Nobel Farber entered her appearance for defendant. On October 11, 1977, Ms. Farber moved for an extension of time to file the brief-in-chief. The extension was granted through October 31,1977. The motion to amend the docketing statement was filed on October 26, 1977.\nThe motion to amend was filed within the extension granted but after briefing time would have expired absent the extension. The motion came from counsel who had needed, and was granted, an extension because of her late appearance in the case. The motion to amend admits that the motion resulted from a review of the transcript and argues that the motion should be granted because trial counsel \u201cdid not have the benefit of the trial transcript\u201d when the docketing statement was prepared.\nThe foregoing shows that the motion to amend is based on concepts contrary to the Criminal Appellate Rules. Under the rules, appellate issues are to be raised by the trial attorney in the docketing statement. The rules do not contemplate that new issues are to be raised by appellate counsel after picking through the transcript for possible error. When a new issue is sought to be raised after the briefing time provided by the rules has expired, the request is untimely-\nIn asserting that denial of the motion to amend was a denial of due process, defendant relies on New Mexico Supreme Court cases involving violations of the rules. None of those decisions condone rule violations and none held there was a due process violation by requiring compliance with the rules. See Melon v. State, 90 N.M. 787, 568 P.2d 1233 (1977) and cases therein cited. Defendant does not claim that the rules themselves offend due process. Accordingly, requiring compliance with the rules is not a violation of due process.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Barbara Nobel Farber, Santa Fe, Michael T. Garrett, Clovis, for defendant-appellant.", "Toney Anaya, Atty. Gen., Suzanne Tanner, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "575 P.2d 954\nSTATE of New Mexico, Plaintiff-Appellee, v. Lloyd Wayne JACOBS, Defendant-Appellant.\nNo. 3169.\nCourt of Appeals of New Mexico.\nJan. 31, 1978.\nCertiorari Denied Feb. 27, 1978.\nBarbara Nobel Farber, Santa Fe, Michael T. Garrett, Clovis, for defendant-appellant.\nToney Anaya, Atty. Gen., Suzanne Tanner, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0445-01", "first_page_order": 481, "last_page_order": 487 }