{ "id": 1571015, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Daniel P. BARELA, Defendant-Appellant", "name_abbreviation": "State v. Barela", "decision_date": "1978-03-21", "docket_number": "No. 3228", "first_page": "634", "last_page": "639", "citations": [ { "type": "official", "cite": "91 N.M. 634" }, { "type": "parallel", "cite": "578 P.2d 335" } ], "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": "81 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370995 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0550-01" ] }, { "cite": "90 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874386 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0595-01" ] }, { "cite": "78 N.M. 529", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326479 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0529-01" ] }, { "cite": "90 N.M. 580", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871323 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0580-01" ] }, { "cite": "90 N.M. 659", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874987 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0659-01" ] }, { "cite": "89 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866147 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0194-01" ] }, { "cite": "91 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571183 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/91/0290-01" ] }, { "cite": "86 N.M. 600", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824486 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0600-01" ] } ], "analysis": { "cardinality": 630, "char_count": 14178, "ocr_confidence": 0.834, "pagerank": { "raw": 2.1836319088781653e-07, "percentile": 0.7729537513577046 }, "sha256": "7cf510ac4e23558aae0d33d6ad855da5b70413722e627ba675676dde0cd12585", "simhash": "1:ae69c22e36e79565", "word_count": 2366 }, "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. Daniel P. BARELA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\n.WOOD, Chief Judge.\nDefendant appeals his conviction of trafficking in heroin. We discuss: (1) excluded evidence; (2) a refused instruction; and (3) the trial court\u2019s refusal to permit jurors to be questioned concerning reprisals.\nExcluded Evidence\nThe evidence is that defendant sold heroin to a police officer who was working as an undercover investigator. According to the officer, he went to the back door of defendant\u2019s home, gave defendant $10, and was told by defendant to return to his car and wait. The officer observed defendant\u2019s actions in the rear view mirror of his car. Defendant emerged from the front door of his home, crossed the street to a trailer, entered the trailer, emerged from the trailer in a \u201cfew minutes\u201d, walked to the officer\u2019s car and delivered the heroin.\nThe trailer belonged to Reyes Barela, defendant\u2019s brother. The police suspected that Reyes was a major dealer in heroin. The officer knew of this suspicion prior to his transaction with defendant.\nDefendant complains of three items of excluded evidence. Each item involves defendant\u2019s effort to divert the trial from an inquiry into defendant\u2019s guilt or innocence and turn the trial into a trial of the undercover officer and the police department.\nThe first excluded item involves the trial court\u2019s limitation, and subsequent exclusion, of questions on cross-examination of the undercover officer. These questions went to whether the officer had probable cause to obtain a search warrant of Reyes\u2019 trailer. The second excluded item was the tendered testimony of a law school professor that the officer had probable cause to obtain a search warrant.\nDefendant\u2019s theory of the case was that the police department had a policy of going after major drug distributors rather than minor ones; that defendant, a drug addict, was \u201cset-up\u201d by the police for the purpose of offering defendant a deal, that the deal would be that charges against defendant would be dropped in exchange for defendant\u2019s cooperation in making a case against Reyes. Defendant contended that probable cause existed to search the trailer, that the failure of the undercover officer to conduct or institute a probable cause search went to the officer\u2019s credibility and thereby fortified the view that the charges against defendant were a \u201cset-up\u201d. In substance, defendant\u2019s claim is that the excluded probable cause testimony would impeach the credibility of the officer.\nWe note that the tendered testimony of the law professor, offered for the purpose of attacking the credibility of the officer, would have been extrinsic evidence. Such was not admissible. See Evidence Rule 608(b). However, this was not the basis of the trial court\u2019s ruling.\nThe trial court excluded the cross-examination questions and the tendered testimony of the law professor on three grounds, all of which were correct.\n1. The trial court ruled the probable cause testimony was not relevant. We agree. The question of probable cause to search did not have a tendency to prove that defendant had been \u201cset-up\u201d by the officer; that is, that false charges had been brought. Evidence Rule 401. Defendant desired to introduce probable cause testimony on the issue of the officer\u2019s credibility. Whether the officer had probable cause to search Reyes\u2019 trailer does not tend to prove that the officer lied in connection with defendant\u2019s sale of heroin to the officer.\n2. Even if relevant, the trial court also excluded the probable cause testimony on the basis that it confused the issues and would mislead the jury. The evidence was properly excludable for this reason. Evidence Rule 403. There was no abuse of discretion in this ruling.\n3. Even if relevant, the trial court excluded the probable cause testimony on the basis that probable cause to search Reyes\u2019 trailer was an issue collateral to the charges being tried. The extent to which evidence on a collateral issue is permitted is within the trial court\u2019s discretion. State v. Alderette, 86 N.M. 600, 526 P.2d 194 (Ct.App.1974). There was no abuse of discretion in this ruling.\nThe third excluded item was the tendered testimony of Dr. Rand. The tender had two aspects. The first aspect would have been testimony that New Mexico law enforcement officials customarily offer \u201cdeals\u201d to addicts if they would testify for the State against other offenders or suppliers. Dr. Rand admitted to having no personal knowledge of police procedures and having no specialized knowledge or experience in police procedures. This testimc ny went to his qualification to testify. On this basis, the trial court could properly rule that Dr. Rand was not qualified to testify as to the first aspect. There was no abuse of discretion in this ruling regardless of whether the ruling was based on lack of qualification as an expert or insufficient perception as a lay witness. State v. Brionez, 91 N.M. 290, 573 P.2d 224 (Ct.App.1977); see State v. Ellis, 89 N.M. 194, 548 P.2d 1212 (Ct.App.1976).\nThe second aspect of the tendered testimony of Dr. Rand went to the social effects of drugs on addicts with emphasis on the susceptibility of an addict to police manipulation because of the addiction. The trial court ruled that Dr. Rand was an expert in the sociological aspects of addict behavior.\nDefendant desired to have Dr. Rand testify \u201cas to what heroin addiction is and what reactions individuals have to heroin addiction . . .\u201d; \u201cto explain a condition as prejudicial as heroin addiction to the jury by expert testimony in order to assure ourselves of the absence of bias against the defendant.\u201d The trial court rejected this tender because defendant\u2019s addiction was not relevant, because defendant interjected his addiction into the case and because the jurors, on voir dire, indicated they would not give greater weight to the. officer\u2019s testimony than they would to defendant\u2019s testimony. In excluding this aspect of the tendered testimony, the trial court ruled it was no more than a \u201cpitch for sympathy\u201d. We agree, and hold there was no abuse of discretion in excluding testimony which would have explained heroin addiction. State v. Brionez, supra.\nRefused Instruction\nDefendant tendered, and the trial court refused, a proposed instruction that would have told the jury that narcotics addiction was not a crime. This issue is argued on two theories; that the instruction would have ameliorated any tendency of the jury to find defendant guilty because he was a heroin addict and it was a theory of the case instruction. The fact that addiction is not a crime says nothing, and the instruction would have conveyed nothing, about defendant\u2019s theory of the case. See the early part of this opinion for defendant\u2019s theory of the case. Nor was any \u201ctheory of the case\u201d claim made in the trial court. N.M.Crim.App. 308. The instruction can be viewed as directed to defendant\u2019s credibility. Special credibility instructions are properly refused because the general credibility instruction, which was given, is sufficient. State v. Wise, 90 N.M. 659, 567 P.2d 970 (Ct.App.1977); State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App.1977).\nRefusal to Permit Jurors to be Questioned\nShortly prior to the return of the verdict, the trial court received a note from the jury which read:\nYour Honor, we have reached a verdict but one or more jurors feels [fears?] some kind of reprisal. How should we proceed?\nThe note was signed by the foreman.\nNo immediate action was taken in connection with the note. The jury returned; the verdict of guilty was read. At defendant\u2019s request the jurors were polled; all agreed upon the verdict. Defendant requested that the jury not be dismissed until questioned about the note. This request was denied; the jurors were excused from further service in the case, but told to remain in the jury room until the courtroom was cleared.\nAfter the courtroom was cleared, the note was read aloud in the presence of defendant and his counsel. Defendant asked that the jury be recalled (the jurors were still in the jury room). Defendant wished to question the jurors individually to determine which jurors were afraid of reprisals and the source of the fear. Defendant contended the note raised the possibility of improper contact with the jurors, the possibility of improper influence or tampering, and the possibility of prejudice to the defendant. The trial court denied the motion to recall the jurors.\nDefendant asserted to the trial court that questioning of the jurors about the note was within the trial court\u2019s discretion. The trial court ruled that if the matter was within its discretion, it would not permit the questioning. On appeal, defendant claims that the trial court abused its discretion in not conducting an inquiry of some kind, and that the failure of the trial court to take some action in connection with the note denied defendant a fair trial. We note the appellate issue shifts from defendant\u2019s request to question the jurors, to a claim that the trial court erred in failing to question the jurors. We do not consider the shift of any consequence; the issue is whether the failure to conduct an inquiry concerning the note denied defendant a fair trial.\nDefendant points out that neither the court nor the parties had any information concerning the feared reprisal; that the fear might be on the basis of unauthorized communication with jurors or other form of tampering. \u201cThe crucial fact is that the court failed to delve into the myriad of uncertainties which the note suggested, despite defendant\u2019s repeated urgings to do so.\u201d We do not agree that the failure to question the jurors was in any sense crucial; nor do we agree that the note raised a myriad of uncertainties.\nSeveral times during the trial, the jurors were instructed not to discuss the case with anyone. During cautionary instructions immediately after the jury was sworn, the jurors were told: \u201cDo not suffer yourself to receive any outside information about the case whatsoever.\u201d The jurors were told that if a person attempted to talk to them about the case, the jurors were to state they could not listen to anything outside of the courtroom. The jurors were told that if anyone persisted in trying to talk about the case, the jurors were to advise the court of that fact, at the earliest opportunity, so that the court could take appropriate steps to see there was no effort to tamper with the jury. These instructions were repeated when jury deliberation was interrupted so that the jurors might be taken to supper.\nThere is nothing indicating there was any outside contact with jurors; nothing indicating there was any tampering or attempt to influence jurors. In light of the strong admonition to the jurors to report any effort to talk about the case, the trial court considered the note to refer to a fear of future reprisals. The trial court\u2019s understanding is borne out by the fact that the jurors were returned to the courtroom, advised by the court that they would be given police escorts to their homes and advised that if any juror received a threat, the threat was to be reported \u201cat once\u201d to the district attorney. The trial court went on to explain that it was aware that jurors often feared reprisals but, in the judge\u2019s long experience, as an attorney, reprisals had never occurred in Santa Fe County. The trial court then asked if there were any questions; the only question went to the date the jurors were to report for the next case.\nWe agree with the trial court that the note referred to a fear of reprisals in the future, that is, retaliation for their verdict, and that the note was not a sufficient basis for questioning the jurors concerning the possibility of tampering. Thus, inquiries of jurors, in cases where there have been improper contact with a juror, are not in point. See State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967).\nThe trial court did not rule that it would not permit an inquiry of jurors if there was some indication of improper contact with a juror. Its instructions were to the contrary. In addition, the trial court advised defendant that he was free to contact jurors and question them concerning improper contacts. See Evidence Rule 606(b). If a factual basis for such an inquiry had been presented, the trial court would have conducted an inquiry. See State v. Martinez, 90 N.M. 595, 566 P.2d 843 (Ct.App.1977).\nThis issue reduces, then, to a failure of the trial court to permit an inquiry into a fear of retaliation for the guilty verdict. We do not have the additional- factor, present in State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970), of a juror\u2019s failure to disclose knowledge of a defendant. See State v. Martinez, supra.\nWhen the only thing before the trial court is a fear of retaliation for a verdict which has already been reached, defendant is not prejudiced by a failure to inquire into the source of the fear. Such an inquiry would go to a juror\u2019s mental processes and emotions; such an inquiry is prohibited by Evidence Rule 606(b). As stated in the federal Advisory Committee\u2019s Note to Evidence Rule 606(b), \u201cThe mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment.\u201d Inquiry as to a juror\u2019s inner reaction in arriving at a verdict is prohibited. Similarly, inquiry into a fear of reprisal after reaching a verdict is not required. The jurors were not to concern themselves with the consequences of the verdict and were so instructed. U.J.I.Crim. 50.06.\nThe trial court did not err in failing to conduct an inquiry and did not err in denying a mistrial motion based on the lack of inquiry.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": ".WOOD, Chief Judge." } ], "attorneys": [ "Mary Jo Snyder, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Charlotte Hetherington Roosen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "578 P.2d 335\nSTATE of New Mexico, Plaintiff-Appellee, v. Daniel P. BARELA, Defendant-Appellant.\nNo. 3228.\nCourt of Appeals of New Mexico.\nMarch 21, 1978.\nWrit of Certiorari Denied April 26, 1978.\nMary Jo Snyder, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Charlotte Hetherington Roosen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0634-01", "first_page_order": 670, "last_page_order": 675 }