{ "id": 1557072, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Ernest Victor GALLEGOS, Defendant-Appellant", "name_abbreviation": "State v. Gallegos", "decision_date": "1978-10-31", "docket_number": "No. 3559", "first_page": "370", "last_page": "381", "citations": [ { "type": "official", "cite": "92 N.M. 370" }, { "type": "parallel", "cite": "588 P.2d 1045" } ], "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": "80 N.M. 123", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359442 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0123-01" ] }, { "cite": "80 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5355483 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0155-01" ] }, { "cite": "90 N.M. 664", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874003, 2869015 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0664-01", "/nm/90/0664-02" ] }, { "cite": "88 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837873 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0333-01" ] }, { "cite": "87 N.M. 394", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831770 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/87/0394-01" ] }, { "cite": "69 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2786490 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0051-01" ] }, { "cite": "90 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873074 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/90/0260-01" ] }, { "cite": "493 P.2d 965", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5332952 ], "opinion_index": 0, "case_paths": [ "/nm/83/0480-01" ] }, { "cite": "88 N.M. 480", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "91 N.M. 772", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571012 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0772-01" ] }, { "cite": "73 F.R.D. 124", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7856961 ], "opinion_index": 0, "case_paths": [ "/frd/73/0124-01" ] }, { "cite": "76 N.M. 617", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503946 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0617-01" ] }, { "cite": "90 N.M. 191", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869050 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0191-01" ] }, { "cite": "90 N.M. 236", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867320 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0236-01" ] }, { "cite": "86 N.M. 146", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2826031 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0146-01" ] }, { "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" ] }, { "cite": "91 N.M. 570", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571016 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0570-01" ] }, { "cite": "83 N.M. 753", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334475 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0753-01" ] }, { "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": "55 N.M. 312", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582987 ], "weight": 3, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0312-01" ] }, { "cite": "88 N.M. 184", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839972 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0184-01" ] }, { "cite": "91 N.M. 554", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571101 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/91/0554-01" ] }, { "cite": "91 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571183 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/91/0290-01" ] }, { "cite": "90 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869702 ], "weight": 7, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0134-01" ] }, { "cite": "89 N.M. 28", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867427 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0028-01" ] }, { "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" ] }, { "cite": "91 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571098 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0445-01" ] }, { "cite": "34 L.Ed.2d 668", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "93 S.Ct. 698", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "409 U.S. 1078", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6485664, 6485952, 6485762, 6486309, 6486021, 6485511, 6486184, 6486507, 6486415, 6486609, 6486709, 6485595, 6485852 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/1078-03", "/us/409/1078-06", "/us/409/1078-04", "/us/409/1078-09", "/us/409/1078-07", "/us/409/1078-01", "/us/409/1078-08", "/us/409/1078-11", "/us/409/1078-10", "/us/409/1078-12", "/us/409/1078-13", "/us/409/1078-02", "/us/409/1078-05" ] }, { "cite": "428 F.2d 1152", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2240090 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/428/1152-01" ] }, { "cite": "83 N.M. 600", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336029 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0600-01" ] }, { "cite": "90 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869816 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0319-01" ] } ], "analysis": { "cardinality": 1113, "char_count": 31603, "ocr_confidence": 0.802, "pagerank": { "raw": 2.6791446259587514e-07, "percentile": 0.8265215462368656 }, "sha256": "496f973e251d5c74053ee8246bf91f58f6b7779e7c24b1bd395e29202d3622eb", "simhash": "1:09e7d45665bc4b40", "word_count": 4961 }, "last_updated": "2023-07-14T17:06:13.817562+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. Ernest Victor GALLEGOS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nAdjudged guilty and sentenced for aggravated battery with a deadly weapon, defendant appeals. Issues listed in the docketing statement, but not briefed, are deemed abandoned. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App.1977). We (1) answer to issues summarily and discuss (2) polygraph test results, (3) disclosure by defendant, (4) state of mind, and (5) merger.\nThe victim, Parlomino, was dancing with Marcella at a lounge when defendant stabbed Parlomino.\nIssues Answered Summarily\n(a) Defendant sought to exclude identification testimony based on a photographic identification.\n(1) The evidence does not show that the circumstances of this identification created a substantial likelihood of a mistaken identification. State v. Jones, 83 N.M. 600, 495 P.2d 380 (Ct.App.1972).\n(2) Defendant contends the photographic identification was \u201cunnecessary because an actual lineup could have been conducted.\u201d That a lineup could have been conducted was not relevant to the question of whether the photographic identification procedure was impermissibly suggestive. United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970), cert. denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972).\n(3) Defendant asserts he was prejudiced because his photograph contained a date. This date showed the date of his arrest on the charges for which he was tried. This did not put defendant\u2019s criminal record in issue and did not establish \u201cthat defendant was prejudiced. See State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.1978).\n(4) Defendant complains that admission of the six \u201cmug-shots\u201d into evidence was improper because irrelevant. Identification of defendant as the one who stabbed Parlomino was a crucial issue in the case. Testimony showing that Parlomino identified defendant\u2019s photograph as a picture of his assailant, five weeks after the stabbing, and never deviated from that identification, was relevant. See State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (Ct.App.1971).\n(5) Defendant asserts the use of any mug-shot photographs was prejudicial. Since all of the photographs were mugshots, these photographs did not suggest an identification in this case. Further, Parlomino testified he never looked at the numbers on the pictures.\n(b) Defendant asserts there was prosecutor misconduct during the State\u2019s closing argument. We disagree.\n(1) The comments concerning defendant\u2019s beard were well within the evidence.\n(2) The comments concerning Marcella\u2019s refusal to testify before the grand jury and her denial of being at the scene when Parlomino was stabbed, were based on evidence at the trial. There was also evidence that defendant and Marcella were friends, were sitting together outside the courtroom and kissed as they came into the courtroom. The prosecutor\u2019s comment must be considered in relation to this evidence. The prosecutor stated, in connection with Marcella\u2019s denial of being at the scene and of her refusal to testify before the grand jury: \u201cI submit to you that the reason is because both she and the defendant know that the defendant is guilty and the only question in their mind is whether or not you know it, ladies and gentlemen.\u201d The comment attempts to explain Marcella\u2019s actions on the basis of Marcella\u2019s and defendant\u2019s knowledge. Such a comment is not the same as the comment in State v. Leyba, 89 N.M. 28, 546 P.2d 876 (Ct.App.1976). In light of Marcella\u2019s friendly relations with defendant, we do not consider it as a comment on defendant\u2019s failure to testify.\n(3) The prosecutor\u2019s comment as to why he had Parlomino take a polygraph examination was invited by defendant\u2019s closing argument.\nPolygraph Test Results\nParlomino was given a polygraph examination. The results of this test were offered by the prosecution and admitted as evidence during the State\u2019s case-in-chief. Defendant makes a comprehensive attack on the propriety of admitting the test results. The defense contentions, and our answers, follow.\n(a) The foundation requirements for the admissibility of the results of polygraph examinations are set forth in State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977).\n(1) Defendant asserts the examiner, Rodriguez, was not qualified to administer the test to Parlomino because of Rodriguez\u2019 minimal exposure to the fields of physiology and psychology, and because of Parlomino\u2019s inability to communicate in English. Rodriguez testified that he had had \u201csome\u201d physiology and psychology at the school he attended. These subjects were discussed in relation to polygraph techniques. He also testified that at the pretrial interview he asked Parlomino about hospitalization, whether Parlomino had ever sought psychiatric help, had ever been a patient in a mental hospital or sanitarium, had ever had a brain wave test, ever been treated for alcoholism, or nervousness or nerves, ever had dizzy spells, plus numerous other questions directed to Parlomino\u2019s physical condition. Rodriguez testified that the questions were from a prepared form; the questions were based on his training. Rodriguez also testified that there was no communications problem because he was bilingual. Rodriguez conducted the pretest interview with Parlomino in both English and Spanish. In administering the test, Rodriguez questioned in English, Parlomino answered in Spanish. Rodriguez found nothing that would indicate Parlomino was not a suitable subject for testing.\n(2) Defendant asserts the testing procedure was not valid because the \u201crelevant\u201d questions, see State v. Brionez, 91 N.M. 290, 573 P.2d 224 (Ct.App.1977), were ambiguous and permitted rationalization by Parlomino. Rodriguez used two relevant questions.\nThe first was, \u201cBefore you were stabbed did you provoke the man who stabbed you?\u201d Defendant argues that the words \u201cdid you provoke\u201d invites rationalization. Rodriguez testified that Parlomino defined English \u201cprovoke\u201d as Spanish \u201cprovocar\u201d, that this was discussed at length because Parlomino was denying that he did anything other than to tell defendant to leave the lady alone. Before the jury, Rodriguez gave more explanation. Rodriguez testified that Parlomino explained \u201cprovocar\u201d to mean a confrontation, argument or use of bad language toward someone. Defendant also asserts this first \u201crelevant\u201d question was improper because not relevant to issues at trial. This argument is specious. The polygraph test is for truthfulness. See State v. Bell, supra. \u201cRelevant\u201d questions in a polygraph examination go to the validity of the test. See State v. Fuentes, 91 N.M. 554, 577 P.2d 452 (Ct.App.1978).\nThe second relevant question was, \u201cIs the man in the picture line-up the same man who stabbed you?\u201d The evidence is uncontradicted that Parlomino had twice identified defendant by picking his photograph from a group of pictures. Defendant says the second relevant question was improper because Parlomino\u2019s answer merely manifests his belief that he picked the right photograph. This argument develops nothing as to the ambiguity of the question or rationalization of the answer.\n(3) Defendant asserts the testing procedure was invalid because the reliability of the scoring system was not explained or established by competent evidence. Rodriguez testified that he used three charts with the two relevant questions, thus, Parlomino\u2019s response to the relevant questions was scored six times. The scoring was cumulative. The cumulative score was plus ten. Rodriguez testified that on the basis of the charts and relevant questions used, a plus six was \u201cthe cut-off point\u201d for a truthful answer. Rodriguez testified that for a valid polygraph examination there should be \u201c[n]o less\u201d than three charts and no more than three relevant questions. As to the number of relevant questions to be used, it depends on the examiner and the \u201cissue\u201d to be tested. Rodriguez \u201cwould call an examination truthful with plus 10 with three relevants.\u201d Parlomino was \u201creacting stronger\u201d to his examination when he had a plus ten cumulative score with only two relevant questions asked. Certainly, this is an explanation of a scoring system.\nThe evidence reviewed above is essentially uneontradicted. Defendant contends that Rodriguez\u2019 testimony is unreliable, but his argument is not based on evidence. Rather, defendant relies on State v. Brionez, supra. In Brionez we held that the trial court did not err in excluding the results of the polygraph test. The facts in Brionez are not the same as this case. For example, in Brionez there was evidence that the person to be examined was \u201cmentally off\u201d; there is nothing indicating Parlomino had, or ever had, a mental problem. In Brionez the relevant questions included rationalization; in this case the evidence is that Rodriguez discussed the questions with Parlomino to make sure that Parlomino understood them; the purpose was to try and eliminate rationalization from Parlomino\u2019s response.\nDefendant\u2019s argument overlooks the holding of State v. Brionez, supra. It is: The admission or exclusion of polygraph test results, like the admission of other expert testimony, is within the discretion of the trial court. The trial court\u2019s ruling is reviewed to determine whether there was an abuse of discretion.\u201d See State v. Bell, supra; State v. Fuentes, supra. The evidence does not show an abuse of discretion in admitting the polygraph test results. The evidence being different than the evidence in State v. Brionez, supra, the Brionez decision does not support the implied claim that the trial court abused its discretion as a matter of law.\n(b) Defendant makes two general arguments as to the constitutionality of using the polygraph test results.\n(1) Defendant contends that a) admission of Rodriguez\u2019 testimony concerning the polygraph test results was an indirect comment on defendant\u2019s silence, because defendant did not take a polygraph examination; b) references to the polygraph examination during voir dire of the jury, the prosecutor\u2019s opening statement and the prosecutor\u2019s closing argument, and asking Parlomino whether he had taken a polygraph examination, denied defendant a fair trial. These claims are frivolous. The fact that Parlomino took the polygraph examination is not a comment on defendant\u2019s failure to take such an examination. Establishing that Parlomino did take such an examination, and references to admissible evidence did not deprive defendant of a fair trial.\n(2) Defendant asserts, in effect, that only a defendant may introduce the results of a polygraph examination, that the prosecution may not do so. The argument is that polygraph examination results are admissible by a defendant because a defendant has a right to defend against accusations, and the prosecution does not have a similar right. This argument overlooks the fact that relevant evidence and expert testimony are admissible, regardless of whether offered by the defendant or the prosecution. Evidence Rules 402 and 702; State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975). The prosecution must prove its case beyond a reasonable doubt, U.J.I.Crim. 1.00. Relevant evidence which assists the prosecution in meeting this burden is admissible. The Constitution, considered generally, does not bar the prosecution from introducing relevant evidence.\n(c) Defendant asserts that Rodriguez\u2019 testimony as to the results of the polygraph examination, that Parlomino was truthful in his answers to the two relevant questions, was improperly admitted. He relies on State v. Alaniz, 55 N.M. 312, 232 P.2d 982 (1951) which states that the prosecution \u201ccannot corroborate its own witness by showing his prior consistent statements.\u201d Defendant recognizes that this rule does not apply when the witness\u2019 credibility has been attacked. See State v. Bell, supra; State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970). Defendant contends, however, that evidence to corroborate the witness is limited to evidence that \u201cwill rebut the attack on credibility.\u201d Defendant asserts that Parlomino\u2019s answers were prior statements consistent with Parlomino\u2019s trial testimony, and that these answers were inadmissible because self-serving. See State v. Hunt, 83 N.M. 753, 497 P.2d 755 (Ct.App.1972). Defendant asserts his only attack on Parlomino\u2019s credibility went to his ability to perceive, and since there was no charge of improper influence, or lying, see State v. Bell, supra, the applicable rule is stated in State v. Alaniz, supra.\nEvidence Rule 608 disposes of defendant\u2019s arguments. The pertinent portions state:\n(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.\n(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative- of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.\nRodriguez gave his opinion that Parlomino was truthful in answering the relevant questions; this opinion supported Parlomino\u2019s credibility. Rodriguez\u2019 testimony was admissible because the cross-examination of Parlomino was an attack on Parlomino\u2019s truthfulness. Rodriguez\u2019 testimony was admissible under Evidence Rule 608(a).\nDefendant asserts Rodriguez\u2019 testimony was inadmissible under Evidence Rule 608(b) because it was extrinsic evidence of the conduct of Parlomino. The argument misconceives the nature of polygraph examination testimony. Rodriguez gave his opinion of Parlomino\u2019s truthfulness. All the rest of his testimony went to Rodriguez\u2019 qualifications, the reliability of the testing procedure, and the validity of the tests. State v. Bell, supra. This testimony showed the facts and data on which Rodriguez based his opinion. See Evidence Rule 703. It was not the conduct of Parlomino in taking the test and reacting to the questions asked that supported Parlomino\u2019s credibility; rather, it was Rodriguez\u2019 opinion that supported Parlomino\u2019s credibility. Evidence Rule 608(b) did not exclude Rodriguez\u2019 opinion testimony.\n(d) Defendant asserts that Rodriguez\u2019 opinion was of marginal relevance and the probative value of the opinion was outweighed by its prejudicial effect. The cross-examination of Parlomino attempted to show that he did not really know the size of the blade of the knife with which he was stabbed, was unsure of the hand in which the assailant held the knife, was unsure of when the assailant took the hand of Marcella and ran away with her. The cross-examination also brought out that when Parlomino viewed the group of photographs, some five weeks after the stabbing, Parlomino expected to see a photograph of the assailant, but had not given a description of the assailant before viewing the photographs. With this cross-examination, we cannot say the trial court abused its discretion in refusing to exclude Rodriguez\u2019 testimony under Evidence Rule 403. State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App.1978).\nDisclosure by Defendant\nPursuant to Rule of Crim.Proc. 27, defendant moved, and the trial court ordered, that the \u201ccharts, reports, recordings, notes and any other documents\u201d made in connection with the polygraph examination, be made available to the defense.\nDefendant also moved that Dr. David Raskin be appointed by the court to \u201ctestify and to analyze, on behalf of the Defendant\u201d the information made available under the discovery order. This motion was granted in part; Dr. Raskin was not appointed to testify, he was appointed to \u201cexamine, advise and consult with the defense\u201d as to the polygraph examination.\n\u201cAfter Raskin analyzed the results [of the polygraph examination] and reported his conclusions\u201d, defense counsel refused to disclose the analysis and conclusions to the prosecutor. The prosecutor moved to require disclosure, relying on Rule of Crim. Proc. 28. The pertinent portion of this rule states:\n(a) Information Subject to Disclosure. Upon motion of the state at any time after the filing of the information or indictment and subject to constitutional limitations, the court may order the defendant to permit the state to inspect and copy or photograph:\n* * * * * *\n(2) Any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at trial if the results or reports relate to his testimony.\nThe prosecutor sought disclosure on the basis that under this rule it was entitled to \u201cthe results of scientific examination conducted by defendant\u2019s expert, which defendant intends to use at trial\u201d.\nDefendant made various arguments in an attempt to avoid disclosure of any kind. Defendant contended that disclosure of any kind denied defendant due process, the right to put on a defense and equal protection of the law. We disagree. See State v. Smith, 88 N.M. 541, 543 P.2d 834 (Ct.App.1975). Defendant claimed that disclosure would violate his privilege against self-incrimination. Again we disagree. Gray v. Sanchez, 86 N.M. 146, 520 P.2d 1091 (1974); State v. Smith, supra. We add that the self-incrimination claim is frivolous; no disclosure of any kind, by defendant, is involved in this issue. See State v. Kendall, 90 N.M. 236, 561 P.2d 935 (Ct.App.1977), rev\u2019d on other grounds, 90 N.M. 191, 561 P.2d 464 (1977).\nAs a part of defendant\u2019s efforts to avoid disclosure of any kind, defendant asserted that disclosure would violate the lawyer-client privilege. The privilege applies to confidential communications. A communication is confidential \u201cif not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client\u201d. Evidence Rule 503.\nHaving been employed to assist the lawyer in the rendition of professional legal services, Dr. Raskin was a representative of the lawyer. There is no evidence as to whether Dr. Raskin\u2019s communications with the lawyer were \u201cnot intended to be disclosed to third persons\u201d other than in furtherance of professional legal services to the client. The only showing is the trial court order authorizing consultation with Dr. Raskin. That order authorized examination of the polygraph examination material and authorized Dr. Raskin to \u201cadvise and consult with the defense\u201d. The prosecutor\u2019s position throughout was that he was not seeking discovery of any advice or consultation: \u201cI am not asking her for how Mr. Raskin proposed to attack my witness.\u201d The prosecution sought only the results of Dr. Raskin\u2019s analysis of the polygraph examination material which had been supplied by the State. That is all the trial court ordered be disclosed; the \u201cresults you received from Dr. Raskin shall be made available to counsel for the State.\u201d\nThere being no evidence that Dr. Raskin\u2019s analysis of the polygraph examination conducted by Rodriguez was not intended to be disclosed, there is no evidence that the Raskin analysis was a confidential communication and, thus, no evidence that the lawyer-client privilege was violated. We cannot look to the contents of the analysis because that is not in the appellate record. Dr. Raskin\u2019s analysis, in itself, was a fact constituting evidence; disclosure of that analysis, in itself, did not amount to a violation of the lawyer-client privilege absent a showing that the analysis was a confidential communication. See State v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966). Defendant, objecting to discovery, had the burden of establishing the existence of the privilege. Biliske v. American Live Stock Ins. Co., 73 F.R.D. 124 (W.D.Okl.1977). He did not meet this burden. We do not hold there was or was not a violation of Evidence Rule 503. We hold only that a violation is not shown in this record.\nDefendant also claims that discovery was not authorized under Rule of Crim.Proc. 28, quoted above. He points out that he was not authorized by the trial court to call Dr. Raskin as a witness; thus, the rule authorized discovery only to results \u201cwhich' the defendant intends to introduce in evidence at the trial\u201d. We agree.\nThe question is whether defendant intended to introduce Dr. Raskin\u2019s analysis into evidence at trial. Throughout the extensive hearing on the disclosure motion, defense trial counsel consistently maintained that she could not introduce any information from Dr. Raskin because it was not in a form to be admitted as evidence. She indicated she had no written report. She eventually produced a letter from Dr. Raskin; the prosecutor stated he did not ask for the letter because it \u201cgoes beyond the' scope of what I asked for.\u201d The prosecutor stated that he only wanted Dr. Raskin\u2019s analysis of the charts; \u201cthis [the letter] talks about how he feels the polygraph should be attacked.\u201d Defense trial counsel then stated: \u201cI will give . . . [the prosecutor] the oral results that I have.\u201d\nDefendant\u2019s trial counsel pointed out that she had no way of getting the information from Dr. Raskin admitted into evidence. The prosecutor argued that the defense could get Dr. Raskin\u2019s analysis before the jury through cross-examination of Rodriguez, because Rodriguez would admit Dr. Raskin\u2019s expertise. When queried by the trial court as to how Dr. Raskin\u2019s analysis could be introduced during cross-examination of Rodriguez, the prosecutor agreed it could not be introduced. Thus, trial counsel were in agreement that Dr. Raskin\u2019s analysis could not be introduced into evidence at trial.\nWith the only showing to the trial court that Dr. Raskin\u2019s analysis could not be introduced into evidence, the requirement that it be intended to be introduced into evidence was not met and the order for disclosure was erroneous, being in violation of Rule of Crim.Proc. 28.\nAlthough the disclosure order was erroneous, how was defendant hurt? Defendant asserts he was deprived \u201cof his constitutional right to a fair trial and to put on a defense.\u201d The appellate record does not support this claim. Dr. Raskin\u2019s analysis of Rodriguez\u2019 polygraph examination is not referred to in the proceedings before the jury. Defendant seems to argue that the disclosure apprised the prosecutor of questions to be asked by defense counsel on cross-examination. That cannot be determined because the record contains neither the letter nor defendant\u2019s oral disclosure. Thus, there is nothing indicating the prosecutor had advance information concerning defendant\u2019s intended cross-examination of Rodriguez. See State v. Bustamante, 91 N.M. 772, 581 P.2d 460 (Ct.App.1978). The only indication in the record is to the contrary; during the hearing concerning disclosure, defendant stated that cross-examination would be on the basis of books and other writings authored by Dr. Raskin.\nThere being nothing indicating that defendant was in any way prejudiced by the erroneous disclosure order, no reversible error occurred. See State v. Wesson, 88 N.M. 480, 493 P.2d 965 (Ct.App.1972).\nState of Mind\nGarrison, a part owner of the lounge where the stabbing occurred, and Parlomino were waiting to be called before the grand jury. Someone walked by. Parlomino commented, \u201c \u2018Isn\u2019t that the guy that stabbed me? Why is he walking around.\u2019 \u201d\nDefendant attempted to introduce this comment into evidence during cross-examination of Garrison. The prosecutor\u2019s objection, that the comment was hearsay, was sustained. Defendant asserts this was error, contending the comment was admissible as \u201cstate of mind\u201d.\nEvidence Rule 803(3) reads:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\n******\n(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant\u2019s then existing state of mind, . but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant\u2019s will.\nThe state of mind exception in Evidence Rule 803(3) does not include a statement of memory or belief to prove the fact remembered or believed. Parlomino\u2019s comment to Garrison, \u201c \u2018Isn\u2019t that the guy that stabbed me?\u2019 \u201d was a statement of memory. Defendant offered the comment to show \u201cany kind of doubt or certainty that he [Parlomino] has as to his identification\u201d; that is, to prove the fact remembered.\nThe Advisory Committee Notes to Evidence Rule 803(3) states:\nThe exclusion of \u201cstatements of memory or belief to prove the fact remembered or believed\u201d is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.\nThe trial court did not err in excluding the hearsay comment when its admission was sought through cross-examination of Garrison.\nMerger\nCount I of the indictment charged aggravated assault under \u00a7 40A-3-2(A), N.M.S.A.1953 (2d Repl.Vol. 6). Count II charged aggravated battery under \u00a7 40A-3-5(C), N.M.S.A.1953 (2d Repl.Vol. 6). We are not concerned with the denial of defendant\u2019s pretrial motion to elect under a theory of lesser included offenses. See State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App.1977).\nThe alternatives charged in the indictment counts were not submitted to the jury. Rather, the aggravated assault charge was submitted solely on the basis of threat or menacing conduct by use of a knife. U.J.I.Crim. 3.04. The aggravated battery charge was submitted solely on the basis of battery by stabbing with a knife. U.J.I.Crim. 3.52.\nDefendant requested that the aggravated assault charge be submitted as a lesser included offense to the aggravated battery charge. Defendant requested an instruction, based on U.J.I.Crim. 50.01, that the jury should first determine whether he was guilty of aggravated battery and if the jury had reasonable doubt as to his guilt of the battery charge, it was then to consider the aggravated assault charge. The trial court refused this requested instruction, but stated that if the jury returned a guilty verdict as to both charges, the rule of merger would apply.\nThe jury returned verdicts of guilty as to both charges. The trial court ruled that the offenses merged and adjudged defendant guilty of and sentenced defendant solely on the aggravated battery charge.\nThere is no claim that merger was improperly applied on an evidentiary basis, State v. Sandoval, supra, called \u201cthe factual test\u201d in State v. Quintana, 69 N.M. 51, 364 P.2d 120 (1961).\nDefendant claims refusal of his requested instruction was error for two reasons.\nFirst, defendant asserts that the aggravated assault charge was a lesser included offense, that conviction of a lesser included offense constitutes an acquittal of the greater crime, State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct.App.1975), that there is no way of knowing which guilty verdict was first reached, that U.J.I.Crim. 50.01 was designed to avoid this problem, that the giving of his requested instruction would have avoided the problem, and refusal of the instruction prejudiced' defendant because if the jury first found defendant guilty of the assault charge, he was thereby acquitted of the battery charge.\nThis argument overlooks the fact, that by definition, the lesser included offense concept is determined by looking to the offenses charged in the indictment. State v. Sandoval, supra; State v. Medina, supra. Defendant attempts to apply the lesser included concept, not to the offenses charged in the indictment, but to the offenses to be submitted to the jury at the close of the evidence and as limited by the evidence. The double jeopardy concern at the time the requested instruction was refused was not with a previous conviction or acquittal, see State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975), because neither has occurred. The double jeopardy concern was to prevent multiple punishment for one offense \u201cwhen multiple charges are brought in a single trial.\u201d State v. Sandoval, supra. This involves the concept of merger, and merger was the applicable concept at this point in the trial.\nWhile the giving of the requested instruction would have avoided guilty verdicts on multiple charges that merged under the evidence, the failure to give the instruction is not error in the absence of prejudice to the defendant. Defendant was not prejudiced by a verdict on the aggravated battery charge because under his requested instruction, the jury was to decide that charge before considering the aggravated assault charge. Since the verdict on the aggravated battery charge was \u201cguilty\u201d, under the requested instruction there would have been no verdict on the aggravated assault charge.\nSecond, defendant asserts prejudice in that collateral consequences may flow from the fact of a conviction, apart from any sentence. He relies on Padilla v. State, 90 N.M. 664, 568 P.2d 190 (1977) which states \u201cthat a \u2018conviction\u2019 refers to a finding of guilt and does not include the imposition of a sentence.\u201d We agree, but defendant is incorrect when he states that because of two guilty verdicts, there have been two \u201cconvictions.\u201d\nSection 40A-1-11, N.M.S.A.1953 (2d Repl. Vol. 6) states: \u201cNo person shall be convicted of a crime unless found guilty by the verdict of the jury, accepted and recorded by the court\u201d. \u201c[A]n express adjudication of conviction, or finding of guilt, is not necessary if it is apparent from other matters in the record that the court made a judicial determination of conviction or guilt.\u201d State v. Apodaca, 80 N.M. 155, 452 P.2d 489 (Ct.App.1969); compare Nance v. State, 80 N.M. 123, 452 P.2d 192 (Ct.App.1969).\nThe amended judgment recites there were two convictions \u201cpursuant to a jury verdict\u201d. However the amended judgment also recites: \u201c[T]he Court having found that said offenses merge; . . Defendant ... is hereby found and adjudged guilty and convicted of the merged crime\u201d of aggravated battery with a deadly weapon.\nIt is apparent from the record that the judicial determination of guilt was for one offense only. This determination was correct because the determination that the offenses merged was a determination that only \u201cone offense has occurred\u201d. See State v. Sandoval, supra.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "John B. Bigelow, Chief Public Defender, Reginald J. Storment, Appellate Defender, Barbara Nobel Farber, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "588 P.2d 1045\nSTATE of New Mexico, Plaintiff-Appellee, v. Ernest Victor GALLEGOS, Defendant-Appellant.\nNo. 3559.\nCourt of Appeals of New Mexico.\nOct. 31, 1978.\nRehearing Denied Nov. 15, 1978.\nWrit of Certiorari Denied Dec. 15, 1978.\nJohn B. Bigelow, Chief Public Defender, Reginald J. Storment, Appellate Defender, Barbara Nobel Farber, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0370-01", "first_page_order": 406, "last_page_order": 417 }