{ "id": 1557132, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Richard MILLER, Defendant-Appellant", "name_abbreviation": "State v. Miller", "decision_date": "1979-01-25", "docket_number": "No. 3824", "first_page": "520", "last_page": "523", "citations": [ { "type": "official", "cite": "92 N.M. 520" }, { "type": "parallel", "cite": "590 P.2d 1175" } ], "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": "77 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808337 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0124-01" ] }, { "cite": "80 N.M. 95", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360546 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/80/0095-01" ] }, { "cite": "80 N.M. 622", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353327 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0622-01" ] }, { "cite": "91 N.M. 366", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571106 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0366-01" ] }, { "cite": "89 N.M. 800", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861233 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0800-01" ] }, { "cite": "91 N.M. 570", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571016 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/91/0570-01" ] }, { "cite": "91 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571178 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/91/0259-01" ] }, { "cite": "314 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "357 N.Y.S.2d 849", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1974, "opinion_index": 0 }, { "cite": "34 N.Y.2d 371", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2311754 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ny-2d/34/0371-01" ] }, { "cite": "57 N.M. 158", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841436 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0158-01" ] }, { "cite": "83 N.M. 603", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337587 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/83/0603-01" ] } ], "analysis": { "cardinality": 584, "char_count": 10901, "ocr_confidence": 0.799, "pagerank": { "raw": 1.5999973026538848e-07, "percentile": 0.6836981615530481 }, "sha256": "60de7399c472cc33f4b7b337ca1b062054e6c64922bce1590f4cae3a7048d000", "simhash": "1:1d887c6837c3ddea", "word_count": 1745 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and ANDREWS, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Richard MILLER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant appeals his conviction of receiving stolen property. Section 30-16-11, N.M.S.A.1978. The trial court did not err in admitting evidence of a transaction, similar to the one for which defendant was prosecuted, under Evidence Rule 404(b). The similarity was such that the transaction went to defendant\u2019s intent, preparation, plan and knowledge, and the absence of mistake or accident. The issue for discussion involves the propriety of the cross-examination of defendant concerning specific instances of conduct. The applicable Evidence Rule is 608(b).\nThe tape of the trial, and the briefs, refer to some twenty-five questions. Eliminating repeated questions and the asking of the same questions with only a slight change in wording, there were twenty such questions.\nThere were fourteen questions going to the buying or selling of stolen property. Examples are:\nQ. Isn\u2019t it true that between March and October of 1977, you also bought between ten and twenty stolen television sets from Reggie Walker knowing they were stolen?\nQ. Isn\u2019t it true that between March and October of 1977, you sold stolen merchandise, that you knew was stolen, to your attorney, Bill Tull?\nThere was one question going to selling a diamond ring on consignment and failing to account for the money.\nThere was one question going to an illegal drug selling deal.\nThere were four questions going to hiring people to kill or threaten people. Examples are:\nQ. You offered to pay Lonnie Brown to kill a man named Bobby Baldwin, didn\u2019t you?\nQ. You offered to pay Lonnie Brown to threaten the lawyer who was handling the foreclosure on your home?\nOver defendant\u2019s objection, the trial court permitted the questioning on the basis of State v. Madrid, 83 N.M. 603, 495 P.2d 383 (Ct.App.1972). In Madrid, supra, the two questions asked were proper under \u00a7 20-2-4, N.M.S.A.1953 (Repl.Vol. 4). See State v. Martinez, 57 N.M. 158, 255 P.2d 987 (1953) which approved questions concerning specific acts of misconduct. The questioning permitted under \u00a7 20-2-4, supra, was not restricted to questions concerning \u201ctruth and veracity\u201d. Section 20-2-4, supra, was repealed by Laws 1973, ch. 223, \u00a72.\nThe provision replacing \u00a7 20-2-4, supra, was Evidence Rule 608(b). As originally adopted by the Supreme Court in 1973, the pertinent portion of Evidence Rule 608(b) stated:\nSpecific 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, if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness himself .\nThis wording appears to require only that the questions asked be probative of truthfulness or untruthfulness.\nEvidence Rule 608(b) was amended effective April 1, 1976. As amended, the pertinent portion reads:\nSpecific 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\nAs amended, not only must the question asked be probative of truthfulness or untruthfulness, they must also go to the witness\u2019 character for truthfulness or untruthfulness.\nRelying on People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974), the State contends that all of the questions went to truthfulness. Sandoval, supra, states:\nTo the extent, however, that the prior commission of a particular crime of calculated violence or of specified vicious or immoral acts significantly revealed a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society, proof thereof may be relevant to suggest his readiness to do so again on the witness stand. A demonstrated determination deliberately to further self-interest at the expense of society or in derogation of the interests of others goes to the heart of honesty and integrity.\nThis broad approach to the meaning of truthfulness is inconsistent with the wording of amended Evidence Rule 608(b). 3 Weinstein\u2019s Evidence, \u00b6 608[05] (1978), page 608-28 states:\nSince Rule 608(b) is intended to be restrictive \u2014 and was amended to ensure that it would be restrictively interpreted by trial courts \u2014 the inquiry on cross-examination should be limited to these specific modes of conduct which are generally agreed to indicate a lack of truthfulness. The rule should not be broadened to allow questions about behavior which indicates \u201ca disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness.\u201d Such an approach paves the way to an exception which will swallow the rule. It is but a small step from there to the hypothesis that all bad people are liars, an unverifiable conclusion which runs counter to the doctrine that everyone is innocent until proven guilty.\nThe State\u2019s broad approach to the meaning of truthfulness is also inconsistent with our decisions. Considering the meaning of \u201cdishonesty or false statement\u201d in Evidence Rule 609(a)(2), in State v. Melendrez, 91 N.M. 259, 572 P.2d 1267 (Ct.App.1977), we followed the approach taken by Chief Justice Burger while a circuit judge. That approach was that convictions resting on dishonest conduct relate to credibility while violent or assaultive crimes do not. State v. Melendrez, supra, points out that \u201cdishonesty or false statement\u201d deals with veracity, and holds that shoplifting is such a crime. In State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App.1978) we pointed out that robbery and theft involves dishonesty.\nThis appeal does not involve \u201cdishonesty or false statement\u201d under Evidence Rule 609; rather, it involves \u201ctruthfulness\u201d under Evidence Rule 608(b). However, the Burger approach followed in State v. Melendrez, supra, is applicable. In De La O v. Bimbo\u2019s Restaurant, 89 N.M. 800, 558 P.2d 69 (Ct.App.1976) we held that drunken and abusive conduct, resisting arrest, a battery conviction, and shooting at a person were not conduct involving truthfulness.\nThe questions involving hiring a person to kill or threaten people were not questions concerning defendant\u2019s character for truthfulness. They were not proper questions under Evidence Rule 608(b).\nThe fourteen questions concerning the buying or selling of stolen property, the question concerning an arrangement to sell illegal drugs, and the question concerning failing to account for the proceeds of the sale of a diamond ring involve dishonesty. These activities reflect on the veracity of defendant, see State v. Melendrez, supra, and were proper questions under Evidence Rule 608(b).\nEven though the questions concerning dishonest activities were proper, was it proper to allow their use? Evidence Rule 403 requires a determination of whether the probative value of such questions, going to credibility, outweighed the tendency to prejudice the defendant. State v. Day, supra. We recognize that the balancing approach under Evidence Rule 403 requires the trial court to exercise its discretion, and that our review is for an abuse of discretion. State v. Fuson, 91 N.M. 366, 574 P.2d 290 (Ct.App.1978).\nDefendant asserts the questions were \u201cbased on uncorroborated allegations by a convicted felon.\u201d In the trial court, defendant questioned the prosecutor\u2019s good faith in asking the questions. The prosecutor responded with a document, identified as State\u2019s exhibit 2, which has not been included in the appellate transcript. Absent this document, we would not be able to determine whether the prosecutor proceeded in good faith, State v. Melendrez, supra, but good faith is not an appellate issue in this case. Our point is that absent the exhibit, the basis for the prosecutor\u2019s questions is not a factor in determining whether the trial court abused its discretion in permitting the questioning.\nWe do consider the following items: (a) The questions were asked the defendant, not a non-defendant witness. See State v. McFerran, 80 N.M. 622, 459 P.2d 148 (Ct.App.1969). (b) The questions asked did not involve convictions. See State v. Coca, 80 N.M. 95, 451 P.2d 999 (Ct.App.1969). (c) The questions asked did involve crimes; any affirmative answer would, at the least, have been an admission against defendant\u2019s interest, (d) There were sixteen questions, not two as in State v. Madrid, supra.\nState v. Coca, supra, stated that a series of questions concerning convictions, from drunkenness to aggravated assault, had a \u201ctendency to prejudice the defendant.\u201d It is obvious that sixteen questions asking for admissions concerning crimes which, from the wording of the questions would have been felonies, did more than \u201ctend\u201d to prejudice the defendant. The questions were prejudicial.\nNone of the crimes included in the questions were involved in the trial of this case. The only purpose of the questions was to test defendant\u2019s credibility. State v. Coca, supra. The crimes involved in the questions could not be proved by extrinsic evidence. Evidence Rule 608(b). Defendant answered each of the questions in the negative.\nWhat then was the probative value of the questions? There was none. Under the balancing test required by Evidence Rule 403, the trial court abused its discretion in permitting the questioning because the questions were prejudicial and, in light of the answers, there was no probative value.\nWe do not hold that a question under Evidence Rule 608(b), which asks for an admission concerning a felony, can never be asked. Our holding is that any one of such questions is prejudicial, see State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966) and, if there is nothing indicating the question has probative value on the question of credibility, it is an abuse of discretion to permit the question. When the question is under Evidence Rule 608(b), a prosecutor, who seeks to have a defendant make an admission concerning a felony when there has been no conviction, hazards a reversal absent a showing of probative value because of the prejudicial nature of the question.\nThe conviction is reversed; the cause is remanded for a new trial.\nIT IS SO ORDERED.\nHENDLEY and ANDREWS, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Hank Farrah, Albuquerque, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Santa Fe, Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "590 P.2d 1175\nSTATE of New Mexico, Plaintiff-Appellee, v. Richard MILLER, Defendant-Appellant.\nNo. 3824.\nCourt of Appeals of New Mexico.\nJan. 25, 1979.\nHank Farrah, Albuquerque, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Santa Fe, Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0520-01", "first_page_order": 556, "last_page_order": 559 }