{ "id": 1557256, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Charles B. DAVIS, Defendant-Appellant", "name_abbreviation": "State v. Davis", "decision_date": "1979-02-01", "docket_number": "No. 3694", "first_page": "563", "last_page": "574", "citations": [ { "type": "official", "cite": "92 N.M. 563" }, { "type": "parallel", "cite": "591 P.2d 1160" } ], "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": "67 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2716439 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0287-01" ] }, { "cite": "85 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772701 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0619-01" ] }, { "cite": "90 N.M. 347", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869185 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0347-01" ] }, { "cite": "85 N.M. 735", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775952 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0735-01" ] }, { "cite": "90 N.M. 540", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870722 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0540-01" ] }, { "cite": "80 N.M. 579", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5357132 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0579-01" ] }, { "cite": "87 N.M. 57", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836650 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0057-01" ] }, { "cite": "82 N.M. 750", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332872 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0750-01" ] }, { "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" ] }, { "cite": "33 N.M. 540", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554468 ], "weight": 2, "year": 1928, "opinion_index": 0, "case_paths": [ "/nm/33/0540-01" ] }, { "cite": "76 N.M. 578", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503747 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0578-01" ] }, { "cite": "33 N.M. 159", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554453 ], "weight": 5, "year": 1928, "opinion_index": 0, "case_paths": [ "/nm/33/0159-01" ] }, { "cite": "83 N.M. 480", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332952 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/83/0480-01" ] }, { "cite": "86 N.M. 627", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2825152 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0627-01" ] }, { "cite": "88 N.M. 198", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840053 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0198-01" ] }, { "cite": "84 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765703 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0005-01" ] }, { "cite": "87 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832148 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0140-01" ] }, { "cite": "89 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866701 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0204-01" ] }, { "cite": "86 N.M. 639", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823145 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0639-01" ] }, { "cite": "90 N.M. 614", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870795, 2867109 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0614-02", "/nm/90/0614-01" ] }, { "cite": "90 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872642 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0087-01" ] }, { "cite": "82 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326487 ], "weight": 5, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0487-01" ] }, { "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": 1055, "char_count": 30228, "ocr_confidence": 0.81, "pagerank": { "raw": 1.2326606869625907e-07, "percentile": 0.6060312782714359 }, "sha256": "d7e76b94b689c7e8b5f0b4bacb2fd67c40efb1f91f35c22c5b87f0c4977f14b2", "simhash": "1:33f1b4baf7de3c71", "word_count": 5018 }, "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. Charles B. DAVIS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of kidnapping, extortion, aggravated battery, and aggravated assault. He was acquitted of assault with intent to commit a violent felony (murder). We discuss the issues that were briefed; 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). The issues briefed group into four topics: (1) the hostage aspect of kidnapping; (2) the propriety of evidence as to the injury of one of the victims; (3) discovery of and limitations on the use of a witness\u2019s statement; and (4) discovery of a grand jury transcript.\nTessier (Rolland Tessier) was a sign manufacturer; the name of the business was Tesco Signs, Inc. Defendant was employed by the firm as a janitor and truck driver. Scott had been employed by the firm, but had been fired the week before the crimes. Judy married Tessier subsequent to the events in question. At the time of the crimes she was Judy Higginbotham. Kristin Higginbotham was the daughter of Judy. Jennifer Boyd was Kristin\u2019s friend. Kristin and Jennifer were six years old. Rhea Taylor was an acquaintance of Judy. Willis (Robert Willis) was an acquaintance of Rhea.\nOn May 26, 1977, defendant had been instructed to deliver a coffee table to Tessier\u2019s residence. Tessier was at home preparing to hang a picture. Tessier went to get a hammer from his workshop; he saw the coffee table on the patio, the Tesco truck in the alley, and defendant loading trash on the truck. He also saw defendant\u2019s car pull into the alley, driven by Scott. He saw Scott and defendant having a conversation. Having obtained the hammer, Tessier started back to the house. Before reaching the house, Scott came up to Tessier and sought, unsuccessfully, to get his job back.\nAfter reentering the house, there was a banging on the back door. Scott was at the back door. Scott again inquired as to getting his job back. When Tessier stated that there was no way Scott would be reemployed, Scott pulled out a pistol, cocked it, pointed it at Tessier\u2019s head, and told Tessier to put his hands on his head and back into the dining room. Scott told Tessier to call Judy; Tessier complied. Scott then told Tessier to call defendant; Tessier complied.\nUpon defendant\u2019s entry, Scott inquired about Tessier\u2019s shotgun; defendant fetched it from a bedroom. Defendant handed the shotgun to Scott; Scott passed the pistol to defendant who held it on Judy. Up to this point, Scott had twice threatened to kill Tessier and once had threatened to kill Judy.\nScott demanded, and obtained, Tessier\u2019s cash \u2014 $200. Scott then demanded a check for $5,000. When told there was not that much money in the bank, Scott had Tessier write a check to Scott for $3,000. Scott then told Tessier to tear up the check and write a check to defendant for $3,000. Defendant left to cash the check. While defendant was gone, Scott rambled on \u201cabout honkeys and whities, how the black man didn\u2019t have a chance\u201d and \u201crepeated several times that he [Scott] wished I [Tessier] would do something so he could waste me away and blow me away because of something I had done to a friend of his.\u201d Defendant returned in about twenty minutes, having unsuccessfully attempted to cash the check at two banks. About this time, Kristin and Jennifer returned from purchasing snow cones; they were kept with Tessier and Judy.\nScott wanted Tessier to write another check; Tessier had no more checks at the house. Defendant suggested Tessier call his business and authorize defendant to pick up Tessier\u2019s checkbook. Tessier made the telephone call; defendant went after the checkbook. While defendant was on this errand, Scott went on and on about the terrible things Tessier had done to Scott\u2019s friend, Arthur Lacey, \u201cand that he was going to waste me for what I had done.\u201d\nDefendant returned with the checkbook; Scott and defendant wiped the checkbook for fingerprints. After Tessier balanced his checkbook, the balance in the checking account was $1,587. Scott and defendant conferred; Tessier was told to write a check for $1,500 to defendant. Defendant left to cash the check and returned with the money-\nAfter Scott and defendant conferred, Scott told Tessier that everyone would depart in two vehicles. Defendant would take Judy, Kristin and Jennifer in the truck. Tessier would go with Scott in the car. Scott said \u201cthat if I [Tessier] tried to overpower him or tried to get away, Charles [defendant] will kill them [the three females], and if you try to escape, I will kill you.\u201d\nBefore leaving defendant obtained a pistol from Tessier\u2019s car. The group left, divided as previously indicated. Defendant and the three females were in defendant\u2019s car; Scott and Tessier in Tessier\u2019s car. Scott was holding a cocked pistol on Tessier and again threatened to kill Tessier for \u201c \u2018what you did to Arthur Lacey\u2019 \u201d. While driving, defendant\u2019s car had a flat tire. The group returned to the house; defendant and the females transferred to the truck. After some driving in Roswell, the group went to the Bottomless Lakes, eventually stopping in a cul-de-sac at Figure Eight Lake \u201cwhere they got us out of the car and the truck.\u201d\nThe group went \u201cbehind the face of the hill\u201d; Scott and defendant conferred; Tessier and the three females were directed to a flat area so that Scott and defendant were \u201cten to twelve feet above us, so they were looking down at us.\u201d Scott and defendant then \u201chad quite a long discussion\u201d and started to move closer to the females. Defendant pointed his pistol at Tessier and told him to get away from Judy.\nThereafter both Scott and defendant took turns driving to an adjacent lake to check if people were around. Scott made two trips, defendant made four. During one of Scott\u2019s trips, Tessier \u201ctried to reason\u201d with defendant, unsuccessfully. Defendant told Tessier he was going to waste him because Tessier treated defendant like a slave, was a racist \u201c \u2018and besides that, you burned my blood brother Arthur Lacey.\u2019 \u201d The context of this conversation, according to Tessier\u2019s testimony, is that Tessier turned Lacey \u201c \u2018into the police\u2019 \u201d after Lacey threatened Tessier\u2019s life.\nAfter the trips to the adjacent lake, Scott said, \u201c \u2018we can\u2019t kill them here because there are too many people around, so let\u2019s go back to the car.\u2019 \u201d When the group returned to the car, another vehicle drove up. The occupants were Rhea and Willis. When they came up to the group, the guns were pointed at them also. Scott said, \u201c \u2018we are going to have to waste all of you.\u2019 \u201d When told to \u201cgo back up the hill\u201d, Tessier refused. Scott said he would kill Judy if Tessier did not get up the hill. Tessier complied.\nThe group was then backed up to the edge of the lake. Scott and defendant raised their guns, Tessier heard a shot, felt a bullet go by his head, slipped back and fell into the lake. As he fell he heard more shots. Rhea and Willis had been shot. After the shooting, Scott and defendant drove back to Roswell in the Tesco truck. Scott killed himself before being apprehended by the police.\nThe Hostage Aspect of Kidnapping\nSection 30-4-1, N.M.S.A.1978 states:\nA. Kidnaping is the unlawful taking, restraining or confining of a person, by force or deception, with intent that the victim:\n******\n(2) as a hostage, confined against his will .\nUnder this provision, the unlawful taking, restraining or confining must be with the intent that the victim \u201cbe held as security for the performance, or forbearance, of some act by a third person.\u201d State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971).\nThe criminal information charged that each of the six victims \u2014 Tessier, Judy, Kristin, Jennifer, Rhea and Willis \u2014 were held as hostages. Thus, defendant was put on notice that the State charged the one offense of kidnapping was committed by holding any one of the victims as a hostage, and that defendant should be prepared to defend the charge in connection with each of the victims. State v. Gurule, 90 N.M. 87, 559 P.2d 1214 (Ct.App.1977).\nThe jury was not instructed on kidnapping as to each of the victims. The kidnapping instruction limited the hostages to Judy, Kristin and Jennifer. This was no change in the charge; rather, it was a limitation on the way in which the kidnapping offense was committed. Restricting the means by which the offense was committed to three of the victims named in the information was not prejudicial to defendant. Compare State v. Armijo, 90 N.M. 614, 566 P.2d 1152 (Ct.App.1977).\nThe jury was also instructed that Judy, Kristin and Jennifer must have been held as hostages for the performance or forbearance of some act by Tessier.\nBecause Tessier was named as a hostage in the information, but not as a third party, defendant asserts it was improper for Tessier to be considered the third party in connection with Judy, Kristin and Jennifer. Defendant contends the use of Tessier as a third party denied the defendant \u201chis right to. know exactly what he is being charged with and to be tried solely on those charges\u201d. This contention is without merit.\nWe have previously pointed out that defendant was charged with kidnapping by holding any one of six victims as a hostage, and that kidnapping was submitted to the jury on the basis of three of the victims named in the information. Defendant had notice of the charge and was tried on the charges in the information.\nThe information did not state the third person for whom any of the six victims were held hostage, and it is not contended that the information was required to do so. See Rule of Crim.Proc. 8(aX3). We note that defendant did not ask for information about the third person; he requested no statement of facts. See Rule of Crim.Proc. 9.\nThe issue, simply, is whether Tessier could be the third person involved in Judy, Kristin and Jennifer being held as hostages. State v. Crump, supra, makes it clear that the victim and the third person cannot be the same individual; thus, Tessier could not have been a hostage for the performance of some act by Tessier. However, Crump, supra, does not hold that Judy, Kristin and Jennifer could not be hostages for the performance of some act by Tessier. If it is charged that X and Y were held as hostages, this does not prohibit a conviction of kidnapping on the basis that X was hostage for the performance of some act by Y, and vice versa.\nWe need not consider whether there was evidence that Tessier was held as a hostage for the performance of an act by a third party because no issue as to Tessier, as a hostage, was submitted to the jury. The kidnapping instruction referred to Tessier only as a third party, not as a hostage. The instruction was not erroneous under the evidence, and was consistent with the charge in the information.\nConcerning the sufficiency of the evidence, defendant states \u201cthere was no evidence of a third party for whose act or forbearance the hostages were held.\u201d The claim is frivolous. The threats to kill Judy at the house were for the purpose of requiring action by Tessier. The threat that defendant would kill Judy, Kristin and Jennifer, if on the trip to the Bottomless Lakes Tessier attempted to escape or overpower Scott, met the requirements of State v. Crump, supra. There is also evidence of a threat to kill Judy, while at the lake, if Tessier did not move as commanded. This evidence also met the Crump requirement.\nEvidence of Injury of One of the Victims\nThe aggravated battery conviction is based on the shooting of Willis which resulted in great bodily harm. Section 30-3-5, N.M.S.A.1978. The aggravated assault charge was submitted on the basis of pointing a gun at Tessier, or Judy, or Kristin, or Jennifer, or Rhea, or Willis. Section 30-3-2, N.M.S.A.1978. Great bodily harm was not an element of the aggravated assault charge.\nDuring direct examination, Rhea testified that she had been shot twice and hospitalized as a result of being shot. Over defendant\u2019s objection, Rhea testified as to her personal injuries, that one of the bullets went through her pelvic area, and she understood there might be damage to her reproductive organs.\nDefendant had objected to this testimony as immaterial. Upon renewing this objection, the trial court agreed that the extent of Rhea\u2019s injuries had no probative value on the aggravated assault charge. It would seem, as the prosecutor contended, that the extent of Rhea\u2019s injuries was relevant to the charge that defendant assaulted Rhea with the intent to commit murder. The trial court did not rule on this contention, and we do not consider it further.\nAfter the trial court agreed with defendant that the extent of Rhea\u2019s injuries was not relevant to the aggravated assault charge, defendant requested the trial court to instruct the jury on the matter. The trial court did so; the jury was instructed to disregard Rhea\u2019s testimony concerning the extent of her injuries.\nAfter the trial court instructed the jury, the State called seven more witnesses and rested its case-in-chief. Defendant then moved for a mistrial on the basis of the testimony concerning the extent of Rhea\u2019s injuries. Defendant contends the denial of this motion was error. We disagree for two reasons.\nFirst, the motion was not timely. State v. Milton, 86 N.M. 639, 526 P.2d 436 (Ct.App.1974); compare State v. Baca, 89 N.M. 204, 549 P.2d 282 (1976).\nSecond, the evidence of the aggravated assault was overwhelming; defendant could not have been prejudiced by the testimony as to the extent of Rhea\u2019s injuries after the jury was told to disregard that testimony. State v. Sanchez, 87 N.M. 140, 530 P.2d 404 (Ct.App.1974); State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct.App.1972).\nDiscovery of and Limitations on Use of a Statement\nArthur Lacey was arrested in Colorado on at least one New Mexico charge and possibly four felony warrants issued in Texas. He was returned to New Mexico and jailed. We have no information as to when Lacey was returned to New Mexico. On August 30, 1977, Lacey responded to questions of two sheriff\u2019s department officers for more than two hours. The questions and answers, not under oath, were recorded. Subsequently a transcript of the recording was prepared; the typed transcript consists of 205 pages. This transcript of the officers\u2019 questions and Lacey's answers is the statement involved in this issue.\nDefendant presents five contentions which involve Lacey\u2019s statement. A consideration applicable to each of the five claims is the irrelevancy of the statement to issues in this case. Lacey stated that he knew nothing about the criminal events of May 26, 1977; he first heard about them two or three days after they happened. As to the defense that defendant had no criminal intent in connection with his part in the crimes, Lacey stated that he had not been acquainted with defendant, \u201cI never even knowed him\u201d. Lacey\u2019s knowledge about the crimes or defendant\u2019s participation was hearsay information acquired from others. Lacey had no personal knowledge. Evidence Rule 602.\n(a) At a pretrial hearing on October 11, 1977, defendant requested that he be furnished a report which, upon information and belief, was in the possession of the sheriff\u2019s office. The prosecutor reported that he did not know of any such report, but if the report did exist, the report would be furnished to the defendant. At the time of this representation by the prosecutor, one of the officers who questioned Lacey was in the courtroom, but kept silent.\nThe transcript indicates that, at the time of defendant\u2019s request, the statement was in the possession of federal officers. Upon the statement being returned to the sheriff\u2019s office, it was turned over to the prosecutor, who promptly notified defense counsel as to its existence. The prosecutor, however, refused to furnish a copy of the statement to the defense. Instead, the prosecutor filed a motion asking the trial court to determine whether the contents of the statement should be made available to the defense. The grounds alleged for this limitation on discovery were based on comments by Lacey which were defamatory of a large number of individuals.\nAt a hearing on the prosecutor\u2019s motion, the trial court allowed the defense to examine the statement under certain limitations. The defense then sought a continuance of the trial setting, asserting Lacey\u2019s comments could not be adequately investigated in the short period remaining prior to the scheduled trial date. The continuance was granted. With this continuance, the record shows the Lacey statement was made available to the defense two months prior to trial.\nDefendant claims the delay in making the Lacey statement available was error. \u201cDefendant should have been able to investigate the substance of Lacey\u2019s statement as soon as possible to the time the interview was given, in order to preserve any evidence, and talk to any witnesses, that the Defendant felt was necessary in his defense.\u201d The claim is frivolous. Assuming, but not deciding, that Lacey\u2019s statement could be considered material to the preparation of the defense, the contents of the statement do not indicate any prejudice to defendant by the delayed disclosure, and defendant advances nothing indicating any prejudice. Chacon v. State, 88 N.M. 198, 539 P.2d 218 (Ct.App.1975).\n(b) The trial court\u2019s limitations upon defendant\u2019s use of Lacey\u2019s statement were:\n[T]hat no portion of this statement be communicated to any person other than the Defendant and further that no portion of the statement shall in any manner be copied or in any manner reduced to writing and said statement shall be returned to the undersigned Judge within 20 days of the date hereof.\nDefendant contends that the limitations upon the use of Lacey\u2019s statement denied him the right to properly prepare for trial. This argument assumes that the contents of the statement were material to the preparation of the defense. At this point, we again assume, but do not decide, that the contents were material.\nThere are two answers to the claim of improper limitations on the use of the statement.\nFirst, how was defendant prejudiced? Defendant advances nothing indieating the preparation of the defense was in any way harmed by the limitations. Chacon v. State, supra.\nSecond, the trial court could properly place limitations on the use of the statement. Where, as here, the prosecutor had refused disclosure, the trial court may require disclosure of relevant material under Rule of Crim.Proc. 27(e), unless:\n(2) there is substantial risk to some person of physical harm, intimidation, bribery, economic reprisals or unnecessary annoyance or embarrassment resulting from such disclosure, which outweighs any usefulness of the disclosure to defense counsel.\nHere there was disclosure to defense counsel and to defendant. The limitations imposed by the trial court were designed to prevent disclosure to others. Lacey\u2019s statement, unsworn, is full of defamatory comments concerning a number of persons. There is nothing indicating disclosure of the defamatory comments to anyone other than defendant and his counsel had any usefulness. Disclosure of the unsworn defamatory comments would, in these circumstances, have been an unnecessary embarrassment to those who were the object of the comments.\n(c) When he learned of the existence of the Lacey statement, and its nondisclosure, the prosecutor was upset. The transcript indicates the prosecutor threatened to have the officers who questioned Lacey fired. The two officers were discharged by the sheriff, and an inference from the tendered evidence is that the discharges related to nondisclosure of the Lacey statement.\nThe two officers were called as witnesses by the prosecutor. Defendant sought to cross-examine them as to why they had been discharged from the sheriff\u2019s department. Defendant claimed the reason for their discharge would show bias of the witnesses against the defendant because, if defendant were convicted, their reputations would be cleared. This contention approaches the frivolous.\nThe officers withheld the statement from both the defense and the prosecutor. If the prosecutor caused them to be discharged, how does the fact of discharge show bias toward the defendant? The fact that defendant was convicted does nothing toward clearing the officers of the fact that they withheld the statement, and may have been discharged because of the withholding. The bias of a witness is relevant because it affects the credibility of the witness. State v. Santillanes, 86 N.M. 627, 526 P.2d 424 (Ct.App.1974). Cross-examining the officers as to the reason for being discharged would not have shown they were biased against defendant. State v. Wesson, 83 N.M. 480, 493 P.2d 965 (Ct.App.1972).\nState v. Burkett, 33 N.M. 159, 262 P. 532 (1928) approves a liberal approach as to the extent of cross-examination to test the bias, or credibility, of a witness. The decisions, however, are to the effect that \u201cthe matter of cross-examination, to test credibility, is largely within the discretion of the trial court.\u201d State v. Burkett, supra. Where, as here, the tendered cross-examination has been denied, the appellate issue is whether the trial court\u2019s ruling was an abuse of discretion. State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966); State v. Roybal, 33 N.M. 540, 273 P. 919 (1928); State v. Burkett, supra; State v. Wesson, supra. This approach is reflected in Evidence Rule 611, which places \u201creasonable control\u201d in the trial court.\nEven if the questions concerning the reason the officers were discharged could somehow be considered as showing bias against the defendant, the trial court did not abuse its discretion in excluding such questions. There was no abuse of discretion because of the nature of the testimony of the officers; the testimony went only to gathering evidence\u2014guns, bullets, the arrest of defendant and defendant\u2019s statement\u2014after the crimes had been committed.\n(d) The defense called Lacey as a witness at trial. Prior to any testimony by Lacey, defendant asked to be furnished a copy of Lacey\u2019s statement \u201c[f]or the purpose of this examination\u201d. The trial court denied the request, ruling that the statement had no probative value on any of the issues in the case. Defendant asserts this ruling was error.\nDefendant\u2019s direct examination of Lacey brought out that Lacey knew nothing about the matters being tried. Defendant then questioned Lacey about hiring someone to kill Tessier. Lacey testified that he had not hired anyone, did not know who did, could only speculate concerning a hiring, and had no factual basis for any speculation.\nDefendant then inquired as to what he had told the officers, in his statement, regarding a \u201ccontract\u201d on Tessier. Lacey testified that he had no recollection of telling the officers that certain other people were involved in a \u201ccontract on Tessier\u201d. Lacey was then asked if, in his statement, he had referred to crimes committed by Lacey and Tessier. Lacey denied making any such statement. Defendant then requested Lacey\u2019s statement \u201cto impeach this witness.\u201d Defendant contends the denial of this request was error.\nIn his statement, Lacey did discuss a contract on Tessier\u2019s life, but his comments were not on the basis of personal knowledge; rather, Lacey\u2019s comments were either hearsay or speculation. Lacking any personal knowledge about the contract, the trial court properly denied use of the statement to examine Lacey at trial because the statement had no probative value.\nIn addition, none of Lacey\u2019s comments about the contract involved defendant; rather, they went to Scott and another named individual, neither of whom were being tried. Because Lacey\u2019s hearsay and speculative comments about the contract on Tessier did not involve defendant, the contract was a collateral issue. \u201c[T]he extent that evidence on a collateral issue is to be permitted is within the trial court\u2019s discretion.\u201d State v. Alderette, 86 N.M. 600, 526 P.2d 194 (Ct.App.1974); State v. Moraga, 82 N.M. 750, 487 P.2d 178 (Ct.App.1971); see State v. Marquez, 87 N.M. 57, 529 P.2d 283 (Ct.App.1974). There was no abuse of discretion under the circumstances of this case.\nEven though hearsay or speculation, in his statement, Lacey did make comments about persons involved in a contract on Tessier\u2019s life. In his statement, he did refer to alleged crimes that he committed with Tessier. Thus, his trial testimony was inconsistent with his statement. However, the trial court\u2019s refusal to allow defendant to use Lacey\u2019s statement to impeach Lacey\u2019s trial testimony was not error because Lacey did not testify to anything about the crimes or of defendant\u2019s involvement or lack of involvement. There was nothing to impeach. Refusing to permit use of the statement to impeach Lacey was not an abuse of discretion. State v. Burkett, supra.\n(e) In refusing defendant\u2019s requests to use Lacey\u2019s statement during Lacey\u2019s trial testimony, the trial court admitted the statement \u201cin evidence as a tender and for only that purpose, for the purpose of review by the Higher Court as to the Court\u2019s ruling\u201d.\nDefendant asserts the trial court\u2019s remark, in the presence of the jury, denied him a fair trial because the remark was \u201ca supposition\u201d that defendant would be convicted. Defendant asserts this was error under State v. Thayer, 80 N.M. 579, 458 P.2d 831 (Ct.App.1969). Thayer held that an unintentional comment by the trial court, which tends to express the court\u2019s view as to the guilt of the accused, is prejudicial.\nOne of the reasons for a tender of evidence is to have the excluded evidence in the record for purposes of appellate review. State v. Shaw, 90 N.M. 540, 565 P.2d 1057 (Ct.App.1977). That is what the trial court did in this case. Including the statement in the record for that purpose did not tend to express any view by the court concerning defendant\u2019s guilt; the trial court did no more than explain the basis for admitting the statement as a tender. Compare State v. Gurule, supra.\nAfter the jury is selected and sworn, Rule of Crim.Proc. 40(b) provides that initial instructions as provided in U.J.I.Crim. \u201cshall be given\u201d. Included in the initial instructions, U.J.I.Crim. 1.00, is the instruction:\nNo statement, ruling, remark or comment which I make during the course of the trial is intended to indicate my opinion as to how you should decide the case or to influence you in any way.\nThe appellate record of the trial begins with the testimony of a witness; neither the jury selection nor the trial court\u2019s opening remarks have been included. However, defendant does not claim that the above-quoted instruction was not given. In light of the record, we cannot say that the trial court\u2019s remark was understood by the jury as \u201ca supposition\u201d that defendant would be convicted.\nDiscovery of Grand Jury Transcript\nA grand jury investigated the accusations made by Lacey in his statement. This grand jury did not indict defendant, he was charged by information. Nor is there any indication that the grand jury investigated the matter which resulted in charges against defendant.\nPrior to trial, defendant sought to obtain the grand jury transcript in order to impeach witnesses on the basis of inconsistent statements. The trial court correctly pointed out that if a witness did not testify before the grand jury concerning defendant\u2019s case, defendant would not be entitled to a transcript of that witness\u2019s grand jury testimony. See State v. Vigil, 85 N.M. 735, 516 P.2d 1118 (1973). At the hearing on this motion, the grand jury transcript was not available; the trial court deferred a ruling. Defendant was to identify to the court the witnesses whose grand jury testimony defendant sought to obtain. The trial court would then review the grand jury testimony of the witnesses and determine if the witnesses\u2019 grand jury testimony related to defendant\u2019s case.\nBefore calling Lacey as a witness, defendant asked for a transcript of Lacey\u2019s grand jury testimony. In denying the request, the trial court stated that the grand jury proceedings were \u201cno way involved in this matter.\u201d Relying on Valles v. State, 90 N.M. 347, 563 P.2d 610 (Ct.App.1977) defendant states: \u201cWhether or not there is anything in the Grand Jury testimony that might aid the Defendant should not be determined by the Court.\u201d Defendant would apply Valles out of context. Valles follows State v. Vigil, supra, in holding that defendant is not entitled to a grand jury transcript unless the witness has testified at the criminal trial about that which he testified before the grand jury. Unless the witness testified before the grand jury about the matter being tried, defendant is not entitled to the grand jury transcript. Unless the witness testifies at the criminal trial about the matter being tried, defendant is not entitled to the grand jury transcript. State v. Felter, 85 N.M. 619, 515 P.2d 138 (1973).\nThe trial court could properly determine that Lacey did not testify before the grand jury concerning defendant\u2019s case. This is more than a determination of whether there is anything in the grand jury transcript that might aid defendant; it is a determination that there is nothing about defendant\u2019s case in the witness\u2019s grand jury testimony. The trial court, to preserve the secrecy of grand jury proceedings, properly makes that determination. See the discussion in State v. Morgan, 67 N.M. 287, 354 P.2d 1002 (1960).\nWe do not decide this issue solely on the basis that the trial court could properly determine that Lacey\u2019s grand jury testimony had nothing to do with defendant\u2019s case. In addition, Lacey did not testify to anything at defendant\u2019s trial concerning defendant\u2019s case. Thus, the requirement that the witness testify about the matter being tried was not met. Defendant was not entitled to a transcript of Lacey\u2019s grand jury testimony.\nThe judgment and sentences are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Melanie S. Kenton, Santa Fe, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "591 P.2d 1160\nSTATE of New Mexico, Plaintiff-Appellee, v. Charles B. DAVIS, Defendant-Appellant.\nNo. 3694.\nCourt of Appeals of New Mexico.\nFeb. 1, 1979.\nMelanie S. Kenton, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0563-01", "first_page_order": 599, "last_page_order": 610 }