{ "id": 1573215, "name": "STATE of New Mexico, Plaintiff-Appellee, v. David L. CHRISTOPHER, Defendant-Appellant", "name_abbreviation": "State v. Christopher", "decision_date": "1980-08-07", "docket_number": "No. 12718", "first_page": "648", "last_page": "653", "citations": [ { "type": "official", "cite": "94 N.M. 648" }, { "type": "parallel", "cite": "615 P.2d 263" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "79 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737507 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0367-01" ] }, { "cite": "28 L.Ed.2d 221", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "91 S.Ct. 943", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "401 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11732226, 11732130, 11732170, 11732620, 11732333, 11732559, 11732688, 11732496, 11732400, 11732275, 11732444, 11732062 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/401/0941-04", "/us/401/0941-02", "/us/401/0941-03", "/us/401/0941-11", "/us/401/0941-06", "/us/401/0941-10", "/us/401/0941-12", "/us/401/0941-09", "/us/401/0941-07", "/us/401/0941-05", "/us/401/0941-08", "/us/401/0941-01" ] }, { "cite": "81 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364568, 5362770, 5368098, 5364664 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0588-04", "/nm/81/0588-01", "/nm/81/0588-02", "/nm/81/0588-03" ] }, { "cite": "81 N.M. 515", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365028 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0515-01" ] }, { "cite": "88 N.M. 37", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839266 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0037-01" ] }, { "cite": "25 L.Ed.2d 427", "category": "reporters:federal", "reporter": "L. 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Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "397 U.S. 1013", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12099141, 12099241, 12099114, 12099209, 12099085, 12099279, 12099311, 12099183, 12099061 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/1013-04", "/us/397/1013-07", "/us/397/1013-03", "/us/397/1013-06", "/us/397/1013-02", "/us/397/1013-08", "/us/397/1013-09", "/us/397/1013-05", "/us/397/1013-01" ] }, { "cite": "394 F.2d 216", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2153691 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/394/0216-01" ] }, { "cite": "487 F.2d 581", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 217452 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/487/0581-01" ] }, { "cite": "47 A.L.R.2d 1258", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1956, "opinion_index": 0 }, { "cite": "92 N.W.2d 305", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1958, "opinion_index": 0 }, { "cite": "354 Mich. 303", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1867325 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/mich/354/0303-01" ] }, { "cite": "93 L.Ed. 168", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1948, "opinion_index": 0 }, { "cite": "335 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159942 ], "weight": 3, "year": 1948, "pin_cites": [ { "page": "222-223" } ], "opinion_index": 0, "case_paths": [ "/us/335/0469-01" ] }, { "cite": "502 S.W.2d 9", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10118876 ], "opinion_index": 0, "case_paths": [ "/sw2d/502/0009-01" ] }, { "cite": "115 N.E.2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "1 Ill.2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5315050 ], "year": 1953, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0444-01" ] }, { "cite": "197 P.2d 757", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1948, "opinion_index": 0 }, { "cite": "32 Cal.2d 673", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4394034 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/cal-2d/32/0673-01" ] }, { "cite": "444 P.2d 661", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1968, "opinion_index": 0 }, { "cite": "74 Wash.2d 386", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1086665 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/wash-2d/74/0386-01" ] }, { "cite": "93 N.M. 708", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568664 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/93/0708-01" ] }, { "cite": "113 P. 601", "category": "reporters:state_regional", "reporter": "P.", "year": 1911, "opinion_index": 0 }, { "cite": "16 N.M. 17", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4685238 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nm/16/0017-01" ] }, { "cite": "164 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3591459 ], "weight": 3, "year": 1896, "opinion_index": 0, "case_paths": [ "/us/164/0492-01" ] } ], "analysis": { "cardinality": 813, "char_count": 16332, "ocr_confidence": 0.819, "pagerank": { "raw": 1.1634775132400961e-07, "percentile": 0.5846130411464143 }, "sha256": "e952aa058a125dc840fd7589472b66cccd1e0aa9d17cc658d01e3061886e22d4", "simhash": "1:87a09c0b744395e6", "word_count": 2683 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PAYNE and FELTER, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. David L. CHRISTOPHER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFEDERICI, Justice.\nDefendant-appellant was tried and convicted for first degree murder of his wife. He was sentenced to life imprisonment. He appeals.\nThe following issues are before this Court:\n1. Whether statements contained in the \u201cJuror\u2019s Handbook\u201d were prejudicial.\n2. Whether cross-examination of character witnesses concerning 23-year old convictions of the defendant was relevant.\n3. Whether cross-examination of character witnesses concerning an alleged beating by defendant of his wife was properly admitted.\n4. Whether a mistrial should have been granted when the prosecutor asked for a second time a question involving hearsay to which a previous objection had been sustained.\nWe affirm the trial court on Points 1 and 4 and reverse on Points 2 and 3.\nPrior to impanelment prospective jurors were given a \u201cJuror\u2019s Handbook\u201d designed to acquaint them with jury service. During voir dire, all but two panel members indicated they had read the handbook. Defendant moved to strike for cause all jurors who had read the handbook. The motion was denied, defendant exhausted his peremptory challenges, and jurors who had read the handbook were impaneled.\nDuring the trial, defendant presented six character witnesses to testify to his peacefulness. None of them had known him for more than six years. The prosecutor, on cross-examination, asked each of these witnesses whether he or she had heard or had knowledge of defendant\u2019s 1957 convictions for rape, assault with intent to commit armed robbery, and two armed robberies. Only one of the witnesses had knowledge of any of the convictions. Defendant objected to all of the questions concerning the 1957 convictions.\nTwo of the character witnesses were also asked, during cross-examination, whether they knew about a recent incident in which defendant had beaten his wife; they answered in the negative. On redirect, both witnesses stated that they were unaware of a polygraph test indicating defendant had not beaten his wife on the occasion in question. On recross, the prosecutor then asked one of the witnesses whether she was \u201caware that photographs were taken of [his wife] with the injuries.\u201d The witness stated that she was not.\nAfter the defense rested, the State called a police officer who testified about a disturbance involving defendant and his wife, in which the State elicited information showing defendant\u2019s wife had informed the officer about a gun in the house. Defendant was sustained on a hearsay objection to this testimony. A few minutes later, the prosecutor elicited this same information from the officer. An objection was again sustained, and the jury was told to disregard the question. Defendant\u2019s motion for a mistrial was denied.\nI.\nThe statements in the \u201cJuror\u2019s Handbook\u201d of which defendant complains read:\nIf a jury cannot arrive at a verdict within a reasonable time and the judge is so advised, he can, in his discretion, order the jury dismissed with the result that another trial of the case usually follows with consequent added expense to all parties. It is, therefore, highly advisable that a verdict be rendered if that can be done with the sincere and honest judgment of the required number of jurors.\nThese statements represent part of a paragraph from a 12-page booklet distributed by the Fifth Judicial District to prospective jurors. Defendant alleges that the above statements amount to an \u201cAllen \u201d charge to the jury, and such statements require reversal of the trial court because they allegedly created prejudice to defendant.\nAn \u201cAllen \u201d charge is an instruction given by a judge to the jury during the course of deliberations, when the jury has failed to reach a verdict. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). It was first approved by the Supreme Court of the Territory in Territory v. Donahue, 16 N.M. 17, 113 P. 601 (1911). Since Donahue, it has been greatly criticized, and this Court has severely limited its use. See State v. McCarter, 93 N.M. 708, 604 P.2d 1242 (1980). In McCarter, three important factors were present: the jury sent a note to the trial judge during deliberations informing the judge of the numerical division of the jury; the judge sent a note back to the jury mandating them to consider further deliberations; and, the defendant was not present during the above proceedings. We held that the trial court should have granted a new trial because that situation created a presumption of prejudice which the State did not sufficiently rebut.\nThe McCarter standard can only apply to the present case if we determine that the statements amounted to an \u201cAllen \u201d charge. They differ significantly. The handbook is given to prospective jurors pri- or to impanelment for trial, as an informative guide. It includes information on many aspects of a trial to familiarize jurors with the trial process. An \u201cAllen \u201d charge is given by a judge to the jury at a crucial period of a trial. The primary purpose of the \u201cAllen \u201d charge is to encourage further deliberations in an attempt to prevent a mistrial. The statements from the \u201cJuror\u2019s Handbook\u201d do not constitute a charge to the jury nor are they given in the context of a charge. The statements in the \u201cJuror\u2019s Handbook\u201d do not amount to an \u201cAllen \u201d charge. Therefore, the burden is upon defendant to show specifically how the statements prejudiced the deliberations of the jury. State v. White, 74 Wash.2d 386, 444 P.2d 661 (1968). See also People v. Lopez, 32 Cal.2d 673, 197 P.2d 757 (1948). Here, defendant has not shown that the jury either deliberated hastily or was coerced into unanimity because of wording in the handbook. The trial court was correct in denying the motion for a mistrial on these grounds.\nII.\nDefendant objects to the State\u2019s cross-examination of his character witnesses concerning convictions twenty-three years pri- or to the present trial. He states that the prior convictions are not relevant and even if they are, their prejudicial effect outweighs any probative value.\nAdmissibility of evidence on relevancy grounds is controlled by N.M.R.Evid. 402, N.M.S.A.1978. It requires that evidence must be relevant to be admissible. N.M.R. Evid. 401, N.M.S.A.1978, defines relevant evidence as: \u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d\nHere, we have six witnesses who testified to the defendant\u2019s reputation for peacefulness. In such a situation, the prosecutor is permitted to test the witnesses\u2019 grounds of knowledge. 3A Wigmore, Evidence \u00a7 988 (Chadbourn Rev.1970) at 912. See N.M.R.Evid. 405, N.M.S.A.1978. If the witness knows of reputed prior bad acts of the defendant which do not affect his opinion, the witness may be discredited and if the witness does not know of reputed prior bad acts of the defendant which may be generally known in the community, the basis of the witness\u2019 opinion is deficient. Inquiry into the basis of the witness\u2019 information, accuracy and credibility is almost universally admissible. 3A Wigmore, Evidence at 913. On the other hand, the rumor of the misconduct about which the prosecutor inquires tends to fix the rumor as a fact in the minds of the jury. The anomaly of allowing inquiry in this situation is that it brings information before the jury by hearsay only, and not by trustworthy information. Generally, this type of information cannot be introduced by direct proof. N.M.R.Evid. 404(b), N.M.S.A.1978. 3A Wigmore, Evidence, supra, at 921, opines on this practice:\nThis method of inquiry or cross-examination is frequently resorted to by counsel for the very purpose of injuring by indirection a character which they are forbidden directly to attack in that way; they rely upon the mere putting of the question (not caring that it is answered negatively) to convey their covert insinuation. The value of the inquiry for testing purposes is often so small and the opportunities of its abuse . . . are so great that the practice . . should be strictly supervised.\nDefendant urges us to adopt a rule similar to N.M.R.Evid. 609(b), N.M.S.A.1978. This would impose an absolute limit of ten years upon inquiry into convictions or release from imprisonment more than ten years prior to the present alleged crime. We note that the jurisdictions which have considered this problem have arrived at a wide range of conclusions. In People v. Stanton, 1 Ill.2d 444, 445, 115 N.E.2d 630, 631 (1953), the court stated:\nThe law is clear that particular acts of misconduct cannot' be shown, either on cross-examination or in rebuttal of proof of good character. (Citations omitted.) The rule is based upon the ground that every man is presumed to be ready at all times to defend his general character but not his individual acts.\nAt the other extreme, the State directs us to Cherry v. State, 502 S.W.2d 9 (Tex.Cr.App.1973), which permitted inquiry into a thirty-five year old forgery conviction on cross-examination of a character witness during a murder case.\nThe leading case which discusses this question is Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). In that case, the prosecutor questioned four character witnesses about their knowledge of an arrest 27 years prior to trial. The court stated:\nEvents a generation old are likely to be lived down and dropped from the present thought and talk of the community and to be absent from the knowledge of younger or more recent acquaintances. The court in its discretion may well exclude inquiry about rumors of an event so remote, unless recent misconduct revived them. But two of these witnesses dated their acquaintance with defendant as commencing thirty years before the trial. Defendant, on direct examination, voluntarily called attention to his conviction twenty years before. While the jury might conclude that a matter so old and indecisive as [a 27 year old] arrest would shed little light on the present reputation and hence propensities of the defendant, we cannot say that, in the context of this evidence and in the absence of objection on this specific ground, its admission was an abuse of discretion.\nId. at 484, 69 S.Ct. at 222-223.\nWe agree with the Court\u2019s reasoning, but several critical factors appear in the Michelson case: (1) the trial judge took pains to ascertain, out of the presence of the jury, that the prior crime was an actual event; (2) two of the witnesses had known the accused at the time of the prior crimes, while the other two had known him for 15 years; (3) the trial court had carefully instructed the jury twice during the trial and once in the charge to the jury to consider the inquiry only for the limited purpose of evaluating the basis for the witnesses\u2019 opinions; (4) the defendant had voluntarily entered into evidence the issue of his conviction for a 20-year old crime; and (5) there was no specific objection made by the defense attorney at the trial.\nIn the present case, we find that: (1) the trial judge conducted no in camera inquiry to determine whether the prior alleged events had occurred; (2) none of the witnesses had known the accused for more than six years; (3) the trial court did not instruct the jury at all concerning the limited purpose of the prosecutor\u2019s inquiry on the subject; (4) the defendant offered no evidence of specific prior acts, either good or bad, to the jury; and (5) the defense attorney did specifically object to the inquiry made by the prosecutor.\nThese facts are determinative. While we adopt the reasoning of the Michelson case, it is distinguishable. The present situation is precisely the type of situation that the rule on relevancy is attempting to avoid. See People v. Dorrikas, 354 Mich. 303, 92 N.W.2d 305 (1958). The trial court was in error on this issue, and is reversed.\nIII.\nUpon cross-examination of one of defendant\u2019s character witnesses, the following exchange occurred:\nProsecutor: And did you know, or have you been told, that back on the 14th of October of \u201978, that the Defendant beat up his wife\nDefendant: I\u2019d object, your Honor, no foundation.\nWitness: I didn\u2019t know that either.\nCourt: I am allowing the question.\nUpon redirect examination, defendant brought out that he had taken a polygraph test concerning charges brought by his wife on the above alleged incident, and that he had passed the test, and that the charges were later dismissed when the victim failed to show up for trial. Upon recross-examination, the prosecutor asked: \u201cAre you aware that photographs were taken of her with the injuries, of his wife\u201d? Substantially the same colloquy took place as to another character witness, except there was no cross-examination of that witness.\nDefendant contends that the questions concerning the beating and the photographs were improper and constituted error. We agree.\nThe trial court should have ascertained the veracity of the prosecutor\u2019s questions concerning the alleged beating before allowing the prejudicial questions. Michelson, supra. See Annot., 47 A.L.R.2d 1258 (1956).\nHere, there was a significant dispute as to whether defendant did beat his wife, as alleged. Defendant\u2019s objection could have been more clearly stated, but upon objection, the trial court was alerted and should have heard from both attorneys outside of the presence of the jury, to determine whether the target of the prosecutor\u2019s question was an actual event.\nIn the case at bar, it appears that defendant\u2019s wife filed an assault and battery charge against him. However, the mere filing, without more, and in light of the dispute by defendant, does not demonstrate the alleged beating was an actual event.\nEven if the questions were allowed, the judge should have instructed the jury as to the limited purpose of the questions. Mullins v. United States, 487 F.2d 581 (8th Cir. 1973); Gross v. United States, 394 F.2d 216 (8th Cir. 1968), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 (1970). This is specifically addressed in N.M.U.J.I.Crim. 40.27, N.M.S.A.1978. There, the Use Note states that the instruction is to be given \u201cupon the completion of the testimony of the witness, as well as at the time the final instructions are given to the jury. . The necessity of a jury instruction explaining the limited purpose of the question is assumed by the court.\u201d\nAllowing the prosecutor\u2019s question without. determining the veracity of the question and without an instruction to the jury on the limited purpose of the questions constituted reversible error.\nIV.\nDefendant contends that a mistrial should have been declared when the prosecutor persisted in eliciting evidence to which objection had been sustained. The evidence concerned whether the alleged victim had told a police officer about a gun in the family home after a disturbance in the home more than two months prior to her death. Both times the prosecutor questioned the witness concerning the gun. The witness answered that Mrs. Christopher had told him about it before defense counsel objected. Upon objection, defense counsel was sustained. This evidence was miniscule in relation to the overwhelming amount of evidence also before the jury, and we cannot say that this evidence contributed to defendant\u2019s conviction. Under these facts, any error committed was harmless. See State v. Self, 88 N.M. 37, 536 P.2d 1093 (Ct.App.1975); and State v. Gunthorpe, 81 N.M. 515, 469 P.2d 160 (Ct.App.1970), cert. denied, 81 N.M. 588, 470 P.2d 309 (1970); U.S. cert. denied, 401 U.S. 941, 91 S.Ct. 943, 28 L.Ed.2d 221 (1971). Further, the trial court admonished the jury to disregard the question and answer the second time. Under the facts here, any error was cured. State v. Garcia, 79 N.M. 367, 443 P.2d 860 (1968).\nThe trial court is affirmed as to Points I and IV, and reversed as to Points II and III. We remand for a new trial consistent with this opinion.\nIT IS SO ORDERED.\nPAYNE and FELTER, JJ., concur.", "type": "majority", "author": "FEDERICI, Justice." } ], "attorneys": [ "Martha A. Daly, App. Defender, Santa Fe, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Arthur Encimas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "615 P.2d 263\nSTATE of New Mexico, Plaintiff-Appellee, v. David L. CHRISTOPHER, Defendant-Appellant.\nNo. 12718.\nSupreme Court of New Mexico.\nAug. 7, 1980.\nMartha A. Daly, App. Defender, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Arthur Encimas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0648-01", "first_page_order": 684, "last_page_order": 689 }