{ "id": 1573079, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Corrine URIOSTE, Defendant-Appellant", "name_abbreviation": "State v. Urioste", "decision_date": "1980-07-22", "docket_number": "No. 4367", "first_page": "767", "last_page": "771", "citations": [ { "type": "official", "cite": "94 N.M. 767" }, { "type": "parallel", "cite": "617 P.2d 156" } ], "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": "282 U.S. 687", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6933273 ], "weight": 3, "year": 1931, "opinion_index": 0, "case_paths": [ "/us/282/0687-01" ] }, { "cite": "44 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566950 ], "weight": 4, "year": 1940, "opinion_index": 0, "case_paths": [ "/nm/44/0473-01" ] }, { "cite": "79 N.M. 701", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2749218 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0701-01" ] }, { "cite": "394 U.S. 731", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179959 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/394/0731-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "34 N.M. 533", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556133 ], "weight": 3, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0533-01" ] }, { "cite": "77 N.M. 441", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805745 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0441-01" ] }, { "cite": "82 N.M. 526", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332351 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0526-01" ] }, { "cite": "93 N.M. 55", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568715 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0055-01" ] }, { "cite": "176 P. 815", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "25 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4732311 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/25/0047-01" ] }, { "cite": "47 N.M. 415", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562294 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/nm/47/0415-01" ] }, { "cite": "93 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568805 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0458-01" ] }, { "cite": "94 N.M. 379", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573196 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/94/0379-01" ] }, { "cite": "100 S.Ct. 2260", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6185347 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/447/0410-01" ] }, { "cite": "91 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571183 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/91/0290-01" ] }, { "cite": "92 N.M. 370", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557072 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/92/0370-01" ] }, { "cite": "90 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869702 ], "weight": 4, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0134-01" ] } ], "analysis": { "cardinality": 607, "char_count": 11145, "ocr_confidence": 0.841, "pagerank": { "raw": 7.610795958726407e-08, "percentile": 0.4503285712796383 }, "sha256": "ac98d1f10d3f8b54213a068c754a8020c805107db20f6a1529c45216322e8ff3", "simhash": "1:45a9668317355afb", "word_count": 1816 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and WALTERS, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Corrine URIOSTE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of: (a) attempted murder in the first degree, \u00a7 30-28-1, N.M.S.A.1978; (b) assault with intent to commit the violent felony of murder, \u00a7 30-3-3, N.M.S.A.1978; and (c) conspiracy to commit murder, \u00a7 30-28-2, N.M. S.A.1978. She appeals. Contrary to defendant\u2019s contention, the evidence as to defendant\u2019s intent and the evidence of attempted first degree murder was sufficient for submission of the attempt and assault charges to the jury. Also contrary to defendant\u2019s contention, the trial court did not err in admitting the testimony of the polygraph examiner. See State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977); State v. Gallegos, 92 N.M. 370, 588 P.2d 1045 (Ct.App.1978); State v. Brionez, 91 N.M. 290, 573 P.2d 224 (Ct.App.1977). We do not reach the contention that the attempt and assault charges merged. However, see, Illinois v. Vitale, - U.S. -, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); State v. Smith, 94 N.M. 379, 610 P.2d 1208 (1980); State v. Stephens, 93 N.M. 458, 601 P.2d 428 (1979); State v. Gallegos, supra. We discuss two issues: (1) informing the jury of a co-defendant\u2019s guilty plea; and (2) restriction of cross-examination.\nAn indictment jointly charged Urioste, Lucero and Ortiz with trafficking in heroin and conspiracy to traffick in heroin. The evidence in this case is to the effect that Urioste and Lucero were concerned that Ortiz might testify against them and, to prevent this, made arrangements with Marquez and Naranjo to kill Ortiz. Naranjo shot Ortiz, but Oritz survived.\nUrioste, Lucero and Marquez were jointly indicted. The charges against Lucero and Marquez were disposed of by plea bargain; Urioste was tried and convicted of the three charges identified at the beginning of this opinion.\nInforming the Jury of a Co-Defendant\u2019s Guilty Plea\nCount V of the joint indictment of Urioste, Lucero and Marquez charged conspiracy\u2019 in that the three indictees combined with one another and with Naranjo to commit first degree murder. As a part of his plea bargain, Marquez pled guilty to this charge.\nThe prosecutor called Marquez as a witness; Marquez refused to testify and was cited for contempt. We are not concerned with the contempt citation in this appeal.\nThe trial court judicially noticed that Marquez had pled guilty to the conspiracy charge. The trial court informed the jury of this guilty plea: \u201c[I]t is a fact which you may consider if you choose * *\nDefendant asserts that informing the jury of Marquez\u2019 guilty plea to the conspiracy charge, during the trial of Urioste on that same charge, was error. We agree.\nAs the extended hearing involving Marquez and his refusal to testify, the prosecutor made it clear that it wanted the fact of Marquez\u2019 guilty plea in evidence \u201cto prove that this man was part of the conspiracy, admitted that he was, in fact, a member of that conspiracy, and that he did, in fact, conspire with Corrine Urioste * *\nThe State contends the trial court could properly judicially notice the guilty plea. This issue does not involve the propriety of judicial notice, but of informing the jury as to what had been noticed.\nThe State asserts that Marquez\u2019 guilty plea to the conspiracy charge was relevant evidence. We agree. The charge is that Urioste and Marquez were a part of the same conspiracy. The State points out that the admission or exclusion of evidence is within the trial court\u2019s discretion. We agree; State v. Bell, supra. However, neither of these arguments address defendant\u2019s contention that the jury should not have been informed of Marquez\u2019 guilty plea to the conspiracy charge.\nThe fact that Marquez had pled guilty to conspiracy, presented to the jury in a case involving Urioste\u2019s conspiracy, did not come within Evidence Rule 803(22) and was hearsay. Informing the jury of Marquez\u2019 guilty plea was error. State v. Jackson, 47 N.M. 415, 143 P.2d 875 (1943); State v. Martino, 25 N.M. 47, 176 P. 815 (1918). Why? Because it deprived Urioste of the right to confront witnesses against her. State v. Richter, 93 N.M. 55, 596 P.2d 268 (Ct.App.1979); State v. Lunn, 82 N.M. 526, 484 P.2d 368 (Ct.App.1971).\nAt the close of the evidence, the trial court orally instructed the jury not to consider Marquez\u2019 guilty plea as evidence against Urioste, that Marquez\u2019 guilty plea did not permit an inference as to the guilt of Urioste. This instruction was repeated in the written instructions to the jury.\nState v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967) states the New Mexico rule \u201cthat, when improper evidence is introduced, objected to and withdrawn from the consideration of a jury with later instruction to disregard such testimony, the withdrawing and admonition cure any prejudicial effect the evidence might have had.\u201d One of the New Mexico cases cited in Ferguson is State v. Dendy, 34 N.M. 533, 285 P. 486 (1929). Dendy states a general rule that an instruction to a jury that testimony should not be considered by them will efface all prejudice, if any prejudice has resulted from such testimony. * * * However, instances may arise where evidence is so material and highly prejudicial that no instruction which the court may give will cure the error of its admission.\nCompare Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) with Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).\nWe need not decide whether the trial court\u2019s instructions were sufficient to cure the error in informing the jury of Marquez\u2019 guilty plea or whether Ferguson, supra, or Dendy, supra, applied. Such a decision is unnecessary. We reverse and remand for a new trial on the cross-examination issue. Thus, it is sufficient to point out that, on retrial, the trial court is not to inform the jury that it has taken judicial notice of Marquez\u2019 plea of guilty to the conspiracy charge.\nRestriction of Cross-Examination\nAlthough stated in various ways in subsequent cases, for example, see State v. Sanchez, 79 N.M. 701, 448 P.2d 807 (Ct.App.1968), the basic statement concerning the scope and extent of cross-examination, pri- or to the adoption of the Evidence Rules, appears in Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (1940). It states:\n[T]he cross examination of a witness should be limited to those facts and circumstances connected with the matters inquired of in the direct examination, except as to those tending to discredit or impeach the witness, or to show his bias or prejudice, or the like. * * *\nBut cross examination is not confined to the identical details testified to in chief, but extends to its entire subject matter * * * and to all matters that may modify, supplement, contradict,, rebut, or make clearer the facts testifie(l to in chief by the witness on direct examination. * * *\n******\nIt should be stated that the scope of cross examination must necessarily rest largely in the sound discretion of the court because of the difficulty in ruling precisely on the questions that arise in nearly all contested cases. The trial judge is clothed with a large discretion in the application of the rule. * * * It is much safer to resolve the doubts in favor of the cross examiner than to risk excluding testimony that should be admitted.\nThe present wording of Evidence Rule 611(b) is:\nCross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.\nEvidence Rule 611(b), as presently worded, is not a departure from the rule announced in Krametbauer, supra.\nIn this case, the trial court improperly restricted the cross-examination of the polygraph examiner. The improper restriction was in curtailing cross-examination as to fact and circumstances (Krametbauer, supra), and the subject matter (Evidence Rule 611(b)) of the direct examination.\nDefendant had cross-examined concerning the qualifications of the polygraph examiner and the reliability of the testing procedure. The improper restriction of cross-examination was in connection with the validity of the tests. See State v. Bell, supra.\nThe examiner had been cross-examined concerning the control and relevant questions, and concerning the examiner\u2019s scoring method. See State v. Brionez, supra. The trial court indicated the cross-examination should be concluded. Counsel informed the trial court that he would like \u201cthe time to go through the chart with him * * The trial court stated, \u201cI am going to get this case done one way or the other\u201d and added, \u201cI realize that the examination of the chart might be of assistance in your Cross Examination.\u201d However because the time already used on cross-examination was, according to the judge\u2019s calculations, only 22 minutes less than what the prosecution had used on direct, because the judge felt the cross-examination \u201chas been telling\u201d and because the judge was of the opinion that defendant would \u201csuffer nothing, frankly\u201d by curtailing cross-examination, the trial court refused to permit cross-examination as to the examiner\u2019s interpretation of the charts and how that interpretation was used in arriving at a score.\nThe State seems to argue that defendant failed to inform the trial court of the additional cross-examination that defendant desired. This is incorrect; counsel informed the court:\nThe nature of my further Cross Examination with relation to an examination of the chart itself and the comparison of those matters on the chart * * *.\nBut I think it is important to show the Jury the highly subjective nature of the measurements that are made with reference to these charts [and] on the very close calls that are made in terms of whether something is given a zero, minus 1, plus 1, plus 2 or whatever.\nThe trial court recognized counsel\u2019s comments as \u201cfair argument\u201d but restricted further cross-examination to identification, on the chart, of where the question began and ended, and when the question was answered.\nDefendant was not allowed to develop any relationship between the chart, which recorded the examinee\u2019s responses to questions asked by the examiner, and the examiner\u2019s scoring of the responses so recorded. The trial court imposed this restriction, while at the same time recognizing that further cross-examination might be of assistance to defendant. Here, as in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), \u201cthe trial court cut off * * * all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination. This was an abuse of discretion and prejudicial error.\u201d\nThe judgment and sentences are reversed; the cause is remanded for a new trial.\nIT IS SO ORDERED.\nHERNANDEZ and WALTERS, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Theodore E. Lauer, Lauer & Mandel, Santa Fe, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "617 P.2d 156\nSTATE of New Mexico, Plaintiff-Appellee, v. Corrine URIOSTE, Defendant-Appellant.\nNo. 4367.\nCourt of Appeals of New Mexico.\nJuly 22, 1980.\nWrit of Certiorari Denied Sept. 18, 1980.\nTheodore E. Lauer, Lauer & Mandel, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0767-01", "first_page_order": 803, "last_page_order": 807 }