{ "id": 1575565, "name": "STATE of New Mexico, Plaintiff-Appellee, v. James T. McGEE, Jr., Defendant-Appellant", "name_abbreviation": "State v. McGee", "decision_date": "1980-12-11", "docket_number": "No. 4706", "first_page": "317", "last_page": "321", "citations": [ { "type": "official", "cite": "95 N.M. 317" }, { "type": "parallel", "cite": "621 P.2d 1129" } ], "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": "92 N.M. 135", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557135 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0135-01" ] }, { "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": "615 F.2d 964", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1396340 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/615/0964-01" ] }, { "cite": "91 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571044 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0682-01" ] }, { "cite": "91 N.M. 745", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571008 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0745-01" ] }, { "cite": "589 F.2d 1191", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 827204 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f2d/589/1191-01" ] }, { "cite": "86 N.M. 666", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2821276 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0666-01" ] }, { "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": "93 N.M. 73", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568697 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0073-01" ] }, { "cite": "94 N.M. 300", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573158 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0300-01" ] } ], "analysis": { "cardinality": 595, "char_count": 11931, "ocr_confidence": 0.831, "pagerank": { "raw": 1.7933978348668064e-07, "percentile": 0.7153235574738142 }, "sha256": "bbdfa893ccbbf9ed7f4665e17eb479b34fedf0bda0a3b1d1b33a972ab979fc7d", "simhash": "1:bc2c1ce264e0fa65", "word_count": 1960 }, "last_updated": "2023-07-14T19:05:15.389388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, G. J., and WALTERS, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. James T. McGEE, Jr., Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nConvicted of one count of conspiracy to commit murder in the first degree, one count of attempted murder in the first degree, one count of attempted murder in the first degree with firearm enhancement, and one count of receiving stolen property contrary to \u00a7\u00a7 30-28-2, 30-28-1, 30-2-1, 30-2-2, 30-1-13, 31-18-4 and 30-16-11, N.M.S.A. 1978, defendant appeals. He raises four issues on appeal: (1) whether the prosecution engaged in improper crossexamination of the defendant; (2) whether the prosecution failed to comply with N.M.R.Crim.P. 27, N.M.S.A.1978; (3) whether the trial court erred in not requiring the State to cooperate in securing the testimony of William Wayne Gilbert; and (4) whether the trial court erred in disallowing the testimony of Gilbert\u2019s attorneys.\nImproper Cross-Examination\nDuring cross-examination of the defendant, the prosecutor asked the following questions:\nPROSECUTOR: When did you discover that perhaps you were not a federal agent?\nDEFENDANT: The day I was arrested.\nPROSECUTOR: Did you have the feeling that you had been mislead?\nDEFENDANT: That\u2019s putting it mildly; yes, to answer your question.\nPROSECUTOR: Did you have the feeling that the police had the wrong man?\nDEFENDANT: Yes.\nPROSECUTOR: Did you tell anyone about it?\nDEFENDANT: Yes.\nPROSECUTOR: Who?\nDEFENDANT: Mr. Kurt Lohbeck. The day I was arraigned I ended up going back into jail until we had a bond hearing which didn\u2019t take place until Friday. When I got out starting Friday night I tried getting a hold of Mr. Lohbeck, in fact I met with him at 10:30 in the morning that Saturday. Said I\u2019d been set up and find me Gilbert because I\u2019d been in jail.\nPROSECUTOR: Now. Mr. Lohbeck is what, was what at that time?\nDEFENDANT: He was the news director for KZIA radio.\nPROSECUTOR: Did he make this public?\nDEFENDANT: Not to my knowledge.\nPROSECUTOR: Did you tell anyone else?\nDEFENDANT: I don\u2019t know.\nDEFENSE COUNSEL: Your Honor, may we approach the bench? (At bench.)\nDEFENSE COUNSEL: Your Honor, I move for a mistrial. The question and answer was clearly a comment on defendant\u2019s failure to make a statement and improper comment on his right to remain silent.\nCOURT: I would deny your motion for a mistrial. We might be treading near that area of comment on the defendant\u2019s rights, and I would instruct the prosecutor to discontinue that line of questioning.\nDefendant contends that the question, \u201cDid you tell anyone about it?\u201d clearly referred to defendant\u2019s failure to tell the police that he had been \u201cset up\u201d by William Wayne Gilbert.\nIn State v. Romero, 94 N.M. 300, 609 P.2d 1256 (Ct.App.1980), we stated:\n[I]t is clear that the prosecution may not use the defendant\u2019s silence at the time of his arrest to impeach an exculpatory story which the defendant presents at trial. The reason is that the \u201csilence is insolubly ambiguous.\u201d\nHere, after questioning defendant about his arrest and subsequent arraignment, the prosecutor asked the general question, \u201cDid you tell anyone about it (his feeling that he had been set up)?\u201d Then, after the defendant said he had told Kurt Lohbeek, the prosecutor asked, \u201cDid you tell anyone else?\u201d Because the question was asked generally and the answer directed the jury\u2019s attention to defendant\u2019s calling a local newsman rather than to his silence upon arrest, we conclude that the question did not amount to a comment on defendant\u2019s silence at the time of his arrest. Accordingly, the comment does not require reversal and the trial court properly denied the motion for a mistrial. See, State v. Perrin, 93 N.M. 73, 596 P.2d 516 (1979).\nFailure to Comply with Rule 27\nThe State offered into evidence a tape recording of a conversation between Officer Ortiz and defendant about which Ortiz had testified. The defendant objected on the basis that defense counsel had not been given the tape pursuant to N.M.R.Crim.P. 27 and the discovery order. Before the tape was played to the jury, defense counsel argued that the tape was not the one he had been given, that some of the tape had been inaudible and that it was not made accessible in the police evidence locker. The State argued that the tape was available to the defendant in the evidence locker. The defendant was given the opportunity to hear the tape before it was played to the jury. The defendant moved to exclude the tape from evidence because of the discovery violation and because the material was already covered by Officer Ortiz\u2019 testimony. . The trial court found that access to the tape was made available and ruled that the tape would be played to the jury.\nAfter the tape was played to the jury during a recess, the State informed the court that actually the tape had not been in the evidence locker, but that the tape had been given to the defendant in an inaudible form. The defendant moved for a mistrial. In denying the motion, the trial court found that, although there was a technical violation, it was due to inadvertence and lack of communication. Because there was no surprise as to the substance and because the defendant had the opportunity to play the tape \u2014 although late \u2014 before it was played to the jury, the trial court also found there had been no harm to the defendant. We agree. The defendant was not prejudiced by the non-disclosure of the tape. Defense counsel was already aware of the conversation. The mistrial was properly denied. Chacon v. State, 88 N.M. 198, 539 P.2d 218 (Ct.App.1975); State v. Quintana, 86 N.M. 666, 526 P.2d 808 (Ct.App.1974).\nImmunity\nWilliam Wayne Gilbert had invoked his Fifth Amendment privilege when defendant attempted to take his deposition before trial and defendant\u2019s attorney believed Gilbert would not testify. During trial Gilbert informed the court he was interested in testifying, but only on the condition that the State did not question him concerning certain matters not related to his involvement with McGee. The court ruled that Gilbert had a right not to testify, but that once he was on the stand he had waived the right to a certain extent to be determined by the court on a question-by-question basis. Gilbert\u2019s attorney stated that the court\u2019s ruling was overbroad and that Gilbert would not testify.\nDuring discussion about whether Gilbert would testify, the defendant raised the prospect of immunity. The district attorney said he was not prepared to grant immunity when Gilbert had several murder charges pending. The defendant said the court should order the State to grant immunity. The court stated that it had no authority to grant immunity without an application from the State. The defendant argued that the court could give the State a choice of granting immunity or dismissing the charges. The court stated that immunity was not a realistic possibility. On appeal, defendant claims that he was denied due process because he was deprived of a material witness and argues that, as the State had the ability to cooperate in securing the testimony, it should have been required to grant limited immunity or limit cross-examination.\nThe defendant does not argue that the court\u2019s ruling as to cross-examination was error. He alleges that the State\u2019s refusal to limit its cross-examination denied defendant due process. Because the State had a legitimate interest in attacking Gilbert\u2019s credibility, we find that the State did not act in bad faith to deprive defendant of the witness\u2019 testimony in refusing to limit cross-examination. See, United States v. Herman, 589 F.2d 1191 (3rd Cir., 1978).\nDefendant also argues that the State should have been required to grant immunity. The court and prosecutor, stated that immunity was not a realistic possibility. In so stating, they were referring to transactional immunity as opposed to use immunity. Use immunity was not considered, apparently because the parties were operating under the old N.M.R.Crim.P. 58. That rule provided a procedure for grants of transactional immunity. In 1979, the Legislature passed a statute covering immunity. Section 31-3A-1, N.M.S.A.1978 (1980 Supp.), provides only for use and derivative use immunity and was effective at the time of defendant\u2019s trial. Under Campos v. State, 91 N.M. 745, 580 P.2d 966 (1978), a grant of immunity is governed by the Rule of Criminal Procedure only in the absence of applicable statute. Rule 58 was subsequently amended to conform to the statute\u2014but after defendant\u2019s trial.\nOnce the statute was passed, the State had authority to grant use immunity. Also, the court may have had authority on its own to order use immunity previously under N.M.R.Evid. 412. See, State v. Archunde, 91 N.M. 682, 579 P.2d 808 (Ct.App. 1978).\nWhile we agree that a granting of transactional immunity under the circumstances could not be required of the State, an order of use immunity may have been an appropriate way of accommodating the competing interests of the State and the defendant. See, Government of Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir., 1980). However, we find the fact that defendant did not raise the possibility of use immunity in the trial court dispositive. Neither the court nor the prosecution was given the opportunity to consider this possibility. Consequently, we need not discuss whether the defendant had a due process right to have use immunity granted.\nTestimony of Gilbert\u2019s Attorneys\nWitness Gilbert was called to the stand in chambers and he invoked his Fifth Amendment privilege. The defendant later requested that he be allowed to call Gilbert\u2019s attorneys, Virginia and A.J. Ferrara, to testify about the statements he made in their presence and that of defense counsel. The defendant offered the statements as an exception to the hearsay rule (N.M.R.Evid. 804(bX4), N.M.S.A.1978), based on the fact that Gilbert had become unavailable by invoking the privilege and that the statements were against his interests as tending to subject him to criminal liability. The State objected to the testimony, claiming that the statements were not sufficiently trustworthy. The trial court ruled that the testimony was inadmissible because it did not fall within the exception to Rule 804(bX4) and because there was no way to tell whether the statements would benefit Gilbert or be to his disadvantage. Further, the trial court felt that the circumstances in which the statements were made (in the presence of his attorneys in anticipation of testifying) were not circumstances that guarantee the trustworthiness of the statements.\nWe stated in State v. Self, 88 N.M. 37, 536 P.2d 1093 (Ct.App.1975), \u201c[guarantees of reliability are and must be the key to open the door to the exceptions\u201d and to invoke the exception \u201cthe precise matter offered for its truth ought to be against the interest of the declarant.\u201d Because Gilbert\u2019s statements were not clearly against his penal interest and there was no corroborating evidence, it was not error for the court to find that the testimony did not fall within the exception to Rule 804(b)(4). The determination of the admissibility of statements under the exceptions to the hearsay rule rests within the discretion of the trial court. State v. Maestas, 92 N.M. 135, 584 P.2d 182 (Ct.App.1978). The trial court did not abuse its discretion in excluding the testimony under Rule 804(b)(4).\nDefendant also argues the proposed Ferrara testimony was admissible under N.M. R.Evid. 804(b)(6), N.M.S.A.1978. Assuming such a claim was made in the trial court, it was properly excluded under this rule because of the lack of circumstantial guarantees of trustworthiness.\nAffirmed.\nIT IS SO ORDERED.\nWOOD, G. J., and WALTERS, J., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Hank Farrah, Hank Farrah and Associates, Albuquerque, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "621 P.2d 1129\nSTATE of New Mexico, Plaintiff-Appellee, v. James T. McGEE, Jr., Defendant-Appellant.\nNo. 4706.\nCourt of Appeals of New Mexico.\nDec. 11, 1980.\nHank Farrah, Hank Farrah and Associates, Albuquerque, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0317-01", "first_page_order": 349, "last_page_order": 353 }