¶1(dissenting).
¶2I respectfully dissent.
¶3A. Defendant had a fair and impartial jury.
¶4(1) Defendant’s challenge of prospective jury panel not subject to review
¶5The majority opinion misstates the law. The events which occurred between an assistant district attorney and some members of the prospective jury panel took place before a jury was selected, impanelled and sworn to try the case; that is, before the trial commenced. A trial begins when members of the jury are called into the box for examination as to their qualifications. State v. Snow, 84 N.M. 399, 503 P. 2d 1177 (Ct.App.1972). See, Rule 40 of the Rules of Criminal Procedure [§ 41-23-40, N.M.S.A.1953 (2d Repl. Vol. 6, 1973 Supp.)]. It has been held that voir dire examination is not part of the trial. Nix v. State, 240 Ind. 392, 166 N.E.2d 326 (1960).
¶6State v. Gutierrez, 78 N.M. 529, 531, 433 P.2d 508 (Ct.App.1967) is not applicable. It holds that any unauthorized communications with a juror during trial about a matter pending before the jury is presumptively prejudicial.
¶7Defendant moved to strike the entire prospective jury panel and particularly those who overheard the conversation after the jury had been selected, impanelled and sworn to try the case. The motion was denied. It was made too late in the day. Defendant waived his right to challenge the prospective jurors. Section 19-1-16, N.M.S.A.1953 (Repl. Vol. 4).
¶8Our courts of review have not yet determined whether unauthorized communication before trial with prospective jurors is presumptively prejudicial. To present the matter for review, defendant must make his challenge before the selection of the jury begins. Section 19-1-16, supra.
¶9Challenge of the prospective jury panel is not subject to review.
¶10(2) Challenge of juror Gaines for cause not meritorious.
¶11Mrs. Gaines was subject to voir dire examination. After court and counsel adjourned to chambers, defendant did not challenge Mrs. Gaines and she was accepted. Defendant challenged juror Gaines for cause after the jury had been impanelled and sworn to try the case.
¶12Rule 39(c) of the Rules of Criminal Procedure [§ 41-23-39(c), N.M.S.A.1953 (2d Repl. Vol. 6, 1973 Supp.)] provides:
The court shall permit the parties to a case to express in the record of the trial any challenge to a juror for good cause. The court shall rule upon the challenge and may excuse any juror for good cause.
¶13Unfortunately, the rule does not indicate the time the challenge should be made.
¶14The Judge’s Memorandum of Selection of the Jury shows that defendant was allowed 13 peremptory challenges instead of 12 as allowed by Rule 39(d)(1) of the Rules of Criminal Procedure [§ 41-23-39(d)(1), N.M.S.A.1953 (2d Repl. Vol. 6, 1973 Supp.)]. Having exercised 13 peremptory challenges, the defendant sought the 14th challenge for cause after having accepted the juror because defendant had no more peremptory challenges.
¶15Rule 2.5 of the A.B.A. Standards Relating to Trial by Jury, entitled “Challenges for Cause,” concludes with this statement:
A challenge to an individual juror should be made before he is sworn to try the case, but the judge may permit it to be made after he is sworn but before jeopardy has attached. [Emphasis added].
¶16Unless the Supreme Court indicates otherwise, we should adopt this rule as the time in which a challenge for cause must be made. The challenge was made in time.
¶17In the commentary to Rule 2.5 the various grounds of challenge for cause are set forth. The grounds stated by defendant do not come within any one of the grounds mentioned.
¶18Defendant’s challenge of juror Gaines for cause was not meritorious.
¶19Defendant had a fair and impartial jury.
¶20B. Defendant was entitled to a new trial.
¶21(1) Admission of evidence of peaceful reputation of deceased not subject to review
¶22Defendant states that “During the testimony of several witnesses for the prosecution the state elicited evidence to the effect that the deceased Joe Pat Romero was a peaceful, non-violent person.” No reference is made to the names of witnesses nor to their testimony. This point is not subject to review.
¶23(a) The majority opinion errs on the effect of opening statements.
¶24The majority opinion reviewed the evidence. Without any authority, it makes the following erroneous statement:
If evidence of the deceased’s character was improperly admitted in the State’s case-in-chief, the error was in anticipating evidence which the defense, in the opening statement, had declared would be introduced. When the defense proceeded to do so, any error in admission of character evidence in the case-in-chief was harmless.
[Emphasis added].
¶25Rule 40(b) of the Rules of Criminal Procedure [§ 41-23-40(b), N.M.S.A.1953 (2d Repl. Vol. 6, 1973 Supp.) ] states:
The state may make an opening statement. The defense may then make an opening statement or may reserve such opening statement until after the conclusion of the state’s case.
¶26The majority opinion concludes that if the defense makes an opening statement, it is harmless error for the State to introduce evidence which is prejudicial and reversible error. This would constitute an unequivocal warning to all defense attorneys to reserve the opening statement until after the conclusion of the State’s case or waive it.
¶27“The purpose of an opening statement is primarily to inform the jury of the nature of the case and the nature of the defense and just how the evidence as presented fits into the charges filed and the defense made. . . . The opening statement is not evidence and the jury is so instructed.” Buise v. State, 281 N.E.2d 93, 96 (Ind. 1972). It has no binding force or effect. White v. State, 11 Md.App. 423, 274 A.2d 671, 675 (1971); Clarke v. State, 238 Md. 11, 207 A.2d 456 (1965). It is merely for the assistance of the jury. State v. Campbell, 210 Kan. 265, 500 P.2d 21, 32 (1972).
¶28If the evidence is reviewed, the court committed reversible error in permitting the State, in its case-in-chief, to admit evidence of the good character of the decedent. State v. Alberts, 80 N.M. 472, 457 P.2d 991 (Ct.App.1969); State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969); State v. McFerran, 80 N.M. 622, 459 P.2d 148 (Ct. App.1969). To hold that it is harmless error is a convenient method of affirming a conviction. Ipse dixit statements of the law have caused confusion and explanation through the course of New Mexico judicial history.
¶29(2) Rejection of evidence of violent character of decedent was proper at time of trial.
¶30The majority opinion adequately explained why the “booking slip” dated May 14, 1966 on aggravated battery committed by deceased was not admissible in evidence. On April 2, 1973, almost three months before trial, defendant, by motion, sought discovery of papers and documents “which the State intends to introduce in evidence at the trial.” Defendant did not request any matters “which are material to the preparation of the defense.” Section 41-23-27(a) (5), N.M.S.A.1953 (2d Repl. Vol. 6, 1973 Supp.). The record discloses a failure to respond to defendant’s motion, and a failure of the defendant to seek relief on his motion. Rule 27(e), supra.
¶31The trial commenced June 27, 1973. The police department produced several “booking slips” involving a Joe Pat Romero. Defendant claims a subpoena was issued for all police reports, documents and records pertaining to the “booking slips,” but the subpoena does not appear of record.
¶32However, the record shows that the police officer was requested by the court and by defense counsel to search the records for the police offense report regarding the arrest of the deceased for aggravated battery as quickly as possible. The trial court gave the police officer his telephone number requesting a call. The record is silent on any report by the police department. The documents were obtained by a later subpoena on motion for a new trial.
¶33By affidavit on motion for a new trial, defense counsel stated that on June 22, 1973, a subpoena duces tecum was issued to the Custodian of the Records, Albuquerque Police Department, requesting that he produce all information pertaining to offenses committed by Joe Pat Romero. At trial, he produced only the “booking slip.”
¶34These matters should have been seriously considered by the court on motion for a new trial.
¶35The record does disclose negligence on the part of the police department which seriously affected the defense.
¶36(3) The trial court abused its discretion in denying defendant’s motion for a new trial.
¶37At the hearing on defendant’s motion for a new trial, the defendant produced newly discovered evidence. By subpoena, the police department produced the “booking slip” and a police report and statements attached thereto which disclose evidence that on May 14, 1966, deceased committed an aggravated battery with a gun against one Billy Tutor. The trial court admitted the documents in evidence as follows:
THE COURT: All right, we will admit this exhibit A to the motion which is the report on Joe Pat Romero.
¶38This is an admission by the court that Joe Pat Romero was the deceased. The trial court held that the documents would not have been admissible at the time of trial and denied defendant’s motion for a new trial.
¶39The written statement of Billy Tutor, the victim, states that this statement made to a detective can be used in a court of law, if necessary. It states in part:
Then this fellow [deceased] gave [sic] at us with this gun and the next thing I knew was that this fellow hit me on the side of the head with the pistol.
¶40The statement of Joe Pat Romero, now deceased, said in part:
This girl had a knife and this is when I pulled the gun out. I got the gun from under the front seat. ... I don’t remember hitting this guy with the gun but I do remember chasing them.
¶41The above statements are evidence of specific acts of violence of the deceased. The question is whether this specific act of violence might materially assist the jury in deciding who was the aggressor and what the reasonable apprehensions of the defendant were for his life and liberty.
¶42In State v. Ardoin, 28 N.M. 641, 216 P. 1048 (1923), the specific act of violence also occurred six years before the homicide and was not connected with the defendant. Other evidence of deceased’s reputation as being a quarrelsome and dangerous man was introduced. A shot gun instruction was given the jury. “The question of defendant’s guilt seems to have been considered by the jury as a close one, and for the reasons stated the defendant should be granted a new trial.” [p. 648, 216 P. p. 1050],
¶43The facts presented by the defense in the instant case are quite similar. At 5:45 p. m., the court instructed the jury and final arguments were made. The jury returned a verdict at 12:05 a. m.
¶44In State v. Gomez, 75 N.M. 545, 408 P. 2d 48 (1965), Justice Moise said:
. [T]he very real possibility of a miscarriage of justice which could be overcome if all the pertinent proof is properly presented and considered, requires a reversal. . . .
We are responsible to see that a person convicted of crime shall have a fair trial with a proper defense, and that no conviction shall stand because of the absence of either. .
¶45A review of the facts in this case and a review of additional authority would be to no avail.
¶46The defendant was a man of good character and reputation, free of any prior criminal convictions, 32 years of age at the time of trial. He had a general contractor’s license. He was a sales representative of the Magnoleum Chemical Company, Dallas, Texas. He was sentenced ten to fifty years in the penitentiary. This dissent does not intend to indicate the defendant is not guilty. It means that a new trial should be granted to assist the jury with a specific act of violence committed by the deceased on the person of another.
¶47The trial court “may grant a new trial if required in the interest of justice.” Section 41-23-45(a), N.M.S.A.1953 (2d Repl. Vol. 6, 1973 Supp.). The interest of justice demanded a new trial. The failure to grant a new trial under the record in this case is an abuse of discretion. The majority feeling otherwise, I dissent.