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State v. Pettigrew8/3/1993
Opinion
In these consolidated appeals, Defendants Bannister, Pettigrew, and Turner raise issues related to their felony aggravated battery convictions pursuant to NMSA 1978, Section 30-3-5(C) (Repl.Pamp.1984). Defendant Bannister raises the issue of whether the trial court erred in failing to give a jury instruction for simple battery pursuant to NMSA 1978, Section 30-3-4 (Repl.Pamp.1984). Defendants Bannister and Turner raise the issue of whether there is sufficient evidence to sustain their convictions for felony aggravated battery. In addition, all three Defendants raise the following two issues: (1) whether it was an abuse of discretion for the trial court to admit into evidence a life-size color photograph depicting Victim's injuries prior to Victim's having been attended to and cleaned up by the medical staff; and (2) whether the trial court committed reversible error in excusing a seated juror for the appearance of impropriety based on the trial court's interview of the juror. Other issues, raised at earlier stages in the appellate
proceedings but not argued in the briefs, are deemed abandoned. See ), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985).
In affirming the decisions of the trial court, we hold that (1) the trial court properly denied giving a simple battery jury instruction for Defendant Bannister because no view of the evidence shows that simple battery was the highest degree of crime committed; (2) substantial evidence supports Defendants Turner's and Bannister's convictions of aggravated battery in a manner that could have caused great bodily harm; (3) the photograph was properly admitted into evidence because it was relevant and more probative than prejudicial; and (4) the trial court did not commit reversible error in its excusal of the juror.
FACTS
The altercation that resulted in the felony aggravated battery convictions of the three Defendants began when Victim approached a group of people who were moving furniture into a mobile home. Victim mistakenly believed that these people were there without the owner's permission and discharged a shotgun into the ground as a warning. Defendants, in confronting Victim, asserted their right to be at the mobile home. One witness testified that Victim pointed his shotgun at Defendants Bannister and Turner, while another witness testified that Victim backed away from Defendants in a non-threatening manner. Then Defendant Bannister took the gun away from Victim. It is not disputed that all three Defendants then were involved in striking Victim.
Defendant Pettigrew admitted to an investigator for the district attorney's office that Pettigrew punched Victim thirty times very rapidly and very hard. Testimony concerning Defendant Bannister ranged from his hitting Victim a few times with his fists or once with the butt of the shotgun to his hitting Victim with his fists and the shotgun and kicking Victim three times in the face. Testimony concerning Defendant Turner showed that he hit Victim after Victim fell down and that he held Victim by the neck while Defendant Bannister hit Victim. Victim's injuries were comprised of swelling about the eyes, mouth, and face in general, and lacerations of the face, one of which required stitches. The prosecution's expert witness, Dr. Timmons, was very surprised that the beating about the head sustained by Victim did not result in serious injury or death.
JURY INSTRUCTION FOR SIMPLE BATTERY
Defendant Bannister claims that the trial court should have instructed the
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