State v. Cotton

790 P.2d 1050 (1990)

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Nature of the Case

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Facts

D together with his wife Gail, five children, and a stepdaughter, moved to New Mexico. A few months later, D's wife and children returned to Indiana. Shortly thereafter, D's fourteen-year-old stepdaughter moved back to New Mexico to reside with him. In 1987, the Department of Human Services investigated allegations of misconduct involving D and his stepdaughter. The district court issued an order awarding legal and physical custody of the stepdaughter to the Department, and she was placed in a residential treatment facility in Albuquerque. D was arrested and charged with multiple counts of criminal sexual penetration of a minor and criminal sexual contact of a minor. D discussed with his cellmate James Dobbs, and Danny Ryan, another inmate, his desire to persuade his stepdaughter not to testify against him. D wrote numerous letters to his wife; in several of his letters, he discussed his strategy for defending against the pending criminal charges. D requested that his wife assist him in defending against the pending criminal charges by persuading his stepdaughter not to testify at his trial. The letter urged his wife to contact the stepdaughter and influence her to return to Indiana or that she give her money to leave the state so that she would be unavailable to testify. D gave the letter to Dobbs and asked him to obtain a stamp for it so that it could mailed later. Dobbs removed the letter from the envelope, replaced it with a blank sheet of paper, and returned the sealed stamped envelope to him. Dobbs gave the original letter written to law enforcement authorities. D's original letter was never in fact mailed nor received by D's wife. D composed another letter (State's Exhibit No. 2) to his wife. D stated that he was arranging to be released on bond; that his wife should forget about his stepdaughter for a while and not come to New Mexico; that D would request that the court permit him to return to Indiana to obtain employment; that his wife should try to arrange for his stepdaughter to visit her in Indiana for Christmas; and that his wife should try to talk the stepdaughter out of testifying or to talk her into testifying favorably for D. Defendant also said in the letter that his wife should 'warn' his stepdaughter that if she did testify for the state 'it won't be nice * * * and she'll make [New Mexico] news,' and that, if the stepdaughter was not available to testify, the prosecutor would have to drop the charges against D. D secured his release on bail on September 28, 1987, but approximately twenty-four hours later was rearrested on charges of criminal solicitation and conspiracy. The second letter was never mailed to D's wife. D was convicted on two counts of criminal solicitation. The court granted a directed verdict in favor of D on a charge of conspiracy. This appeal resulted.