State v. Cutnose

• Decision Date: 30 October 1974
• Docket Number: No. 1444,1444
• Citation: 532 P.2d 896,87 N.M. 307,1974 NMCA 130
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John Paul CUTNOSE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 896

532 P.2d 896

87 N.M. 307

STATE of New Mexico, Plaintiff-Appellee, v. John Paul CUTNOSE, Defendant-Appellant.

No. 1444.

Court of Appeals of New Mexico.

Oct. 30, 1974.

Rehearing Denied Nov. 19, 1974.

Certiorari Denied Dec. 20, 1974.

Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Joseph A. Roberts, District Public Defender, Santa Fe, for defendant-appellant

David L. Norvell, Atty. Gen., David McArthur, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Defendant was convicted of two counts of aggravated assault contrary to § 40A--3--2(A), N.M.S.A.1953 (2d Repl.Vol. 6), two counts of aggravated assault upon a peace officer contrary to § 40A--22--21(A)(1), N.M.S.A.1953 (2d Repl.Vol. 6), and one count of criminal trespass contrary to § 40A--14--1, N.M.S.A.1953 (2d Repl.Vol. 6). These crimes occurred at a hospital in Gallup, McKinley County, New Mexico. Defendant asserts several grounds for reversal. Three issues are dispositive. They are: (1) jurisdiction, (2) the indictment failed to properly charge an offense, and (3) instructions on the required intent.

Jurisdiction

By two pretrial motions, defendant asserted New Mexico courts had no jurisdiction over the defendant or over the offenses charged. There are two claims.

The first claim is based on federal statutes. 18 U.S.C.A. § 1153 (Supp.1974) provides that an Indian committing certain identified crimes 'within the Indian country' is subject to the 'exclusive jurisdiction of the United States.' The crimes identified appear to include the four assault convictions, but do not appear to include the criminal trespass conviction. 18 U.S.C.A. § 1151 defines 'Indian country' to mean Indian reservations, 'dependent Indian communities' and Indian allotments. Defendant claims the hospital where the crimes were committed was a dependent Indian community.

The second claim is based on the Navajo Tribal Code. The provision of the Tribal Code, quoted in defendant's brief, is 7 N.T.C. § 134. That section purports to extend the territorial jurisdiction of the Navajo Tribe and the Navajo Tribal Courts to Navajo Indian Country. The definition of Navajo Indian Country includes 'land * * * within the exterior boundaries of the Eastern Navajo Agency.' The definition also includes land not covered by previous definitions 'administered by the Federal Indian Service for the benefit of dependent Navajo 'Indian communities."

The second claim raises legal issues as to the authority of the Navajo Tribe, by adopting its Code, to oust the State of New Mexico of its jurisdiction. Compare Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). The legal issues need not be answered. Whether the physical location of the crimes was within a dependent Indian community under 18 U.S.C.A. § 1151, or within Navajo Indian Country defined in the Tribal Code, are questions of fact. United States v. Martine, 442 F.2d 1022 (10th Cir. 1971); compare Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). We dispose of both jurisdictional claims on the facts.

A hearing was held on various motions. Included was defendant's first motion attacking the court's jurisdiction. The trial court's order of March 27, 1973 deferred ruling on the jurisdictional claim 'until April 5, 1973, to afford (defendant) an opportunity to present evidence thereon.' No evidence was presented. Instead, defendant The jurisdictional challenge was to a court exercising general jurisdiction. N.M.Const. Art. 6, § 13. The burden was upon defendant to demonstrate a lack of jurisdiction in the district court. Having presented no evidence as to lack of jurisdiction, defendant did not meet his burden in connection with the pretrial motions. State v. Lucero, 82 N.M. 367, 482 P.2d 70 (Ct.App.1971); compare Begay v. First National Bank of Farmington,84 N.M. 83, 499 P.2d 1005 (Ct.App.1972).

filed a second motion attacking the court's jurisdiction on April 13, 1973. The trial court's order denying both motions was entered April 27, 1973.

At trial, defendant renewed his jurisdictional claims. The evidence at trial is that the crimes were committed at 'the U.S. Public Health Service Hospital known as the Gallup Indian Medical Center,' that all the taxpayers own the hospital. The chief executive officer of the hospital testified his immediate superior was in Window Rock, Arizona. The FBI agent testified that in negotiating the surrender of defendant and others, the agent insisted that the surrender be to the Sheriff of McKinley County because 'jurisdiction in this largely rested with the McKinley County * * *.' The evidence supports the inference that patients of the hospital were largely Navajos. However, '(t)he mere presence of a group of Indians in a particular area would undoubtedly not suffice' to establish a dependent Indian community under 18 U.S.C.A. § 1151. United States v. Martine, supra.

The evidence at trial did not establish an absence of trial court jurisdiction on the basis of a dependent Indian community under 18 U.S.C.A. § 1151, or on the basis of a dependent Navajo Indian Community under the Tribal Code.

The jurisdictional claim based on the Navajo Tribal Code has two additional deficiencies in the facts. (a) In his brief, defendant asserts the hospital is on land within the exterior boundaries of the Eastern Navajo Agency. This contention appears for the first time in the brief and has no factual support. (b) The Tribal Code provision relied upon purports to apply only to Navajos. The record indicates defendant is an Indian, there is neither evidence nor inference that defendant is a Navajo.

There is no factual basis for defendant's jurisdictional claims.

Indictment Failed to Properly Charge an Offense

By pretrial motion, defendant attacked the legal sufficiency of each count of the indictment. Error is claimed because the motion was denied. We consider only the sufficiency of the criminal trespass charge.

Relying on Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), defendant asserts the indictment deprived him of due process of law because it did not state the particulars of the trespass charge. Russell involved the sufficiency of an indictment charging violation of a federal statute making it a crime to refuse to answer certain questions when summoned before a congressional subcommittee. The indictment charged, in the language of 2 U.S.C. § 192, that defendant refused to answer questions which "were pertinent to the question then under inquiry' * * *.' Such a charge was held to be legally insufficient because the indictment failed to identify the subject under inquiry at the time of defendant's refusal to answer.

Russell, supra, is not applicable. In this case, defendant was charged with violation of a specific statutory section. The indictment stated the common name of the offense, stated a specific date of the offense, and stated the offense occurred in McKinley County, New Mexico. The uncertainty of the offense charged in Russell, does not exist in this case. Rather, the indictment sufficiently informed defendant of what he must be prepared to meet. Russell, supra. The indictment did not deprive defendant of due process. See State v. Herrod, 84 N.M. 418, 504 P.2d 26 (Ct.App.1972).

Defendant also asserts the indictment failed to state the essential facts as required by § 41--23--5(d), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). The essential facts, allegedly missing, were the details of the charge. What is essential depends on that which is conveyed by other parts of the indictment. State v. Vigil, 85 N.M. 328, 512 P.2d 88 (Ct.App.1973). The indictment provided the date, common name and statutory section number of the offense. The indictment also identified witnesses upon whose testimony the indictment was based. These witnesses included named personnel at the 'U.S. Public Health Service Hospital, Gallup, New Mexico.'

Defendant does not assert what essential facts were missing. Accordingly, we cannot hold the indictment failed to allege essential facts. In addition, § 41--23--7(a) and (d), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973) require a showing of prejudice due to a defect, error, or omission in an indictment. Defendant has not attempted to show any prejudice resulting from the manner in which the offense was charged. State v. Padilla, 86 N.M. 282, 523 P.2d 17 (Ct.App.1974).

The indictment charging criminal trespass was legally sufficient.

Instructions on Required Intent

Defendant asserts that the trial court failed to properly instruct the jury on the intent required for conviction on the four counts involving aggravated assault. The court did instruct the jury in the terms of the statutes. The State asserts that this was sufficient.

The intent required by § 40A--3--2(A), supra, is that of conscious wrongdoing. State v. Mascarenas, 86 N.M. ---, 526 P.2d 1285 (Ct.App.), decided September 11, 1974. Section 40A--22--21(A)(1), supra, is similar to § 40A--3-- 2(A), supra. Both define aggravated assault as 'unlawfully assaulting or striking at * * * with a deadly weapon.' Section 40A--3--2(A), supra; § 40A--22--21(A)(1), supra. The reasoning and conclusion of the Court in Mascarenas, supra, is equally applicable to § 40A--22--21(A)(1), supra. Conscious wrongdoing is an essential element of § 40A--22--21(A)(1), supra.

If the statute sets forth the required intent, instructions in the language of the statute are sufficient. State v. Gonzales, 86 N.M. 556, 525 P.2d 916 (Ct.App.1974). However, the language of § 40A--3--2(A), supra, was insufficient to inform the jury that conscious wrongdoing was a required element. State v. Mascarenas, supra. We have held that §§ 40A--22--21(A)(1) and 40A--3--2(A), supra, require the same intent. Thus, instructions in the language of § 40A--22--21(A)(1), supra, were insufficient to inform the jury of the intent required.

Because...