563 P.2d 1153 (N.M. 1977), 10878, State v. Noble

Docket Nº:10878.
Citation:563 P.2d 1153, 90 N.M. 360, 1977 -NMSC- 031
Opinion Judge:[9] Musgrove
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. George NOBLE, Defendant-Appellant.
Attorney:[6] Jan A. Hartke, Chief Public Defender, Don Klein, Appellate Defender, Reginald J. Storment, Appellate Defender, Santa Fe, for defendant-appellant. [7] Toney Anaya, Atty. Gen., Paquin M. Terrazas, Robert E. Robles, Don D. Montoya, J. Michael Francke, Asst. Attys. Gen., Santa Fe, on rehearing, f...
Case Date:April 19, 1977
Court:Supreme Court of New Mexico

Page 1153

563 P.2d 1153 (N.M. 1977)

90 N.M. 360, 1977 -NMSC- 031

STATE of New Mexico, Plaintiff-Appellee,

v.

George NOBLE, Defendant-Appellant.

No. 10878.

Supreme Court of New Mexico.

April 19, 1977

Page 1154

Rehearing Granted Feb. 18, 1977.

Page 1155

[90 N.M. 362] Jan A. Hartke, Chief Public Defender, Don Klein, Appellate Defender, Reginald J. Storment, Appellate Defender, Santa Fe, for defendant-appellant.

Toney Anaya, Atty. Gen., Paquin M. Terrazas, Robert E. Robles, Don D. Montoya, J. Michael Francke, Asst. Attys. Gen., Santa Fe, on rehearing, for plaintiff-appellee.

OPINION

MUSGROVE, District Judge, Sitting by Designation.

The motion for rehearing is granted. The former opinion is withdrawn and the following opinion is substituted.

Defendant was convicted of first-degree murder following jury trial in the District Court of Grant County, and was sentenced to death. He appeals.

The following are the essential facts of the case. In the early hours of May 29, 1975, the defendant followed his ex-wife to her home after having seen her with another man in a local bar. The defendant had told a friend he was going up there to '. . . do a number on both of them.' Some neighbors were awakened by screams coming from the victim's house. The victim's sister, who lived next door, called the police. A seven-year-old girl, daughter of the defendant and victim, was awakened by the noise, got up, and went into the living room, saw blood gurgling out of her mother and her father standing nearby with a knife in his hand. When the police arrived, they found the defendant inside the house and the victim on the floor fatally wounded. Her throat had been cut, and she also had recived several stab wounds in her throat and several head wounds. The defendant was arrested and charged with murder.

The defendant raises six points on his appeal. First, defendant claims that New Mexico's death penalty is unconstitutional and that the case must be remanded for resentencing. We agree. The penalty to be imposed in this case is life imprisonment. State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (1976).

Second, defendant claims fundamental error occurred because there was no jury determination of competency and no valid waiver thereof. Prior to the preliminary hearing in magistrate court, counsel for defendant filed a motion in District Court, requesting an examination to determine his mental competency as provided by Rule 35(c), N.M.R.Crim.P. 35(c) (§ 41--23--35(c), N.M.S.A.1953 (Supp.1975)). The motion was granted staying the magistrate court proceedings and ordering a psychiatric esamination. Following the examination, a hearing was held at which the examining doctor testified that the defendant understood the nature and gravity of the proceedings against him, was capable of assisting in his own defense and was competent to stand trial. At the conclusion of the hearing the Court found that the defendant was mentally competent to stand trial and that there was no reasonable doubt as to his mental competency to stand trial.

Rule 35(b), N.M.R.Crim.P. 35(b) (§ 41--23--35(b), N.M.S.A.1953 (Supp.1975)) provides [90 N.M. 363]

Page 1156

that when it appears that there is a question as to the mental competency of a defendant to stand trial, any further proceedings shall be suspended until the court without a jury determines that issue, i.e. whether there is a reasonable doubt as to the defendant's present mental capacity to stand trial.

The Court decides the issue in one of theree ways. First, the Court may decide that...

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