Doe v. State

• Decision Date: 20 August 1975
• Docket Number: No. 1638,1638
• Citation: 1975 NMCA 108,88 N.M. 347,540 P.2d 827
• Parties: In the Matter of John DOE VIII, John Doe IX and John Doe X, children, Defendants-Appellants, v. STATE of New Mexico, Plaintiff-Appellee.
• Court: Court of Appeals of New Mexico

Page 827

540 P.2d 827

88 N.M. 347

In the Matter of John DOE VIII, John Doe IX and John Doe X,

children, Defendants-Appellants, v. STATE of New Mexico, Plaintiff-Appellee.

No. 1638.

Court of Appeals of New Mexico.

Aug. 20, 1975.

Certiorari Denied Sept. 23, 1975.

Thomas B. Root, Albuquerque, for appellants

Toney Anaya, Atty. Gen., Jill Z. Cooper, Asst. Atty. Gen., Thomas A. Simons, IV, John A. Templeman, Asst. Attys. Gen., State Board of Ed., Santa Fe (amicus), for appellee.

OPINION

COPEZ, Judge.

Petitions were filed in the Children's Court of Quay County alleging that each of the three respondents possessed less than one ounce of marijuana contrary to § 54--11--23, N.M.S.A.1953 (Repl. Vol. 8, pt. 2, Supp.1973) and that they were, thereby, delinquent children within the scope of the Children's Code, §§ 13--14--1 to 13--14--45, N.M.S.A.1953 (Repl. Vol. 3, Supp.1973).

The Children's Court found that respondents did, in fact, possess marijuana as charged in the petition and entered its order committing them to the Children's Ward of Quay County for a period of four days.

Respondents appeal from this finding and order, alleging several grounds for reversal: (1) that a continuance was inproperly denied; (2) that the court erred in admitting testimony of a non-expert; (3) that respondents were generally denied a fair trial; (4) that there was an illegal search and seizure as to Respondent X; (5) that a confession of Respondent X was improperly received into evidence; and (6) that Respondents VIII and IX were materially prejudiced as a result of the illegal search and seizure and confession involving Respondent X.

After careful review of the record and briefs of counsel, including an excellent amicus curiae brief filed on behalf of the State Board of Education, we affirm as to all respondents on all the above issues. We reverse as to Respondents VIII and IX, for reasons stated below.

The record discloses that on March 27, 1974, Raymond Lane, a teacher at Tucumcari Junior High School, observed the respondents smoking a pipe while walking between classes. Lane testified that Respondent X placed the pipe inside his sweater before the boys reached the next class. During this time, the respondents had to pass between buildings, and it was while crossing portions of school property and a street that they were observed.

Lane contacted a vice-principal, Dave Berggren, after the start of the next class period. Berggren, who suspected a violation of school regulations prohibiting smoking, and Lane proceeded to a room where Respondent X was in class. Berggren took the respondent out of the class and into a vacant classroom, where he and Lane talked to him until Respondent X surrendered the pipe. This conversation took approximately 40 minutes. During this time, Respondent X told Berggren that the pipe contained marijuana. This respondent later made the same statement to the principal, Hurley Lovely.

Analysis of the contents of the pipe indicated the presence of marijuana. Respondent X testified that he did, in fact, possess the pipe in question. Respondents VIII and IX testified that they had smoked the pipe. Respondents VIII and IX denied any knowledge that the pipe contained marijuana. Respondent X acknowledged that the pipe was his. Respondents VIII and IX both testified that they knew the substance in the pipe was not tobacco.

(1) Continuance

It is the law in this state that the granting of a motion for continuance is within the sound discretion of the trial court and such action will not be disturbed on review unless there is a showing of abuse of that discretion. State v. Sibold, 83 N.M. 678, 496 P.2d 738 (Ct.App.1972).

The record shows that respondents requested, and were granted, a first continuance from April 15, 1974, to May 8, 1974, for purposes of allowing an independent test of the contents of the pipe. Counsel for respondents made another motion on the same grounds one day prior to trial. This motion was denied and it is this denial which serves as the subject for appeal on this point.

Counsel, at his oral motion, stated that he had been unexpectedly called out of town on April 30, 1974, and was thereby unable to make a request for a court order to have the district attorney surrender the necessary evidence for testing purposes. The court below ruled, and it is clear from the record, that respondents had ample time to make the necessary tests prior to any unexpected travel by their counsel.

Respondents further argue that the district attorney violated Rule 27, Rules of Criminal Procedure, § 41--23--27, N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1973), by not giving up the requested pipe residue without a court order (citing State v. Billington, 86 N.M. 44, 519 P.2d 140 (Ct.App.1974)). Rule 27, supra, which relates to discovery by governmental disclosure is not applicable to the case at bar. In Re Doe, III, 87 N.M. 170, 531 P.2d 218 (Ct.App.1975). The petitions had been pending nearly a month before counsel began his discovery. We conclude that the legislature, by enacting § 13--14--14 and § 13--14--26, supra, intended that there be prompt adjudication of cases under the Children's Code.

We conclude that the court's denial of respondents' motion was not an abuse of discretion.

(2) Testimony of Expert Witness

A state police narcotics agent testified for the state concerning the character and identity of the substance found in the pipe. Counsel stated, and the court so found, that the agent had never been qualified to testify in a felony case, but his use as an expert had been limited to misdemeanor cases, preliminary hearings, and children's cases not involving felonies.

It appears from the record that the agent had conducted between 200 and 300 tests similar to the one in question, and that the results of approximately 80 of these tests had been used in various proceedings.

As the Supreme Court stated in State v. Garcia, 76 N.M. 171, 413 P.2d 210 (1966):

'. . . It is the trial judge's responsibility to determine whether an offered expert is sufficiently qualified to testify in a cause, and he should exercise discretion in allowing or denying the testimony to be introduced. This discretion will be interfered with by us only when it has been abused. . . .'

The agent in this case was not a non-expert, but was sufficiently expert to qualify for the purposes of these petitions. The offense involved, were this not a Children's Court matter would have been a misdemeanor under § 54--11--23, supra. The court did not abuse its discretion in qualifying this witness for the purpose of testifying that the substance in Respondent X's pipe was marijuana.

(3) General Issue of Fairness

Respondents argue that the court below generally denied them a fair trial in that several miscellaneous irregularities occurred: (a) that the court never informed respondents of their rights under the Children's Code, supra; (b) that the trial was, in fact, public; (c) that the court was prejudiced in its conduct of the trial; (d) that the 'Rule' was violated; (§ 20--4--615, N.M.S.A.1953 (Repl. Vol. 4, Supp.1973)) and (e) that the trial, taken as a whole, demonstrated cumulative error.

None of these points were raised below. While preservation of error is not scrupulously required in situations where the fundamental rights of parties are involved, at least some showing on appeal of the suggested fundamental or jurisdictional nature of the error is helpful. None has been offered. Indeed, the record does not support the fact that some of the irregularities existed.

We find no jurisdictional errors in any of the above alleged discrepancies that do find support in the record. Further, fundamental error will only be heard to prevent a plain miscarriage of justice where someone has been deprived of rights essential to a defense, State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963), or to protect those whose innocence appears indisputably, or open to such question that it would shock the conscience to permit the conviction to stand. State v. Rodriguez, 81 N.M. 503, 469 P.2d 148 (1970); State v. Jaramillo, 85 N.M. 19, 508 P.2d 1316 (Ct.App.1973). We have reviewed the record and determined that respondents were not denied a fair trial in any general or cumulative sense. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967).

(4) Search & Seizure

The record indicates that Respondent X surrendered a pipe to the assistant principal, Berggren, after 40 minutes of discussion in an empty classroom, in the presence of the teacher, Lane.

This procedure raises Fourth Amendment questions, since it cannot be denied that this action by a public school official is 'state action', rendering the Fourth Amendment applicable through the Fourteenth. Tinker v. Des Moines Community School Dist., 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733 (1969); Goss v. Lopez, 419 U.S. 565, 42 L.Ed.2d 725, 95 S.Ct. 729 (1975).

The Fourth Amendment rights of persons to be secure against unreasonable searches and seizures has been expressly applied to juvenile proceedings in this state by § 13--14--25(C), supra:

'C. In a proceeding on a petition alleging delinquency . . .

'(2) evidence illegally seized or obtained shall not be received in evidence to establish the allegations of a petition against a child over objection; . . .'

Of course, the Fourth Amendment to the United States Constitution by its words, protects only against unreasonable searches and seizures. It has long been held that what is reasonable depends upon the facts and circumstances of each case. State v. Kennedy, 80 N.M. 152, 452 P.2d 486 (Ct.App.1969); State v. Sedillo, 79 N.M. 289, 442 P.2d 601 (Ct.App.1969). Ordinarily, government officials are held to a very high standard of reasonableness. Citizens are protected by the fact that police officers must obtain warrants via a procedure whereby reasonableness is determined by someone neutral and detached from the business of solving crime. In the...