Jones v. State

• Decision Date: 25 May 1970
• Docket Number: No. 8940,8940
• Citation: 469 P.2d 717,81 N.M. 568,1970 NMSC 82
• Parties: Edward C. JONES, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 717

469 P.2d 717

81 N.M. 568

Edward C. JONES, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.

No. 8940.

Supreme Court of New Mexico.

May 25, 1970.

[81 NM 568] G. Gordon Robertson, Raton, for petitioner-appellant.

James A. Maloney, Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe, for respondent-appellee.

OPINION

WATSON, Justice.

In State v. Jones, 52 N.M. 118, 192 P.2d 559 (1948), we affirmed the 1947 first degree murder conviction of the present appellant. Contending that his conviction was invalid by reason of the admission into evidence of confessions made by him to police officials, appellant Jones is now before us on an appeal from an adverse ruling on his motion under Rule 93, § 21--1--1(93), N.M.S.A., 1953 comp. (1969 Supp.).

Jones now contends that he was denied due process by the use of his involuntary confession, and that although this was an issue at his trial, additional facts on the question of the voluntariness which were not presented at the trial should now be considered. State v. Buchanan, 78 N.M. 588, 435 P.2d 207 (1967). These additional facts are now supplied by Jones, whose testimony before the trial judge on the hearing on his motion is summarized as follows:

Immediately after being taken to jail in Springfield, Illinois, Jones asked to make a telephone call to his father and asked for an opportunity to consult a lawyer. Both requests were denied him. Beginning about 3:00 p.m. on the afternoon of the day of his arrest and continuing without interruption until midnight, or slightly after midnight, Jones was interrogated by Springfield city police and FBI agents. As a result of this protracted interrogation, Jones made oral statements tending to incriminate him, which were reduced to writing in the form of a written statement which was signed by Jones. At the time of his interview with the assistant district attorney and the sheriff of Colfax County, New Mexico, Jones again requested and was refused permission to call his father and to consult with an attorney. As a result of these interrogations and because of having made the incriminating statements, Jones pointed out a culvert in Texas where a pistol was found. The pistol and the written statements were introduced in evidence at his murder trial. Jones's decision to take the stand and testify at his trial was made in the light of the circumstance that the incriminating statements and the pistol had already been admitted in evidence against him.

Appellant Jones does not deny that all of these factual matters were known to himself and to his attorneys at the time of his trial and could have been placed in the record for review on direct appeal. His election not to bring them out at his trial prevented their being in the record and, therefore, they were not reviewed on appeal. At the trial, over twenty years ago, all he stated on the question was that a police sergeant in Springfield had stated that if he would 'shoot straight and come clean' it would go a lot easier on him. He did not request an instruction for the jury to disregard his statements if it found such statements had been induced by promise of clemency. See State v. Nelson, 63 N.M. 428, 321 P.2d 202 (1958); State v. Lindemuth, 56 N.M. 257, 243 P.2d 325 (1952).

In State v. Buchanan, supra, on a Rule 93 appeal, we remanded for the trial judge to hear evidence, or from personal recollection, to determine whether remarks of the prosecutor to the jury violated the appellant's constitutional rights. There the trial court had instructed that comment on defendant's refusal to testify was proper, and on appeal we avoided ruling on the instruction by stating that the record did not show any such comment. No record was made of the prosecutor's argument made to the jury. We relied upon Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), which held that under the federal rule, 28 U.S.C.A. § 2255 (1958) (from which our Rule 93 is derived), the petitioner there was entitled to a hearing where issues raised by the motion relate primarily to 'purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light.'

In the case before us, although a hearing was held on the motion, the trial court refused appellant's requested findings and conclusions based on his undisputed testimony above summarized, and made no findings on the subject. He merely concluded that Jones had an opportunity at his trial to introduce the same evidence as here submitted, and his failure to do so rendered the Supreme Court's affirmance res judicata on the issue of the voluntariness of his statements and prevented the collateral attack made by his motion under Rule 93, supra.

In our review on appeal of Jones's conviction, however, we said:

'* * * The error, if any, in the admission of the confessions was rendered harmless when the appellant took the stand and as a witness in his own behalf testified to the same facts they detailed. State v. Talamante, 50 N.M. 6, 165 P.2d 812; Robinson et al v. United States, 61 App.D.C. 370, 63 F.2d 147.' 52 N.M. at 122.

The above may have been the law at the time; but see Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). But the question which we must decide in this case is: Does Rule 93 provide for collateral review of constitutional questions where the facts relied on are fully known to the defendant at the time of his trial but were not brought out nor reviewed on appeal?

In State v. Fines, 78 N.M. 737, 437 P.2d 1006 (1968), we held that the question of the admissibility of illegally obtained evidence could not be...