March v. State, 16691

• Citation: 105 N.M. 453, 734 P.2d 231, 1987 NMSC 20
• Case Date: March 09, 1987
• Court: Supreme Court of New Mexico

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734 P.2d 231 105 N.M. 453 Alfred Wayne MARCH, Petitioner,
v.
STATE of New Mexico, Respondent. No. 16691. Supreme Court of New Mexico. March 9, 1987.
Rehearing Denied March 25, 1987.

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[105 NM 454] Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Public Defender, Santa Fe, for petitioner.

Hal Stratton, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

WALTERS, Justice.

Defendant was convicted of burglary, and he appealed. The court of appeals affirmed his conviction; we granted certiorari. We reverse the court of appeals on the issue of abuse of discretion in the trial court's denial of a continuance which allegedly deprived defendant of his right to present a meaningful defense. We affirm the court of appeals on the remaining issues.

This was defendant's second trial, his previous conviction having been reversed and a new trial granted. Upon remand, an attorney from the public defender's office entered an appearance as new defense counsel, on March 4, 1986. The new trial was scheduled for April 3, 1986. On April 2nd, defense counsel moved for a continuance to permit a forensic evaluation to determine whether or not defendant had the viable defense of lack of capacity to form a specific intent. Incapacity had not been

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[105 NM 455] raised by defendant's previous counsel in the first trial.

The State, in its response to defendant's petition for certiorari, asserts that "[d]efendant's motion for a continuance was late and correctly denied on that basis alone."

As in the case of State v. Ramirez, 92 N.M. 206, 585 P.2d 651 (Ct.App.1978), the State ignores the fact that the trial court denied the motion on the merits, not because it was untimely. In ruling on defendant's request, the judge remarked:

Well, my brief impression of this case from reading the Memorandum Opinion from the court of appeals is that ... well, I can understand how this issue would have gone past the previous defense counsel because I did not see any indication that there was some reason to be concerned that the defendant was not in full possession of his faculties at the time this earlier offense occurred. I think under the circumstances I am going to deny the motion for continuance * * * *

The State also claims that there is "not a suggestion of merit" to defendant's claim. We disagree. Defendant's medical records from an earlier period of confinement had been received by new defense counsel between the time of counsel's appointment and the filing of the motion for continuance. Those records reflected that in 1982 and 1983 defendant had suffered uncontrollable behavioral outbreaks and undifferentiated schizophrenia, and had been treated with Thorazine to control his conduct. Evidence presented at the continuance hearing disclosed that defendant also suffered from hypoglycemia, and just three months before the scheduled trial date he had undergone surgery for removal of a cancerous brain tumor. The medical records are sufficient to suggest that defendant might have had the tumor at the time he committed the offense charged. Because of the recent surgery and doctor's appointments outside of the penitentiary, defendant had had difficulty in scheduling a psychiatric evaluation with the penitentiary psychiatrist; consequently, there had been no recent forensic evaluation of defendant.

The presumption in criminal cases is that the defendant is sane, see, e.g., State v. Najar, 104 N.M. 540, 724 P.2d 249 (Ct.App.)...