Nieto v. State, 140

• Decision Date: 28 June 1968
• Docket Number: No. 140,140
• Citation: 443 P.2d 500,79 N.M. 330,1968 NMCA 45
• Parties: Albert NIETO, Jr., Petitioner, v. STATE of New Mexico, Respondent.
• Court: Court of Appeals of New Mexico

Page 500

443 P.2d 500

79 N.M. 330

Albert NIETO, Jr., Petitioner, v. STATE of New Mexico, Respondent.

No. 140.

Court of Appeals of New Mexico.

June 28, 1968.

[79 NM 330] John H. Schuelke, Gallup, for petitioner.

Boston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

WOOD, Judge.

Defendant (petitioner, Nieto moved for post-conviction relief under § 21--1--1(93) N.M.S.A.1953 (Supp.1967). This motion is based on the fact that a police informer '* * * testified as to how the crime supposedly happened * * *.' The motion was denied without a hearing. Defendant appeals, claiming it was error '* * * to summarily deny him relief * * *.'

Defendant was convicted of a narcotics offense; his conviction was affirmed in State v. Neito, 78 N.M. 155, 429 P.2d 353 (1967).

At the trial, Castaneda, an admitted police informer, testified that he purchased the narcotic from defendant; that at the time of the purchase, by prior arrangement, a policeman was concealed in the trunk of Castaneda's car and another policeman was watching from an unmarked car about one-half block away. Castaneda had performed similar services for law enforcement agencies on previous occasions.

Defendant claims that Castaneda and law enforcement officers conspired to violate the law and his constitutional rights and infers that Castaneda is guilty of the same offense.

The trial court instructed the jury that one who '* * * without criminal intent, feigns complicity in the commission of a crime merely for the purpose of detecting the perpetrator thereof, with a view to prosecution for the offense, is not an accomplice in law, * * *'. The jury was informed that although officers or another person had cooperated with the defendant and had provided the opportunity for commission of the crime, it was no defense if the defendant, apart from such cooperation, '* * * intends to commit the acts constituting a crime, and if he does acts necessary to constitute the crime, * * *'. Although we are not concerned with whether these instructions were correct statements of law, we note that the defense had no objection to them. Compare § 54--7--7, N.M.S.A.(1953).

Defendant seeks relief from his conviction and sentence on the basis of the arrangement between the informer and the police. The effect of this arrangement was an issue at his trial. If the trial court had incorrectly instructed the jury as to the legal effect of this arrangement, the question could have been raised as an issue in defendant's direct appeal. This was not done.

A post-conviction proceeding is not a method of obtaining consideration of questions which might have been raised on appeal. State v. Reid, 79 N.M. 213, 441 P.2d 742, decided June 10, 1968; State v. Williams,78 N.M. 431, 432 P.2d 396 (1967). The trial court correctly ruled that the question of the legal effect of the arrangement between the informer and the police could not be raised as an issue in the post-conviction proceeding. See Craig v. United States, 376 F.2d 1009 (8th Cir. 1967).

Because of Castaneda's status as an informer, defendant asserts that doubt should be cast on Castaneda's testimony and '* * * (t)his should have been pointed out to the jury by the trial judge.'

If this contention is an attack on the credibility of Castaneda as a witness, it provides no basis for post-conviction relief. State v. Reid,supra; State v. Williams, supra. Credibility of the witness is a matter to be resolved by the trier of the facts, in defendant's case, the jury. State v. Williams, supra.

If this contention is a claim that the jury should have been informed of Castaneda's status as a police informer, it provides no basis for relief. Both the State and the defense referred to Castaneda's status on voir...