State ex rel. Moreno v. Floyd

• Decision Date: 07 December 1973
• Docket Number: No. 9712,9712
• Citation: 1973 NMSC 117,516 P.2d 670,85 N.M. 699
• Parties: The STATE of New Mexico on the relation of Juan MORENO and David Moreno, Petitioners-Appellants, v. Richard I. FLOYD, Magistrate for Division I, Eddy County, New Mexico, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 670

516 P.2d 670

85 N.M. 699

The STATE of New Mexico on the relation of Juan MORENO and David Moreno, Petitioners-Appellants, v. Richard I. FLOYD, Magistrate for Division I, Eddy County New Mexico, Respondent-Appellee.

No. 9712.

Supreme Court of New Mexico.

Dec. 7, 1973.

Dow & Feezer, Carlsbad, for Juan Moreno

Walker & Estill, Carlsbad, for David Moreno.

David L. Norvell, Atty. Gen., Jay F. Rosenthal, Sp. Asst. Atty. Gen., Augustin T. Gurule, Asst. Atty. Gen., Santa Fe, for respondent-appellee.

OPINION

OMAN, Justice.

Petitioners sought and secured from the District Court of Eddy County a preliminary writ of prohibition directed to Respondent, the magistrate for division I of said county. The writ commanded Respondent, who was conducting a preliminary hearing upon third degree felony charges pending against Petitioners, to desist and refrain from additional action in said criminal proceedings until the further order of the district court and until that court should hear the petition for a permanent writ of prohibition upon its merits.

The matter was heard on the merits on December 18, 1972. Although a copy thereof does not appear in the transcript of the record before us on this appeal, the parties have asserted that on February 14, 1973 the district court entered an 'Order Dismissing and Quashing the Preliminary Writ of Prohibition.' We accept this assertion as true. A decision of the district court entered February 15, 1972, consisting of findings of fact and conclusions of law, which does appear in the record before us, supports such an order. We affirm that order.

Except for additional facts recited hereinafter incident to our disposition of the individual points relied upon for reversal, the facts essential to an understanding of the issues raised on this appeal are:

(1) Petitioners were charged in the magistrate court over which Respondent presides with having committed the crime of aggravated battery, which is a third degree felony. Magistrate courts have no trial jurisdiction over such offense, but do have authority to conduct preliminary examinations upon charges therefor. Section 36--3--4, N.M.S.A.1953 (2nd Repl.Vol. 6, 1972).

(2) Attorneys were appointed to represent Petitioners under the Indigent Defense Act, §§ 41--22--1 through 10, N.M.S.A.1953 (2nd Repl.Vol. 6, 1972).

(3) Prior to the commencement of the preliminary examination before Respondent upon the charges against Petitioners, the attorneys appointed to represent Petitioners requested of Respondent on behalf of Petitioners that the preliminary hearing be stenographically reported and transcribed, and that Petitioners be furnished a certified copy of the transcript at the State's expense. This request was denied.

(4) Pursuant to instructions from the State Court Administrator addressed to all district judges and magistrates, Respondent offered to have the proceedings recorded on a tape by a Norelco Carry-Corder portable tape recorder which had been furnished by the State for that purpose and to make the tape and a recorder available for the use of Petitioners and their attorneys should Petitioners be bound over to the district court to stand trial on the charges against them.

(5) Thereupon the attorneys moved the district judge who had appointed them to be allowed to withdraw as attorneys for Petitioners. Their stated reason therefor was that they had had many years experience in the practice of criminal law before all the courts of the State of New Mexico, and that they could not adequately and competently represent Petitioners unless furnished with a certified written transcription of the records and proceedings in the magistrate court, including the preliminary hearing. The motion was denied and the attorneys were instructed to continue their representation of Petitioners.

(6) The district judge who heard the petition for writ of prohibition upon its merits made the following pertinent findings:

(a) 'That the Respondent is the Magistrate of a Magistrate Court, has jurisdiction to hold preliminary hearings of the defendants (Petitioners) and his actions in denying a written transcript requested by the attorneys in the preliminary hearing herein was done by authority of law and has not deprived defendant Petitioners herein of the right to due process of law and of equal protection of the laws.

(b) 'Respondent's refusal to allow a written transcript does not violate Section 41--22--3, N.M.S.A., 1953 Comp., the Indigent Defense Act, in that no evidence has been presented showing that the representation of the Petitioners has not been 'to the same extent as a person having his own counsel.'

(c) 'That the denial to the Petitioners of a certified written transcript does not deprive them of a proper record upon which to base their cross examination of prosecution witnesses and impeachment of such witnesses at the trial so long as they are provided with a recording as is allowed under Section 41--23--55, N.M.S.A., 1953 Comp. (1972 P.S.).

(d) 'That the tape recording offered to the Petitioners is admissible in evidence at the trial for impeachment and other purposes.

(e) 'That the tape recording offered the Petitioners will furnish the Petitioners the opportunity to be prepared to challenge any contradiction by the witness at the trial.

(f) 'That the granting of a tape recording provides the Petitioners with adequate facilities for discovery and for trial preparation.

(g) 'That the providing of a tape recording for the Petitioners provides them with adequate facilities for the purpose of appeal.

(h) 'That the Petitioners have failed to show that a written transcript is in any way inherently a better form of preservation of testimony than that provided by a tape recording.

(i) 'That a transcription from a stenographic tape recording can be changed by the person transcribing the shorthand tape.

(j) 'That the state legislature has not appropriated funds to pay for written transcripts for indigent defendants.

(k) 'That the attorney or attorneys representing the defendant (Petitioners) if he is (they are) bound over for trial to the district court will have the opportunity to listen to a sound recording and will not have to reply upon a written record for the purpose of impeachment or examining witnesses.

(l) 'That the Petitioners have been offered the use of a proper machine on which to play the tape recording record of the preliminary hearing.'

We shall consider the three points relied upon for reversal in a slightly different order from that in which they are presented in the brief in chief. We first consider the contention that the district 'COURT COMMITTED ERROR IN HOLDING THAT A NORELCO CARRY-CORDER PORTABLE CASSETTE TAPE PROVIDES AN ADEQUATE RECORD OF THE PRELIMINARY HEARING.'

Petitioners particularly contend their attorneys were not furnished with the proper tools with which to represent them at trial or on appeal, should they be convicted. Their claim is that a tape recording of the proceedings in the preliminary hearing, together with a proper machine on which to play this recording, are inadequate tools for these purposes, and that the only adequate tool is a typewritten copy of a court reporter's transcription of stenographic notes of the proceedings, which the reporter has certified to be an accurate report of the proceedings.

In addition to the findings of fact by the district court above quoted and which are pertinent to this issue, none of which has been directly attacked as being unsupported by substantial evidence, the district court concluded: (1) 'There is no inherent difference between a written transcript and an electronically recorded transcript'; (2) 'Ability to pay costs of written transcripts might make representation for a paying defendant more convenient, but there is no inherent difference in that the spoken word is captured in both cases'; (3) 'There was no evidence of sufficient nature presented to show that there is an inherent advantage between a written transcript and one that is electronically recorded.'

We appreciate there seems to be confusion of fact and law in some of the findings and conclusions, but we agree with the district court that the record clearly supports the ultimate fact that a tape recording of the proceedings at the preliminary hearing would be an adequate record of these proceedings for the purposes of preparation for trial, for use at trial and on appeal, should an appeal prove necessary.

We fully recognize that it has long been the practice in New Mexico for attorneys to use certified, typewritten transcriptions of prior testimony of witnesses as a basic tool for trial preparation and cross-examination of these witnesses if called to testify at a trial. However, certified written reports of prior testimony, or written prior statements of witnesses, are not alone useable or admissible in evidence for these purposes, and we do not understand Petitioners to so contend. See State v. Gonzales, 77 N.M. 583, 425 P.2d 810 (1967); Franklin's Earth-Moving, Inc. v. Loma Linda Park, Inc., 74 N.M. 530, 395 P.2d 454 (1964); Brown v. General Insurance Company of America, 70 N.M. 46, 369 P.2d 968 (1962); Kirchner v. Laughlin, 6 N.M. 300, 28 P. 505 (1892); State v. Carlton, 82 N.M. 537, 484 P.2d 757 (Ct.App.1971), cert. denied, 82 N.M. 534, 484 P.2d 754 (1971); 3 & 4 Jones on Evidence, Civil and Criminal, §§ 15:15, 26:2--5 (6th ed. Gard 1972); Annot., 11 A.L.R.2d 30, 89--101, 155--165 (1950). Petitioners do contend written transcripts are more easily used for these purposes than are tape recordings. Their experienced, court appointed attorneys sincerely feel that they will be handicapped without a certified, typewritten copy of a court reporter's transcription of the preliminary hearing. However, at oral argument before us they conceded they had never tried using a tape recording in preparation for trial or at trial. We are of the opinion that they are mistaken in their belief...