State v. Andrada

• Decision Date: 26 March 1971
• Docket Number: No. 555,555
• Citation: 82 N.M. 543,1971 NMCA 33,484 P.2d 763
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Luis P. ANDRADA and Joseph B. Baca, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 763

484 P.2d 763

82 N.M. 543

STATE of New Mexico, Plaintiff-Appellee, v. Luis P. ANDRADA and Joseph B. Baca, Defendants-Appellants.

No. 555.

Court of Appeals of New Mexico.

March 26, 1971.

Certiorari Denied April 21, 1971.

William W. Bivins, Las Cruces, for appellant Andrada

Neil E. Weinbrenner, Las Cruces, for appellant Baca.

James A. Maloney, Atty. Gen., Santa Fe, Ray Shollenberger, Asst. Atty. Gen., for appellee.

OPINION

WOOD, Judge.

Convicted of aggravated burglary, § 40A--16--4, N.M.S.A.1953 (Repl.Vol. 6), defendants appeal. The issues concern: (1) severance; (2) lesser included offenses; (3) evidence of intent; (4) the instruction on intent; and (5) the failure to strike an allegedly unresponsive and prejudicial answer of a witness.

Motion for severance.

Both defendants moved for a severance. Baca's motion claimed that his defense would be in direct conflict with Andrada's defense; that a joint trial court effectively deprive Baca of the opportunity to present an effective defense. Andrada's motion asserted '* * * the defenses of the defendants herein are such that the consolidation of the cases for the purposes of trial would be prejudicial to movant.' The trial court ruled '* * * you are not entitled to a separate jury on that, your joint Motions will be denied.'

In asserting denial of a severance was error, both defendants recognize that the granting of separate trials to defendants who have been jointly informed against, as here, is a matter for the trial court's discretion. State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967), cert. denied 391 U.S. 927, 88 S.Ct. 1829, 20 L.Ed.2d 668 (1968); State v. Turnbow, 67 N.M. 241, 354 P.2d 533, 89 A.L.R.2d 461 (1960). Their claim is that the trial court abused its discretion. In so contending, both defendants recognize there is nothing in the record, other than the claims made in the motions, and the trial court's ruling, which pertains to the motions for severance. Thus, there is nothing in the record showing how Baca would be deprived of an opportunity to present an effective defense or how Andrada would be prejudiced by a joint trial. As to these items, defendants ask us to accept their explanation of what was presented to the trial court in arguing in support of the motions. Specifically, they ask us to consider matters outside the record. This we cannot do. Our review is limited to the record. Section 21--2--1(17)(1), N.M.S.A.1953 (Repl. Vol. 4); State v. Gunthorpe, 81 N.M. 515, 469 P.2d 160 (Ct.App.1970).

The only specific claim in the record is Baca's claim that his defense would be in direct conflict with Andrada's defense. Assuming this is a fact, the fact of conflicting defenses, standing alone, does not amount to a showing that the trial court abused its discretion in denying the claim. Compare State v. Aull, supra; State v. Fagan, 78 N.M. 618, 435 P.2d 771 (Ct.App.1967).

Lesser included offenses.

Section 41--13--1, N.M.S.A.1953 (Repl.Vol. 6) states in part:

'* * * (F)or an offense consisting of different degrees, the jury may find the accused * * * guilty of any degree of such offense inferior to that charged * * * or of an attempt to commit such offense or any degree thereof; * * *'

The trial court submitted to the jury the charge of aggravated burglary, § 40A--16--4, supra, and the lesser offenses of burglary and criminal trespass, §§ 40A--16--3 and 40A--14--1, N.M.S.A.1953 (Repl.Vol. 6). No complaint is made that burglary and criminal trespass were improperly submitted as lesser included offenses under the facts of the case.

By their requested instructions, both defendants asked that additional lesser offenses be submitted to the jury. These additional offenses are identified as 'attempt to commit aggravated burglary,' 'attempt to commit burglary' and 'unlawful carrying of a deadly weapon.' See §§ 40A--28--1 and 40A--7--2, N.M.S.A.1953 (Repl.Vol. 6). Error is claimed because of the trial court's refusal to instruct on these three offenses.

State v. Anaya, 80 N.M. 695, 460 P.2d 60 (1969) states:

'Appellant had the right to have instructions on lesser included offenses submitted to the jury. This right depends, however, on there being some evidence tending to establish the lesser included offenses. * * *'

State v. Sandoval, 59 N.M. 85, 279 P.2d 850 (1955), rev'd on other grounds, State v. Miller, 76 N.M. 62, 412 P.2d 240 (1966); State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969); see also State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966); State v. James, 76 N.M. 376, 415 P.2d 350 (1966).

Defendants recognize that under the foregoing decisions it is not error to refuse to instruct on a lesser included offense unless there is some evidence tending to establish the lesser included offense. They assert, however, that other New Mexico decisions do not require that there be evidence of the lesser included offense. They claim that once these is evidence sufficient for the jury to consider the offense charged, that the trial court, if requested, is required to instruct on all lesser offenses included within the charged offense regardless of whether there is evidence tending to establish the lesser included offense. They say this view is supported by State v. Ulibarri, 67 N.M. 336, 355 P.2d 275 (1960) which states:

'This court has often held that the trial court must instruct the jury in every degree of the crime charged when there is evidence in the case tending to sustain such degree. * * *'

State v. Ulibarri, supra, involved degrees of homicide and the lesser included offense of voluntary manslaughter, under the facts, in defendant's conviction of first degree murder. The language quoted from Ulibarri is appropriate to the charge there involved and consistent with § 41--13--1, supra. The quoted language does not state that a lesser offense, included within the offense charged, is to be submitted to the jury even if there is no evidence tending to establish the lesser included charge. There is no inconsistency between State v. Ulibarri, supra, and the rule reiterated in State v. Anaya, supra. Defendants were not entitled to have lesser included offenses submitted to the jury unless there was evidence tending to establish the lesser included offenses.

Defendants contend, however, that 'attempted' crimes are a special category and that because of this special category and 'attempted' crime should be submitted to the jury in every case where there is a submissible issue as to the completed crime. Defendants refer us to the 'rule' that every completed crime necessarily includes an attempt to commit that crime, and to State v. Lutheran, 76 S.D. 561, 82 N.W.2d 507 (1957). That case held that the jury was property instructed, and the defendant property convicted of an attempt, although the defendant was charged with a completed offense. Defendants also rely on the wording of § 41--13--1, supra, arguing that the reference to 'attempts' in that statute is in the disjunctive and, therefore, to be considered separately from the statutory reference to an 'offense inferior to that charged.'

Defendants' position concerning 'attempts' disregards the reason for requiring evidence tending to establish lesser included offenses before they are submitted to the jury. That reason is that if the jury is instructed on lesser included offenses, for which there is no evidence, false issues would be interjected. See State v. Pruett, 27 N.M. 576, 203 P. 840, 21 A.L.R. 579 (1921). New Mexico has consistently taken this position--that there must be evidence tending to establish the lesser included offense before it is to be submitted to the jury. State v. Anaya, supra; State v. Ortega, supra; State v. Sandoval, supra; State v. Pruett, supra. Although none of these decisions directly concerned an 'attempt,' the principle is as applicable to 'attempts' as to lesser completed crimes.

Section 40A--28--1, supra, in defining an 'attempt to commit a felony' includes the requirement that the perpetrator must have failed to 'effect its commission.' If the evidence is of the completed crime, then the crime of 'attempt' is not involved. To instruct on an 'attempt' where there is no evidence tending to establish a failure to complete the crime would present a false issue to the jury.

Section 41--13--1, supra, authorizes 'attempts' to be submitted to the jury. That section, however, does not authorize the submission of an 'attempt' issue when there is no evidence tending to establish an attempted crime which failed to be completed.

We hold that there must be evidence tending to establish an attempt as defined in § 40A--28--1, supra, before the issue of 'attempt' may be submitted to the jury as a lesser included offense.

Defendants' remaining contention under this issue is that there is evidence to establish the crimes of attempted aggravated burglary, attempted burglary and unlawfully carrying a deadly weapon. As to the two asserted attempts, we disagree.

It is undisputed that at approximately 1:50 a.m. a rear door of a sporting goods store was partially open; its lock having been pried off. Both defendants were inside the store; they had neither authority nor permission to be there. When caught, they had items in their possession which belonged to the store.

If there was an 'intent to commit any felony or theft' (§§ 40A--16--3 and 40A--16--4, supra) in the store, defendants had committed either burglary or aggravated burglary. If there was the requisite intent, there was nothing to indicate a failure to commit some form of burglary. See § 40A--28--1, supra. If the requisite intent was absent, the defendants neither committed any degree of burglary nor any degree of attempted burglary. As between an attempt to commit some degree of burglary and some degree of a completed burglary, the evidence goes only to a completed crime rather than an attempt.

As to 'unlawfully carrying a deadly weapon,' there is evidence tending to establish that each defendant was...