State v. Aragon

• Decision Date: 02 January 1990
• Docket Number: No. 10989,10989
• Citation: 1990 NMCA 1,788 P.2d 932,109 N.M. 632
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Donald ARAGON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 932

788 P.2d 932

109 N.M. 632

STATE of New Mexico, Plaintiff-Appellee, v. Donald ARAGON, Defendant-Appellant.

No. 10989.

Court of Appeals of New Mexico.

Jan. 2, 1990.

Certiorari Denied March 5, 1990.

Hal Stratton, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Peter Rames, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant appeals his convictions after a bench trial on eleven counts of burglary, one count of receiving stolen property, and one count of a felon in possession of a firearm. He also appeals the enhancement of his sentence under the Habitual Offender Act, NMSA 1978, Sections 31-18-17 to -20 (Repl.Pamp.1987) and the amendment of his judgment and sentence to require that he pay restitution. Defendant has moved to amend the docketing statement to add new issues, a motion we now deny. Since the application of law to the facts concerning many issues is clear, only part of this opinion warrants publication. The remainder of the opinion, which is incorporated by reference, will be a memorandum opinion and may not be cited as precedent. We discuss (1) issues abandoned, (2) admission of taped conversation, (3) sufficiency of the evidence, and (4) amendment of sentence in the portion of the opinion that will be published. We discuss (5) the motion to amend and (6) issues answered summarily in the portion of the opinion that is not to be published. We affirm defendant's convictions on all counts, but we reverse the amendment of the sentence and remand for further proceedings.

ISSUES ABANDONED

Defendant's docketing statement attacked the trial court's failure to grant defendant's motion for appellate bond. This issue was not briefed. In addition, at trial and in the docketing statement, defendant argued that there was no probable cause to issue the first search warrant executed by the police. The basis for that claim was defendant's assertion that the affidavit in support of the search warrant provided no information connecting defendant to most, if not all, of the burglaries discussed in the affidavit. Defendant's briefs did not address this issue. Instead, in his briefs defendant attacked the search warrant only on the ground that the affidavit contained a false statement of fact. Therefore, this issue and the appellate bond issue have been abandoned. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985).

Defendant appears to have made an effort to avoid abandonment of any of his issues by stating, in his brief-in-chief, that the brief incorporates all arguments and authority included in the docketing statement. This is not an acceptable briefing practice, and we hold that it does not operate to preserve any of the issues not specifically argued in the briefs. See State v. Sandoval, 88 N.M. 267, 539 P.2d 1029 (Ct.App.1975) (points of error identified in the statement of proceedings but neither briefed nor supported by authority considered abandoned).

The appellate rule concerning briefing does not provide for incorporation of arguments contained in other pleadings. SCRA 1986, 12-213. Allowing such a practice would force opposing counsel and this court to reexamine the docketing statement and other pleadings such as memoranda in opposition to ensure that all of the issues discussed in those documents have been addressed. In addition, it would force this court and opposing counsel to speculate as to which issues a party genuinely wishes to preserve and which the party feels have no merit. Finally, this tactic could be used as a means of avoiding the page limitations placed on briefs by the appellate rules. In sum, to facilitate the opposing party's responses and this court's decision-making process, when a case is decided on a non-summary calendar, it should be decided on the basis of the issues, argument, and authority contained in one manageable set of briefs, as provided for by the rules.

For all of these reasons, defendant's attempt to incorporate arguments and authorities contained in his docketing statement but not in his briefs was ineffective. All issues raised in the docketing statement but not argued in the briefs have been abandoned. State v. Fish.

ADMISSION OF TAPED CONVERSATION

Defendant was arrested on September 21. After his arrest, he made several telephone calls to a friend who had been in the Once the right to counsel has attached and has been asserted, the state must honor that assertion. Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). The state may not circumvent the assertion by using cooperative co-defendants or other informants to elicit incriminating statements from a defendant who has previously asserted his right to counsel. Id.; United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). It does not matter whether the defendant initiated the conversation with the informant or volunteered statements, if the informant took some action beyond merely listening and the state knew or should have known incriminating information was likely to result from the conversation. Maine v. Moulton; United States v. Henry; cf. Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (where trial court found informant did no more than listen, appellate court erred in concluding that the police deliberately elicited the incriminating statements; there is no violation of sixth amendment right to counsel in use of defendant's voluntary statements to an informant).

[109 N.M. 635] Roswell Correctional Institute with him at some time prior to the burglaries in question. The friend became concerned about getting involved in the matter, and on September 22 he talked to his probation officer about his concerns. Subsequently that same day, the friend informed the police of his conversations with defendant and said that two briefcases containing a number of items stolen in the burglaries could be found in a clump of bushes just south of a radio station. The friend also permitted a police officer to come to his house that evening and tape a conversation between defendant and the friend. Defendant moved to disallow that conversation on sixth amendment right to counsel grounds. The trial court denied the motion.

The state contends that defendant's right to counsel was not violated in this case because defendant initiated the conversation and there was no showing the informant, defendant's friend, took any action designed deliberately to elicit incriminating remarks from defendant. As we have already pointed out, however, it does not matter that defendant initiated the taped telephone call. The record reveals that the state knew incriminating statements were likely to result from the conversation, and the informant did more than just listen.

According to the testimony of the officers and of the informant, and as the trial court found, the briefcases containing stolen property had already been located before the conversation was taped. Yet during the conversation the informant pretended they had not yet been found and asked defendant for instructions regarding the location of the items. The informant engaged defendant in a conversation regarding the stolen property and pretended throughout the conversation that he was planning to help defendant by removing the property from the bushes and from a storage locker. ¹ The informant asked defendant why he had done "this," and asked whether defendant's girlfriend knew he had done it. On these facts, it is apparent that the informant actively engaged defendant in conversation in a manner which was likely to elicit incriminating statements, and that the state knew or should have known that incriminating statements were likely to result from the conversation.

Nevertheless, we cannot conclude that the state's conduct violated defendant's sixth amendment right to counsel. That right ordinarily attaches when judicial proceedings have been initiated, by way of formal charge, preliminary hearing, indictment, information, or arraignment. See State v. Sandoval, 101 N.M. 399, 683 P.2d 516 (Ct.App.1984). With respect to the argument made on appeal in this case, as well, we conclude the right attaches when At the time of the taped conversation, defendant had not been charged with any of the burglaries. He was charged by criminal complaint on October 1; subsequently, on October 29, he was charged by criminal information.

                [109 N.M. 636] judicial proceedings have been initiated.  See Maine v. Moulton, 474 U.S. at 180, 106 S.Ct. at 489, 88 L.Ed.2d at 499, fn. 16.   Thus, it is necessary to determine whether at the time of the taped conversation judicial proceedings against defendant had been initiated with respect to any of the burglary charges.  See People v. Hovey, 44 Cal.3d 543, 244 Cal.Rptr. 121, 749 P.2d 776, cert. denied, --- U.S. ----, 109 S.Ct. 188, 102 L.Ed.2d 157 (1988)
                

On September 22, when the conversation was taped, defendant was in custody because he had been arrested for violating a condition of parole and held for investigation after his wallet was found at the scene of the burglary charged in count 1 of the criminal information. There is no evidence in the record that he had been formally charged with a parole violation on September 22. Under these circumstances, we conclude that defendant's sixth amendment right to counsel had not attached with respect to any of the burglary counts. Cf. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (plurality opinion) (a police station showup at which victim identified the defendant, who had been arrested on suspicion of robbing the victim, did not violate the defendant's sixth amendment right to counsel, because the showup took place before defendant had been indicted or otherwise formally charged). The fact that defendant was a...