State v. Benavidez, 1560

CourtCourt of Appeals of New Mexico
Citation531 P.2d 957,87 N.M. 223,1975 NMCA 13
Docket NumberNo. 1560,1560
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Louie BENAVIDEZ, Johnny Jack Romero and Ernest Chavez, Defendants-Appellants.
Decision Date22 January 1975
Michael L. Gregory, Las Vegas, for Louie Benavidez

LOPEZ, Judge

The defendants were convicted of burglary and larceny contrary to §§ 40A--16--3(A) and 40A--16--1, N.M.S.A.1953 (2d Repl.Vol. 6). Judgment and sentences were passed and defendants appeal; we reverse as to all defendants for the reasons that follow.

The record discloses that items valued between $100 and $2,500 were stolen from the victim's home on August 9, 1973. The evidence shows that two or three young men left the scene in a black and white automobile, that a witness followed the vehicle and found it, or a like automobile, several miles from the scene of the theft. The three defendants were seen together near the place where the vehicle was spotted, and later in the afternoon the same three defendants were arrested at a police roadblock between the place where they were seen together and the site of the theft.

After arrest, but prior to trial, the defendants spoke with a former district attorney of San Miguel County in private. After this conversation, Benavidez stated that he would show the police where the stolen items were located. The officer who drove Benavidez to the place where the items were found stated that Benavidez told him during the trip that he had broken into the victim's house by using a screw-driver to open the door.

Benavidez moved to suppress his act and statements on the grounds that these constituted a confession or incriminating admission and were procured through the use of unlawful inducements and were not voluntarily made. Romero and Chavez separately moved for severance from the defendant Benavidez on the ground that this confession was prejudicial and inadmissible at a separate trial of either Romero or Chavez. All of these motions were reiterated at various points in the trial and were joined by all defendants.

Inadmissibility of Benavidez' Confession

Benavidez' motion to suppress is based upon the involuntariness of his act which produced physical evidence for the trial and his oral statements made in the course of performing this act which were made to a police officer and later introduced at trial through the officer's testimony.

'Before a confession may be introduced into evidence as such it must be established to have been voluntarily made and not to have been extracted from an accused through fear, coercion, hope of reward or other improper inducements.' State v. Turnbow, 67 N.M. 241, 354 P.2d 533, 89 A.L.R.2d 461 (1960).

After a hearing on the motion, the trial court ruled that there was no coercion to render the act or the statements inadmissible.

The record shows that all three defendants had a private conversation with a former district attorney after their arrest; that the former district attorney was a person of some standing in the community; that this man was seen on the day of the crime by Benavidez with the victim of the larceny who was, in fact, acting at that time as his secretary; and that Benavidez' mother had told her son to go to this man if he ever got into any trouble because he would help him out. Immediately after this conversation, Benavidez came out of the closed room and told the police officer that he would show him where the stolen articles were stored.

It is settled law in this state that an unlawful inducement which renders a subsequent confession involuntary and inadmissible need not be made by a person in an actual position of authority, but the situation must be such that the person confessing might reasonably consider the promissor as a person able to afford him aid. State v. Foster, 25 N.M. 361, 183 P. 397, 7 A.L.R. 417 (1919). It is similarly the law in other jurisdictions that if the confession was forced from a defendant by hope presented to his mind by a third person, it should be rejected. 'In determining this, the judge should look not only to the position and character of the person offering the inducements, as well as of the prisoner, and all the attending circumstances.' Beggarly v. State, 8 Baxt. 520 (Tenn.1875). See also Allen v. State, 53 Ala.App. 66, 297 So.2d 391 (1974); Stokes v. Hancock, 185 So.2d 671 (Miss.1966).

The promissor in this case had been district attorney in San Miguel County for almost the entire life span of the defendant Benavidez. He was well known to the defendant as a person with influence and had been recommended as such to him by his mother, who had worked in politics around the county. The defendant was young, 18 years old at the time of the alleged larceny; and although he was not a minor, Benavidez' age is a factor to be considered in determining whether he might reasonably view the promissor as a person able to afford him aid in his situation. Annot., 87 A.L.R.2d 629 (1963). The defendant testified at the hearing that he thought the former district attorney could get the charges dropped. Such a possibility no doubt assumed the status of a probability in the mind of an 18 year old, given the knowledge he had of the position of the promissor in the community.

For this reason, we hold that the confession obtained from Benavidez, consisting of the act of showing the police where the stolen property was hidden and the statements made to the police after emerging from the conference room and on route to the cache site, was unlawfully induced, involuntary and, therefore, inadmissible. The conviction is reversed and the cause remanded for a new trial to be conducted without the use of this confession.

Severance of Defendants

Defendants Romero and Chavez raise an important issue respecting the severance of their trials from that of Benavidez and from each other: Romero during oral argument on appeal, during trial, and by pre-trial motion: Chavez in his brief on appeal, during trial, and by pre-trial motion. They both argue that a joint trial was prejudicial (§ 41--23--34(a), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973)) in that the presence of the three defendants at the same trial, along with the circumstantial evidence joining them together later in the day of the larceny, was an unfair burden. Compare State v. Baca, 85 N.M. 55, 508 P.2d 1352 (Ct.App.1973). Defendants Romero and Chavez also argue that they were entitled to severance as a matter of right since the state intended to present and did present evidence, other than reputation or character evidence, which would not have been admissible in a separate trial of either Romero or Chavez. Section 41--23--34(b)(2), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). At a hearing on the various motions presented by the defendants before trial, the court below noted that the prosecution would present Benavidez' confession in evidence. The trial court then proceeded to deny the motions for severance on the ground that the defendants were merely arguing 'credibility.' Assuming that this was not an abuse of discretion under § 41--23--34(a), supra, which we do not discuss, the trial court incorrectly applied § 41--23--34(b), supra. Prejudice need not be shown to bring a defendant within the scope of § 41--23--34(b), supra. State v. Volkman, 86 N.M. 529, 525 P.2d 889 (Ct.App.1974).

The real question presented by defendants' argument is whether the defendants had a fair trial. State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974); State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967). It was obvious to the trial court that the prosecution intended to use Benavidez' confession at the joint trial. The court and the prosecution both said so during the hearing on defendants' motions. This is more than the 'probability' required by § 41--23--34(b), supra. On appeal, the State concedes that this evidence would not have been admissible at separate trials of either Romero or Chavez. Section 41--23--34(b), supra, is mandatory and a failure to sever the trials of these defendants constitutes reversible error.

The State concedes the applicability of State v. Volkman, supra, to the situations of defendants Romero and Chavez. We therefore hold that the defendants were entitled to severance of their trials as a matter of right; and we reverse and remand for new trials for each defendant.

Other Matters

1) Benavidez and Chavez argue that the trial court made statements to the jury regarding their role in determining 'the kind of community that you are going to have.' After a careful reading of the record we do not think that these statements were prejudicial to defendants or demonstrated an abuse of discretion on the part of the trial court. State v. Mireles, 84 N.M. 146, 500 P.2d 431 (Ct.App.1972).

(2) Romero contends that he was prejudiced by a jury instruction given regarding confessions:

'A voluntary confession constitutes evidence only against the person making it. It must not be considered as evidence against a co-defendant, and must be disregarded by the jury in determining the guilt or innocence of a co-defendant.'

The instruction was necessary to guarantee Romero a fair trial. State v. Garcia, 84 N.M. 519, 505 P.2d 862 (Ct.App.1972). Furthermore, the defendant did not tender a substitute instruction to the trial court. Section 41--23--41, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). There was no error in the giving of this instruction.

(3) Romero and Chavez moved for a directed verdict and assign the denial of this motion as error. Our function in reviewing the trial court's action is limited to whether there was substantial evidence on the record which would support a verdict of guilty. State v. Douglas, 86 N.M. 665, 526 P.2d 807 ...

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