State v. Blackwell

• Decision Date: 09 May 1966
• Docket Number: No. 7560,7560
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Benjamin BLACKWELL, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 563

415 P.2d 563

76 N.M. 445

STATE of New Mexico, Plaintiff-Appellee, v. Benjamin BLACKWELL, Defendant-Appellant.

No. 7560.

Supreme Court of New Mexico.

May 9, 1966.

Rehearing Denied June 30, 1966.

Anthony J. Albert, Santa Fe, for appellant.

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

MOISE, Justice.

Appellant was convicted of assault with intent to commit rape and of rape, and was sentenced to consecutive terms in the penitentiary of not less than forty-five nor more than fifth years, and not less than eighty nor more than ninety-nine years.

On this appeal he raises three points. First, he complains that he was denied a fundamental right guaranteed him by the Constitution of the United States and by the Constitution of New Mexico in that he was not provided counsel nor was he advised of his right to have counsel appointed for him at the time of his preliminary hearing. Second, he asserts that the court erred in admitting into evidence certain clothing picked up by the police in appellant's room at the time of his arrest. Third, he complains that the sentence imposed is contrary to law.

The record discloses that on March 2, 1961, appellant was taken before a justice of the peace and given a preliminary hearing. At that time he was not represented by counsel and, although he was advised of his right to counsel, was not informed that counsel would be provided for him if he desired and if he was indigent. On the following day, March 3, 1961, an information was filed against appellant; counsel was appointed, and appellant was arraigned and a plea of not guilty entered for him, it being stated by the court that appellant did not thereby waive any rights which he might have and which he had not been accorded. Thereafter, appellant was tried on June 19 and 20, 1961, and found guilty by a jury. No complaint was made that counsel had not been provided at the preliminary hearing, or that appellant had not been advised of his right to counsel.

In our view, appellant's first point is answered completely by our decisions in State v. Vaughn, 74 N.M. 365, 393 P.2d 711, and Sanders v. Cox, 74 N.M. 524, 395 P.2d 353. In those cases, it was held that the entry of a plea in the district court after intelligent waiver of counsel, or when represented by competent counsel, served as a waiver of any defects in the preliminary hearing, including failure to advise of right or to provide counsel. See also, Gantar v. Cox, 74 N.M. 526, 395 P.2d 354; French v. Cox, 74 N.M. 593, 396 P.2d 423; Sneed v. Cox, 74 N.M. 659, 397 P.2d 308; Silva v. Cox (C.A. 10, 1965) 351 F.2d 61; Gantar v. Cox (C.A. 10, 1965) 351 F.2d 65. We fail to see how appellant is in any position to complain of deprivation of constitutional rights when he has been provided with competent counsel in the district court before arraignment; has been allowed to preserve his right to object to any prior denial of rights, and has then gone to trial without raising the issue of prior failure to provide counsel or advise of rights to counsel. By so proceeding, he has as effectively waived his right to object to prior defects in the proceedings as had the parties in State v. Vaughn, supra, and Sanders v. Cox, supra.

Appellant bases his second point on the facts surrounding his arrest. The record discloses that the arresting officer went to a certain address on South Broadway, Albuquerque, to investigate a Buick automobile which had its interior covered with blood. This was done pursuant to a call from the owner of the car. The officer looked over the car and then started to look around for the driver. Upon knocking on the door to an apartment at the rear of the lot where the car was parked the door opened and a voice said either 'Come in' or 'Yeah.' It was dark inside, but the officer went in, and when his eyes became accustomed to the darkness he saw a man in bed and blood-covered clothes on him and in the room. The officer testified that when he knocked on the door and entered at the invitation of the occupant, he did so only for the purpose of talking to whomever was present concerning the blood in the car. However, at that time he had been advised of the assault on the complaining witness in this case and when he saw the appellant and the bloody clothes, both on him and in the room, appellant was placed under arrest and the clothes were gathered up and taken to the police station along with appellant.

Based on these facts, appellant argues that there was an illegal search and seizure under the doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and, accordingly, the clothing taken from appellant's room was not admissible in the trial of the charges against him. We do not agree that there was any unlawful search. Although the facts differ therefrom, the discussion and authorities cited in our recent decision in State v. Garcia, 413 P.2d 210, decided April 11, 1966, are pertinent here. Also compare People v. Nebbitt, 183 Cal.App.2d 452, 7 Cal.Rptr. 8. The officer, having been invited into appellant's room as above set forth, was in a place where he had a right to be. The bloody clothes, being in plain sight, were not obtained as the result of a search. The following language, quoted from People v. West, 144 Cal.App.2d 214, 300 P.2d 729, is instructive:

'* * * (T)he term (search) implies...