State v. Brazeal, 11505
| Citation | 109 N.M. 752,790 P.2d 1033,1990 NMCA 10 |
| Decision Date | 01 February 1990 |
| Docket Number | No. 11505,11505 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. John Wilson BRAZEAL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
The public defender was appointed to represent defendant one week before his retrial on a charge of receipt, transportation or possession of a firearm by a felon, NMSA 1978, Section 30-7-16 (Cum.Supp.1989). The day before trial, defense counsel, claiming insufficient time for preparation, requested a continuance. The district court denied the motion. Defendant appeals his conviction on the grounds that: (1) the district court erred in denying the continuance, and (2) he received ineffective assistance of counsel at trial. We affirm.
Because the validity of defendant's claims turns on the specific circumstances of the case, we review those circumstances in detail. We begin with a summary of the evidence at defendant's second trial; then we describe the procedural history.
Steve Lambert testified that he, Ted Moore, and Jimmy Spears were at Spears' house on February 1, 1988, when defendant arrived. Defendant began talking to the others in the kitchen, then said he needed to talk to Spears. Defendant seemed upset. When words were exchanged between defendant and Spears, Lambert left the kitchen and entered the dining room. He saw defendant and Spears with their hands on each other, fighting. He heard a pistol go off and saw a gun. Defendant's hand was on the grip, Spears' was on the barrel. He and Moore intervened; defendant, or both Spears and defendant, handed the gun to Moore, who unloaded it. The gun was a large caliber weapon, a .44 or .45. On cross-examination by the public defender, Lambert admitted that both men were holding the gun and that he did not know whose gun it was. He saw a hole in the wall, but did not know if it was caused by a bullet.
Spears testified that he and defendant had an argument and a scuffle at his home while Moore and Lambert were there. The fight started in the kitchen. He and defendant wrestled. He believed some kind of weapon was involved; he did not know what it was, but it came from defendant's coat. He did not at any time see defendant with a gun in his hand. He had seen defendant with a .44 or .41 caliber magnum months before. Defendant owned a leather holster. Spears did not have a pistol with him at the time. During the scuffle, he heard a loud noise. He did not know what it was. He came to in the hospital. He did not recall talking to Officer Steve Groves that night, but he remembered telling Detective Ron Shoemake the next day that defendant had a gun and a shoulder holster. He said, however, that he told Shoemake that only because it was what his girl friend and Lambert had told him. He also admitted telling Shoemake that during the argument he had asked defendant to go outside with him to settle the dispute and in response defendant had pulled a gun. The prosecutor offered Spears' preliminary hearing testimony, in which Spears said that (1) he had asked defendant, "Did you bring your gun today, John?" and (2) defendant had the gun, a .41 magnum revolver, in a shoulder holster. On cross-examination Spears testified that he did not know whether defendant pulled a gun. He stated that when he spoke to Shoemake the morning after his release from the hospital, he was still drowsy from medication. He added that because of a head injury sustained after the incident, his memory of the incident was almost gone.
Officer Groves testified that in the emergency room after the accident, Spears told him that defendant had pistol-whipped him. Defense counsel unsuccessfully attempted to exclude Groves' testimony that he had taken photos showing a bullet hole in a kitchen cabinet at the scene of the fight. On cross-examination Groves admitted that he never found a bullet and that he could not establish the date that the hole was made, only that it was less than six months old. Groves also admitted that although a large caliber gun makes a loud noise and the nearest house was only thirty feet away, he never interviewed any neighbors.
Moore testified that after defendant arrived at Spears' home, there was a heated argument between Spears and defendant, including a wrestling match over a pistol. He did not know which man had the gun first. Defendant's hand was toward the butt of the gun and Spears' hand was around defendant's hand. He denied telling Detective Shoemake that defendant pulled the gun. He testified that he took the gun from both men, although at the preliminary hearing he had testified that he got it from defendant. He unloaded the gun, a large caliber revolver, and put it in his car. He never saw a shoulder holster and had not seen defendant in possession of the gun before. He did not recall a prior statement that he had given the gun back to defendant.
Detective Shoemake testified that Moore had told him that defendant had reached inside his own jacket and pulled out a .41 magnum. Also Moore told him that he gave the gun back to defendant. After Spears was released from the hospital, Spears told Shoemake that defendant had produced the gun. Shoemake also testified that examination of Spears' house revealed plants overturned, blood on the wall, and a bullet hole in a kitchen cabinet. On cross-examination defense counsel established that Moore gave his statement to Shoemake shortly after having dental work performed, apparently suggesting that the statement was unreliable.
Officer Brian Smith testified that he arrested defendant and found a shoulder holster, and .41 and .44 magnum ammunition in a locked metal box in the bed of defendant's pickup. On cross-examination Smith admitted that he did not know to whom the holster or ammunition belonged.
Defendant stipulated to his prior felony conviction and presented no evidence. The trial was completed in one day.
Defendant's first trial, conducted on September 12, 1988, ended in a mistrial. The same witnesses testified as in the second trial. Private counsel represented defendant at the first trial, but he was permitted to withdraw from the case on October 17, 1988. On January 18, 1989, the district court set defendant's second trial for the week of February 27 on a trailing docket. On February 23 defendant filed an affidavit of indigency to obtain a public defender to represent him at the second trial; that same day the district court appointed a public defender to represent him. On February 27 the public defender filed a motion in limine to exclude evidence that cartridges were found in defendant's car and to exclude testimony of events subsequent to Moore's taking the gun.
The day before trial, March 1, defense counsel filed a statement that he had not had enough time to investigate certain matters and therefore could not provide effective assistance of counsel. On the day of trial, defense counsel moved for a continuance for most of the reasons recited in his filed statement. He stated that he had listened to the tapes from defendant's preliminary hearing and first trial, and had made notes from the tapes, but had not had enough time to transcribe the tapes. The specific items he claimed a need to investigate were: (1) the medical records of Spears, to see if his head injury may have created delusions or perverted his memory; (2) the decibel level of the gun that was allegedly possessed and fired by defendant; (3) whether neighbors had heard a shot and, if so, why they had not reported it; (4) whether there was a bullet at the scene of the alleged offense; (5) whether Spears suffered powder burns or ear damage from the gunshot.
The trial judge denied the motion. The judge stated that it was not the general practice of defense counsel to transcribe tapes of prior proceedings, except for pertinent short portions. He observed that the case was simple, the testimony in the previous trial was clear, the previous trial had provided quite a bit of information, and the court was unaware of any pertinent medical evidence. The judge expressed his belief that defense counsel would do an outstanding job.
To begin, we note that defendant's claim of error in denial of a continuance is but one aspect of his claim of denial of effective assistance of counsel. Although he contends that denial of the continuance deprived him of "effective assistance of counsel, due process, and a fair trial," we fail to see what he adds to the claim of ineffective assistance by also including the claims of denial of due process and denial of a fair trial. The gist of his complaint about the denial of a continuance is that his attorney was thereby handicapped in preparation for trial. Analysis in terms of due process or the right to a fair trial does not give us a different perspective on that complaint from what is provided by ineffective-assistance analysis. See United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984) (). Both the New Mexico and the United States Supreme Courts have treated the claim of an improper denial of a continuance as a claim of ineffective assistance of counsel. State v. Taylor, 107 N.M. 66, 752 P.2d 781 (1988); United States v. Cronic. Thus, we discuss together defendant's two claims: (1) improper denial of a continuance and (2) denial of effective assistance of counsel.
Also, we note that a claim of ineffective assistance of counsel could arise under either the sixth amendment to...
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