State v. Burk

• Decision Date: 19 February 1971
• Docket Number: No. 563,563
• Citation: 82 N.M. 466,483 P.2d 940,1971 NMCA 18
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael John BURK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 940

483 P.2d 940

82 N.M. 466

STATE of New Mexico, Plaintiff-Appellee, v. Michael John BURK, Defendant-Appellant.

No. 563.

Court of Appeals of New Mexico.

Feb. 19, 1971.

Leon Taylor, Albuquerque, for defendant-appellant.

David L. Norvell, Atty. Gen., Thomas L. Dunigan, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Judge.

Defendant appeals his conviction of two armed robberies. Section 40A--16--2, N.M.S.A. 1953 (Repl.Vol. 6). The issues concern: (1) absence of a preliminary hearing; (2) asserted lack of a valid waiver in connection with his incriminating statement; (3) asserted inadequacy of the trial court's determination as to admissibility of the statement; and (4) a 'shotgun' instruction.

Absence of preliminary hearing.

Under N.M. Const. Art. II, § 14, a defendant may be proceeded against either by a grand jury indictment or by a criminal information. State v. Mosley, 75 N.M. 348, 404 P.2d 304 (1965); State v. Mosley, 79 N.M. 514, 445 P.2d 391 (Ct.App.1968). If charged by criminal information, a defendant has a right to a preliminary examination. No such right exists if the defendant is indicted by a grand jury. State v. Mosley, 75 N.M. 348, 404 P.2d 304, supra.

Defendant was indicted by a grand jury. Having been so indicted, he recognizes that he did not have a right to a preliminary examination. His complaint is directed to the maneuvering prior to the grand jury indictment.

Defendant, taken before a magistrate on a Thursday, requested a preliminary examination the next day. The magistrate, however, set the preliminary hearing for the following Monday. On Monday, over defendant's objection, the prosecutor obtained a continuance until Wednesday. On Wednesday, the prosecutor obtained the indictment before the preliminary hearing was held. The prosecutor admitted that, from the outset, he intended to obtain an indictment before a preliminary hearing was held.

Defendant contends '* * * he was denied due process of law because the prosecution was overzealous in its prosecutorial activities * * *' The prosecutor testified as to his preference for grand jury indictments because the preliminary hearing '* * * is a cumbersome time consuming, expensive procedure the defense counsel uses as a means and a vehicle for discovery, which I consider improper. * * *' Defendant asserts the prosecutor's view is inconsistent with his obligation to be a 'seeker of the truth,' that the prosecutor places himself in the role of an adversary to defendant and desires to keep the defendant from learning the nature of the prosecution's case.

The issue is whether the prosecutor, by overzealousness, deprived defendant of due process. While the prosecutor was zealous to obtain a grand jury indictment, the record does not show that he exceeded the 'bounds of propriety,' as alleged by defendant. The choice to proceed by information or indictment is that of the State. Compare State v. Mosley, 79 N.M. 514, 445 P.2d 391, supra; Flores v. State, 79 N.M. 420, 444 P.2d 605 (Ct.App.1968). The choice is not the defendant's. The record shows that defendant was attempting to deprive the prosecutor of that choice; that defendant was attempting to force the prosecutor to a preliminary hearing against the prosecutor's wishes. The fact that the prosecutor may have maneuvered zealously to preserve the choice, which was his to exercise, does not show that he exceeded the bounds of propriety.

Defendant also contends '* * * he was denied a fair trial because his counsel was denied the opportunity to prepare an adequate defense.' One answer to this claim is: '(t)he object of a bill of particulars in criminal cases is to enable the defendant to properly prepare his defense, * * *' State v. Mosley, 75 N.M. 348, 404 P.2d 306, supra. Defendant obtained a bill of particulars. He does not claim that the information, supplied as a result of the hearing on the motion for a bill of particulars, was insufficient to prepare an adequate defense. The essence of this contention is that because there was a grand jury indictment, defendant was deprived of the discovery he could have obtained at a preliminary hearing. Discovery, however, is not the object of a preliminary hearing. State v. Archuleta, (Ct.App.), 482 P.2d 242, decided December 31, 1970.

The fact that the prosecutor was not overzealous, and that defendant was not deprived of an opportunity to prepare his defense, answers this point. An additional answer to the question of due process and fair trial is given in Williams v. Sanders, 80 N.M. 619, 459 P.2d 145 (1969). It states:

'In those cases in New Mexico where complaint and information are utilized in lieu of indictment, the preliminary hearing has been held to be a critical stage of the criminal process for purposes of applying the right-to-counsel provision of the Sixth Amendment to the United States Constitution. (Citations omitted). It was so held because it was believed the accused needed the assistance of an attorney in cross-examining state's witnesses whose recorded testimony could, under certain circumstances, be received in evidence at trial. (Citation omitted). We do not read this case to mean, however, that a preliminary hearing is an essential prerequisite to a guilt-determining process which comports with fundamental fairness and due process, and respondent has not directed us to any authority so holding. * * *'

Waiver in connection with incriminating statement.

The testimony shows defendant was advised of his constitutional rights three times--while walkin to the patrol car after his arrest, at the booking desk at the police station and immediately prior to defendant giving his incriminating statement the following day. Each time the advice included advice concerning defendant's right to a lawyer. At the hearing on the motion to suppress defendant's statement, defendant testified he was told he was entitled to talk to a lawyer before answering any questions, to have a lawyer present during questioning and that if he didn't have enough money to hire a lawyer that an attorney would be appointed for him.

Before giving the incriminating statement, defendant signed a waiver form which included the phrase: "* * * If you want a lawyer but do not have the money to hire one, one will be provided for you by the judge. * * *" Defendant made his statement, and it was being read to him when his attorney came into the room and interrupted the reading. The portion of his statement admitted into evidence was never read back to defendant, nor did he sign the statement.

Defendant claims he did not knowingly and intelligently waive his right to consult with counsel and further, that the State failed in its burden of showing a knowing and intelligent waiver. In support of this claim he relies on testimony that he had a limited education; could not read; except for signing his name, could not write; had been verbally threatened upon his arrest and while in his jail cell; was told to go with officers from his cell to the room where he made his statement; and was told if he 'cooperated' that 'things would be easier on me.' Defendant also relies on his testimony that when told an attorney would be appointed if he didn't have the money to hire one, '* * * I thought, well, if you don't have the money to hire a lawyer the Court would appoint you one and then you would take care of him afterwards, pay him, or whatever.'

We make two comments on the evidence relied on by defendant. (1) It is not claimed that the statement should have been excluded because of coercion or promises of leniency. The alleged threats and promises are relied on in support of the claimed lack of waiver of the right to have counsel present. (2) Defendant's understanding of the advice concerning appointment of counsel is an item to be considered on the issue of waiver, but that understanding is to be considered with all the other evidence on the question. As stated in Coyote v. United States, 380 F.2d 305 (10th Cir. 1967), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967):

'It is, of course, always open to an accused to subjectively deny that he understood the precautionary warning and advice with respect to assistance of counsel. When the issue is raised in an admissibility hearing * * * it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to convey the required warning.'

The evidence on which defendant relies is contradicted. Defendant testified that on the ride from the place of arrest to jail, and without any prior questioning, he told the officers he wanted '* * * to get it over with as fast as possible * * *' He was jailed about 10:00 p.m. and was not interviewed that night. He was interviewed shortly after 8:00 a.m. on the next day. There is evidence that defendant sought the interview at which the statement was made. After being advised of his rights for the third time, defendant signed his name to the waiver. Defendant was then asked if he 'understood the rights form.' There is evidence that defendant replied that he did understand and that he would talk without a lawyer.

It was for the trial judge to resolve the conflicts in the evidence. It did so by ruling the statement to be admissible, thereby ruling the State met its burden of establishing that defendant knowingly and understandingly waived his right to the presence of counsel. There being substantial evidence supporting the ruling, we cannot say, as a matter of law, that the ruling on admissibility was...