State v. Cranford
| Decision Date | 04 August 1978 |
| Docket Number | No. 11767,11767 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Kenneth CRANFORD, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
After losing on his appeal from a conviction for first-degree murder, the petitioner-appellant urges this Court to reverse the order of the trial court denying him post-conviction relief, stating as grounds for such relief that he was denied his right to be present at all critical stages of his trial, alleging that he was not present when a supplementary instruction was read to the jury. Inasmuch as the petitioner failed to raise this issue during his first appeal, we affirm the trial court. Furthermore, the record being silent as to his presence during this critical stage of the trial, the petitioner has failed to preserve the alleged error and therefore there is nothing to review.
Petitioner-appellant was tried and convicted of first-degree murder in the district court. A direct appeal was taken raising certain errors in procedure at the defendant's trial and is reported in State v. Cranford, 83 N.M. 294, 491 P.2d 511 (1971).
Petitioner claims that on April 16, 1971, during his trial, a supplementary shotgun instruction was read to the jury, allegedly outside his presence. Subsequently, petitioner filed a Rule 93 motion on September 11, 1974, requesting post-conviction relief. N.M.R.Civ.P. 93 (§ 21-1-1(93), N.M.S.A. 1953 (Repl. 1970)). The trial court summarily denied this motion and an appeal was filed. This Court issued a mandate on November 10, 1975, directing the trial court to hear petitioner's claim that he was not present during the submission of a supplementary instruction to the jury. This matter also came before this Court on petitioner's original habeas corpus proceeding, alleging that he had not been given a hearing pursuant to the previous mandate of this Court. Another mandate was issued on October 19, 1977, directing the trial court to comply with the November 1975 mandate.
In compliance with these mandates a hearing was held on November 8, 1977, during which time testimony was taken on behalf of the petitioner. No testimony was offered by the prosecution. The trial court entered its finding of facts and conclusions of law and an order denying relief to petitioner. This appeal was taken pursuant to Rule 93(e) which governs appeals from post-conviction motions of this type. § 21-1-1(93)(e).
The relevant facts presently before this Court are as follows. At the culmination of the defendant's trial for first-degree murder, the jury retired to deliberate on the evening of August 15, 1971. The jury was sent home that evening with instructions to return the following morning to continue deliberations. On that second day of deliberations, the jury was excused for lunch and upon returning from the lunch recess the members were given the contested shotgun supplementary instruction. The record is silent as to the presence of the defendant both at the time the court announced its intentions to give the additional instruction and also at the time the jury was brought in for the reading of the instruction. The only transcript reference to petitioner's presence in this portion of the trial appears at the time of the return of the jury for its verdict on April 16, 1971.
On November 8, 1977, pursuant to his Rule 93 motion, a hearing was held on petitioner's allegations that he was not present in the courtroom during the giving of the supplemental instruction to the jury. During this hearing, the petitioner testified that he specifically remembered that he was not present in the courtroom during the reading of any jury instructions dealing with the materials contained in the supplemental instruction. He testified that he learned about the supplemental instruction from having read the newspaper after...
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Jackson v. Shanks
...appeal for purposes of post-conviction relief. See, e.g., Duncan v. Kerby, 115 N.M. 344, 851 P.2d 466, 468 (1993); State v. Cranford, 92 N.M. 5, 582 P.2d 382, 384 (1978); State v. Wildenstein, 91 N.M. 550, 577 P.2d 448, 450 (App.1978). The fact that New Mexico provides exceptions to this ge......
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Zepeda v. Dorsey
...issues not raised on direct appeal are subject to waiver. State v. Gillihan, 524 P.2d 1335, 1336 (N.M.1974); see also State v. Cranford, 582 P.2d 382, 384 (N.M.1978) (issues not raised on direct appeal are foreclosed); State v. Mata, 543 P.2d 1188, 1189 (N.M.Ct.App.1975) (claimed trial erro......
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State v. McClure
...not present either when the jury's question was discussed or when the court's response was sent to the jury. Compare State v. Cranford, 92 N.M. 5, 582 P.2d 382 (1978). The trial court accepted defense counsel's statement that the defendant was "sleeping in the hallway." In State v. Saavedra......
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State v. Gomez
...that could have been raised on appeal. Defendant cites numerous older New Mexico decisions for his premise. See, e.g., State v. Cranford, 92 N.M. 5, 582 P.2d 382 (1978); State v. Gillihan, 86 N.M. 439, 524 P.2d 1335 (1974). We agree that a post-conviction proceeding is not a substitute for ......