State v. Crump

• Decision Date: 26 April 1971
• Docket Number: No. 9143,9143
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Thomas Wayne CRUMP, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 329

484 P.2d 329

82 N.M. 487

STATE of New Mexico, Plaintiff-Appellee, v. Thomas Wayne CRUMP, Defendant-Appellant.

No. 9143.

Supreme Court of New Mexico.

April 26, 1971.

James T. Roach, Scott McCarty, Albuquerque, for defendant-appellant

David L. Norvell, Atty. Gen., Leila Andrews, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

OMAN, Justice.

Defendant was convicted of robbery, kidnapping, and an attempt to commit murder. He was sentenced for each offense, and he appealed. We reverse the judgment of conviction and sentence for kidnapping, but otherwise affirm.

Defendant first claims he was deprived of his constitutional right to a speedy trial. This right is guaranteed by both the United States Constitution and the New Mexico Constitution. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Raburn v. Nash, 78 N.M. 385, 431 P.2d 874 (1967); State v. Polsky, N.M. App., 82 N.M. 393, 482 P.2d 257, decided February 5, 1971.

The acts constituting the offenses with which defendant was charged and convicted occurred on July 13, 1967. He immediately fled the jurisdiction; was apprehended in Michigan on August 2, 1967 by the authorities in that state for a crime committed there; was incarcerated in the Michigan Penitentiary; was so imprisoned when indicted by a New Mexico Grand Jury on February 21, 1969; was returned to New Mexico on about March 24 or 25, 1970; two attorneys were appointed to represent him on March 25 and 26, 1970; and his trial commenced on April 20, 1970.

We agree with the State's contention that the period prior to the filing of the indictment on February 21, 1969 is not to be considered in determining whether there was a violation of defendant's constitutional right to a speedy trial. Oden v. United States, 410 F.2d 103 (5th Cir. 1969), cert. denied, 396 U.S. 863, 90 S.Ct. 138, 24 L.Ed.2d 116 (1969); Harlow v. United States, 301 F.2d 361 (5th Cir. 1962), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962); Hoopengarner v. United States, 270 F.2d 465 (6th Cir. 1959); State v. Polsky, supra, and cases cited therein.

Defendant, in taking the opposite position, relies upon the case of Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959), wherein the sole and precise question decided was whether the petitioner's alleged violation of the Federal Kidnapping Act had to be presented by indictment, as required by the Fifth Amendment to the Constitution of the United States and Rule 7(a), Federal Rules of Criminal Procedure, but in which the court stated: '* * * Moreover, if, contrary to sound judicial administration in our federal system, arrest and incarceration are followed by inordinate delay prior to indictment, a defendant may, under appropriate circumstances, invoke the protection of the Sixth Amendment.'

Nothing further is said in the opinion about the Sixth Amendment, about what constitutes an inordinate delay, or about what are appropriate circumstances under which to invoke the protection of the Sixth Amendment. However, it does appear the quoted language, in the context in which it was used, suggests the right to a speedy trial has application to times and events preceding the institution of formal charges against an accused. Nevertheless, as stated by the Court of Appeals in State v. Polsky, supra: '* * * we agree with the jurisdictions which have clearly and expressly passed upon this question, and which have held the constitutional right to a speedy trial arises, or becomes applicable, only upon the initiation of formal prosecution proceedings. * * *'

As shown above, defendant was imprisoned in Michigan when indicted in New Mexico on February 21, 1969, and was still so imprisoned when removed from that State to be returned to New Mexico to stand trial for the crimes he had committed here on July 13, 1967. Insofar as the record shows, he was not furnished a copy of the New Mexico indictment until about March 25, 1970 upon his arrival in New Mexico. However, he had told the Michigan authorities on August 2, 1967, he was wanted in New Mexico for murder, thereby indicating he believed he had killed his victim. This is clearly inconsistent with his present claim that by reason of his denial of a speedy trial witnesses were lost to him who could have established an alibi as to his presence in Arizona on July 13, 1967.

The claimed loss of alibi witnesses finds support only in an affidavit by one of his appointed counsel attached to a motion to dismiss the indictment for the reason that he had been deprived of his right to a speedy trial. Obviously the information concerning these claimed witnesses as to defendant's presence in Arizona on July 13, 1967 come from defendant himself. Undoubtedly the attorney was very diligent in his efforts to locate the claimed witnesses and any information which would have established an alibi, but his failure cannot be attributed to the State of New Mexico. If every unsupported claim by an accused of the loss of witnesses favorable to him, by reason of delay of the State in failing to bring the accused to trial sooner, were to be accepted as the truth and as a denial of his right to a speedy trial, it would be a rare case in which a defendant could not successfully assert such a defense. Compare State v. Polsky, supra.

'* * * The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. * * *' Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1950). See also, Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), (footnote 4 at 221); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958).

The guarantee of a speedy trial is to prevent undue and oppressive incarceration prior to the trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibility that long delay will impair the ability of the accused to defend himself. United States v. Ewell, supra.

Defendant was tried in less than thirty days after his return to New Mexico. His prior incarceration was by the State of Michigan, and not New Mexico. He could hardly have suffered anxiety and concern over the charges before he was returned to New Mexico, when he claims to have first learned of the charges. This is particularly true, since he understood he was wanted for murder in New Mexico, and this understanding necessarily came from his acts and not any charges filed against him. If his claim of alibi be accepted as true, undoubtedly he was prejudiced by his inability to locate the claimed witnesses who could have substantiated this claim, and it may be possible the delay prejudiced his opportunities for locating these claimed witnesses. However, the right to a speedy trial does not embrace the obligation on the part of the State to accept as true all claims of an accused that his ability to defend himself has been impaired by delay.

The essential ingredient of a criminal prosecution is orderly and deliberate expedition, and not speed. United States v. Ewell, supra; Smith v. United States, supra. A delay may not be purposeful or oppressive. United States v. Ewell, supra; Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). However, there is nothing to indicate any purposeful or oppressive delay by the State, and the passage of fourteen months from indictment to commencement of trial, under the facts here present, is not indicative of a denial of the right to a speedy trial. Compare Hoag v. New Jersey, supra.

Defendant's next three points relate to his claims that the trial court erred in refusing to quash the count in the indictment charging him with kidnapping, in submitting the issue of kidnapping to the jury, and in giving certain instructions and denying certain requested instructions concerning kidnapping. As already stated, we reverse the judgment, insofar as it relates to kidnapping, and the sentence imposed therefor.

The indictment charged, insofar as necessary to a disposition of the question new before us, that: '* * * the said THOMAS WAYNE CRUMP did unlawfully take and restrain by force Dale Johnson with intent that the said Dale Johnson be confined against his will or as a hostage, * * *' (Emphasis added)

The emphasized word 'or' was changed to 'and' by the trial court upon motion of the State prior to trial. Thus, the offense charged was consistent with the second definition of kidnapping as determined by this court in its interpretation of the meaning of our kidnapping statute (§ 40A--4--1, N.M.S.A.1953 (Repl.Vol. 6, 1964)) in State v. Clark, 80 N.M. 340, 455 P.2d 844 (1969). Defendant contends the trial court erred in permitting this amendment of the indictment. We need not decide this issue, but assume the validity of the amendment.

The indictment, by way of general charges in the opening paragraph thereof, and by way of preface to the succeeding three numbered counts in which the facts relied upon as constituting the three charged offenses were detailed, did recite that defendant was accused of 'KIDNAPPING, contrary to Sections: 40A--4--1 and 40A--29--2, NMSA--1953' (Repl.Vol. 6, 1964). Section 40A--29--2 relates only to the sentencing authority. However, the three separate ways in which kidnapping may be accomplished under § 40A--4--1, supra, as decided by this court in State v. Clark, supra, were not detailed in the indictment. As indicated above, the facts allegedly constituting the offense were so detailed that they fell within the definition of only one of the disjunctively defined and prohibited acts which constitute kidnapping. State v. Clark, supra.

If a criminal offense is charged in general terms in an information or indictment, as provided in § 41--6--7, N.M.S.A.1953 (Repl.Vol. 6, 19...