State v. Edwards
| Decision Date | 20 October 1981 |
| Docket Number | No. 4881,4881 |
| Citation | 637 P.2d 572,97 N.M. 141,1981 NMCA 119 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Dale Eugene EDWARDS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of involuntary manslaughter contrary to § 30-2-3(B), N.M.S.A.1978, defendant appeals, contending the trial court erred in 1) not dismissing the indictment; 2) not suppressing certain oral statements; 3) not permitting full cross-examination of a witness; and 4) submitting an instruction on involuntary manslaughter. Issues listed in the docketing statement and not briefed are deemed abandoned.
Defendant was originally indicted on an open charge of murder. That indictment did not include language that he had used a firearm. Defendant moved to have the firearm enhancement excluded since it was not mentioned in the indictment. The trial court held it was premature to rule on the motion, but indicated that his general reaction was that the firearm enhancement interrogatory would not be submitted.
Subsequently, the State filed to nolle prosequi the indictment and obtained a second indictment charging defendant with second degree murder with the use of a firearm. Defendant's motion to quash the second indictment on the grounds that a previously valid indictment had already been returned was denied.
Defendant contends that under § 31-6-9(A), N.M.S.A.1978, the second grand jury did not have jurisdiction to indict defendant in Cause No. 32823 because a prior valid indictment based upon the same facts had already been returned by a prior grand jury in Cause No. 32561.
Section 31-6-9, supra, states:
Charge to grand jury.
The district judge convening a grand jury shall charge them with their duties and direct them as to any special inquiry into violations of law that he wishes them to make. The grand jury need not make special inquiry into the general existence or occurrence of violations of any particular statute, notwithstanding any other provision of law. The grand jury is obliged, and the district judge shall charge that they are, to inquire into:
A. any public offense against the state committed and triable in the county which is not barred from prosecution by statute of limitations and upon which no valid indictment or information has theretofore been filed ;
B. the condition of every person imprisoned in the county not lawfully committed by a court and not indicted or informed against; and
C. the condition and management of every public jail or prison within the county.
(Emphasis added.)
A nolle prosequi does not amount to an acquittal. When a nolle prosequi has been filed, the accused may be reindicted or reinformed against. State v. Rhodes, 77 N.M. 536, 425 P.2d 47 (1967). See, State v. Saiz, 92 N.M. 776, 595 P.2d 414 (Ct.App.1979). The district attorney may file a nolle prosequi upon good cause and honest motives, but it may not be used to circumvent the rules. State v. Ericksen, 94 N.M. 128, 607 P.2d 666 (Ct.App.1980).
We find nothing in the record which indicates the prosecutor was acting in bad faith. In fact, the record indicates the contrary.
During the hearing on defendant's motion to exclude consideration of the firearm enhancement, the prosecutor indicated that he believed that the grand jury had intended to include the firearm enhancement. It was assumed that the absence of reference to the firearm enhancement in the text was a technical error. Defendant never refuted that contention. Defendant, whose defense was self-defense, never contended that a firearm was not used in the homicide.
A plain, literal reading of § 31-6-9(A), supra, suggests that the Legislature did not intend to prohibit a district attorney from reindicting a suspect when there is a flaw in the original indictment. Defendant's motion was properly denied.
Defendant was being escorted by two police officers, Johnson and Baragiola, from the police department to the county detention center across the street. As they crossed the street, a third police officer, Guerra, pulled up in his patrol car and asked Johnson, "Is he the one?" The defendant then stated, "I didn't shoot anybody but five or six times and if that wasn't enough I would have shot him five or six more." This was followed by a short laugh. All three officers testified that the question was directed to Officer Johnson and that no one asked the defendant any questions. At the time Officer Guerra asked the question of Officer Johnson, the defendant was walking away and had his back toward Guerra.
Defendant contends that the trial court erred in failing to suppress his oral statement made in the presence of police officers while being accompanied to the county detention center. Defendant's position is that the statement should be suppressed because it was taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The Miranda, supra, safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. State v. Harge, 94 N.M. 11, 606 P.2d 1105 (Ct.App.1979). An "interrogation" is a threshold requirement when a defendant alleges a violation of his Miranda, supra, rights. State v. Harge, supra; Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1979).
Defendant contends this is a more compelling case than in Innis, supra. We disagree. In Innis, supra, the issue was whether defendant's incriminating statements resulted from an interrogation. There, defendant was arrested shortly after committing an armed robbery. At the time of his arrest, the sawed-off shotgun used to perpetrate the crime was not in his possession. Defendant was given his Miranda, supra, rights. The defendant indicated that he understood those rights and wanted to speak with a lawyer. Defendant was then placed in a patrol car with three police officers and driven to the central police station. During the ride to the police station, two of the officers engaged in a conversation concerning the missing shotgun. The gist of the conversation was that there was a school for handicapped children nearby and, because the area was frequented by handicapped children, the officers should continue to search for the weapon. The officer who initiated the conversation indicated his fear that a child could be hurt. The defendant then interrupted the conversation and directed the officers to where the gun was located. Prior to trial, defendant moved to suppress the shotgun and his statements regarding the shotgun. The trial court admitted the evidence at trial and the Rhode Island Supreme Court reversed.
In concluding that defendant had not been subjected to an interrogation, the United States Supreme Court in Innis, supra, established the following test for determining if an interrogation has occurred.
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. (Footnotes omitted.)
In the instant case, it cannot be said that the trial court erred in refusing to suppress defendant's statements. There is no evidence that the officer knew or should have known that his simple statement, "Is he the one?" would have resulted in defendant making an incriminating statement. There is no evidence that the patrolman who asked the question knew that defendant was intoxicated or that he had any familiarity with defendant. Furthermore, there is no basis for concluding that defendant perceived that he was being "interrogated".
The denial of defendant's motion to suppress was proper.
Defendant contends that he was denied his right to confront a witness and was thereby denied his right to a fair trial because the trial court refused to permit a full and fair cross-examination of the State's witness, Dan Panebeouf. Panebeouf, the victim's parole officer, testified that the victim had been his parolee for nine months and he had monitored the victim's adjustment to society after being released from the prison. He also testified that the victim had become more open and candid during their relationship and that, based on his experience, the witness thought that the victim was honestly trying to cooperate. The inference created by the testimony is that the victim was changing his past ways and was likely to be a successful parolee. However, Panebeouf also testified during direct that the victim had violated the terms of his parole by leaving the state during the period between their last visit and the victim's death. Panebeouf also stated that he...
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