State v. Garcia
| Decision Date | 13 October 1972 |
| Docket Number | No. 935,935 |
| Citation | 84 N.M. 519,1972 NMCA 142,505 P.2d 862 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Andy GARCIA and Eutimio Rivera, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Garcia and Rivera were convicted and sentenced for rape. § 40A--9--2(A), N.M.S.A.1953 (2nd Repl.Vol. 6). They both appeal.
We affirm.
Garcia did not testify at his trial. He claims the trial court erred in giving the stock instruction on Garcia's failure to testify. Garcia objected because Rivera did testify in the joint trial and the instruction tended to cause prejudice in the minds of the jury. This is an 'extraordinary and novel' objection, but it has no merit. State v. Graves, 21 N.M. 556, 157 P. 160 (1915). In effect, Garcia attempts to avoid an instruction which protects a constitutional right. Article II, § 15, New Mexico Constitution.
The trial court also instructed the jury that Rivera was a competent witness in his own behalf, to which instruction Garcia objected.
It has been firmly established that an instruction on defendant's failure to testify is actually a benefit as a caution to the jury and is not erroneous, even though the defendant did not request it. Patterson v. State,81 N.M. 210, 465 P.2d 93 (Ct.App.1970); State v. Carmona, 84 N.M. 119, 500 P.2d 204 (Ct.App.1972). This is true, even though the defendant objects. Harvey v. State, 187 So.2d 59 (Fla.App.1966), cert. den. 386 U.S. 923, 87 S.Ct. 894, 17 L.Ed.2d 795.
Neither was the Rivera instruction erroneous. This is especially true in a joint trial where one defendant testifies and the other does not. See Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939), where the defendant requested the instruction on failure to testify and the failure to give the instruction was reversible error based upon an Act of Congress.
We believe both instructions were necessary to guarantee Garcia a fair trial. The trial court did not err.
Rivera claims, (1) the trial court erred in denying a motion for severance; and (2) the trial court erred in denying a motion for a new trial.
On September 29, 1971, Rivera, Garcia, and another defendant were indicted by a grand jury for the crime of rape. Thereafter, notice was given that the trial of Rivera and the other man would take place during the week of December 13, 1971. On October 26, 1971, notice was given that the trial of Garcia would take place during the week of January 10, 1971 (sic). On December 16, 1971, the indictment against all three defendants came on for trial. A nolle prosequi was filed against the unnamed defendant.
The record shows that approximately one week before trial, Rivera learned that Garcia would be tried with him on December 16, 1971, and he would not be tried alone during the week of January 10, 1972. On the morning of the commencement of trial, Rivera orally moved for severance because of a difference in physical appearance, criminal record and domestic life of Garcia, and the effect of the testimony of witnesses, all of which would prejudice Rivera. After denying the motion for severance, the trial court said:
If at any time I feel there has been prejudice to one or the other, I will declare a mistrial and we will start from scratch.
Apart from argument, there was nothing to show prejudice. The trial court did not abuse its discretion in denying the motion prior to trial. State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971).
Rivera seems to assert that prejudice became apparent during trial. This contention was waived because Rivera's motion for severance was not renewed during the trial, nor at the close of all evidence. Williamson v. United States, 310 F.2d 192 (9th Cir. 1962); Reed v. People, 482 P.2d 110 (Colo.1971), which sets forth and adopts § 2.1 of A.B.A. Standards relating to Joinder and Severance. Section 2.1, supra, pertains to 'Timeliness of Motion; Waiver; Double Jeopardy.' It specifically provides in subsection (a) that a motion for severance of defendants is waived if it is not made before trial or before or at the close of all the evidence.
This rule was not adopted in New Mexico by the 'Rules of Criminal Procedure' effective July 1, 1972. Justice Erickson, the author of the Colorado opinion, is Chairman of the American Bar Association Special Committee on Standards for the Administration of Criminal Justice.
The trial court denied Rivera's motion for a new trial. Rivera claims the trial court abused its discretion by expressing doubt concerning the guilt of Rivera but refusing to grant a new trial.
In its order denying the motion, the...
To continue reading
Request your trial
-
Com. v. Edwards
...State v. Wilson, 57 Ohio App.2d 11, 384 N.E.2d 1300 (1978); Woodard v. State, 234 Ga. 901, 218 S.E.2d 629 (1975); State v. Garcia, 84 N.M. 519, 505 P.2d 862 (1972); Champlain v. State, 53 Wis.2d 751, 193 N.W.2d 868 (1972); Harvey v. State, 187 So.2d 59 (Fla.App.1966); and State v. Goldstein......
-
Hardaway v. State
...Baxter, 51 Haw. 157, 158-159, 454 P.2d 366 (1969), cert. denied, 397 U.S. 955, 90 S.Ct. 984, 25 L.Ed.2d 138 (1970); State v. Garcia, 84 N.M. 519, 505 P.2d 862, 863 (N.M.App.), cert. denied, 84 N.M. 512, 505 P.2d 855 (1972); State v. Goldstein, 65 Wash.2d 901, 400 P.2d 368, 369, cert. denied......
-
State v. Jones
...for Defendant to renew his severance motion when the grounds for it became more apparent and compelling. See State v. Garcia, 84 N.M. 519, 521, 505 P.2d 862, 864 (Ct.App.), cert. denied, 84 N.M. 512, 505 P.2d 855 (1972). Indeed, we have faulted defendants and rejected severance issues on th......
-
1997 -NMCA- 101, State v. Crain
...on the basis that the trial court is not satisfied beyond a reasonable doubt of the defendant's guilt. See State v. Garcia, 84 N.M. 519, 521, 505 P.2d 862, 864 (Ct.App.1972). Hence, we find no merit to Defendant's claim that he was prejudiced by his trial counsel's failure to move for a new......