State v. Harrison

Decision Date28 May 1970
Docket NumberNo. 457,457
Citation1970 NMCA 71,471 P.2d 193,81 N.M. 623
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. General Roger HARRISON, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
J. E. Casados, Albuquerque, for appellant

WOOD, Judge.

Defendant appeals his conviction of voluntary manslaughter. The issues concern: (1) admission of defendant's statement; (2) admission of a knife; (3) chain of custody; (4) police reports; (5) sufficiency of the evidence; and (6) the self-defense instruction.

After a party at Theresa's house, a group went to a bar, then to another home. Theresa was then taken home and defendant, with a friend, took another girl home. Defendant, with his friend, returned to Theresa's house. The friend remained outside. Defendant entered the house with the intention of having sexual relations with Theresa. He was armed with a knife. He was on, or alongside, Theresa's bed, attempting to accomplish his objective, when he was surprised by Eliseo Baca. Baca, who had attended the party, had gone to sleep on a bed in an adjoining room.

Baca was standing in the doorway of Theresa's room. Defendant, holding the knife, left Theresa's bed and in leaving the room by the doorway, stabbed Baca. Baca died from the wound.

Admission of defendant's statement.

After a hearing out of the presence of the jury, the trial court ruled admissible the testimony of a police officer concerning an oral incriminating statement made by defendant at the police station. Defendant asserts this testimony should have been excluded under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). His contentions divide into two parts: (1) questioning prior to arrival at the police station and (2) the circumstances of making the statement at the police station.

1) Questioning prior to arrival at the police station.

After daylight on the morning of the stabbing, the police located defendant at a friend's house and took him to the police station. According to defendant, he was questioned at the friend's house and was questioned while enroute to the police station in a police car. He claims that testiony concerning a subsequent oral statement should not have been admitted because no Miranda warnings were given to him prior to this earlier questioning.

There is no basis for this contention. Defendant testified that the questioning at the friend's house and in the police car consisted of asking him about a stabbing or a fight, and that his answers were negative--that he knew nothing about such events. These questions and defendant's answers were not used against him in any way. Defendant's own testimony makes it clear that the oral statement testified to by the police officer was not influenced by this prior questioning; that he was not prejudiced in any way. The lack of Miranda warnings at the friend's house and in the police car did not make the officer's testimony inadmissible. State v. Webb, (Ct.App.) 81 N.M. 508, 469 P.2d 153, decided April 24, 1970.

2. Circumstances of the statement at the police station.

According to defendant, he was taken before Detective Foote shortly after arriving at the police station. There is evidence, including a form signed by defendant, that defendant was given the Miranda warnings at this time. Defendant's own testimony corroborates that some advice was given him as to his rights as this time. The testimony is in conflict as to what happened after the Miranda warnings were given.

According to defendant, he made no statement to Detective Foote after being advised of his rights. Defendant testified that Foote then left the room, that Officer Montoya, in the presence of Officer Frazier, suggested to defendant that he admit that he did 'it' but that it was the girl's fault. According to defendant, Montoya represented himself as being defendant's friend, as having known defendant's family for a long time, and suggested that defendant cooperate so "* * * it will go a lot easier on you. * * *" According to defendant, after being importuned by Montoya, he stated: "Okay, I did it." In response to Montoya's question, defendant agreed that Montoya should call Foote.

When Foote entered the room, defendant, in response to Foote's question, said he wanted to make a statement, and did not want an attorney. There was then a wait for a secretary. When the secretary arrived, defendant informed Foote that he had changed his mind; that he wanted to see an attorney before he said anything. Defendant testified that after making this statement, he was asked: "Where is the knife?" and answered: "Well, it's the knife in Arthur's (Baty's) car."

According to defendant, he never talked to Foote about the party and never admitted to Foote that he stabbed anyone; that his only statement to Foote concerned the knife.

The State did not call Montoya to testify. It offered no evidence tending to rebut the alleged 'con' job on defendant by Montoya. Foote testified concerning the advice given to defendant and to defendant's signing of the form acknowledging this advice.

Defense counsel then argued the law to be applied. They presented two contentions: (1) that any statement should be excluded because defendant was questioned before being given the Miranda warnings and (2) since defendant was questioned about the knife after indicating he did not wish to talk, the State should not be permitted to introduce any statement of defendant concerning the knife.

The trial court then pointed out that it had not been informed as to the statement sought to be excluded. The State informed the court that defendant made a general statement about the events of the preceding night and that later defendant told Foote: "I did it. I stabbed him, but I didn't mean to kill him." The State informed the court that defendant made no statement concerning a knife.

The court ruled that defendant's statement was made after being advised as to his rights. There is evidence to support this ruling; the credibility of this evidence was for the trial court. State v. Briggs, (Ct.App.), 81 N.M. 581, 469 P.2d 730, decided May 8, 1970.

The court also ruled that since there would be no testimony that defendant made a statement concerning a knife, no issue was presented concerning the exclusion of such testimony. The correctness of this ruling is obvious. Miranda v. Arizona, supra, deals with the exclusion of evidence. Here, no testimony was offered in the State's case concerning any statement by defendant concerning a knife.

We have set forth the proceedings at the hearing out of the presence of the jury because of another contention of defendant. He claims he was subjected to two types of the psychological coercion referred to in Miranda v. Arizona, supra. He asserts he was offered a legal excuse for his action; according to defendant, Montoya told him to blame it on the girl. He contends he was subjected to the friendly-unfriendly or 'Mutt and Jeff' act of two policemen--Montoya and Foote.

Defendant offered evidence tending to support the coercion claim. This evidence was not rebutted at the hearing. Yet, this contention does not benefit defendant. His main contentions in argument to the court were the two contentions discussed above. There is a reference to the 'Mutt and Jeff' procedure, and to the 'bad guy' and the 'good guy,' but the record clearly shows the trial court was never clearly alerted to the contention now urged. Defendant did not invoke a ruling of the trial court on the issue of psychological coercion. Accordingly, it presents no issue for review in this appeal. State v. Paul, 80 N.M. 521, 458 P.2d 596 (Ct.App.1969); compare Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (Ct.App.1969). Defendant did not point out the error now claimed at the time the alleged error occurred. He has waived this contention, State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969).

Admission of the knife.

A knife, allegedly the one used in the stabbing, was admitted into evidence. Defendant claims it should not have been admitted because it was obtained by an illegal search. The record does not support this claim; rather, it shows there was no search. See State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966). Baty testified that he waited for defendant when defendant returned to Theresa's house in his attempt to 'mess with her.' According to Baty, when defendant left Theresa's house, he had a knife in his hand, and left this knife on the console between the front seats of Baty's car. Baty testified that after defendant got out of the car, he put the knife under the seat and later turned it over to a policeman. Officer Last testified that in participating in the investigation of the stabbing he talked to Baty and went with Baty to his car. Last testified that Baty opened the door to his car, reached under the seat on the driver's side, pulled out a knife and handed it to him.

Defendant also claims that seizure of the knife was the fruit of improper questioning. He relies on defendant's testimony to the effect that he was questioned about, and made a statement concerning the knife, after indicating he did not want to talk until he conferred with a lawyer. The issue here does not involve this asserted statement. It involves knowledge of the knife's whereabouts as a result of the alleged questioning in violation of Miranda v. Arizona, supra.

This 'poisoned fruit' contention is based on the assumption that the police were able to 'seize' the knife as a result of defendant's asserted statement to the police. There is testimony which conflicts with this assumption. The record shows that Baty had been questioned by the police; that Baty took Officer Last to his car and voluntarily turned the knife over to the officer. With conflicting evidence on the issue, the record does not compel a holding, as a...

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