State v. Hatley

• Decision Date: 08 July 1963
• Docket Number: No. 6880,6880
• Citation: 1963 NMSC 128,383 P.2d 247,72 N.M. 280
• Parties: STATE of New Mexico, Appellee, v. Jimmy D. HATLEY, Appellant.
• Court: New Mexico Supreme Court

Page 247

383 P.2d 247

72 N.M. 280

STATE of New Mexico, Appellee, v. Jimmy D. HATLEY, Appellant.

No. 6880.

Supreme Court of New Mexico.

July 8, 1963.

Earl E. Hartley, Atty. Gen., Boston E. Witt, Norman S. Thayer, Oliver E. Payne, Asst. Attys. Gen., Santa Fe, for appellee.

Robert Hoath Lafollette, Albuquerque, for appellant.

FRANK B. ZINN, District Judge.

The appellant seeks a reversal of his conviction of the crime of armed robbery after a jury trial. He was charged with his codefendant, Owen L. Perry, of armed robbery. Before the time of appellant's trial, the codefendant, Perry, had plead guilty and been sentenced.

This opinion will consider first the second and third points raised on appeal. These, together, challenge the introduction into evidence, over objection, of written statements taken by police from codefendant. Owen Perry implicating appellant in the robbery. The statements were neither made in appellant's presence nor approved nor ratified by him. The rationale of the trial court's ruling is contained in its Instruction No. 12:

'12. You are instructed that evidence has been presented in this case to show a confession to the offense made by Owen L. Perry. Such statements normally are not admissible as against the Defendant Hatley unless he were present at the time of the making of the statement, or unless at some subsequent time, the statement taken from Perry was read in the presence of Hatley. The law assumes that when such statements are read to the Defendant Hatley in Perry's presence, a person not guilty would make immediate denial.'

This court has considered and approved the admissibility of testimony as to the silence of a defendant as a fact from which guilt might be inferred by the jury. Territory v. Harrington, 17 N.M. 62, 121 P. 613. It is noteworthy that in this early case, the court said:

'* * * the rule of evidence which allows the silence of a person to be construed as an admission of the truth of matters stated in his presence is to be applied with caution, * * *.'

Similarly, see State v. Kidd, 24 N.M. 572, 175 P. 772; State v. Gilliam, 60 N.M. 129, 288 P.2d 675; City of Raton v. Cowan, 67 N.M. 463, 357 P.2d 52; Martinez v. United States, (10 CCA 1961), 295 F.2d 426.

Whether circumstances are such as to render the accused's failure to reply to a statement made in his presence an admission is, in the first instance, a question for the trial court.

In the present case, the testimony relating to defendant's conduct was as follows:

'A. I advised Jimmy Hatley that I did have the statements implicating him in the armed robbery along with the other two boys, Owen Perry and Julian Perry.

'* * * [Questions and answers followed relating to presence of Owen Perry.]

'Q. And would you please tell the Court and the Jury what, if anything, was said by Mr. Hatley in connection with these matters?

'A. Mr. Hatley would neither deny or admit anything concerning the statements one way or the other.

'Q. Did he speak at all?

'A. The only thing that he would say concerning this would be that he wanted to consult an attorney before he said anything.'

The trial court ruled that the statements were admissible. They were then read in full to the jury. The second of these statements named the defendant as an accomplice in the robbery.

There is no testimony in the record indicating that the defendant Hatley ratified the statements of Perry or tacitly acquiesced in their veracity. The only response made by him at any point to the accusation appears to have been that quoted, of declining to speak until he had consulted counsel.

Appellant challenges the propriety of the ruling of the court admitting the statements and in submitting the quoted Instruction No. 12, relative to the effect that jury could give to the appellant's failure to deny the implicating statements, when the appellant chose not to deny but to remain silent until he could consult counsel.

California has more cases involving the admissibility of hearsay accusations and the response of the accused by a failure to deny than any other state reported in West's General Digest Criminal Law k407, under which these cases are compiled.

In the case of People v. Spencer, 78 Cal.App.2d 652, 178 P.2d 520, the trial court was reversed for a failure to properly evaluate the circumstance under which the defendant failed to deny an accusatory statement. The facts in that case surrounding the incident of non-denial, were that the defendant was being questioned in the presence of codefendant by police. They all had been advised of their rights as to counsel and that anything they said could be used against them. After a codefendant had made orally in his presence a statement implicating the defendant, he refused comment. The trial court received the full statement of the codefendant in evidence and the testimony relative to the defendant's silence. Citing People v. Simmons, 28 Cal.2d 699, 712, 172 P.2d 18, an earlier California case. The court, in State v. Spencer, supra, stated:

'The rule of admissibility followed in this state does not make the statement inadmissible simply because the accused is under arrest, but as heretofore pointed out, the determinative factor is whether the defendant was free to speak spontaneously and whether the circumstances are such that a reply is called for. Other forms of restraint recognized * * * are a belief on the part of the accused that his best interests will be served by silence, advice of counsel, and admonition as to silence. * * *'

Quoting from the cited case, People v. Simmons, supra, the court stated: "No violation of the privilege against self-incrimination can be...