State v. Hollowell
| Decision Date | 31 October 1969 |
| Docket Number | No. 342,342 |
| Citation | 461 P.2d 238,80 N.M. 756,1969 NMCA 105 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. James W. HOLLOWELL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of violating § 40A--22--16, N.M.S.A.1953 (Repl.Vol. 6), defendant appeals. The offense is 'assault by prisoner.' The issues concern: (1) lake of mental competency to stand trial; (2) a motion for continuance; and, (3) the instruction stating the material allegations of the offense.
Competency to stand trial.
Defendant asserted his incompetency to stand trial on four separate occasions. The issue concerning his competency is presented as both a constitutional and statutory matter.
Defendant was charged by criminal complaint. 'Upon appearing for preliminary hearing * * * the defendant stated * * * he was not mentally competent to stand trial and requested the court to suspend all proceedings until the question as to his mental competency should be properly determined. * * *' The justice of the peace denied the request and held the preliminary hearing. Defendant contends the preliminary examination should have been suspended and the cause transferred to District Court for a determination of his competency to stand trial. Section 41--13--3.1, N.M.S.A.1953 (Repl.Vol. 6, supp.1969).
Defendant claimed he was incompetent a second time when he moved to quash the criminal information filed in the District Court. He asserts that the preliminary examination violated § 41--13--3.1, supra, that because of this violation the preliminary examination is void, and that he has been denied a valid preliminary examination in violation of N.M.Const. Art. II, § 14. In the alternative, he claims the holding of the preliminary examination after he asserted his lack of competency to stand trial deprived him of due process of law. See Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969).
Another motion asserted his incompetency for the third time. Defendant stated '* * * that he believes he is not mentally competent to stand trial. * * *' Defendant asked that all proceedings in the District Court be suspended until the issue of his competency had been determined and that he be given a mental examination before any determination as to his competency. Section 41--13--3.1, supra, and § 41--13--3.2, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969).
Following this third assertion of incompetency, a mental examination was ordered. The examination was held less than three weeks later. The report of the examination, made to the District Judge, was to the effect that defendant was competent to stand trial and was not 'insane in legal terms' when he committed the assault. Accompanying this report was a report made three months prior to the date of the assault. This report was to the effect that defendant was not psychotic.
When the case came on for trial defendant moved for a continuance. One of the grounds asserted was that he was entitled to a 'sanity hearing.' The trial court understood the reference to a 'sanity hearing' to include an assertion that defendant was not competent to stand trial (the fourth assertion of incompetency). The trial court ruled that defendant was competent to stand trial, and denied all the motions raising the issue of defendant's competency. In doing so, it relied on the reports of two psychiatrists (the two reports previously mentioned).
Defendant states the ruling on this fourth assertion was not a determination of competency as required under §§ 41--13--3.1 and 41--13--3.2, supra. Defendant asserts that the procedure involved was inadequate; that the trial court made its determination after '* * * reviewing some unsworn medical reports and having a conversation in court with defendant, * * *'
All of defendant's contentions concerning his competency to stand trial are based on the premise that there was a 'question' as to his competency. That premise is false. State v. Hovey, 80 N.M. 373, 456 P.2d 206 (Ct.App.1969) states:
* * *'
Although defendant asserted his incompetency to stand trial four times, he alleged nothing, other than his own belief, in support of these assertions. Defendant did, in connection with the fourth assertion, refer to his 'state of mind.' This reference was as to his mental state at the time he committed the assault, some thirteen months prior to trial. It did not go to his capacity to stand trial. No question of defendant's capacity to stand trial was raised because there was no showing of reasonable cause for defendant's belief in his incapacity. Compare Hoffman v. State, 79 N.M. 186, 441 P.2d 226 (Ct.App.1968). Since the question of incompetency was not raised, no decision is necessary as to the procedure to be followed in determining whether an accused is competent to stand trial.
Motion for continuance.
Defendant asked for a continuance on the ground that he was not prepared to go to trial. At his counsel's request, and with the court's permission, defendant argued the motion personally. Defendant contends the trial court erred in denying him a continuance.
A lengthy colloquy between the court and defendant shows the motion for continuance was motivated by defendant's desire to have a 'sanity hearing' prior to trial. He asked that his court appointed counsel be discharged because the attorney '* * * does not want to subpoena any witnesses for this sanity hearing, * * *' '* * * I just, more or less, wanted to acquire my own attorney, so I could go through this sanity hearing first, * * *.'
Defendant named a long list of witnesses that he desired to call. Two categories are easily identifiable--those named as witnesses on the claim that he was incompetent to stand trial and those named as witnesses who would testify as to his 'state of mind' at the time defendant committed the assault. A possible third category consists of witnesses who would testify concerning the assault itself. Thus, we construe defendant's motion for continuance to be a claim that he was not ready to proceed either with a 'sanity hearing' or with the trial itself.
The reason for the asserted state of unreadiness is a lack of evidence; thus, defendant's desire to call the witnesses named. Section 21--8--10, N.M.S.A.1953 applies. Although defendant made several references to his 'state of mind' at the time he committed the assault, he never indicated what particular facts these witnesses would prove, or that he knew of no other witnesses by which such facts could be proved. Compare State v. James, 76 N.M. 376, 415 P.2d 350 (1966). Defendant simply did not present a basis for a continuance, either on the question of a 'sanity hearing' or on the merits of the cause.
Defendant wanted time to attempt to retain his own counsel. This presents no independent basis for a continuance. He never represented that he could retain counsel, only that he wanted time to try to do so. Further, the desired change of counsel relates directly to his dissatisfaction with his court appointed counsel. Defendant charged that court appointed counsel was incompetent and prejudiced because of his failure to call witnesses.
In order to answer this contention, we assume, but do not decide, that a failure of court appointed counsel to call witnesses who could testify concerning pending issues would be a ground for continuance. In considering this charge we start with the trial court's statement: '* * * I know that he (counsel) is one of the most competent, qualified attorneys admitted to practice at the Bar of the State of New Mexico.' Defendant does not contest this statement as a general proposition; his claim is that counsel was '* * * incompetent, * * * on this particular case, right now. * * *'
Counsel had been appointed for more than one year prior to defendant's motion. He represented defendant at the preliminary hearing. As a result of this hearing the justice of the peace refused to bind defendant over on one of the two charges brought against him. The attorney filed motions on defendant's behalf and obtained for him the mental examination referred to previously. He moved for a speedy trial with the result that the trial setting was advanced. He gave defendant prompt notice of the trial setting, corresponded with defendant about the case and conferred with him when defendant was returned from the penitentiary to Raton...
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