State v. Ibarra

• Decision Date: 18 March 1993
• Docket Number: No. 14312,14312
• Citation: 116 N.M. 486,864 P.2d 302,1993 NMCA 40
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Rito IBARRA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 302

864 P.2d 302

116 N.M. 486

STATE of New Mexico, Plaintiff-Appellee, v. Rito IBARRA, Defendant-Appellant.

No. 14312.

Court of Appeals of New Mexico.

March 18, 1993.

Certiorari Granted July 6, 1993.

[116 N.M. 487] Tom Udall, Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Christopher Bulman, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

BLACK, Judge.

Defendant appeals his convictions for armed robbery, conspiracy to commit armed robbery, aggravated battery, false imprisonment, and unlawful taking of a motor vehicle. The calendar notice proposed summary affirmance and Defendant responded with a timely filed memorandum in opposition and a motion to amend the docketing statement. We have reviewed Defendant's memorandum in opposition and are unpersuaded that error occurred. Accordingly, for the reasons stated below, we affirm.

Defendant seeks to add to his docketing statement the issue of whether the Court's summary calendar system denies his rights to equal protection and due process of law. However, Defendant concedes that the concerns he raises in this issue were already answered contrary to his assertions in State v. Sheldon, 110 N.M. 28, 791 P.2d 479 (Ct.App.), cert. denied, 110 N.M. 44, 791 P.2d 798, cert. denied, 498 U.S. 969, 111 S.Ct. 435, 112 L.Ed.2d 418 (1990). It appears that Sheldon raised its issues in a slightly different factual context. Notwithstanding this, we are not convinced that Defendant's arguments are viable. Moreover, unlike the Court in Sheldon, we are unwilling to accept the facts asserted as the foundation for Defendant's arguments.

I. EQUAL PROTECTION

The factual basis for the equal protection argument Defendant now seeks to advance is that our appellate rules create a system which allows a non-indigent to purchase a transcript while an indigent is denied access to a transcript. First, Defendant points to no support for this assertion. Second, judicial notice of the records of this Court since the time the summary calendar system was adopted in 1975 illustrates this assertion to be inaccurate. See State v. Turner, 81 N.M. 571, 576, 469 P.2d 720, 725 (Ct.App.1970) (this Court takes judicial notice of its own records). While non-indigents generally have the financial means with which to purchase transcripts, this Court has not always allowed the necessary extensions of time in which to obtain the transcripts. Thus, non-indigents, like indigents, are frequently required to make a showing of inability to recall before they are effectively allowed access to transcripts during the summary calendar process.

In addition, judicial notice of the records of this Court will also show that indigents are allowed access to the transcripts during the summary calendar process in many situations. This happens in judicial districts which routinely duplicate the audio tapes or produce computer-assisted transcripts in sufficient time to allow their use at this stage. When necessary, this Court has requested the tape monitor or court reporter to specifically make such records available during the calendaring process. Such express allowance by this Court usually turns on an allegation of a good-faith inability to recall some matter related to the issues raised on appeal. As a general rule, the only time the Court does not allow access to the transcript is when significant extra time is requested and the sole allegation is that it is necessary to sort through the transcript for unidentified error.

Thus, Defendant has failed to sustain his allegation of unequal treatment.

II. DUE PROCESS

Defendant argues that under the summary calendar system, the right to appeal in New Mexico is only as good as counsel's memory. Again, judicial notice of the records of this Court shows that, when counsel alleges a legitimate inability to recall and to reconstruct the events through available non-transcript alternatives, this Court will frequently allow time and access to a recording or transcript, provided that the allegations relate to issues raised or raisable without sifting through the transcript to search for unidentified error. See Sheldon, 110 N.M. at 29, 791 P.2d at 480.

It is generally accepted that the Due Process Clause of the Fourteenth Amendment does not require a state to afford criminal defendants a right to appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). However, when a state does provide a right to appeal, as New Mexico does in the New Mexico Constitution, Article VI, Section 2, the state must provide a fair opportunity for criminal defendants to present their contentions within the context of those state procedures. See Ross v. Moffitt, 417 U.S. 600, 610-11, 616, 94 S.Ct. 2437, 2443-44, 2446, 41 L.Ed.2d 341 (1974). Assignment of a case to the summary calendar, which strictly limits the length of and time for submissions to the appellate court, does not violate due process as long as the defendant is able to properly present issues raised on appeal. See United States v. Marines, 535 F.2d 552 (10th Cir.1976) (per curiam); State v. Bianco, 103 N.J. 383, 511 A.2d 600 (1986). Analysis of similar appellate practices has indicated transcripts are not essential to the disposition of routine cases on appeal. Eino M. Jacobson & Mary M. Schroeder, Arizona's Experiment with Appellate Reform, 63 A.B.A.J. 1226, 1230 (1977); Stephen L. Wasby et al., Volume and Delay in State Appellate Courts: Problems and Responses 86 (1979). Appellate judges have often concluded that the preparation of substantial testimonial transcripts in every case is wasteful and not necessary. See Albert V. Bryan, For a Swifter Criminal Appeal--To Protect the Public as well as the Accused, 25 Wash. & Lee L.Rev. 175, 184-85 (1968); William H. Erickson, The Trial Transcript--An Unnecessary Roadblock to Expeditious Appellate Review, 11 U.Mich.J.L.Rev. 344 (1978); Shirley M. Hufstedler, New Blocks for Old Pyramids: Reshaping the Judicial System, 44 S.Cal.L.Rev. 901, 911 (1971); Eino M. Jacobson, The Arizona Appellate Project: An Experiment in Simplified Appeals, 23 UCLA L.Rev. 480, 489 (1976); Richard H. Mills, Caseload Explosion: The Appellate Response, 16 J.Marshall L.Rev. 1, 22 (1982); John J. Parker, Improving Appellate Methods, 25 N.Y.U.L.Rev. 1, 6-7 (1950); Charles D. Pierce, Appellate Reform in Colorado, 20 Judges' J. 33 (Winter 1981).

It seems generally accepted that a state may find means other than a complete verbatim transcript to afford adequate and effective appellate review, within the requirements of due process, even to indigent defendants. State v. McFarland, 287 N.W.2d 162 (Iowa), cert. denied, 449 U.S. 853, 101 S.Ct. 147, 66 L.Ed.2d 66 (1980); Smith v. State, 291 Md. 125, 433 A.2d 1143 (1981); cf. Harris v. Estelle, 583 F.2d 775 (5th Cir.1978) (per curiam) (statement of facts in narrative form sufficient in habeas proceeding where all defendants received similar non-verbatim record and defendant had the opportunity to correct and supplement the record).

The United States Supreme Court has recognized that "[a] statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript." Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 779, 9 L.Ed.2d 899 (1963). The Supreme Court has held that criminal defendants must be afforded a " 'record of sufficient completeness' to permit proper consideration of their claims." Id. at 499, 83 S.Ct. at 780 (quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962)). In addressing the issue of what constitutes a sufficient record on appeal, the Supreme Court pointed out that a "record of sufficient completeness" does not translate automatically into a complete verbatim transcript. Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). But see Hardy v. United States, 375 U.S. 277, 288, 84 S.Ct. 424, 431, 11 L.Ed.2d 331 (1964) (Goldberg, J., concurring). We believe this standard leaves an appellate court free to determine the nature and extent of the trial record necessary to fully review the issues raised in each case and require a transcript in only those cases where it would advance appellate resolution of the issues raised.

Our system provides each side the opportunity to advance its version of the facts and requires the counsel who tried the case to prepare the initial docketing statement. SCRA 1986, 12-208(A) (Repl.1992); see also Erickson, supra, 11 U.Mich.J.L.Ref. at 350; Carrington et al., supra, at 66. The facts contained in the docketing statement are accepted as the facts of the case unless they are challenged. State v. Calanche, 91 N.M. 390, 574 P.2d 1018 (Ct.App.1978). The docketing statement is reviewed together with the record proper to determine the appropriate initial calendar assignment. See Thomas B. Marvell, 75 Judicature 86, 88-89 (1991). All appeals in this Court are subject to the calendaring process, and any case filed in the Court of Appeals has the potential of being assigned to the summary calendar. See SCRA 1986, 12-210 (Repl.1992).

In determining whether a case should be assigned to the summary calendar, a key consideration is whether the Court can obtain sufficient information about the facts of a case from the record proper, the docketing statement, and the parties' memoranda. See Marvell, supra, 75 Judicature at 89. If the calendar judge believes the facts contained in the docketing statement are sufficient to enable the Court to review the issues...