State v. Luna
| Decision Date | 28 January 1980 |
| Docket Number | No. 12131,12131 |
| Citation | 606 P.2d 183,1980 NMSC 9,93 N.M. 773 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Michael LUNA, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Defendant appeals his convictions of first-degree murder, under the felony-murder doctrine, and aggravated burglary. He was sentenced to life imprisonment for the murder charge and to a ten to fifty year sentence for the aggravated burglary charge.
The defendant raises seven issues on appeal:
I. Were the stop, arrest and searches of the defendant valid?
II. Did the trial court abuse its discretion by denying defendant's motion for a bifurcated trial?
III. Did the trial court commit reversible error by refusing to allow lay witnesses to express their opinions regarding defendant's sanity?
IV. Did the trial court commit reversible error by failing to instruct the jury on the defendant's theories of the case?
V. Did the trial court commit reversible error by failing to direct a verdict of not guilty by reason of insanity as to the felony-murder charge?
VI. Did the trial court commit reversible error by refusing to instruct the jury on the consequences of a verdict of not guilty by reason of insanity?
VII. Did the trial court commit cumulative error, amounting to an absence of a fair trial?
We affirm the conviction of the defendant. On April 5, 1977, Officer Homer was investigating a residential burglary of the Taylor residence in Roswell. During the investigation, the officer went next door to the Nelson residence and discovered the body of Nina Nelson in a bedroom. She died from a massive blunt trauma to her head; she had also been stabbed over 40 times. Later a purse taken from the Taylor residence was discovered three houses down from the Nelson home. A footprint was beside the purse, and officers made a plaster cast of the print.
On April 6, 1977, Officer Fabry saw defendant pull away from a street intersection at a high rate of acceleration, causing the rear tires of his car to spin on the pavement. Fabry followed defendant for about one and one-half miles, pulled him over, and cited him for exhibition driving. § 20-84.1, Roswell City Code (1962) (Supp.1970) (). While talking to defendant, Fabry noticed that defendant's breath smelled of alcohol. The officer then arrested defendant for violating an ordinance prohibiting a minor from allowing himself to be served outside the presence of his parents or guardian. § 6-10(b), Roswell City Code (1962). He then searched the inside of the car, finding a bottle of liquor, two knit ski caps and some bullets. Fabry testified that the bottle was in plain view from outside the car, but nowhere stated that he saw it before arresting defendant. A pat-down search of defendant on the scene disclosed a pocket-knife and a marijuana pipe. The officer had not had a previous encounter with the defendant and knew nothing about him previous to the arrest. The defendant was taken to the police station where he was interrogated for fifteen to twenty minutes regarding the Nelson murder. Police seized defendant's tennis shoes to compare with the footprint found next to the Taylor purse. Defendant was again searched prior to incarceration, revealing a baggie of marijuana in his undershorts. Police then searched defendant's car, which had been taken to the police station. No items were seized.
On April 7, 1977, defendant's car was again searched. Two officers had been assigned on that day to investigate a burglary at the Sanchez residence. They realized that the liquor bottle which had been seized from the defendant's car the night before had come from the Sanchez home, so they searched the car for further evidence. The search produced two stolen speakers from the rear of the car, which were in plain view. Sanchez identified the speakers as hers.
A search warrant for defendant's home was then procured, and the search produced evidence leading to defendant's arrest for the Nelson murder.
Defendant filed a motion to suppress all of the physical evidence seized by the police. The district court ruled that the initial stop was based on probable cause, that the subsequent arrest for the liquor violation was also based on probable cause, that the initial search by Fabry was proper, and that seizure of defendant's pipe and shoes was proper. The court also found that the searches of defendant's car on April 6 and 7 were improper warrantless searches and ordered the suppression of all evidence seized in the April 7 search. The state appealed the order to the Court of Appeals pursuant to Section 39-3-3, N.M.S.A.1978. The Court of Appeals reversed the trial court in part, holding that the trial court should not suppress the items seized in the April 7 search. Defendant then applied to this Court for a writ of certiorari, which was denied. State v. Luna, 91 N.M. 560, 577 P.2d 458 (Ct.App.1978), Cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978).
I. At the outset, we are presented with the issue of whether it is proper for this Court to decide issues which were once presented to us in this same case, but which we declined to decide. At this stage, however, we are compelled to review those issues in this appeal by Art. VI, Section 2 of the New Mexico Constitution. That section provides for a direct appeal to this Court from a judgment of a district court imposing a sentence of capital punishment or life imprisonment. To refuse now to hear the issues which we once declined to review by writ of certiorari would be to effectively deny defendant his right to appeal his conviction to this Court. We therefore review the arrest, search and seizure issues presented in this appeal.
Defendant argues first that the stop was invalid because his acts were not proscribed by the exhibition driving ordinance. The ordinance reads in pertinent part:
It shall be unlawful for any person to drive a vehicle on a street or highway in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record, whether or not the speed is in excess of the maximum speed prescribed by law, and no person shall in any manner participate in any such race, drag race, competition, contest, test or exhibition.
§ 20-84.1, Roswell City Code, Supra. The defendant maintains that he could not be stopped for exhibition driving unless there was some type of public display. The facts of this case do not support this argument. Defendant was driving on a public street, and at least one other person, the police officer, witnessed the event. Even if some type of public display were necessary, a question we do not reach, it was present here, so the stop was reasonable and valid.
Defendant next argues that his arrest was invalid. He was arrested under an ordinance which provides in pertinent part:
It shall be unlawful for any minor to buy, receive or permit himself to be served with any alcoholic liquor, except when accompanied by his parent, guardian, spouse or an adult person into whose custody he has been committed for the time by some court who is actually, visibly and personally present at the time such alcoholic liquor is bought or received by him or served or delivered to him.
§ 6-10(b), Roswell City Code, Supra. The violation of a municipal ordinance constitutes a petty misdemeanor because imprisonment may not exceed ninety days. § 3-17-1, N.M.S.A.1978; § 30-1-6(C), N.M.S.A.1978. See also Section 60-10-16(B), N.M.S.A.1978 (Cum.Supp.1979). A warrantless arrest of a person for violation of a misdemeanor is valid only if the offense occurred in the arresting officer's presence. Cave v. Cooley, 48 N.M. 478, 152 P.2d 886 (1944). Defendant contends that the officer had no reasonable grounds to believe that the act of allowing himself to be served occurred in his presence. He also argues that the officer had no grounds for believing that he was unaccompanied by his parents when he was served.
There is no testimony that the officer ever saw the defendant drinking or being served before the arrest. We therefore agree that the officer had no reasonable grounds to believe that the specific misdemeanor of allowing oneself to be served had been committed in his presence. The evidence does however support a reasonable determination by the officer that the defendant committed the misdemeanor of exhibition driving while in his presence. § 20-84.1, Roswell City Code, Supra. The evidence also supports a reasonable determination by the officer that the defendant may have been driving while intoxicated, in violation of Section 66-8-102, N.M.S.A.1978 (Cum.Supp.1979). An arrest for such a violation is allowable pursuant to Section 66-8-122(B), N.M.S.A.1978 (Cum.Supp.1979). The grounds supporting these determinations were known to the officer at the time of the arrest.
We believe that where there are reasonable grounds supporting the warrantless arrest of a person for the commission of a misdemeanor, the arrest is not invalidated because the officer gave the wrong reasons for the arrest. State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969); See United States v. Richerson, 461 F.2d 935 (10th Cir. 1972), Cert. denied, 409 U.S. 883, 93 S.Ct. 172, 34 L.Ed.2d 139, Reh. denied 409 U.S. 1119, 93 S.Ct. 916, 34 L.Ed.2d 704 (1973). The proper misdemeanor charge must, however, be based upon facts known to the officer at the time of the arrest, and the offense must have been committed in his presence. Cave v. Cooley, supra. If the proper charge is a felony, the arrest must be based upon probable cause. United States ex rel. La Belle v. La Vallee, 517 F.2d 750 (2d Cir. 1975), Cert. denied, 423 U.S. 1062, 96 S.Ct. 803, ...
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