State v. Madrigal

Citation513 P.2d 1278,85 N.M. 496,1973 NMCA 116
Decision Date25 July 1973
Docket NumberNo. 1117,1117
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Gino Lee MADRIGAL, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
Robert N. Singer, Coors, Singer & Broullire, Albuquerque, for appellant
OPINION

WOOD, Chief Judge.

Convicted of aggravated assault after a plea of guilty, defendant appeals. Section 40A--3--2, N.M.S.A.1953 (2d Repl.Vol. 6). The issues are: (1) jurisdiction of the district court because defendant was a juvenile; (2) competency to plead; (3) validity of the guilty plea; and (4) whether the sentence imposed was an abuse of judicial discretion.

District court jurisdiction because defendant was a juvenile.

A petition was filed with the juvenile court charging defendant, then 17 years old, with matters which, if committed by an adult, would be felonies. A motion was filed asking that defendant be transferred to the district court 'for proper criminal proceedings.' Defendant, his father and his court appointed attorney appeared at the hearing on the transfer motion.

The events giving rise to the charges against defendant occurred in February, 1972. The transfer hearing was held in March, 1972. The applicable statute was § 13--8--27, N.M.S.A.1953 (Repl.Vol. 3). 1 This section provides in part:

'* * * if any child fourteen (14) years of age or older is charged in juvenile court with an offense which would be a felony if committed by an adult, and if the court after full investigation deems it contrary to the best interests of such child or of the public to retain jurisdiction, the court may in its discretion certify such child for proper criminal proceedings. * * *'

Defendant claims that no order was entered transferring him to the district court for criminal proceedings. See Trujillo v. Cox, 75 N.M. 257, 403 P.2d 696 (1965). This is factually inaccurate. The transfer order appears in the record.

Defendant also asserts there was no 'full investigation' as required by § 13--8--27, supra. Absent such a full investigation, he claims he has been denied the essentials of due process which, he asserts, apply under Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968). On the basis of the asserted denial of due process, defendant claims the trial court was without jurisdiction.

The claim of no full investigation is based on remarks of the assistant district attorney concerning defendant's prior juvenile record. Defendant's counsel took issue with the remarks concerning this record. After defendant was transferred to district court, his counsel moved that the grand jury indictment be quashed and the matter be sent back to the juvenile court. This motion alleged that at the juvenile court transfer hearing '* * * there were no witnesses, no sworn testimony, and no evidence nor was the defendant given the opportunity to confront or cross-examine those persons whose unsworn testimony may have been the basis for the transfer order. * * *' Counsel did no more than repeat these grounds when the motion was argued and denied by the trial court.

The transfer order was entered after the juvenile judge stated: 'I believe the official Probation File, which is No. E--7743, should be a part of this record, which I assume is where you got your information.' The assistant district attorney agreed that this was the source of his information.

This probation record is a part of the record before us for review. Its contents suggest defendant committed several crimes, all of which were felonies. These crimes were the basis for the juvenile proceedings. This record includes a statement made by defendant after being advised as to his rights and signed by defendant in the presence of his father. This statement provides a factual basis for the charges. The probation record contains a statement of the victim and photographs of the victim indicating the extent of the beating administered by defendant. The record contains the investigative report of police officers. The probation record indicates, prima facie, a full investigation, not only of the matters leading to the juvenile proceedings but of defendant's past conduct. There is nothing in the record indicating an absence of a full investigation and counsel has not suggested what element, if any, of a full investigation is lacking.

The essence of defendant's complaint goes to the procedure at the transfer hearing. It is true that the transfer proceedings were informal. No witnesses were called or sworn. We do not reach the question of what is required at a transfer hearing because defendant had no objection to the procedure followed. His only objection was to the characterization of his prior record by the assistant district attorney. Defendant did not object to the inclusion of the probation record as a part of the record at the transfer hearing. Defendant did not offer any witnesses and did not ask for sworn testimony concerning the contents of the probation record.

In these circumstances, defendant waived any deficiency in the 'full investigation' and in the procedure followed at the hearing resulting in the transfer order. State v. Snow, 84 N.M. 399, 503 P.2d 1177 (Ct.App.1972); State v. Raines, 78 N.M. 579, 434 P.2d 698 (Ct.App.1967).

Competency to plead.

The claim is: 'Although the question of Appellant's mental and emotional state was repeatedly raised, and a judicial determination of his competency requested * * * no hearing was ever had, nor was any disposition effected, upon such questions. * * *' The claim is factually inaccurate.

On April 18, 1972, defendant's counsel orally asked the court to authorize a psychiatric examination. In so doing counsel stated: '* * * I'm not suggesting, I'm not going to amend my plea and enter a plea of not guilty by reason of insanity, I don't think we have anything like that. * * *' Counsel sought the psychiatric examination in connection with defendant's intent at the time of the alleged commission of the several crimes charged. The trial court denied the motion at the time and informed counsel it could be brought up at a later time.

On May 11, 1972, counsel again moved for a psychiatric examination alleging '* * * on information and belief, it appears to such attorney that the Defendant is deeply, emotionally, and psychologically disturbed and that there is a reasonable possibility that a defense may exist to the crimes charged in the Indictment based upon the present mental state of the Defendant.'

Counsel's statement in connection with the April 18th motion negates any claim of incompetency. The May 11th motion asserts no more than possibilities. Neither of these motions raised a question as to defendant's mental capacity. State v. Hovey, 80 N.M. 373, 456 P.2d 206 (Ct.App.1969).

A motion for judicial determination of competency was filed May 31, 1972. The determination sought was '* * * the competency of the Defendant to stand trial.' The three grounds alleged in support of this motion were: (1) 'The Defendant has had a long history of emotional and mental disturbances for which he has been committed to the New Mexico State Hospital.' (2) 'Defendant has recently been examined by Dr. A. A. Hovda, a New Mexico Psychiatrist who has indicated to the Defendant's attorney that further testing and evaluation will be necessary for him to determine whether the Defendant is presently competent. * * *' (3) Defendant has had three attorneys in this case, each of which is convinced that defendant is suffering from mental and emotional disturbances.

In regard to the three grounds alleged, the record shows the following. The examination at the New Mexico State Hospital was in 1969. The report of that examination was that defendant was emotionally disturbed and was experiencing a 'profound depressive reaction.' The report recommended further examination and observation; the report did not state that defendant was mentally incompetent. A report of Dr. Hovda dated June 6, 1972, (subsequent to the motion), does not recommend further examination and testing. Rather, the report refers to two evaluations, recommends psychiatric treatment with medication and states an opinion that defendant was 'pre-psychotic at this time.' The claim that three attorneys thought defendant to be emotionally disturbed is not supported by the record. Assuming, however, that this was the opinion of three attorneys, there is nothing showing a basis for the opinion.

We have serious doubts that under this record a 'question' as to defendant's present mental competence had been raised under § 41--13--3.1, N.M.S.A.1953 (2d Repl.Vol. 6). Here, there is no conflict in opinion as to defendant's mental condition as in State v. Cliett, 79 N.M. 719, 449 P.2d 89 (Ct.App.1968). Nor was he hospitalized for mental illness when arrested as in Hoffman v. State, 79 N.M. 186, 441 P.2d 226 (Ct.App.1968). Compare the factual allegations in State v. Guy, 79 N.M. 128, 440 P.2d 803 (Ct.App.1968); see also State v. Velasquez, 76 N.M. 49, 412 P.2d 4 (1966), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 95 (1966).

In the light of the record, the motion for a judicial determination of competency rests on a history of emotional disturbance continuing into the present. We incline to the view that this is insufficient to raise a question as to present mental incompetency. See State v. Smith, 80 N.M. 742, 461 P.2d 157 (Ct.App.1969); compare Stafford v. State, 82 N.M. 365, 482 P.2d 68 (Ct.App.1971); State v. Maples, 82 N.M. 36, 474 P.2d 718 (Ct.App.1970).

We do not, however, decide this issue on the basis of whether the motion raised a question as to defendant's present mental competence. Instead, we follow the approach used in State v. Bius, 85 N.M. 98, 509 P.2d 573 (Ct.App.1973). In bius, supra, at the time of the...

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