State v. Montano
| Decision Date | 14 August 1979 |
| Docket Number | Nos. 3809,3810,s. 3809 |
| Citation | 93 N.M. 436,1979 NMCA 101,601 P.2d 69 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Manuel MONTANO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
In No. 3810, defendant was convicted of trafficking in heroin. In No. 3809, defendant was convicted of a variety of crimes. The two appeals are hereby consolidated. Issues listed in the docketing statements, but not briefed, were abandoned. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App.1977). One of the five issues briefed is an attack on the legal sufficiency of U.J.I.Crim. 16.00 which states the elements of larceny. This Court has no authority to review instructions approved by the Supreme Court. State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App.1977); State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App.1977). The four issues discussed involve: (1) venue; (2) competency; (3) severance; and (4) the meaning of "passing title" in § 66-3-505, N.M.S.A.1978.
In both cases, which were tried separately, defendant filed a motion that venue be changed to a county other than Bernalillo. The motions were supported by affidavit of counsel. The affidavit asserted that defendant could not get a fair trial in either Bernalillo or Sante Fe Counties because of "public excitement and/or local prejudices . . . ." The asserted inability to obtain a fair trial was based on stories in newspapers and on television shows which referred to several of defendant's crimes, the "storefront" operation in No. 3809, defendant "walking away" from a medical center, and defendant being featured as the "Crimestopper of the Week."
The motion for a change of venue was denied in both cases; defendant asserts this was error in both cases. The venue question is not properly before us in No. 3809; no venue issue was raised in the docketing statement filed September 27, 1978. N.M.Crim.App. 205. Defendant obtained several extensions of time in which to file the brief-in-chief. Not until March 12, 1979, on the day the brief-in-chief was filed, did defendant seek permission to supplement the docketing statement in No. 3809 in order to add the venue question. The motion was properly denied because untimely. State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.1978).
However, on the merits, the trial court did not err in denying the change of venue motions. Defendant asserts that a change of venue was mandatory because of an absence of an evidentiary hearing on the motions. Section 38-3-3(A), N.M.S.A.1978; State v. Turner, 90 N.M. 79, 559 P.2d 1206 (Ct.App.1976). This contention disregards what transpired. The trial court denied the motion "at this point," stated that it was necessary to inquire of the prospective jurors concerning their knowledge of the publicity and determine whether "as a result of that exposure," the defendant could get a fair trial. The trial court reserved ruling on the motions until "the presentation of specific questions to the jury panel."
The answers of prospective jurors to questions on voir dire was evidence to be considered in deciding the venue motions. State v. Sierra, 90 N.M. 680, 568 P.2d 206 (Ct.App.1977). This answer evidence moved the venue question out of the mandatory provisions of § 38-3-3(A), supra, and into the discretionary provisions of § 38-3-5, N.M.S.A.1978. State v. Lunn, 88 N.M. 64, 537 P.2d 672 (Ct.App.1975). The answer evidence was such that there was no abuse of discretion in denying the motions to change venue. State v. Sierra, supra.
Defendant asserts the trial court erred in its application of State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977) in deciding his competency. The competency issue arose prior to the amendment of Rule of Crim.Proc. 35(b), effective July 1, 1978; the amended rule is not applicable to this case.
The competency issue applies to three stages of the proceedings in No. 3809 pretrial, during trial and sentencing. The competency issue applies to two stages of the proceedings in No. 3810 pretrial and sentencing.
A competency hearing was held in December, 1977 after which the trial court ruled there was no reasonable doubt that defendant was competent to be tried. There is no claim that this ruling was erroneous. However, the trial court ordered that defendant "continue to be seen" and stated that a further hearing would be held.
Subsequently, defendant made an apparent suicide attempt while being held in the county jail. He was taken to a medical center, from which he escaped. The second pretrial competency hearing was delayed until defendant was captured.
The second pretrial competency hearing was held on February 8 and 9, 1978. At that hearing, there was evidence that defendant was competent, that he was a malingerer in that he made a conscious effort to produce the symptoms of schizophrenia and that the apparent suicide attempt in the county jail was part of defendant's plan to be taken for medical treatment in order to escape. However, there was conflicting evidence. Defendant relies on this conflicting evidence.
State v. Noble, supra, states that
Defendant claims that because the evidence of competency was conflicting, the trial court could not properly rule there was no reasonable doubt and, thus, the ruling was an abuse of discretion. This argument overlooks State v. Lopez, 91 N.M. 779, 581 P.2d 872 (1978). There was conflicting evidence in Lopez, supra; a psychiatrist testified that Lopez was a borderline competent and there was lay testimony of incompetency. This Court held the failure to submit competency to the jury was an abuse of discretion. The Supreme Court reversed, pointing out: 1. the appellate court only reviews the evidence to determine whether the trial court's "no reasonable doubt" ruling was an abuse of discretion; 2. that the appellate court cannot substitute its judgment for that of the trial court; and 3. the evidence is to be reviewed "in the light most favorable to the trial court's decision . . . ."
In this case the conflicting evidence could be properly viewed by the trial court as weak. The expert testimony concerning incompetency was that defendant met two of the three tests for competency stated in U.J.I.Crim. 41.01, but did not meet the third test, that of being able to assist in his own defense. This incompetency was because of a latent type schizophrenia. The latency was "sometimes referred to . . . as a borderline condition" brought on by a certain kind of stress. There was evidence that the defendant's stress involved having to go to court, having to be tried and being in jail. According to this expert, defendant's "anxiety rests on the possible outcome of going to the penitentiary." " 'To the extent that he can, he (defendant) will attempt to remain in a "safe" environment.' " The expert opined that defendant "was becoming competent," but that his condition would worsen if jailed for any length of time.
From the above evidence, the expert evidence of competency and malingering, and the evidence that defendant cut himself while in jail in order to be transferred to a medical facility from which he escaped, the trial court concluded there was no reasonable doubt as to competency. Applying State v. Lopez, supra, by viewing the evidence in the light most favorable to the trial court's decision, we cannot hold that the trial court abused its discretion in ruling there was no reasonable doubt as to competency at the second pretrial hearing.
Trial in No. 3810 was on February 20 and 21, 1978. No competency issue arose during this trial. Trial in No. 3809 began on February 21, 1978 and concluded on March 1, 1978. On February 27, 1978, defendant slashed his wrists in the courtroom. The trial court ordered another evaluation of defendant before proceeding further with the trial. An oral evaluation was received and the trial continued on February 28, 1978. Based on the evidence presented at a subsequent hearing, the trial court ruled there was no reasonable doubt as to defendant's competency on February 27, 1978. Defendant does not claim the trial court abused its discretion by so ruling.
No issue is raised as to defendant's competency to be sentenced. See State v. Sena, 92 N.M. 676, 594 P.2d 336 (Ct.App.1979).
This issue concerns the 65-count indictment in No. 3809. Several government agencies operated an undercover project in Albuquerque. This "storefront" operation purchased stolen property. Defendant was a regular customer from March 3, 1977 through July 7, 1977. A large number of defendant's transactions were either taped or videotaped. There is no claim on appeal that the evidence was insufficient to sustain the resulting convictions.
There was a pattern to most of the counts. For most of the victims there was a charge of burglary, either vehicular or residential, a charge of larceny based on items taken in the burglary, and a charge of disposing of stolen property which almost always involved the storefront operation. The 65-count indictment involved 23 separate victims. The prosecution was unable to locate 5 of the victims; this resulted in a nolle prosequi of 14 counts. Thus the severance issue involves 18 separate victims.
The indictment was filed September 29, 1977. Defendant's motion for severance was filed November 23, 1977 and was heard on February 10, 1978. At the time of the hearing, the trial court was concerned that if severance were granted, the...
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