State v. Muise
| Decision Date | 29 August 1985 |
| Docket Number | No. 8126,8126 |
| Citation | 1985 NMCA 90,707 P.2d 1192,103 N.M. 382 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Twila MUISE, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant, Twila Muise, appeals her convictions and sentences of false imprisonment and battery following a jury trial. Six issues are raised on appeal: (1) whether defendant had a right to a magistrate court trial on the misdemeanor charges; (2) sufficiency of the evidence; (3) error in charging false imprisonment; (4) restriction of cross-examination; (5) claim of bias by the trial court; and (6) merger of offenses. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. McCormack, 101 N.M. 349, 682 P.2d 742 (Ct.App.1984).
On September 29, 1983, Manuella Orona was driving a school bus for the Hobbs Municipal School District. When the afternoon classes ended, Orona drove a busload of school children homeward. Three children of the defendant (Michael, Matthew and Shantel) were passengers on the school bus. Michael and Matthew threw their books on the floor of the school bus before they left it. Shantel picked up their books as she left the bus; Orona helped Shantel gather up the books. Orona had previously cited several of defendant's children for misconduct on the bus. Defendant wanted to confront Orona concerning these citations. Shantel later stated that her two brothers had purposely thrown their school books on the floor of the bus to delay the departure of the bus so that defendant would have time to come to the bus and confront Orona concerning the disciplinary citations which had been given to defendant's children for their conduct on the school bus.
On the return trip of the bus toward Hobbs, the vehicle approached defendant's residence. Defendant drove a pickup truck in front of the bus in such a manner so as to block the progress of the bus. Orona halted the bus so that she would not strike the pickup. Orona stopped in the right-hand lane and Matthew jumped from the pickup. Although the evidence was conflicting with respect to Matthew's next action, the record suggests that he in some fashion secured a position on the outside of the bus; there was testimony that he hung by his hands from an open window on the driver's side. Orona drove slowly forward. Defendant yelled to Orona to stop the bus. Orona halted the bus. At that time, the pickup was located in front of the bus so as to prevent it from moving forward. Immediately after the bus stopped, defendant accused Orona of having previously struck Shantel during the child's trip home from school. Matthew then went to the front of the bus and opened the hood of the vehicle. He pulled some of the wiring out of the engine. Defendant and Matthew began shouting profanities at Orona. Both defendant and Matthew attempted to open a door to the bus, but it was locked. Defendant repeatedly told Orona to get off the bus because she wanted to beat her up for allegedly spanking Shantel.
Then, Matthew broke the window on the driver's side of the school bus; he and defendant attempted to pull Orona out of the window through the broken glass. Orona resisted the attempt and her arms were cut by the ragged pieces of glass in the window. Phillip Rule, an adult, was riding on the school bus at the time of the incident without official authority. Rule had previously requested a ride into town in the school bus and Orona had agreed.
Rule came to the assistance of Orona. While defendant and Matthew were attempting to pull Orona out through the broken bus window, Rule grabbed Matthew and forced him to release Orona. Matthew then struck Rule in the face with his fist. Thereafter, Matthew went to the rear of the bus and broke out a rear window. During this time, defendant told Orona to come outside of the bus so she could fight with her and repeated threats of bodily harm to Orona.
Both defendant and Matthew repeatedly attempted to enter the bus, but Orona kept the doors closed. The police were summoned. State Police Officer James W. Woods interviewed Shantel, and she stated that she had been shoved by Orona as she exited from the bus and almost fell. Another officer, Richard Miller, testified that he interviewed Shantel and asked her whether Orona had ever spanked her. Shantel answered that the bus driver had shoved the school books of her brothers at her and told her to get off the bus.
Officer Woods testified that when he initially arrived at the scene, he observed the school bus with the driver's window broken out and a rear window shattered. He stated that Orona was upset, had scratches on her arm, and had some hair pulled loose.
Officer Woods stated that he had spoken to defendant shortly after he arrived and that defendant told him that Orona had spanked Shantel and that she would not put up with that. Defendant also told Woods that she had attempted to get Orona out of the bus so she could talk to her but Orona had refused. Defendant stated that Orona had driven down the road with Matthew hanging on the side of the bus and that he was trying to get Orona to stop.
Following the conclusion of the trial, the jury returned verdicts finding defendant guilty of false imprisonment and battery and acquitted defendant of tampering with a motor vehicle.
Defendant was initially charged by criminal complaint in the Magistrate Court of Lea County with false imprisonment (a felony), contrary to NMSA 1978, Section 30-4-3 (Repl.Pamp.1984), and two misdemeanors, battery, contrary to NMSA 1978, Section 30-3-4 (Repl.Pamp.1984), and tampering with a motor vehicle, contrary to NMSA 1978, Section 66-3-506(D) (Repl.Pamp.1984).
At the preliminary hearing on the charge of false imprisonment, the state requested the magistrate court to bind defendant over for trial in the district court, not only on the charge of false imprisonment, but also to transfer to district court the two related misdemeanor charges. Defense counsel objected, arguing that defendant had a right to be tried in the magistrate court on the misdemeanor charges. The magistrate found probable cause existed to bind defendant over to district court on the charge of false imprisonment and that since all of the charges arose out of the same transaction, the misdemeanor charges would also be transferred to district court.
Subsequent to the entry of the order of the magistrate court binding defendant over to the district court on the charge of false imprisonment, the state filed a criminal information in the District Court of Lea County charging defendant with false imprisonment (Count 1); battery (Count 2); and tampering with a motor vehicle (Count 3). Defendant did not object in the district court to going forward with the trial on the charges, hence any challenge on appeal predicated upon this issue has been waived.
On appeal, a reviewing court will not consider issues not raised in the trial court, State v. White, 94 N.M. 687, 615 P.2d 1004 (Ct.App.1980); State v. Bolen, 88 N.M. 647, 545 P.2d 1025 (Ct.App.), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976), unless the issue involves a matter of jurisdiction or fundamental error. State v. Lucero, 97 N.M. 346, 639 P.2d 1200 (Ct.App.1981), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982); see also NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 308 (Repl.Pamp.1983). Even a constitutional claim must be properly raised in order to preserve error for review upon appeal. See State v. Bolen. Proceeding to trial on the misdemeanor charges in district court, without objection, generally serves as a waiver of any prior defects in the proceedings. State v. Whitfield, 81 N.M. 34, 462 P.2d 619 (1969). Even if there had been no waiver, defendant's contentions are without merit.
Since the magistrate court had jurisdiction to hear the misdemeanor charges filed against defendant, defendant contends that she had an absolute right to have the misdemeanor charges tried in magistrate court. Defendant further asserts that she was prejudiced by a joinder of the felony charge with the two misdemeanor charges and that trial of the misdemeanor charges in district court deprived her of a right of de novo appeal from the magistrate court.
NMSA 1978, Magis.Crim.Rule 15(c) (Repl.Pamp.1981) provides:
If the court finds that there is probable cause to believe that the defendant committed an offense not within magistrate court trial jurisdiction, it shall bind the defendant over for trial. If the court finds that there is probable cause to believe that the defendant committed only an offense within magistrate court trial jurisdiction, the action shall be set for trial as soon as possible. [Emphasis added.]
The magistrate court rule cannot be construed in such a manner so as to deprive the district court of its constitutional investiture of original jurisdiction. See N.M. Const. art. VI, Sec. 13; State v. Giraudo, 99 N.M. 634, 661 P.2d 1333 (Ct.App.1983). Both the magistrate court and district court have original concurrent jurisdiction over trial of misdemeanor charges. Id.; NMSA 1978, Sec. 35-3-4(A) (Cum.Supp.1984). As provided in NMSA 1978, Magis.Crim. Rule 1 (Repl.Pamp.1981), magistrate court rules are to be liberally construed to secure the just and speedy determination of magistrate court actions and not to "extend or limit the jurisdiction of any court, or to abridge, enlarge or modify the substantive rights of any litigant." Cf. State v. Garcia, 93 N.M. 51, 596 P.2d 264 (1979) ().
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