State v. Ortega

• Decision Date: 06 September 1966
• Docket Number: No. 7976,7976
• Citation: 1966 NMSC 185,419 P.2d 219,77 N.M. 7
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Tobias ORTEGA and Raymond Patterson, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 219

419 P.2d 219

77 N.M. 7

STATE of New Mexico, Plaintiff-Appellee, v. Tobias ORTEGA and Raymond Patterson, Defendants-Appellants.

No. 7976.

Supreme Court of New Mexico.

Sept. 6, 1966.

Rehearing Denied Oct. 25, 1966.

Jack A. Smith, Albuquerque, Dean S. Zinn, Santa Fe, for appellants.

Boston E. Witt, Atty. Gen., Roy G. Hill, Gary O. O'Dowd, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

MOISE, Justice.

On October 16, 1961, Lucille Bruce was killed by a gunshot wound in the chest. Appellant Tobias Ortega was convicted of murder in the first degree and appellant Raymond Patterson was convicted of murder in the second degree for her killing.

Seven points relied on for reversal are presented, only two of which apply to both defendant Patterson and defendant Ortega. These points will be considered first, followed by discussion of the remaining five points which relate to defendant Ortega only.

The first point claims error by the trial court in admitting certain statements or confessions made by appellants after they had been taken into custody.

The facts material to a consideration of this point are that at the time of the homicide, arrest and taking of statements, appellant Patterson was not quite sixteen years old, and was under commitment to the State Hospital for the insane from which he had escaped two days preceding his arrest. (No issue as to his sanity is presented on this appeal). He was picked up by police at about 9:30 P.M., at which time he smelled of alcohol, was staggering and 'woozy.' He was taken to the police station, placed in the drunk tank, his outer clothes taken away, whereupon he was questioned by a police officer for 30 minutes to an hour and stated that he had done the shooting. He was then taken to the hospital for an examination which consumed more than an hour, after which he was returned to the police station and placed in the office of the commanding officer where he was questioned by two officers and gave a written statement which was taken about 2:15 A.M. and completed at about 3:00 A.M. One of the officers said that before taking the statement Patterson was handed a sheet of paper where were stated a party's constitutional rights not to make a statement; that any statement made could be used against him in a trial; that he was entitled to an attorney; and, in addition, set forth that the statement was given freely and voluntarily and without threats or promises. The other officer stated that explanation of his constitutional rights was read to Patterson and was then handed to him to be read. Without going into the details of the offense as shown in the statement, it discloses that Patterson stated he drank two cans of beer and half a quart bottle of whiskey before the shooting which he then stated had been done by Ortega.

Insofar as appellant Ortega is concerned, it appears that he was 17 years old. He was taken into custody at about 3:30 A.M. on October 17, 1961, and was taken to the police station where questioning began immediately by one officer with another present, and continued until 6:05 A.M., at which time a written statement was taken. When taken into custody it appeared he had been drinking and, as stated by one of the officers, he was in 'bad shape.' He stated he had taken some 'yellow jacket' pills and had smoked a marijuana cigarette. However, the officers testified that defendant Ortega appeared to be normal when the statement was taken three hours later. Before the statement was reduced to writing, one of the officers read to him from the form concerning defendant's constitutional rights and then handed the form to the defendant to read. Most of the questioning and answers were in the Spanish language but part was in English. The defendant and the interrogator understood both languages. The statement by Ortega differed in details from that given by Patterson, but contained an admission by him that he had fired the fatal shot.

At 8:00 A.M. the defendants were together in a room with the Santa Fe Chief of Police, the district attorney, two police officers, and a court reporter. After having their constitutional rights explained to then, they were interrogated about what occurred the day before, and they recounted their movements and the happenings at the time of the shooting. Notes of the entire proceedings were taken by the court reporter and recounted by him on the witness stand from memory.

At about 11:00 A.M., the morning of October 17, both defendants were taken to the scene of the murder where the occurrences of the day before were reenacted and explained by them. Before leaving the police station they were advised that they had to go voluntarily, but none of their other rights were mentioned. At the scene of the reenactment there were several policemen and police cars. Questions were asked and responses given. Most of the questioning and answering was in Spanish, although some English was also used.

Objection was duly made at the trial to the introduction of the written statements, to the testimony of the court reporter concerning what transpired at the session where he took notes, and to the testimony concerning what was said and done at the scene of the crime when the defendants were taken there to reenact what had occurred. The principal ground for objection was that no proper foundation had been laid demonstrating that the statements and conduct of the defendants were voluntary, and that the constitutional rights of the defendants were infringed in connection therewith.

Understandably great reliance was placed in the briefs on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, where certain rules applicable to confessions are announced. However, that decision was announced long after the trial in this case which occurred in July and August, 1963, and it has since been determined, in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, that the rule promulgated in Escobedo should not be applied retroactively, and would not apply in trials commenced prior to June 22, 1964. Accordingly, defendants may not rely on that case.

We are impressed that the procedure followed here conforms to the rules approved in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205. In connection with each of the three items of proof, i.e., the confessions, the joint statement and the reenactment of the crime, the state was required to lay a foundation before they were submitted to the jury. Based upon the presentation made to the court, a ruling was made that the evidence was admissible, whereupon the proof establishing the foundation as well as the facts constituting the admissions were repeated to the jury which was instructed specifically to the effect that the burden of proof of the voluntary character of confessions was upon the state and that, if the jury were not satisfied as to their voluntary character, they should be disregarded. Also, they were advised that in determining whether the statements were voluntary, the following circumstances should be considered:

'(1) The length of time the defendants were questioned and the circumstances surrounding such questioning.

(2) Whether or not defendants were in the custody of persons in authority and the alleged confessions were elicited by policemen or other persons in authority.

(3) Whether or not defendants were duly cautioned as to their constitutional rights on the subject before they made any self-incriminating confessions; and in this connection you are instructed that mere recitals at the head of a written statement which merely formalize constitutional requirements are meaningless unless it is shown that the defendants knew and understood them.

(4) The nature and condition of the quarters where defendants were kept while being questioned.

(5) The time of day when the questioning began and when it ended, and the treatment accorded the defendants in between.

(6) Whether or not the defendants, and each of them, were in full possession of their mental faculities at the time the confessions were made, and in this connection you are to consider whether or not they were under the influence of intoxicants or drugs or both to such an extent that they did not fully realize what they were doing or the enormity of their acts.

(7) The age and education of the defendants at the time the purported confessions were taken.

(8) That the defendants were in police custody without an attorney, a member of their families or anyone else to aid or advise them.'

As stated above, this procedure accords with the holding in Jackson v. Denno, supra. See also, Pece v. Cox, 74 N.M. 591, 396 P.2d 422; State v. Armijo, 64 N.M. 431, 329 P.2d 785.

Appellants do not claim error in the instructions, or that the procedure was not proper. Rather, if we understand their position correctly, it is more nearly that the 'totality of circumstances' requires a conclusion that appellants' constitutional rights were violated by the procedure followed in eliciting the confessions and accordingly the proof was not admissible. In this connection, they point primarily to the youth of the appellants, the fact they still showed the effects of liquor and possibly other stimulants when they first confessed, and that they were not furnished counsel or turned over to the juvenile authorities.

In Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325, 87

A.L.R.2d 614, being a case involving the question of the voluntary character of a confession by a fourteen-year-old boy, the court said that in determining whether or not the voluntary character of a confession in conformity with our constitutional requirements had been established in any given case required 'close scrutiny' of the facts in individual cases. Further, that illustrative of circumstances to be considered were the length of questioning, the use of fear, as well as the youth of the...