State v. Quintana

• Decision Date: 11 August 1961
• Docket Number: No. 6908,6908
• Citation: 364 P.2d 120,1961 NMSC 108,69 N.M. 51
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Frank QUINTANA, a/k/a Zorro, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 120

364 P.2d 120

69 N.M. 51

STATE of New Mexico, Plaintiff-Appellee, v. Frank QUINTANA, a/k/a Zorro, Defendant-Appellant.

No. 6908.

Supreme Court of New Mexico.

Aug. 11, 1961.

Bertrand B. Prince, Santa Fe, for appellant.

Earl E. Hartley, Atty. Gen., F. Harlan Flint and Mark C. Reno, Asst. Attys. Gen., for appellee.

CHAVEZ, Justice.

Appellant, Frank Quintana, was found guilty by a jury on two counts of an information which accused him, under count one, of armed robbery and, under court two, of grand larceny. The trial court sentenced appellant to serve a term in the State Penitentiary under each count and ordered that the sentences run consecutively and not concurrently. From the judgment and sentence, he appeals.

On the night of October 29, 1959, at approximately 7:15 P.M., at which time it was raining, two persons wearing silk stockings over their faces, entered the Drive In Liquor Store located at 903 Pecos Trail, Santa Fe, New Mexico, owned by Corrine Martinez and her husband, Paul A. Martinez. Corrine Martinez and a customer, one Col. John K. Sells, a retired Army officer, were inside the liquor store at that time. One of the two masked persons was a tall man about six feet in height with extremely broad shoulders and was a little bit stooped. The other man was about five feet six or five feet seven inches tall. The tall man had on a striped cap and a three-quarter length blue or blue-gray jacket which was closed or buttoned. He wore light colored trousers, very well creased, that had a grease or oil mark near the left hip.

The tall man had a gun and the short man said: 'This is a stick up, Lady, give us your money.' The short man then went to the cash register and took out $152.36 in cash and four checks totaling $86.90. The masked persons also took two bottles of Johnny Walker Scotch, but left $34.96 in the cash register. Before the short man went to the cash register, Mrs. Martinez and Mr. Sells were ordered to lie down, which they did, at least in part. Mr. Sells picked up a bottle of wine and threw it in the direction of the two masked men, saying: 'How about a drink?' The bottle fell on a glass case and broke. One of the two masked men said: 'You are playing with your life, mister.' The tall man, at this time, was pointing the pistol at Sells. It was a 38-calibre nickel plated revolver. The short man asked Mrs. Martinez: 'Where's your safe?' and she told him that they didn't have one. The short man slipped and cussed in Spanish. Shortly after taking the money from the cash register and the two bottles of scotch whisky, the two masked men left the store and ran in a southerly direction on the Las Vegas road.

On the Saturday following the robbery, October 31, 1959, at approximately 7:20 P.M., appellant was arrested by the police, taken to the police station and questioned. He refused to say anything at all, even as to where he was living. The police checked various places in the vicinity of where appellant was arrested and soon found out that he was living at apartment number nine located at 119 Park Avenue, operated by Corine P. Zamora. The door to this apartment was locked. The police obtained a search warrant and proceeded to appellant's apartment where they found a key in the window sill on the outside. They went inside of the apartment, conducted a search and, among the clothes, found a pair of very light tan trousers, a blue three-quarter length jacket, a striped cap, a hat and a pair of shoes, all of which were very wet and muddy.

On October 30th at approximately 8:09 A.M., one of the police officers found a silk stocking in front of 916 Old Pecos Road and a few minutes later found another silk stocking in front of 844 Old Pecos Road. The stockings were found about a block apart.

On the Saturday following the robbery, Mrs. Martinez, at the police station, identified the trousers, the jacket, the hat and the shoes. She identified the trousers and the jacket as the ones worn by appellant at the time of the robbery, and she further identified the mark which was on the left side of the trousers.

Appellant, under point I, argues that the testimony of the state's witnesses was insufficient to establish the identity of appellant as one of the masked persons who committed the robbery and larceny. We cannot agree with this contention. On the night of October 29, 1959, two persons entered the liquor store wearing silk stockings over their heads and faces. The taller of the two persons hela d 38-calibre pistol. The only way that appellant and his companion could be identified was by their size, height, movements, features, mannerisms, and by the clothes they were wearing.

Mrs. Martinez testified that she was positive that appellant was one of the persons because of his posture, size, stoop, and because of what he was wearing. On the night that the robbery occurred, both Mrs. Martinez and Mr. Sells described appellant and the clothes he was wearing at the time of the robbery. At the trial, both Mr. Sells and Mrs. Martinez identified the trousers and jacket worn by appellant on the night of the robbery, and described appellant as being about six feet tall with very broad shoulders. Mrs. Martinez testified that she was able to identify appellant because 'he had the same wide shoulders, the same stoop, the way he carried himself.' Mr. Sells identified appellant as follows:

'* * * the Defendant here and the larger man have the same relative heights, very broad shoulders and carriage. Based on that, I am certain in my mind that this man, this defendant, is the larger of the two men who robbed the liquor store on the night of October 29, 1959.'

Mr. Sells further testified:

'I feel certain in my mind that is the larger of the two men that robbed the liquor store on the night in question. I base that upon the broadness of his shoulders, the way he sits with his head protuded forward, his general height. I have seen the Defendant walking outside of the court room on another occasion.'

Mr. Sells also testified that the pistol the appellant held in his hand at the time of the robbery was a 38-calibre revolver.

On October 31, 1959, a few days after the robbery, the police found a box of 38-calibre cartridges in appellant's apartment. They also found the trousers and jacket which were definitely identified by Mrs. Martinez and Mr. Sells as being the same clothes the taller of the two robbers was wearing on the night of the robbery.

This court, in State v. Fore, 37 N.M. 143, 19 P.2d 749, 750, said:

'The opinion of the witness need not be based upon a recognition of face and features; it may be based upon the voice, size, gait, and movements of the person whose identity is in question. * * *'

Wharton's Criminal Evidence, Vol. 1, 12th Ed., Sec. 182, p. 363, states the rule as follows:

'It is relevant to admit testimony of a witness that he recognized a person by his height and weight, or size, or by his walk, or by his clothing.'

After reviewing the record we are convinced that there is sufficient evidence to establish that appellant was the tall person who held the revolver during the robbery on the night of October 29, 1959, at the Drive In Liquor Store.

There is no merit in appellant's point II, that the court unduly restricted the cross-examination of defense counsel of one of the state's witnesses.

After the witness, Mrs. Corrine Martinez, had identified the appellant by his size, posture, stoop and the clothes he was wearing, the following took place:

'Q. When you were about four feet behind the counter, did you have the opportunity to look at him and examine him and can you now state that when you saw him again at that close a distance, if you are positive that this was the Defendant, or the person that you saw about four feet from you when you were behind the counter? A. I couldn't identify his features because of the stockings, but the posture--about the size--the clothes were all the same.

'Q. Then, you are not, outside of the height, the posture you refer to--you are not able to state positively this Defendant was one of the persons that went to the Drive In Liquor Store on October 29, 1959? A. I can state positively, except I cannot identify the features.

'Q. Then, you are not positive he is the same man or this is the same face?

'Mr. Sanchez: Objection.

'Court: She has already answered the question. On what basis of identification that she made, I think the Jury can determine what the identification is--whether it is a proper one or not.'

The court did not unduly restrict appellant's cross-examination of Mrs. Martinez. The witness had already stated positively that she could identify appellant, except that she could not identify his features. Also, there were actually two questions in one: (a) As to whether or not appellant was the same man; and (b) 'or this is the same face.' The witness could not testify as to the 'same face' as appellant had a silk stocking over his head and face.

Point is also made because the trial court sustained an objection on cross-examination of Mrs. Martinez as to whether the appellant was the same height as one of the robbers. The record is replete with her testimony concerning the height of the taller of the robbers being the same as that of appellant. Again it is our conclusion that the cross-examination was not unduly restricted.

The extent of cross-examination rests largely within the discretion of the trial court and appellant was not deprived of the opportunity to test the credibility of Mrs. Martinez' testimony. State v. Vargas, 42 N.M. 1, 74 P.2d 62; and Lillibridge v. Coulter, 52 N.M. 105, 192 P.2d 315.

Under point III appellant contends that the consecutive sentences imposed by the trial court under armed robbery and grand larceny amount to a double sentence.

The trial court sentenced appellant under the armed robbery count to serve a term of not less than three years nor more than twenty-five years, and under the grand larceny...