State v. Rascon

• Decision Date: 14 April 1976
• Docket Number: No. 10603,10603
• Citation: 550 P.2d 266,89 N.M. 254,1976 NMSC 16
• Parties: STATE of New Mexico, Petitioner, v. Donald RASCON, Respondent.
• Court: New Mexico Supreme Court

Page 266

550 P.2d 266

89 N.M. 254

STATE of New Mexico, Petitioner, v. Donald RASCON, Respondent.

No. 10603.

Supreme Court of New Mexico.

April 14, 1976.

James L. Brandenburg, Dist. Atty., James F. Blackmer, Asst. Dist. Atty., Albuquerque, for petitioner.

Jerome M. Ginsberg, Santa Fe, for respondent.

OPINION

STEPHENSON, Justice.

Rascon was charged by criminal complaint with assault with intent to commit rape. ¹ Arrested on a warrant, he was twice given Miranda ² warnings, made inculpatory statements and was later indicted. The trial court granted Rascon's motion to suppress the statements because of failure by the police to notify the public defender that the defendant was in custody as provided by § 41--22A--12(C) N.M.S.A. (Supp.1975). ³ The Court of Appeals affirmed. State v. Rascon, 88 N.M. 395, 540 P.2d 875 (Ct.App.1975). We granted certiorari and reverse the Court of Appeals and the district court.

According to Rascon's trial counsel, a public defender, Rascon's name came to the attention of the district public defender's office on June 18, 1974. A great deal of the record can be summarized by saying that the public defender does not have the vaguest notion how this occurred. In any case, on the same day the district defender supposedly assigned counsel to Rascon, and counsel telephoned the jail to inquire about his new client. He was told that Rascon was not in custody, which was true. On June 20, 1974, the district attorney's office filed a criminal complaint against Rascon in magistrate court and a warrant issued. Rascon was apprehended the same day. He was immediately given Miranda warnings by reading his rights to him from the 'rights card.' When booked he was again given his rights by use of the 'advice of rights form.' In pertinent part, this form was divided into seven separate paragraphs, each of which Rascon initialed, and then signed an acknowledgement that he had been advised of, read and understood his constitutional rights. ⁴ He then signed a waiver of rights. ⁵ The police never complied with § 41--22A--12(C).

There is neither evidence nor inference that the advice of rights and waiver of rights forms were not intelligently and voluntarily executed. Rascon thereafter on June 20th made the statements in question. They are not claimed to have been other than voluntary. On July 17th he was indicted and later filed his motion to suppress. The motion set forth several grounds for relief, one of which was a failure on the part of the policy to comply with § 41--22A--12(C). The trial court, after finding that Rascon had been advised of his rights, sustained the motion on the grounds that the police had failed to comply with the mentioned statute. The Court of Appeals held that the statute granted an 'extension' of 'normal' constitutional rights and that suppression of the statements was required.

Inasmuch as the Court of Appeals did not specify the particular constitutional rights which it considered to have been extended by § 41--22A--12(C), we will consider the array. We are concerned with the rights granted by the sixth amendment to the Constitution of the United States 'to have the Assistance of Counsel for his defense' and the similar rights mentioned in Article II, § 14 of the New Mexico Constitution (hereafter 'sixth amendment rights'). We are also concerned with the right of a defendant not 'to be a witness against himself' granted by the fifth amendment to the United States Constitution and the similar right granted by Article II, § 15 of the New Mexico Constitution not to 'be compelled to testify against himself in a criminal proceeding' (hereafter 'fifth amendment rights').

The statutory scheme for furnishing lawyers to those financiallyincapable of employing counsel is embodied in the Indigent Defense Act, ⁶ §§ 41--22--1 through --10 N.M.S.A.1953, as amended, and the Public Defender Act, ⁷ §§ 41--22A--1 through --12 N.M.S.A. (Supp.1975). These acts are in pari materia. See State v. New Mexico State Authority, 76 N.M. 1, 411 P.2d 984 (1966); New Mexico Mun. L., Inc. v. New Mexico Envir. Imp. Bd., 88 N.M. 201, 539 P.2d 221 (Ct.App.), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975). They are, in the main, responses to sixth amendment rights to counsel for the actual defense of criminal charges. Sixth amendment rights entitle an accused to defense counsel at any 'critical stage' of the prosecution. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). However, the right is not recognized by the United States Supreme Court to come into play prior to arraignment (Powell v. Alabama, supra), preliminary hearing (Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970)) ⁸ or lineups after the initiation of formal charges (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). ⁹

Consistent with such concepts, the Indigent Defense Act, while recognizing in general terms that a 'needy person' has a right to be 'counseled and defended' at earlier times, nevertheless requires a judicial determination of whether a person is 'needy.' This determination shall be 'deferred until his first appearance in court.' § 41--22--5(A). If the court determines that the person is 'needy,' the district court shall promptly assign counsel. ¹⁰ § 41--22--4(C). It is in this manner that the attorney-client relationship commences for the defense in response to the sixth amendment. Provision is also made for the waiver of counsel in § 41--22--6. That section refers to the waiver of Sixth Amendment Rights.

The Public Defendder Act creates an agency or arm of the State which undertakes representation of persons 'financially unable to obtain counsel.' § 41--22A--10(B). The representation commences 'not later than the time of the initial appearance of the person before any court' and continues throughout, including appeal. Id. It is implicit in the Act that a judicial determination of indigency is necessary. These proceedures relate to the sixth amendment and may be waived. Section 41--22A--12(D) provides:

Any person entitled to representation by the district public defender may itelligently waive his right to representation.

The waiver may be for all or any part of the proceedings. The waiver must be in writing and countersigned by a district public defender.

This subsection clearly relates to waiver of sixth amendment rights to counsel.

We turn to the examination of fifth amendment rights. This is the right against self-incrimination and does not directly involve right to counsel. The touchstone is Miranda v. Arizona, supra. It neither created nor expanded upon the constitutional right to counsel. It dealt with the right to be informed of rights against self-incrimination. It does not obligate the State to furnish counsel; rather, it creates a series of choices on the part of the law enforcement officers and the accused. If the officers wish to question the suspect and be able to make use of statements which he may make, they should give him the warnings laid down in Miranda or their equivalent. The next move is up to the person detained. If he wishes to assert such rights, he may elect to consult with counsel, to have counsel present during questioning or both. The ball is then back in the officers' court. They may elect to question the suspect no further, in which event the State is under no obligation to provide counsel at that point in response to fifth amendment rights. But if the officers elect to interrogate the person and wish to be able to use his statements, the suspect should be accorded his rights to consult with counsel or to have counsel present, or both, as he chooses. The consequences of continued questioning on the part of the officers without implementation of such an election is, according to Miranda:

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel (citation omitted).

384 U.S. at 475, 86 S.Ct. at 1628.

Suth were Rascon's rights under the fifth and sixth amendments to the Constitution of the United States. No useful purpose would be served by holding that his rights were less under the parallel provisions of the New Mexico Constitution, and we are not disposed to hold that they were greater.

Rascon effectively waived his fifth amendment rights. The statutory scheme we have outlined accorded to him his sixth amendment rights in full measure. He was provided with an attorney at arraignment, has had one ever since and has one now. None of his federal or state constitutional rights in respect to counsel were violated.

If some right of Rascon regarding counsel was violated, it must of necessity have been a right arising under the provisions of the Indigent Defense Act or the Public Defender Act. Because of the factual foundation upon which Rascon's argument is constructed, involving interrogation rather than defense of a formal

Such were Rascon's rights under the suppression of a presumably incriminating statement, we are concerned with a supposed statutory extension of fifth amendment rights or some statutory right closely akin to them. We are convinced that the Indigent Defense Act, couched throughout in terms of representation, deals exclusively with sixth amendment rights for the defense of criminal charges--rights which we have said were accorded to Rascon and which he does not assert were denied to him. We turn our attention to the Public Defender Act.

Rascon's argument centers on § 41--22A--12(C) coupled with § 41--22A--10(E). ¹¹ It is urged that these two statutes together create a right to consult with counsel, or perhaps even an attorney-client relationship from the instant of forcible detention. We do not so view them.

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