State v. Rascon
| Decision Date | 06 August 1975 |
| Docket Number | No. 1780,1780 |
| Citation | 88 N.M. 395,1975 NMCA 101,540 P.2d 875 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Donald RASCON, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
The state appeals an order suppressing statements given by defendant to officers of the Albuquerque Police Department. The question to be decided is whether failure to notify the Public Defender's Office that a person is being forcibly detained, under the mandate of § 41--22A--12(C), N.M.S.A.1953 , constitutes grounds for suppression of statements taken during such forcible detention. We affirm.
The facts disclosed by the record, although somewhat confusing, are not in serious dispute. It appears that on June 15, 1974, defendant was allegedly involved in an assault with intent to rape. On June 16, 1974, Detective Baca of the Albuquerque Police Department was assigned to the case. On June 20, 1974, upon completion of his investigation, Baca obtained an arrest warrant, served it on the defendant and took him into custody. On that day, after twice being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), and, after having signed a waiver of those rights, defendant made oral and written statements concerning his involvement in the offense. A criminal complaint was also sworn out on June 20, 1974. The record does not indicate whether this was before or after the making of the statements nor does it indicate when the complaint was filed. We will assume a proper chronology.
The confusion in this case concerns defendant's representation by the Public Defender's Office. The transcript of the hearing on the motion to suppress reveals that Assistant Public Defender, John Walker, was somehow assigned to the case on June 18, 1974. He immediately called the jail in order to ascertain whether the defendant had been taken into custody. Learning that defendant was not yet in jail, Walker called again three days later, at which point defendant had already been in custody for one day and had given the statements which underlie the motion to suppress. Walker appeared at defendant's arraignment and represented him thereafter.
The record indicates that neither the defendant nor Detective Baca knew that Walker had been assigned to the case at the time of the arrest or of the giving of the statements. Indeed, how Walker knew of the case or thought of himself as defendant's attorney is still a complete mystery despite the fact that fully two-thirds of the transcript is devoted to a colloquy between Walker, the trial court and the state's attorney attempting to answer that question. However, it is undisputed that the Public Defender was not called or notified that defendant was being forcibly detained.
Section 41--22A--12, N.M.S.A.1953 reads as follows:
'(1) to confer with the district public defender; and
'(2) if he is financially unable to obtain counsel, to be represented by the district public defender at all stages of the proceedings against him.
'
The trial court's order granting defendant's motion to suppress stated:
'* * * that although the Defendant was advised of his rights, the investigating officer never notified the Public Defender's Office that the Defendant was in custody as required by the provisions of Section 41--22A--12 ((C)), NMSA 1953, 1973 Supp.'
The state acknowledges that the police made no attempt to comply with § 41--22A--12(C), supra. Rather, the state argues that there is no requirement for notification of the Public Defender's Office prior to initial appearance. The state bolsters its argument with a plethora of potential complications having nothing to do with the instant case. They mainly concern conflict of interest situations which are simply not present in defendant's case. Should such a situation arise, we will decide it at that time. The state also complicates the instant case by presenting a number of hypothetical dilemmas relating to § 41--22A--12(D), supra. However, we need not resolve them because we decide the case on the narrower ground of a violation of § 41--22A--12(C), supra. In any event, the state's arguments are all commentary on the wisdom of the statute. We express no opinion on the wisdom of the statute. That task is for the legislature and its conscience.
The state neither contends that there was compliance with the statute nor does it seriously contend that the statute is unconstitutional. Its argument is that rights designed to be protected by the mechanism of § 41--22A--12(C), supra, are protected in other ways. Hence, compliance therewith is unnecessary. Again, this argument should be addressed to the legislature. It is fundamental that this court does not sit to substitute its judgment for that of the legislature. Village of Deming v. Hosdreg Company, 62 N.M. 18, 303 P.2d 920 (1956).
We are not concerned here with the normal constitutional rights. Those rights of defendant have been amply protected. For example, the record discloses an exhibit twice signed and multi-initialed by defendant entitled 'ADVICE OF RIGHTS YOUR CONSTITUTIONAL RIGHTS'--it reads, omitting the initialing and signing, in part as follows:
'Before we ask you any questions, you must understand your constitutional rights.
'I am a member of the Albuquerque Police Department and our Department is investigating (crime) ATTEMPTED RAPE which occurred at 2519 New York N.W. #50 on the 20th day of June at approximately 0130 AM PM
'You have the right to remain silent.
'Anything you say can be used against you in court.
'You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer present with you while we ask you questions.
'If you cannot afford a lawyer, one will be appointed at no cost to you before we ask you any questions, if that is your desire.
'I have been advised of and understand my constitutional rights.
'I have read and understand my constitutional rights.'
'WAIVER OF RIGHTS
What we are concerned with are the additional statutory rights granted by the legislature. Under the facts of the instant case we have a violation of a specific statutory mandate under subsection C. True it does not specify when the Public Defender must be called, however, in light of the mandate of subsection D it is obvious that it is before the waiver is signed if the defendant is indigent. Here, the defendant was indigent. The question is whether suppression of the statements is an appropriate remedy. Our answer is in the affirmative.
The state contends that should we affirm the trial court, we would be excluding perfectly good and relevant evidence for violations of merely ministerial or procedural rules. See State v. Perea, 85 N.M. 505, 513 P.2d 1287 (Ct.App.1973). We disagree. The rights granted by the statute are not ministerial or procedural. It cannot be said that advice of counsel at an accusatory stage is ministerial or procedural. A review of the Sixth Amendment of the United States Constitution and the myriad cases decided thereunder totally disputes such a contention. The rights granted by the statute are simply an extension of the various rights guaranteed by the Constitution. As we have heretofore indicated, we will not attempt to discuss the rationale behind the statute. We simply state that the state can extend, but not lessen, constitutional guarantees. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Having decided to extend the constitutional guarantees by statute, the legislative enactment must be upheld.
As stated im Village of Deming v. Hosdreg Company, supra:
'* * * (T)he public policy of a state is for the legislature whose judgment as to the wisdom, expediency or necessity of any given law is conclusive on the courts unless the declared public policy runs counter to some specific constitutional objection.'
It cannot be said that the statute is subject to any...
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State v. Rascon
...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 According to Rascon's trial counsel, a public......
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