State v. Sanchez

• Decision Date: 12 January 1954
• Docket Number: No. 5675,5675
• Citation: 58 N.M. 77,265 P.2d 684
• Parties: STATE v. SANCHEZ.
• Court: New Mexico Supreme Court

Page 684

265 P.2d 684

58 N.M. 77

STATE v. SANCHEZ.

No. 5675.

Supreme Court of New Mexico.

Jan. 12, 1954.

Edward J. Apodaca, J. A. Smith, Albuquerque, for appellant.

Richard H. Robinson, Atty. Gen., Fred M. Standley, W. R. Kegel, Asst. Attys. Gen., for appellee.

SEYMOUR, Justice.

October 15, 1952 verdict of the jury was returned in Bernalillo County District Court finding the defendant Carlos Sanchez guilty of murder in the first degree and specifying life imprisonment in lieu of death. Appeal is prosecuted from the verdict, and from judgment and sentence entered thereon.

Principal points relied upon for reversal are four in number:

'Point I. Appellant was entitled to but was denied a continuance of his trial upon the ground that appellant, being a poor and pauper person without means with which to employ counsel, was entitled to well-prepared presentation of his cause and adequate and sufficient time within which Court-appointed counsel could present and prepare for presentation of appellant's cause. Appellant was further entitled to a continuance because of Court's abuse of discretion in reversing itself in placing trial of appellant's cause at earlier date than stipulated to Court-appointed counsel.'

'Point II. Appellant was entitled to but was denied his right to disqualify any presiding judge whom he believed would be prejudiced against appellant, whether said prejudice was by way of personal animosity, by way of known predisposition towards defendants with provious criminal records, whether justification existed one way or another for that belief, or whether appellant was sincerely of subjective opinion that he would not receive a fair trial before assigned presiding judge.'

'Point III. Appellant was entitled to but was denied his constitutional and statutory rights of due process of law in that being a proper and pauper person and without means with which to retain counsel and thus being solely reliant for protection upon the wise, equitable and benevolent discretion of the Court in the preparation of his case, he was not provided with assistance of counsel in that trial counsel was not appointed until beginning day of term of Court and thus did not have adequate time for preparation of appellant's case.'

'Point IV. Appellant was entitled to but was denied twelve (12) peremptory challenges to the jury panel in his trial for the crime of commission of Murder in the First Degree.'

Information charging murder was filed May 12, 1952; on May 28, the court appointed two members of the bar to represent defendant; on June 25, these two attorneys were relieved of their appointment and another member of the bar was appointed in their stead; in July, preliminary hearing was had and defendant entered his plea of not guilty. September 15, 1952, the opening day of the term of court in Bernalillo County, the second court-appointed counsel was relieved of his appointment on the basis of complete disagreement between attorney and client as to the preparation of the defense; and on that date Edward J. Apodaca, a member of the bar, was appointed to defend appellant.

In order to understand the points relied upon by appellant in this Court, it is necessary to detail some of the events leading up to trial; many of them appear in the record only through the contents of certain motions filed by appellant. For the purpose of this appeal, we shall assume the following facts to be true: That at the call of the docket on September 15, 1952, request was made to the court by newly-appointed defense counsel that trial be set at the conclusion of the criminal calendar which probably would fall in November. Assent to this request was indicated by the court. Formal trial calendar was forwarded to defense counsel September 17, advising that the case was set for trial October 6 and that the Honorable Waldo H. Rogers would preside. Counsel for appellant first consulted this calendar September 18 and siscovered these facts. There followed on the first day of October, 1952, motion for a continuance to the end of the criminal term and, after hearing, the case was reset on October 9; at the same time, additional counsel, J. Albert Smith, was appointed to assist Mr. Apodaca. October 7, a sworn affidavit of disqualification addressed against the Honorable Waldo H. Rogers was filed and, on that day, this judge refused to honor the affidavit of disqualification; in this regard, attorneys for appellant offered no evidenc. At the commencement of trial October 9, 1952, the motion for continuance and affidavit of disqualification were further pressed and denied; at the same time, district attorney announced that the state would not seek the death penalty.

In connection with Point IV, the trial judge has furnished this Court with a certificate as to the exact sequence of events surrounding the question of peremptory challenges and the facts related therein are the same as those furnished this Court by attorneys for appellant. They are in substance: Immediately after announcement by the state that the death penalty would not be sought, inquiry was made of the court by counsel for defendant as to the number of peremptory challenges available to defendant. The court advised that defendant was entitled to five such challenges. This position, taken by the trial court, was accepted by all; there was no protest, exception or argument concerning the matter and it is apparent that all concerned proceeded with the impaneling of the jury satisfied with the fact that the law entitled this defendant to only five peremptory challenges. The five challenges were used, the jury impaneled and sworn and the case tried throughout October 9 and through the morning of October 10, at which time, the state rested its case. After lunch on the second day of trial, the alleged right of appellant to twelve peremptory challenges was first raised on a motion for mistrial which was overruled by the court. From this point on in the trial, this question was preserved at every step including a request by counsel for defendant for submission to the jury of a form of verdict which would permit the jury to sentence appellant to death.

There is not available to this Court a transcript of the evidence showing all of the testimony given by witnesses at trial. As a pauper, this defendant was represented by court-appointed counsel and, when appeal was granted, it was the decision of the trial court that such transcript, at the expense of the court fund, was not justified for the reason that no error relied upon by appellant's counsel was in any way dependent upon such transcript. As a preliminary to oral argument before this Court, counsel for appellant were questioned specifically in this regard and reaffirmed to this Court their belief that the absence of such transcript would in no way limit or detract from their effective presentation of all meritorious matters appealable to this Court on behalf of the defendant.

Further, after court-appointed counsel were relieved of their duties (subsequently reappointed for this appeal) and in responde to a letter from the appellant to the trial judge concerning a record for appeal, the trial judge stated:

'If I had the slightest doubt of the lack of substantial evidence as to all the elements of first degree murder, I would most assuredly order the entire evidence to be transcribed.'

In view of the clearly expressed opinion by the trial court and counsel for appellant concerning the evidence in this case, and without the benefit of a transcript of evidence, we feel justified in concluding that there is no question of fundamental error here involved. There is nothing to indicate the innocence of appellant or such violation of appellant's basic right to justice as would call for the application of that rule as set forth in State v. Garcia, 1942, 46 N.M. 302, 128 P.2d 459; Gonzales v. Rivera, 1933, 37 N.M. 562, 25 P.2d 802; and State v. Garcia, 1914, 19 N.M. 414, 143 P. 1012, 1014.

With this in mind, the following disposition is made of the points raised by appellant: Point I is addressed to an abuse of discretion in the trial court's refusal of an additional continuance. In this regard, appellant must show both an abuse of discretion and that such abuse worked to the injury of appellant. A few of the cases applying this established rule are State v. Plummer, 1940, 44 N.M. 614, 107 P.2d 319; State v. Riddel, 1933, 37 N.M. 148, 19 P.2d 751; State v. Renner, 1929, 34 N.M. 154, 279 P. 66; Territory v. Lobato, 1913, 17 N.M. 666, 134 P. 222, L.R.A.1917A, 1226. Appellant had counsel for a period of approximately three and one-half months; upon motion for continuance, three additional days and additional counsel were allowed; on this particular ruling, there was no exception taken or protest made raising the inadequacy of this extension; counsel who fianlly defended appellant had some twenty-five days available; there is no showing of actual injury to appellant. We conclude that there was no abuse of discretion by the trial court.

Point II is addressed to the trial court's refusal to honor affidavit of disqualification filed October 7, 1952, two days before trial. The pertinent disqualification statutes are Secs. 19-508 and 19-509, 1941 Comp. The latter section provides that:

'Such affidavit shall be filed not less than ten (10) days before the beginning of the term of court, if said case is at issue.'

It is admitted that this case was at issue in July, 1952. The term began September 15, 1952. Without speculation as to whether or not the particular affidavit was motivated by proper reasons or for the purpose of delay, we shall not create exceptions to this rule. To do so would be a step backward in an important effort to eliminate dilatory tactics. In general support of this conclusion under the particular circumstances of this case, see Notargiacomo v. Hickman, 1951, 55 N.M. 465, 235 P.2d 531; and State ex rel. Prince v. Coors, 1946, ...