State v. Sexton
| Decision Date | 09 April 1971 |
| Docket Number | No. 586,586 |
| Citation | 1971 NMCA 52,82 N.M. 648,485 P.2d 982 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Cecil E. SEXTON, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Sexton was convicted and sentenced on two counts of armed robbery. The defendant appeals.
We affirm.
Sexton contends, (1) that he was entitled to a preliminary hearing and the indictment should have been dismissed; and (2) that some of Sexton's statements made in a police car were erroneously admitted in evidence and considered by the jury.
Absence of Preliminary Hearing.
Sexton was denied a preliminary hearing. A race took place between the assistant district attorney and Sexton whether Sexton should have a preliminary hearing before a grand jury indictment was returned. Sexton lost the race. The indictment was first returned and the preliminary hearing was not held. This same issue was decided contrary to Sexton's contentions in the companionate case of State v. Burk, 82 N.M. 466, 483 P.2d 940 (Ct.App.) February 19, 1971. Sexton's claims are denied.
Erroneous Admission of Evidence.
Sexton was arrested with Burk east of Albuquerque. He was immediately advised of his constitutional rights to remain silent and have counsel during interrogation. While begin returned to Albuquerque in a police car, a conversation began back and forth, between Sexton and Burk, not initiated by the police officers. The detective asked Sexton why he shot the alleged victim of the robbery, and his response was that it was an accident. Sexton was asked whether his gun was cocked and his response was that he guessed so. During opening statement to the jury, the assistant district attorney admitted that the shooting was accidental.
The question raised by Sexton is: Did Sexton waive his rights to remain silent and have counsel before these inquiries were put to him?
There is a complete absence of express waiver. There is no express statement by Sexton that he understood his rights when he received his constitutional warnings. Such express waiver or statement of understanding is not an essential link in the chain of proof. Whether an intelligent waiver occurs depends upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused. United States v. Hayes, 385 F.2d 375 (4th Cir. 1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968), cited in State v. Smith, 80 N.M. 126, 452 P.2d 195 (Ct.App.1969).
Both Sexton and Burk moved to suppress statements made by them. At the hearing on this motion, the only testimony concerning statements by Sexton is Sexton's testimony that he made no statements. At this point, no issue as to the admissibility of statements by Sexton or waiver of constitutional rights by Sexton had been raised.
At the trial, an officer testified as to Sexton's statements during the ride to Albuquerque. The only objection to this testimony was that it was inadmissible because of an illegal arrest. Subsequently, this officer testified that...
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State v. Greene, 11837
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