State v. Simien
| Decision Date | 19 February 1968 |
| Docket Number | No. 8351,8351 |
| Citation | 78 N.M. 709,437 P.2d 708,1968 NMSC 25 |
| Parties | STATE at New Mexico, Plaintiff-Appellee, v. Wilton S. SIMIEN, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Defendant-appellant Wilton S. Simien attacked by motion under Rule 93 (§ 21--1--1(93), N.M.S.A., 1953 Comp.), the judgment and sentence imposed upon him in 1965 by the District Court of San Juan County. After a hearing, at which appellant and others testified concerning the crime of which appellant had been convicted, appellant's arrest, interrogation and guilty plea, appellant's motion was denied and appeal from te denial was taken.
Under appellant's Rule 93 motion, three points were raised under which appellant alleged that he was arrested without a warrant and his car illegally searched without a search warrant; that, during the course of police interrogation, he was not advised of his right to counsel, did not have effective counsel and was not allowed to obtain counsel; and that he was made by the police to give evidence against himself without effective aid of counsel and without other held of any kind. At the hearing on appellant's motion, in addition to presenting evidence concerning these allegations, appellant presented evidence which he contends demonstrated unfair dealing by the police amounting to solicitation and entrapment which alleged unfair dealing deprived appellant of due process of law. Appellant's requested findings of fact and conclusions of law were denied. Appellant raises five points on appeal.
We first consider appellant's points III and V together, which are as follows:
'THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLANT WAS DENIED THE RIGHT TO ASSISTANCE OF COUNSEL AT A CRITICAL STAGE OF HIS TRIAL.'
'THE TRIAL COURT ERRED IN FAILING TO FIND AND CONCLUDE THAT THE DEFENDANT DID NOT VOLUNTARILY, INTELLIGENTLY OR KNOWINGLY PLEAD GUILTY.'
With regard to appellant's right to counsel and his plea, the trial court made the following findings of fact which are not attacked:
Appellant argues that the trial court erred in not making requested findings of fact to the effect that (1) appellant was denied his right to assistance of counsel at a critical stage of the proceedings; (2) appellant was required to give evidence against himself, contrary to the New Mexico and United States Constitutions; (3) appellant was threatened with prosecution for theft and told that the Habitual Criminal Act would be imposed on him if he did not assist the police in securing the arrest and conviction of one Smith; (4) appellant was promised by police officers that he would be allowed to go free if he would assist the police in staging a crime which would allow the police to arrest and prosecute Smith; (5) appellant, as a result of the mentioned threats, did stage a robbery in which Smith was implicated; (6) that as a result of this robbery, Smith was convicted of aiding a felon to escape; (7) appellant, after his arrest for this robbery, was promised leniency by the police; (8) appellant, as a result of these promises of leniency, did not cooperate with his appointed attorney and insisted on pleading guilty; and (9) appellant's guilty plea was induced by threats and promises of leniency. Appellant also contends that it was error to deny his requested conclusions of law to the effect that (1) as a result of the denial of assistance of counsel, and for other reasons not germane to appellant's point III, appellant was denied his right to a fair and impartial trial and to due process of law, in violation of the New Mexico and United States Constitutions; (2) appellant was denied the right to counsel to his irreparable damage and prejudice, in violation of the New Mexico and United States Constitutions; and (3) appellant did not voluntarily, knowingly and intelligently plead guilty to the charge of robbery.
The question here is whether or not there was substantial evidence to support the trial court's findings of fact and whether the trial court was correct in making conclusions of law to the effect that (1) the entire proceedings were in all respects complete and proper; (2) appellant knowingly, intelligently and voluntarily, while being advised by competent counsel, entered a plea of guilty; and (3) appellant's counsel effectively represented appellant in the proceedings.
The burden of proof at the Rule 93 hearing rested upon appellant to convince the court of his allegations by a preponderance of the evidence. State v. Chavez, 78 N.M. 446, 432 P.2d 411; and compare, State v. Gilbert,78 N.M. 437, 432 P.2d 402; State v. Coates, 78 N.M. 366, 431 P.2d 744; State v. Moser, 78 N.M. 212, 430 P.2d 106. To support his contentions, appellant relies on his own testimony at the hearing on his motion under Rule 93, which testimony is in part as follows. Prior to the commission of the acts constituting the crime of which appellant was convicted, appellant came in contact with Lt. Boyce of the Farmington Police Department in connection with appellant's making a false charge, taking an amount of money and taking a television set which did not belong to him. No charges were filed in these matters. Appellant testified Lt. Boyce told him that charges could be filed but that he was not going to file charges; instead he believed he could use appellant to work with him by reporting daily to the police what certain persons known to appellant were doing. Appellant's testimony continued:
Upon appellant's failure on one occasion to help the police, appellant testified that Boyce came and got appellant.
Appellant testified that thereafter Boyce and Officer Tafoya planned with appellant that appellant should interest one Smith in robbing a certain cleaning establishment, which robbery was supposed to be a trap for Smith; however, appellant was unable to interest Smith in this plan.
Shortly thereafter appellant was charged with drunken driving but, according to appellant, Boyce 'fixed' the ticket for him. Then appellant moved again, not telling Boyce where he had moved, but appellant stated that Boyce found out where and '* * * he come and got me and he said that was either get him or the charge would be filed tomorrow.'
'Q. Get who?
'A. Smith.
'Q. What did you do then?
'A. I asked him to wait and let Smith do something and I would call the police.
'Q. Did he do that?
'A. No, he said Smith was pretty slick and he had to almost catch him in the act, so he told me I would catch Smith when he came off work and he would follow and watch me, and told me whatever I did to make sure we get at a place and when we see the police come in, we would see the police take off and probably file a charge and let me go.
'Q. What was your understanding if you did not?
'A. The next day I was going to be fined with breaking and entering, burglarly (sic) and selling something that belonged to somebody else.
'Q. What did you do then?
'A. That is what we did.
'Q. Did you go see Smith?
'A. Yes, I got with him and we rode around, and brought him up to this filling station, and he said he did not want to go in, so I broke it and got in it.
'Q. Did he go in with you?
'A. No, he stayed down with his car and I took some stuff and hid it so I could put it in may car.
'Q. What was your idea?
'A. They were supposed to have been watching the car.
'Q. Were you worried about the police, when you broke into this place?
'A. No, sir.
'Q. Why not?
'A. Because I was given the 'o.k.' to do it.
'
'
'A. Smith said he wanted to drink some coffee until his girl...
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State v. Hansen
...secured thereby was used against him. He pleaded guilty. He cannot be heard to complain under these circumstances. State v. Simien, 78 N.M. 709, 437 P.2d 708 (1968); State v. Elledge, 78 N.M. 157, 429 P.2d 355 (1967). See also State v. Barton, 79 N.M. 70, 439 P.2d 719 (1968); State v. Brews......
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...jury with proper instructions as to its admissibility.' (4) This finding is not attacked; it is a fact in this court. State v. Simien, 78 N.M. 709, 437 P.2d 708 (1968). At the trial it was determined that defendant's statement was freely and voluntarily made. If this determination was in er......
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Hanson v. State
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