State v. Sisneros

Decision Date08 November 1968
Docket NumberNo. 8619,8619
Citation446 P.2d 875,1968 NMSC 175,79 N.M. 600
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Daniel Arthur SISNEROS, Defendant-Appellant.
CourtNew Mexico Supreme Court
Jonathan B. Sutin, Albuquerque, for appellant

OMAN, Judge, Court of Appeals.

Defendant was convicted on June 4, 1964, of murder in the second degree, and he is confined in the State Penitentiary. The case is now before us on appeal from an order denying his motion for post-conviction relief under Rule 93 (§ 21--1--1(93), N.M.S.A.1953 (Supp.1967)).

On January 26, 1961, he was fourteen years of age. Upon arriving home from junior high school on that date, he reported to his mother that he had been assaulted by two boys. The mother reported this claimed assault to the police, and about 4:00 p.m. a policeman called at the home to secure information of the details from defendant. The officer noticed that on some of defendant's clothing there were stains, which appeared to be blood. When asked by the officer about these stains, defendant stated they were blood. He claimed they were on his clothing by reason of bleeding by one of his assailants from an arm when struck by defendant with a stick.

About two hours later this same officer went to the home of another family in the area to check on the reported failure of a fourteen-year old girl to arrive home from the same junior high school attended by defendant. A search by the police, the girl's father, and others resulted in the discovery of the body at about 8:15 p.m. in a small arroyo or wash about ten or fifteen feet from the roadway. The body was covered with tumbleweeds, and the entire face and front portion of the head were severely crushed, mutilated and distorted.

A portion of a concrete block was resting on her head, and her entire head was covered with blood. Her panties were down and her other clothing raised, exposing her legs and other parts of her body, which were smeared with blood. The defendant, in his confessions later referred to herein, stated he was endeavoring to create the impression that she had been attacked and killed by a sex maniac.

The victim's school books and papers were lying on the road nearby and her violin was on an embankment across the road.

At about 11:00 p.m. two police officers went to the home of defendant's parents to question defendant further about the claimed assault upon him by two boys, and to question him about the girl's death. The parents admitted the police officers, and defendant's father and one of the police officers went to the bedroom where defendant was sleeping. He was awakened and then questioned. He contended his prior report about being assaulted by two boys was true. When asked about the girl, he said he had seen a television newscast at 10:00 p.m. concerning her death.

The officers asked about defendant's clothes, and his mother brought them from another room. The parents gave the officers permission to take the clothing with them. The stains on the clothing were subsequently examined for blood type, and it was determined that these stains were caused by Type A blood. The girl had Type A blood, and defendant's blood is Type O.

The officers, in addition to taking the clothing with them, also took defendant to the police station. On the way to the station they asked him if he knew the victim, and he denied knowing her. Defendant's parents also went to the police station. At the station the parents gave permission for a doctor to take a blood sample from the defendant. Defendant made no protests and offered no resistance.

Defendant was warned of his rights to obtain counsel and to refrain from making any statement. He was then questioned and elected to confess to the commission of the crime. He gave a written statement to this effect, which statement was read to him and by him and which he signed. The interrogation of defendant at the station commenced at about 11:40 p.m. and the confession was given forty-five minutes later at about 12:25 a.m.

At about 10:15 a.m. on the same morning he was again advised of his rights to counsel and to remain silent, but elected to give a further confession to the juvenile authorities. On this occasion he was asked if he wanted his parents present and he answered, 'No, I don't.'

On a later occasion, and in the presence of his counsel, he admitted that the confession he had given the police was correct. He admitted as being untrue a subsequent version of the events surrounding the killing of the girl, which he had related to his attorney and to the district attorney's office, by which he sought to involve others, and in which he claimed he had been drinking and using narcotics. He stated that he was sorry that he had lied to his attorney and the district attorney's office.

There was testimony by psychiatrists called by defendant to the effect that he was insane at the time of the commission of the offense and at the time of trial, but the testimony submitted by the State was sufficiently substantial to justify the jury's resolution of these questions against the defendant.

Under his first point defendant contends his conviction was 'based on confessions unconstitutionally obtained during custodial interrogation.' His position is that his confessions were not voluntarily made, and that confessions by juveniles before being certified for criminal proceedings pursuant to the provisions of § 13--8--27, N.M.S.A.1953 (Supp.1967), are not properly admissible. He relies upon his age, his mental condition, the fact that he was questioned during the night time, the fact that his parents were not present, and the fact that no probation officer or juvenile attorney was notified by the officers that he was in custody and was about to be interrogated.

These same contentions have previously been presented by defendant and passed upon by this court in habeas corpus proceedings at which evidence was introduced and considered. In those proceedings we found:

1. That petitioner is confined in the New Mexico State Penitentiary by virtue of a commitment issued June 8, 1964, following his conviction of murder in the second degree, with a recommendation by the jury for psychiatric treatment and a sentence of imprisonment for a term of not less than three years nor more than the remainder of his natural life.

2. That petitioner bases his request for release from the penitentiary upon his contention that he has been denied due process of law because (1) confessions admitted to evidence in his trial were inadmissible per se because given when he was less than fifteen years of age; (2) that one confession was made in the absence of the juvenile probation officer; (3) in the absence of an attorney; and (4) that the petitioner was insane when said confessions were made.

3. That a petition was filed in the juvenile court of Bernalillo County, New Mexico, charging petitioner, then fourteen years of age, with murder.

4. That thereafter, an order of the juvenile court was entered transferring petitioner to the district court to be treated as an adult.

5. That petitioner was bound over to the district court after a preliminary examination.

6. That a plea of not guilty and not guilty by reason of insanity was entered when petitioner was arraigned in the district court. 7. That petitioner was represented by employed counsel at the hearing in the juvenile court, the preliminary examination, and at all stages of the case in the district court.

8. That police officers of the juvenile division of the Albuquerque police force took petitioner into custody at approximately 11:00 p.m., January 26, 1961 and took him to police headquarters for questioning where interrogation was commenced at approximately 11:30 p.m., January 26, 1961 and completed and signed at 12:25 a.m., January 27, 1961.

9. That petitioner was immediately thereafter taken to the juvenile detention home.

10. That petitioner's parents followed him in their own car to the police station and were in an adjoining room while petitioner was being questioned.

11. That petitioner was advised that he need not give a statement, that he was entitled to an attorney, that any statement might be used against him, that if he was found guilty, he would have to serve a long period of time in the penitentiary, and that this was a very serious matter. He did not ask for either an attorney or his parents.

12. That the juvenile officers were notified of petitioner's detention on the morning of January 27, 1961 and at approximately 10:15 a.m. on that day a second written confession was taken at the Bernalillo County juvenile detention home in the presence of the juvenile officer in charge of the detention home.

13. That thereafter the petitioner, in the presence of his attorney and the investigator for the district attorney for the second judicial district, made a verbal confession in which he stated that the facts given by him in the two former confessions were true.

14. That the written confessions were admitted into evidence in the murder trial over petitioner's objection and after a determination thereon by the court in the absence of the jury.

15. That the verbal confession was admitted into evidence on the said cause without objection.

16. That petitioner has not asserted that said confessions or any of them were not voluntarily made nor has he challenged the truth of any statement contained therein.

17. That the jury was instructed on the issue of whether the confessions were voluntarily given and on the issue of petitioner's sanity, and on his mental condition as affecting the confessions.

18. That the issue of petitioner's sanity was submitted to the jury and by its verdict the jury determined that petitioner was sane.

19. That no evidence on the issue of petitioner's sanity was offered at this proceeding.

20. That none of the confessions were taken during...

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    ...we will not resort to fundamental error." State v. Rodriguez, 81 N.M. 503, 505, 469 P.2d 148, 150 (1970); see State v. Sisneros, 79 N.M. 600, 606, 446 P.2d 875, 881 (1968) (holding that because there was ample evidence to support the conviction, whatever errors may have been committed faile......
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