State v. Torres

• Decision Date: 30 January 1970
• Docket Number: No. 363,363
• Citation: 1970 NMCA 17,81 N.M. 521,469 P.2d 166
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Gene J. TORRES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 166

469 P.2d 166

81 N.M. 521

STATE of New Mexico, Plaintiff-Appellee, v. Gene J. TORRES, Defendant-Appellant.

No. 363.

Court of Appeals of New Mexico.

Jan. 30, 1970.

Rehearing Denied March 25, 1970.

Certiorari Denied May 6, 1970.

Lorenzo E. Tapia, Thomas L. Marek, Albuquerque, for appellant.

James A. Maloney, Atty. Gen., Santa Fe, Vince D'Angelo, Asst. Atty. Gen., for appellee.

OPINION

WOOD, Judge.

Defendant appeals his conviction of aggravated assault. Section 40A--3--2, N.M.S.A.1953 (Repl.Vol. 6). The issue concern: (1) lack of counsel at arraignment; (2) line-up identification; (3) standing to claim unlawful search and seizure; (4) lawfulness of the search and seizure; (5) reference to intended proof in the opening statement with no attempt at such proof; (6) cross-examination as to defendant's misconduct; and, (7) impeachment of a witness.

Lack of counsel at arraignment.

At defendant's arraignment in District Court, the court inquired if defendant had an attorney. The defendant replied that he did not; that he had not had time to raise funds to employ an attorney of his own choice. The Assistant District Attorney suggested the court either appoint an attorney for defendant or set a date for defendant to have an attorney of his choice so that the case could proceed. The court's response was that defendant had been advised of the hearing. It proceeded with the arraignment. Defendant pled not guilty. After entry of the plea, the court advised defendant that if he didn't have an attorney within one week then the court would appoint an attorney to represent defendant.

Defendant contends his arraignment without counsel was prejudicial error. He also contends the court erred in failing to advise him of his right to counsel. He relies on his constitutional right to be represented by counsel in criminal proceedings, upon House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739 (1945), upon the provisions of our Indigent Defense Act, §§ 41--22--1 to 41--22--10, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969), and upon the rule that waiver of his constitutional right to counsel will not be presumed from a silent record. See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).

House v. Mayo, supra, does not support defendant's contentions. In that case '* * * the trial court, without warning and over petitioner's protests, forced him to plead to the information without the aid and advice of his counsel, whose presence he requested. * * *' The facts here are quite different--defendant had been advised of the arraignment, he did not protest against proceeding without counsel, he did not ask for a delay until counsel could be present.

Nor does the Indigent Defense Act support defendant's contentions. That Act provides that a needy person is entitled to be represented by an attorney and provides for a determination of whether a defendant is a needy person upon a defendant's first appearance in court. It also provides that the presiding officer at a judicial proceeding shall inform the defendant of his right to be represented by counsel at public expense. See respectively §§ 41--22--3, 41--22--5 and 41--22--4(B), supra.

There being no claim of indigency at the trial level, the only portion of the Act applicable to defendant's contention is the requirement that the defendant be advised of his right to be represented by counsel. The record at arraignment discloses defendant was advised that if he could not employ counsel within a week the court would appoint counsel. The record shows the arraignment was defendant's first court appearance. Under these circumstances, we do not consider the Indigent Defense Act to have been violated.

We agree that defendant has a constitutional right to counsel in criminal proceedings and thus has a constitutional right to be represented by counsel at his arraignment. We also agree that defendant will not be presumed to have waived that right if the record is silent as to waiver. However, it does not follow that the absence of counsel at arraignment, the lack of a specific waiver by defendant, or the failure of the judge to specifically advise the defendant of his right to have appointed counsel at the arraignment amounts to reversible error. The New Mexico decisions require a showing of prejudice. See State v. Hardy, 78 N.M. 374, 431 P.2d 752 (1967); State v. Cisneros, 77 N.M. 361, 423 P.2d 45 (1967); Gantar v. Cox, 74 N.M. 526, 395 P.2d 354 (1964).

Defendant was represented by counsel at a line-up conducted on the day following the offense. At arraignment his plea was not guilty. Nothing which occurred at arraignment was used against him. Subsequent to the arraignment he was again represented by counsel. Presumably, this counsel was of his own choosing since the record does not show any court appointed counsel at the trial level. Under these facts defendant was not prejudiced by absence of counsel at arraignment. State v. Cisneros, supra; Gantar v. Cox, supra. In so holding, we are not, as defendant contends, indulging in '* * * nice calculations as to the amount of prejudice * * *.' See State v. Tapia, 75 N.M. 757, 411 P.2d 234 (1966). Our holding is that on the record before us, there is no possibility of prejudice. We note that defendant does not claim any prejudice.

Subsequent to arraignment, defendant's counsel filed numerous pre-trial motions and represented defendant at his trial. Absence of counsel at arraignment was not raised as an issue until after the trial. A defendant has a duty to point out claimed errors in the administration of justice as they occur. See State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969). Having gone to trial without asserting any error because of lack of counsel at arraignment or because the judge did not advise defendant of his right to counsel, defendant waived the claimed error. Compare Sanders v. Cox, 74 N.M. 524, 395 P.2d 353 (1964), cert. denied 379 U.S. 978, 85 S.Ct. 680, 13 L.Ed.2d 569 (1965). In so holding, we are not, as defendant contends, presuming waiver from a silent record. The waiver appears affirmatively. It occurred when defendant, with counsel, proceeded to trial without raising the issue. Compare State v. Whitfield, 81 N.M. 34, 462 P.2d 619, decided December 29, 1969. Line-up identification.

The victim of the aggravated assault was Joe Martinez. At the time of the assault Joe was with a female companion, Patsy Mora. Approximately 12 hours after the assault, defendant was one of the participants in a line-up. Joe viewed the line-up and tentatively identified defendant as his assailant. Patsy also viewed the line-up; she positively identified defendant as the offender.

Since the decisions in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the manner of an extra-judicial identification has affected the admissibility of identification evidence at trial. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). If the extra-judicial identification, such as a line-up, was '* * * unnecessarily suggestive and conducive to irreparable mistaken identification * * *.' a defendant would be denied due process if evidence concerning such an extra-judicial identification was admitted at his trial. Gilbert v. California, supra; United States v. Wade, supra. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

This does not require the exclusion of all identification testimony. Even if there has been an improper extra-judicial identification, this fact does not require the exclusion of an in-court identification which is independent of and not tainted by the extra-judicial identification. See Gilbert v. California, supra; United States v. Wade, supra.

In this case there was no independent in-court identification of defendant. At trial both Joe and Patsy testified concerning their identification of defendant at the line-up. Compare State v. Clark, 80 N.M. 91, 451 P.2d 995 (Ct.App.1969), reversed on other grounds, 80 N.M. 340, 455 P.2d 844 (1969); State v. Carrothers, 79 N.M. 347, 443 P.2d 517 (Ct.App. 1968). Accordingly, the issue is whether the line-up procedures were so unnecessarily suggestive and conducive to irreparable mistaken identification that the admission, at trial, of Joe and Patsy's testimony concerning their line-up identification of defendant denied defendant a fair trial. This is a recognized ground of attack independent of any right to counsel claim. Stovall v. Denno, supra.

With the jury excluded, the trial court heard the testimony of one witness and considered exhibits consisting of a photograph of the line-up and police records concerning the participants in the line-up. This evidence went: (a) to the failure of the police to comply with suggestions from defendant's attorney as to participants in the line-up and how the line-up should be conducted; (b) to the age, height, weight, dress and physical characteristics of participants in the line-up; (c) to one of the line-up participants directing the line-up; (d) to Joe and Patsy viewing defendant in the hallway prior to the line-up; and, (e) to a police officer asking Patsy 'well, what's the matter' when Patsy hesitated upon viewing the defendant. In addition, the witness testified that a police officer told defendant that if he did stand in a line-up the results would not be used against him.

After presentation of this evidence, the trial court denied defendant's motion to suppress testimony concerning the line-up identification of defendant. In denying the motion, the trial court ruled that, on the basis of the evidence presented, it was not an unfair line-up. We need not decide whether the foregoing items establish an unfair line-up as a matter of law or whether the trial court erred in its ruling as to the evidence presented. Such a decision is unnecessary because the trial court's ruling was...