State v. Vaughn, 7616

• Decision Date: 13 July 1964
• Docket Number: No. 7616,7616
• Citation: 74 N.M. 365,1964 NMSC 158,393 P.2d 711
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Marvin VAUGHN, Roy E. LeDoux and John Edward Bostrom, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 711

393 P.2d 711

74 N.M. 365

STATE of New Mexico, Plaintiff-Appellee, v. Marvin VAUGHN, Roy E. LeDoux and John Edward Bostrom Defendants-Appellants.

No. 7616.

Supreme Court of New Mexico.

July 13, 1964.

Zerne P. Haning, III, Arthur H. Coleman, Santa Fe, for appellants.

Earl E. Hartley, Atty. Gen., Thomas A. Donnelly, Wayne C. Wolf, Asst. Attys. Gen., Santa Fe, for appellee.

NOBLE, Justice.

Defendants, Marvin Vaughn, Roy LeDoux and John Edward Bostrom, have appealed from the judgment and sentence of imprisonment for not less than two years nor more than life, following their conviction by a jury of escape from the state penitentiary.

Counsel was appointed in the district court to represent the defendants, jointly charged and tried. Prior to arraignment and trial, when their request for appointment of different counsel was denied, the defendants requested permission and did represent themselves at the trial in the district court. The trial judge, however, required appointed counsel to remain and be available during the trial to protect defendants' rights. Following their conviction by a jury and the judgment and sentence, newly-appointed counsel filed a motion to vacate the judgment and sentence because of the refusal to appoint counsel for defendants at the preliminary examination. The trial court entered its order denying the motion but made the following pertinent findings:

'2. That neither of the Defendants was advised by the Magistrate of his right to be represented by counsel at every stage of the proceedings.

'3. That the Defendants were not fully and adequately advised concerning their right to counsel.

'4. That neither of the Defendants intelligently waived his right to counsel at and during the Preliminary Examination.

'5. That on April 3, 1963, a Pre-Trial Conference was held in this case by the undersigned District Judge which was attended by Messrs. Chavez and Neel, Assistants District Attorney, each of the three Defendants and M. P. Gutierrez, Esquire, Court-appointed Counsel for each of the three Defendants, that during said Pre-Trial Conference and in the presence of the parties and the attorneys, the Court inquired of the Defendants and of their Counsel whether they had any objection to the proceedings at and during the Preliminary Hearing. Each Defendant, individually, answered that he had no objection to the Preliminary Hearing and their Attorney, Mr. Gutierrez answered that he had no objection on behalf of the Defendants to the proceedings before the examining Magistrate.

'The proceedings at the Pre-Trial Conference of April 3, referred to in the paragraph immediately foregoing have not been caused to appear of record heretofore but are shown on the handwritten notes of the Trial Judge made at the time and preserved and which have been exhibited to present. Counsel for the Defendants.'

It is no longer open to question that the Federal Constitution stands as a jurisdictional bar to a valid conviction and sentence of an indigent accused who is denied the right to representation by counsel at any critical stage of a criminal proceeding. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. A preliminary examination may be such a critical stage, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. Indeed, Art. II, Sec. 14 of the New Mexico Constitution provides that no person shall be held to answer to a felony information 'without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.'

It is conceded that each defendant requested but was denied counsel at the preliminary hearing, but the attorney general strongly insists that the defendants expressly waived this constitutional right at a hearing in the district court prior to arraignment and trial. The district court so found.

This appeal thus presents two questions: (1) whether the right to representation by counsel at the preliminary examination may be waived by express act of the accused, after the fact, in the district court; and (2) whether the record shows a competent waiver by these defendants.

The first question involves one of the jurisdiction of the district court. We think it is clear that the effect of denying an accused a constitutional right at a preliminary hearing is the same as though there was no hearing. State ex rel. Hanagan v. Armijo, 72 N.M. 50, 380 P.2d 196. Defendants argue that absent a preliminary examination or its waiver, the district court never acquired jurisdiction of the case, and consequently there could not have been an effective waiver in the distrct court. We do not agree. District courts have jurisdiction of criminal cases, Constitution, Art. VI, Sec. 13. The district court acquired jurisdiction of this case upon the filing of the information.

A state court is not commanded by the language of the Sixth Amendment to furnish counsel to a defendant in a criminal case as a matter of course, as is a federal court. Rather, the Sixth Amendment's guarantee of counsel at all critical stages of a criminal proceeding is of such a fundamental character and so essential to a fair trial that it is made obligatory on state courts by the due process clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. The right, however, is one which a defendant may refuse if he does so intelligently and understandingly. Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; State v. Garcia, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394.

However, we find nothing in either the due process clause, nor in any decision which requires a remand to the magistrate's court to permit an accused to there waive his right to have a preliminary examination represented by counsel, rather than to waive the right in the district court to be so remanded. To require such a remand would clearly serve no useful purpose. An intelligent waiver of the right to remand just as effectively waives the right to the preliminary as does a waiver before the magistrate.

It should be noted, however, that the jurisdiction acquired at the beginning of the case may be lost 'in the course of the proceeding' by failure of the court to remand for a preliminary examination when its absence is timely brought to the attention of the district court. Johnson v. Zerbst, supra.

The absence of cither a preliminary examination or its intelligent waiver, or the denial of representation by counsel at such hearing, may be called to the attention of the court at any time prior to arraignment, by plea in abatement or in any other appropriate manner. State v. Rogers, 31 N.M. 485, 247 P. 828; State ex rel. Hanagan v. Armijo, supra; or the court may inquire into the proceedings before the magistrate on its own motion. When violation of a constitutional right in the proceedings before the magistrate is brought to the attention of the trial court and found to exist, the accused's right and the court's duty is to abate the information until there has been a proper preliminary examination, and remand the accused to the magistrate for such examination unless it be competently waived. State v. Bailey, 62 N.M. 111, 305 P.2d 725; State ex rel. Hanagan v. Armijo, supra. The district...