State v. Vialpando

• Decision Date: 28 June 1979
• Docket Number: No. 3763,3763
• Citation: 1979 NMCA 83,599 P.2d 1086,93 N.M. 289
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Dennis B. VIALPANDO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1086

599 P.2d 1086

93 N.M. 289

STATE of New Mexico, Plaintiff-Appellee, v. Dennis B. VIALPANDO, Defendant-Appellant.

No. 3763.

Court of Appeals of New Mexico.

June 28, 1979.

Eileen R. Mandel, Lauer & Mandel, Santa Fe, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Michael A. Kauffman, Ralph W. Muxlow, II, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WALTERS, Judge.

Defendant was convicted of aggravated burglary, robbery, aggravated battery, and criminal sexual penetration in the second degree. He raises eight issues on appeal. We discuss them in order:

1. Denial of Pre-trial Motion to Suppress Line-up Identification

Defendant maintains that the line-up of six similarly-dressed persons, four months after the incidents charged, was impermissibly suggestive and conducive to misidentification. Five of the participants were within one or two inches of 65-66 inches tall, and the other was noticeably taller; two had facial hair; all were in their early twenties or late teens. The victim, a Catholic nun, made two separate observations of all the men in the line-up, heard them speak, and she then asked to look at two of them, one of whom was defendant, the third time. She identified defendant among the six, and again after seeing only two the third time. He was the shortest of the group and wore a mustache. She recognized him because of his "mean expression . . . black mustache . . . vicious eyes," and his voice sounded the same as she remembered, the "voice that sounded like the man" who had spoken to her at the time of the assault. She was positive in her identification.

The assertions of suggestiveness and attendant misidentification are said to rest upon (1) the fact of the discrepancy in height, defendant being the shortest person in the line-up; (2) the fact that defendant and only one other person had facial hair and the assailant had been described as having a moustache; (3) the lapse of time from the date of the incident to the date of the line-up; (4) the fact that the Sister believed the assailant would be in the line-up; and (5) the fact that it was the only identification that the Sister ever made of the defendant as her assailant. The trial court, in denying the motion to suppress, commented that defendant and two others appeared to be the same height. The victim observed that some of the men in the line-up had very obviously just shaved their mustaches, and she felt that inclusion of one mustached participant might have been an attempt to trick or confuse her. She identified defendant, however, because of his height, his voice, a "kind of Spanish-English accent," the black mustache, the "mean, vengeful" expression, and his "vicious" eyes. There was no uncertainty in her selection of defendant from the group. These specific details of identification dispose of all but the fourth factor enumerated above. However, the victim was not at any time during her identification of defendant told that anyone in the line-up was suspect, nor were any suggestions whatever made to her that she should identify defendant or anyone else. Cf., State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970). Although she felt that the line-up participants probably were "being held" for some reason and that one of them might be the person who attacked her, she was not assisted in or swayed from her positive identification of defendant. It is for the trier of fact to determine the weight and sufficiency of the evidence, including all reasonable inferences. State v. Keyonnie, 91 N.M. 146, 571 P.2d 413 (1977). Considering the totality of the circumstances surrounding the line-up, it was neither impermissibly suggestive nor conducive to misidentification. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Lara, 92 N.M. 274, 587 P.2d 52 (Ct.App.1978).

2. Denial of Second Motion to Suppress Line-up Identification

During the trial, defense counsel again moved to suppress the line-up identification, contending two frailties in its validity: (1) there was an indication that defendant's mental capacity was below normal and (2) he was not represented by counsel at the line-up. He does not argue the first contention in this appeal.

There was no in-court identification in this case, the victim being an 80 year-old woman with a terminal illness who was out of the state at the time of trial. In her video-taped deposition, which was admitted as evidence, she described her assailant and how she identified defendant at the time of the line-up. No claim is made that the person referred to in the victim's deposition was not the same person tried in this case. But since this was an out-of-court identification, defendant urges that the absence of counsel at the line-up identification violated his Sixth Amendment right to counsel.

In denying the second motion to suppress, the trial court did not expressly rule that it was untimely, but we take notice of Rule 18(c), N.M.R.Crim.P., requiring that a motion to suppress be filed within twenty days after entry of a plea unless waived by the court for good cause. The first motion to suppress was timely filed, but it made no claim of unconstitutional deprivation of counsel. The second motion, during trial, was made almost nine months later. The motion properly made could have been denied on the basis of untimeliness alone, no waiver of the time requirement appearing in the record.

Nevertheless, we discuss the requirement of counsel at line-up procedures under the facts of this case, assuming the motion was denied on the merits rather than as a violation of procedural rules. Vialpando was in custody awaiting sentence on charges to which he had pled guilty at the time of the line-up, and he was represented by an attorney on the other unrelated matters. He had not been charged with any of the crimes of which he was convicted in this case, but at the time of the line-up he was a prime suspect.

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) is the beacon case regarding the requirement of legal representative for line-up participants, and it was concerned with a line-up, of which the accused was a member, occurring after his indictment. It was there held that because conducting a line-up without notice to and in the absence of defendant's counsel denies the accused his Sixth and Fourteenth Amendment rights to counsel at a "critical stage" of the prosecution, in-court identification by witnesses who attended the line-up must be excluded. The Court was asked in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), to extend the exclusionary rule of Wade to those line-ups conducted Before indictment or filing of charges. It declined to do so, holding that when the

government has committed itself to prosecute, and . . . the adverse positions of government and defendant have solidified (,i)t is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the "criminal prosecutions" to which alone the explicit guaranties of the Sixth Amendment are applicable.

We cannot agree with appellant's assertion that "several pre-Kirby New Mexico cases have indicated that a suspect is entitled to counsel in pre-indictment line-ups." The cases cited to us, State v. Samora, 83 N.M. 222, 490 P.2d 480 (Ct.App.1971), and State v. Carrothers, 79 N.M. 347, 443 P.2d 517 (Ct.App.1968), dealt, respectively, with an inadvertent out-of-court identification of defendant After arrest for the charge on which he was tried, and with the admissibility of an in-court identification questionably free of any taint of suggestions made during an out-of-court identification After defendant had been charged And an attorney appointed to represent him.

We note other cases decided by this court, e. g., State v. Clark, 80 N.M. 91, 451 P.2d 995 (Ct.App.1969) and State v. McCarty, 82 N.M. 515, 484 P.2d 357 (Ct.App.1971), concerning out-of-court identification without counsel present, but in both of those cases the concern was with the effect of possible taint of in-court identification by reason of the pre-trial confrontations in the absence of attorneys for the defendants. In neither case was it the mere fact that counsel was not present, nor merely that both defendants had been arrested at the times the out-of-court identifications were made, that occupied the court's attention. The question of the Independence of the in-trial identifications, free of any influence from the out-of-court identifications, was the sole concern on the issue of trial identification in both Clark and McCarty.

We do not have an in-court identification here. Thus, our inquiry goes strictly to the fairness of the pre-indictment line-up at a time when defendant was not represented by an attorney for these crimes. Although defendant argues that he was not asked if he wished representation at the line-up, we are not referred to any evidence in support of that argument. Perhaps, if defendant's counsel on the charge for which he was awaiting sentence had been called, he would have attended the line-up; perhaps not. It is clear that he was not defendant's attorney on these charges; defendant had not been charged.

In the exercise of judgment on the side of caution rather than precise legality, and with the benefit of hindsight attending the inevitability of an appeal on every possible ground, district attorneys might, in the future, carefully arrange for notification to all possible counsel before conducting line-ups or out-of-court identification sessions. However, the failure to do so in this case is not unconstitutional because defendant was neither charged nor represented by counsel in this matter at the time the line-up was...