State v. Whiteshield

• Decision Date: 30 August 1977
• Docket Number: No. 2999,2999
• Citation: 91 N.M. 96,570 P.2d 927,1977 NMCA 103
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Harvey WHITESHIELD, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 927

570 P.2d 927

91 N.M. 96

STATE of New Mexico, Plaintiff-Appellee, v. Harvey WHITESHIELD, Defendant-Appellant.

No. 2999.

Court of Appeals of New Mexico.

Aug. 30, 1977.

Rehearing Denied Sept. 12, 1977.

[91 NM 96] Jan Hartke, Chief Public Defender, Joseph Riggs, III, Asst. Public Defender, Mark Shapiro, Asst. App. Defender, Albuquerque, for defendant-appellant.

Toney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

The two felony convictions involved are a 1971 Oklahoma conviction for burglary and a current conviction of voluntary manslaughter. Defendant was found to be an habitual offender; his manslaughter sentence was enhanced on the basis of the prior burglary conviction. Defendant appeals. We discuss: (1) admission of the Oklahoma judgment; (2) jury instructions; and (3) validity of the Oklahoma conviction.

Admission of the Oklahoma Judgment

A copy of the Oklahoma judgment was admitted into evidence. No issue was raised as to its authentication. Defendant complains that admission of the judgment was error because it was a hearsay document which was admitted without any attempt to produce the judge who signed the document. Defendant claims that admission of the document deprived him of the right to cross-examine the judge concerning the circumstances which led to entry of the judgment.

Admission of the Oklahoma judgment was proper. The judgment was not inadmissible hearsay and its admission was not a violation of the constitutional right to confront witnesses. See the discussion in State v. Dawson, (Ct.App.) decided August 30, 1977. See also State v. Loggins, 13 Ariz.App. 577, 479 P.2d 724 (1971).

Jury Instructions

Jury instruction No. 1 states:

"For you to find the Defendant, Harvey Whiteshield, is an Habitual Offender as charged in the Information, the State must prove to your satisfaction beyond a reasonable doubt each of the following:

"1. That the Defendant, Harvey Whiteshield, is the same person convicted of Burglary 2nd Degree, a felony, in Criminal Cause No. CRF-71-15 in the District Court of the Fourth Judicial District, Dewey County, Oklahoma on June 10, 1971.

"2. That the Defendant, Harvey Whiteshield, is the same person convicted of Voluntary Manslaughter, a felony, in Criminal Cause No. 28354 in the District Court of the Second Judicial District, Bernalillo County, New Mexico on December 6, 1976."

Jury instruction No. 5 states:

"In this case there are two possible findings as to each count in the Information:

"1. That the Defendant IS the same person convicted of the crime in question.

"2. The Defendant IS NOT the same person convicted of the crime in question.

"Only one of the possible findings may be signed by you as to each count. If you have agreed upon one finding as to a particular count, that form of finding is the only form to be signed. The other form as to that count is to be left unsigned."

Consistent with the above instructions, the "findings" submitted to the jury went only to the question of identity whether defendant was or was not the same person.

Defendant contends the instructions and "finding" forms were erroneous because they went only to identity and not to the validity of the prior conviction. This issue applies only to the Oklahoma conviction; no issue was raised in the trial court concerning the validity of the manslaughter conviction. State v. Dawson, supra.

After defendant raised this issue, the trial court ruled that it would give defendant's requested instruction as jury instruction No. 2. This instruction reads:

"Before you can return a verdict finding Harvey Whiteshield an Habitual Offender as to Count I, you must find beyond a reasonable doubt:

"1. That the Defendant is the same person previously convicted, and;

"2. That the prior conviction was valid.

"The Defendant has presented evidence that the conviction in Count I was invalid because the representation by his attorney in Oklahoma was incompetent. For you to find Harvey Whiteshield an Habitual Offender as to Count I, you must agree beyond a reasonable doubt that his attorney in Oklahoma was not incompetent."

The relationship of the instructions given is as follows. Number 5 informed the jury that there were only two possible findings; these went to identity. Number 1 informed the jury that the State was required to prove identity in order to find that defendant was an habitual offender. Number 2 informed the jury that defendant could not be found to be an habitual offender unless the jury found that the Oklahoma conviction was valid.

Defendant's complaint on appeal is that instructions Nos. 1 and 2 are worded in terms of finding defendant to be an habitual offender, but that no such finding was submitted to the jury. As the instructions are worded, defendant asserts that the jury may have been confused. We agree that the instructions are awkwardly worded, but this does not aid defendant. The issue of the validity of the Oklahoma conviction was submitted to the jury. His complaint concerning the wording which submitted the issue was not raised in the trial court; no issue as to the awkward wording was presented to the trial court. Rule of Criminal Procedure 41(d).

In deciding the trial court did not err in its instructions, we do not hold the jury should have been instructed on the validity of the Oklahoma conviction. That is discussed in the following issue.

Validity of the Oklahoma Conviction

The Oklahoma burglary conviction was based on defendant's plea of guilty. Defendant claims that this plea was not valid because not entered voluntarily and intelligently. The asserted invalidity is based on a claim that his Oklahoma counsel was incompetent. See instruction No. 2 quoted above. The asserted incompetency is based on defendant's testimony at a pretrial hearing that he was drunk and had no memory of the events at the time of the burglary. According to defendant "this clearly raises the issue of whether he had the specific intent required for burglary. Neither anyone at the Oklahoma proceeding, nor his own attorney there, advised Mr. Whiteshield that intoxication could furnish a defense to burglary". Defendant claims "he did not understand the specific intent requirement for burglary and did not understand that he very arguably had a defense to it."

The claimed invalidity of the plea thus bottoms on two claims that he was not informed as to the requisite intent for the burglary charged and that he was not informed of a possible defense to the charge. Defendant relies on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

In Henderson, supra, defendant was indicted in state court for first degree murder and pled guilty to second degree murder. He collaterally attacked the guilty plea in federal court on the basis that he was never informed that intent to cause the death of the victim was an element of second degree murder. The opinion states:

"Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent."

Henderson, supra, is not applicable to the contention that defendant was not informed of possible defenses; rather it goes to notice of the true nature of the charge against defendant.

We apply New Mexico law to the "possible defense" claim. "The failure of an attorney to advise a defendant of all possible defenses is no basis for a claim of incompetency of counsel." Burton v. State, 82 N.M. 328, 481 P.2d 407 (1971). We have not been informed as to the standard for competency of counsel in Oklahoma, so we have no basis for considering Oklahoma law on that subject. See State v. Henneman, 40 N.M. 166, 56 P.2d 1130 (1936). The New Mexico standard for competency of counsel is stated in State v. Trivitt, 89 N.M. 162, 548 P.2d 442 (1976). There is no showing of incompetent counsel under the New Mexico standard.

The asserted failure of defense counsel in Oklahoma to advise defendant of a possible defense was not a basis for an incompetency of counsel claim. Since the asserted invalidity of the guilty plea is based on a claim of incompetent counsel, the trial court did not err in refusing to rule that the plea was invalid on this basis.

Defendant's testimony that his Oklahoma attorney did not inform him of the intent required for burglary is contradicted by the transcript of the Oklahoma hearing. The transcript shows that defendant told the Oklahoma court that he had talked with his attorney about the burglary charge and the rights given up by the guilty plea. His attorney informed the court that "we talked quite abit (sic) about" the guilty plea.

The conflict between defendant's testimony and the Oklahoma transcript results in Henderson v. Morgan, supra, being inapplicable. In Henderson, the trial court found as a fact that "intent" had not been explained to the defendant in that case. Here, the trial court in effect...