State v. Williamson

• Decision Date: 04 March 1968
• Docket Number: No. 8264,8264
• Citation: 78 N.M. 751,1968 NMSC 33,438 P.2d 161
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Larry WILLIAMSON and Carl Williamson, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 161

438 P.2d 161

78 N.M. 751

STATE of New Mexico, Plaintiff-Appellee, v. Larry WILLIAMSON and Carl Williamson,

Defendants-Appellants.

No. 8264.

Supreme Court of New Mexico.

March 4, 1968.

D. D. Archer, Artesia, Foster Windham, Carlsbad, for appellants

Boston E. Witt, Atty. Gen., Paul J. Lacy, Edward R. Pearson, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

ARMIJO, Judge, Court of Appeals.

Appellants, Larry and Carl Williamson, appeal from their convictions of Armed Robbery, contrary to § 40A--16--2, N.M.S.A. (1953), and Kidnapping contrary to § 40A--4--1, N.M.S.A. (1953).

During the evening of February 5, 1966, an Armed Robbery and Kidnapping was committed within a residence in Carlsbad. The two persons committing the crimes entered the residence wearing nylon stockings and pieces of a towel to conceal their identity, and also wore army fatigue caps, coveralls, and were armed with a pistol and a metal bar. The victims of the above crimes will be identified as the store-manager, his wife, daughter and son.

Upon gaining entrance to the residence, all of the victims were forced to lie down on the floor, at which time the felons removed approximately one hundred dollars from the store-manager's billfold; then all of the victims were forced into their car. Before leaving, one of the felons picked up a small carrying bag from behind the residence. They all went, in the victims car, to a secluded area near a river where the wife, daughter and son were forced at gun point into the trunk of the car and thereafter all proceeded to the store-manager's store where an attempted robbery by the felons was aborted. Afterwards, all, except the store-manager, drove to the same secluded area and the vehicle, together with the three persons in the trunk, was abandoned and the felons were seen fleeing on foot. One of the felons was observed carrying a small bag running toward another vehicle parked nearby and which later was identified as belonging to appellant, Carl. The officers found the small carrying bag approximately thirty-five feet behind appellant Carl's car during their investigation. The bag and its contents, which included a metal bar, pieces of ladies nylon stockings and other paraphernalia, part of which was identified as being very similar as that used by the felons, were later received in evidence. In the nylon stockings were found several human hairs.

Soon after the offenses were committed, the officers interrogated appellants at their home concerning Carl's car, and the officers testified as follows concerning the conversation:

'BY MR. HANAGAN: (district attorney) About what time was this that you were at the house approximately.

'A. (Officer Copeland) As I recall, it was 9:00 or 9:05 o'clock; something like that.

'Q. You say he admitted ownership of the Mercury?

'A. Yes, sir.

'Q. What else--what other conversation did you have between yourself and those boys at the time?

'A. Well, I advised them that the officers had found it on the river and we wanted to know if it was his car and he said, yes, it was his car.

'Q. What else did he say?

'A. And I asked him the, well then, did he know where it was at and why it was on the river and he said, well, that it had broken down; that's what he said.

'Q. And did he say about when?

'A. He said about two hours ago.

'Q. Did he say what had happened to it?

'A. No, sir, as I recall, the other subject, the one that brought me up the stairs said that it flooded out and wouldn't start.

'Q. Did the two boys--what else was said there at that time? You say the other boy said that it flood out and wouldn't start?

'A. Yes, sir, they said that it flooded out and wouldn't start and they had just got home; they had just walked home.

'Q. They had just got home?

'A. Yes sir.' (Emphasis added.)

Later the same evening, officers with the written consent of appellants' mother, searched the residence and removed a pair of boots admittedly belonging to appellant, Carl. These boots were later received in evidence. While in custody, Carl was given a haircut at his request; the officers and the barber prearranged for the haircut and the appellant Carl's hair was carefully preserved and later submitted for laboratory tests.

Testimony of the witnesses identified the similarity of the felons with that of the appellants as to height, weight, age, quickness of action and movements. A witness testified that appellant Larry had an eyebrow which resembled very closely the one observed under the disguise worn by one of the felons and described as an unusual or 'freak' eyebrow. One witness observed that one of the felons had dark bushy hair, which she testified was very similar to the appellant Carl's hair. Some of the victims, while lying on the floor were able to observe the boots worn by one of the felons and these were identified as being very similar to those received in evidence, particularly as to the color, condition and dry mud or plaster substance on them. The hair samples obtained from appellant Carl were compared with hair found in the nylon stockings, and an expert witness testified that said comparison was alike in approximately twenty characteristics that were used as a basis for comparison, but declined to make positive identification simply because in some six of many thousands of similar tests, the results did not prove conclusive.

No testimony was offered on behalf of appellants.

Appellants rely on three points for reversal. The first is that the evidence being purely circumstantial, that it did not exclude every reasonable hypothesis other than defendants' guilt.

The trial court correctly instructed the jury on the law with regard to circumstantial evidence and no issue is raised in this regard.

Appellants rely strongly on State v. Seal, 75 N.M. 608, 409 P.2d 128 (1965) which reaffirms the settled rule in this jurisdiction with regard to circumstantial evidence. State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954); City of Raton v. Cowan, 67 N.M. 463, 357 P.2d 52 (1960); State v. Flores, 76 N.M. 134, 412 P.2d 560 (1966).

In State v. Seal, supra, none of the circumstances were linked to the defendant, whereas in the instant case there was ample basis for submission of the case to the jury, and from which the jury could reasonably infer beyond a reasonable doubt the identity of the persons who committed the crime. The testimony in the instant case is as persuasive as that treated in State v. Sharp, 78 N.M. 220, 430 P.2d 378 (1967) wherein we stated:

'The defendant was identified as the person committing the crime by circumstances which exclude every reasonable hypothesis other than his guilt. * * *'

Unquestionably, a person may properly be identified by their size, height, movements, features, mannerisms and by clothing he wears--State v. Quintana, 69 N.M. 51, 364 P.2d 120 (1961), which involved a case of armed robbery committed by persons disguised by wearing nylon stockings.

The issue resolves itself to one of weight to be given the evidence. Little, if any, discrepancy is disclosed by a review of the testimony. It is not essential for a conviction that a positive identification be made of the accused. It is sufficient if the witnesses testify that in their belief, opinion or judgment the person accused is the person who perpetrated the crime and want of positiveness goes only to the weight of the testimony. See People v. Deal, 42 Cal.App.2d 33, 108 P.2d 103 (1941); In re Corey, 230 Cal.App.2d 813, 41 Cal.Rptr. 379 (1964).

The reviewing court must confine its review of the testimony to determine if a conviction is supported by substantial evidence. State ex rel. Bliss v. Greenwood, 63 N.M. 156, 315 P.2d 223 (1957).

We conclude that from a consideration of the record as a whole, there was substantial evidence to submit the case for jury determination.

Appellants further contend that the pair of boots should not have been received in evidence over timely objection, because they were the result of an unlawful search and seizure and were of evidentiary value only.

The boots were removed from appellants' home, and appellants' mother, who was the head of the household present, freely gave the officers consent to search. Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965). Cert. denied 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965).

The consent was given in writing and read as follows:

'I, the undersigned, do hereby voluntarily consent that my house and surrounding property, located at 501 N. Canyon, together with all the contents thereof, may be search by the officers securing this consent. I have been fully advised that I do not have to give this consent and that anything found as a result of such search, the possession of which either amounts to a crime under the Statutes of the State of New Mexico, or which may become involved in criminal proceedings, or which involve me in criminal proceedings, may be retained by the officers, and may be used as evidence against me.'

's/ Mrs. George Williamson

'WITNESSES:

'Richard D. Goehring

'S. O. Wheeler'

The trial court specifically found and properly ruled that permission was voluntarily given; appellants, who are referred to as 'boys', were single and living with their parents in their parents home. It follows that the boots were seized as a result of a lawful search and were properly received in evidence, and mere irregularity as might appear on the form used by the officers is not deemed controlling. See Nelson v. People of State of California, 346 F.2d 73 (9th Cir. 1965) cert. denied 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367 (1965); Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948). Voluntary consent was proved by clear and positive evidence and was uncontradicted. State v. Sneed, 76 N.M. 349, 414 P.2d 858 (1966).

In the recent case of People v. Clark, 60 Cal.Rptr. 569 Ct.App. (Cal.1967), where a coat was taken by an officer after defendant's mother gave permission to search defendant's bedroom in her...