STATE V. SALAZAR, 1970-NMCA-056, 81 N.M.
512, 469 P.2d 157 (Ct. App. 1970)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
HERMAN SALAZAR, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1970-NMCA-056, 81 N.M. 512, 469 P.2d 157
Appeal from the District Court of Santa
Fe County, Scarborough, Judge
JAMES A. MALONEY, Attorney General,
JUSTIN REID, Ass't. Atty. Gen., Santa Fe, New Mexico, Attorneys for Appellee.
SNYDER H. DOWNS, Santa Fe, New Mexico,
Attorney for Appellant.
WOOD, Judge, wrote the opinion.
LaFel E. Oman, J., William R. Hendley, J.
{1} Defendant was convicted
of assault with intent to commit a violent felony (rape). Section 40A-3-3,
N.M.S.A. 1953 (Repl. Vol. 6). His appeal raises five issues: (1) lack of a
preliminary hearing; (2) cross-examination of grand jury witnesses; (3)
transcript of grand jury proceedings; (4) inadequate representation by counsel;
and (5) the trial court's refusal to appoint substitute counsel.
Lack of preliminary hearing.
{2} Defendant moved for a
preliminary hearing prior to his trial. He claims
{*513}
the trial court erred in denying his motion because
N.M. Const., Art. II, §
14 gives him the right to a preliminary hearing. This constitutional provision
affords a right to a preliminary hearing when the accused is charged by a
criminal information. This provision does not afford a right to a preliminary
hearing when the accused is indicted by a grand jury. State v. Mosley,
75 N.M.
348,
404 P.2d 304 (1965). Defendant, having been indicted by a grand jury, had
no right to a preliminary hearing.
Cross-examination of grand jury witnesses.
{3} Defendant claims he has
the right to cross-examine witnesses who appeared before the grand jury. He
does not explain the basis of this contention in his brief. Before the trial
court he equated the grand jury proceedings with a preliminary hearing and
asserted the right of cross-examination on the theory the two procedures were
equal.
{4} Territory v. Young, 2
N.M. (Gild.) 93 (1881), also reported in 37 P. State Reports, states:
"* * * We cannot fail to recognize the wide distinction
between a grand and a petit jury as to their functions and methods of
procedure. The action of the former is simply preliminary; it is an inquiry by
the grand inquest as to whether there is such probability from the statements
made before them, which are usually ex parte of the guilt of a certain
person, that he ought to be placed on trial. * * *"
{5} The preliminary
examination also is an inquiry into probable cause. Section 41-3-12, N.M.S.A.
1953 (Repl. Vol. 6). To this extent there is a similarity between grand jury
proceedings and a preliminary examination.
{6} But the nature of the two
procedures is different. The grand jury inquiry is secret. One of the reasons
for secrecy is because at the time of these proceedings, the defendant has not
been charged with the crime. State v. Morgan,
67 N.M. 287,
354 P.2d 1002 (1960).
A preliminary examination is held after a criminal complaint has been made
against the defendant. Section 41-3-7, N.M.S.A. 1953 (Repl. Vol. 6).
{7} Because of the difference
in the nature of the two procedures, a defendant, subsequently indicted by the
grand jury, has no right to appear before the grand jury. See Territory v.
Young, supra. Nor does such a defendant have the right to cross-examine
witnesses appearing before the grand jury. He has no such right because the
testimony of witnesses before the grand jury is secret, at least until an
indictment is voted, see State v. Morgan, supra, and because "* * * on all
principles, the jury-trial rules of Evidence should not apply * * *," see
I Wigmore, Evidence § 4(5) (3rd ed. 1940).
{8} N.M. Const., Art. II, §
14 gives the accused the right to appear and to be confronted with the
witnesses against him. This right, however, applies "in all criminal
prosecutions." The grand jury proceedings are not prosecutions; they are
inquests into whether there should be a prosecution. Territory v. Young, supra.
This constitutional provision does not give defendant the right to
cross-examine witnesses appearing before the grand jury.
Transcript of grand proceedings.
{9} Defendant claims he was
entitled to a transcript of the grand jury proceedings. Although we cannot tell
from the record, or the briefs, we assume defendant is not seeking a transcript
of everything that occurred before the grand jury. Rather, we assume he seeks
only a transcript of the proceedings pertaining to the criminal charge brought
against him.
{10} Even with this
assumption, there is nothing in the record before us indicating he was entitled
to this portion of the grand jury proceedings. There is nothing indicating any
use was made of grand jury testimony at defendant's trial, State v. Morgan,
supra, or that any witness at the trial testified before the grand jury. State
v. Tackett,
78 N.M. 450,
432 P.2d 415 {*514}
(1967), 20 A.L.R.3d 1, cert. denied 390 U.S. 1026, 20 L. Ed. 2d 283, 88 S.
Ct. 1414 (1968). All we have here is a "wholesale request;" no
showing of any particularized need. State v. Tackett, supra. With such a
record, defendant was not entitled to examine the grand jury proceedings.
Inadequate representation by counsel.
{11} Defendant claims he was
inadequately represented by his court appointed counsel. A claim of inadequate
representation requires a showing that the proceedings leading to his
conviction were a sham, farce or mockery. State v. Dominguez,
80 N.M. 328,
455
P.2d 194 (Ct. App. 1969) and cases therein cited.
{12} Defendant contends he
was inadequately represented because counsel advised him to plead guilty, and
when defendant rejected this advice, counsel allegedly said, "I will see
you fry." Neither the advice nor the comment raise an issue as to whether
the proceedings resulting in defendant's conviction were a sham, farce or
mockery. State v. Pavlich,
80 N.M. 747,
461 P.2d 229 (1969); Pena v. State,
(Ct. App.),
81 N.M. 331,
466 P.2d 897, decided February 20, 1970; State v.
Ramirez,
81 N.M. 150,
464 P.2d 569 (Ct. App. 1970).
Refusal to appoint substitute counsel.
{13} Defendant states "*
* * as he was dissatisfied with his court appointed counsel the Court was
required to appoint him another trial counsel to defend him." That is not
the law. State v. Walker, 202 Kan. 475, 449 P.2d 515 (1969) states:
"* * * An indigent defendant may not compel the court to
appoint such counsel as defendant may choose. Such appointment lies within the
sound discretion of the trial court * * *. Likewise, whether the
dissatisfaction of an indigent accused with his court-appointed counsel
warrants discharge of that counsel and appointment of new counsel is for the
trial court, in its discretion, to decide. * * *"
{14} State v. Thorne, 104
Ariz. 392, 453 P.2d 963 (1969); People v. Aikens, 70 Cal.2d 369, 74 Cal. Rptr.
882, 450 P.2d 258 (1969); State v. Miller, 460 P.2d 874 (Ore. App. 1969).
{15} The issue then, is
whether the trial court abused its discretion in refusing to appoint substitute
counsel. The reason given to the trial court for being dissatisfied with
counsel was the advice to plead guilty and the comment about seeing defendant
fry. The trial court questioned counsel. Counsel indicated he didn't recall the
"fry" remark, but had indicated defendant should plead guilty to a
lesser charge. This occurred after counsel had talked to at least some of the
witnesses for the State. In response to the court's questions, counsel stated
he had no animosity to defendant and could represent defendant in good faith.
The trial court did not abuse its discretion in refusing to appoint substitute
counsel. State v. Walker, supra; State v. Miller, supra.
{16} After the trial court's
ruling, defendant continued to refuse to allow counsel to represent him. At the
court's suggestion, counsel remained in the courtroom, available for advice and
assistance upon request. Although defendant questioned the witnesses, counsel
did assist in matters relating to the presence of witnesses and clarification
of one of the issues presented by defendant. Counsel also reviewed the proposed
instructions. Even with defendant's attitude toward counsel, he was not
deprived of assistance of counsel. State v. Thorne, supra.
LaFel E. Oman, J., William R. Hendley, J.