STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
FRED ARTHUR SEDILLO, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, FOWLIE, Judge
JAMES A. MALONEY, Attorney General, RAY
SHOLLENBARGER, Asst. Attorney General, Santa Fe, New Mexico, Attorneys for
Appellee.
LEON TAYLOR, Albuquerque, New Mexico,
Attorney for Appellant.
HENDLEY, Judge, wrote the opinion.
LaFel E. Oman, Justice, Supreme Court, Joe
W. Wood J.
{1} A jury found the
defendant guilty of larceny and burglary and he was sentenced pursuant to the
Habitual Criminal Statute, § 40A-29-5, N.M.S.A. 1953 (Repl. 1964). Defendant
questions (1) the sufficiency of the evidence to support the conviction; (2)
the admission into evidence of copies of log sheets prepared by the radio dispatcher
for the police department; and (3) the constitutionality of the Habitual
Criminal Statute.
SUBSTANTIAL EVIDENCE TO SUPPORT THE JURY VERDICT.
{3} On appeal from a
conviction we view the evidence and all reasonable inferences therefrom in a
light most favorable to support the verdict. State v. Zarafonetis,
81 N.M. 674,
472 P.2d 388 (Ct. App. 1970), cert. denied.
81 N.M. 674,
472 P.2d 383 (1970).
{4} Early on the morning of
October 26, 1969. Officer Moody, of the Albuquerque Police Department, was
patrolling the North Twelfth Street area in Albuquerque, New Mexico. He saw the
defendant with two companions (one of the companions was a codefendant Epifanio
Sedillo) standing next to a 1963 Chevrolet station wagon parked by the Acme
Fast Freight Company's warehouse. Officer Moody observed that the action wagon
was full of cardboard boxes and suspected that a burglary was in progress. By
this time, Officer Moody had driven part the scene of the crime and was unable
to immediately apprehend the defendant and his two companions. He radioed
Officer Brennan who was approaching the scene of the crime. Officer Brennan
pursued the station wagon which had left the scene at a high rate of speed. The
station wagon successfully lost Officer Brennan but after a five minute search
he found Epifanio Sedillo near where the station wagon had been parked and
arrested him. A few minutes later, the defendant, Fred Sedillo was found in a
carport a few yards from where the station wagon was parked and he was
arrested. A house adjoined the carport on each side and a person could not pass
through the back of the carport because of a ten and one-half foot high fence.
Defendant Sedillo was trapped in the carport since his only means of exit was
through the front where the police were investigating the parked station wagon.
Further investigation revealed that Acme had been burglarized and that the
goods taken from Acme were the same as the goods found in the station wagon.
{5} The only reasonable
inferences from this evidence was that defendant was seen with the stolen goods
at the scene of the burglary, that when he was so observed, he tried to escape
apprehension, that he was arrested
{*289} within
a very few minutes after the escape attempt as a result of "hot
pursuit" by the police, and arrested near the vehicle containing the
stolen goods. We agree with defendant that "presence alone is insufficient
to sustain a conviction" for burglary. However, the facts and reasonable
inferences therefrom show much more than mere presence. There was substantial
evidence to support the conviction. Compare State v. Sharp,
78 N.M. 220,
430
P.2d 378 (1967) and State v. Beachum,
82 N.M. 204,
477 P.2d 1019 (Ct. App.),
decided November 6, 1970.
ADMISSIBILITY OF THE POLICE DEPARTMENT RADIO DISPATCHER'S LOG
SHEET.
{6} A policeman went to the
records division on the second day of trial and requested a copy of the
dispatcher's log sheet showing calls received and transmitted by and from the
officers investigating the burglary and larceny for which the defendant was
convicted. The purpose of this evidence was to impeach the testimony of
defendant's alibi witnesses concerning the time of day involved. The policeman
was handed the log book and he made a copy of the appropriate page. The policeman
testified at trial that the copy was a true and exact copy of the log
maintained at the records division and it accurately showed what was shown on
the original log sheet. The radio dispatcher was then called and she testified
that she made the entries in the original log and that the copy was accurate.
Defendant objected to the introduction of the copy. His claim is: "There
was no attempt to have the copy certified as required by statute 21-1-1(44) (a)
(3) N.M.S.A. (supra), nor was there testimony by the custodian of the records
as to its authenticity."
{7} The proof of official
records statute [§ 21-1-4(44)(a)(3), N.M.S.A. 1953 (Repl. 1970)] requires that
the record be certified by the officer having custody of the record and under
the seal of his office. This was not done. However, subsection C, §
21-1-1(44)(C), N.M.S.A. 1953 (Repl. 1970) provides an alternative to the
official certification and states: "This rule does not prevent the proof
of official records or of entry or lack of entry therein by any other method
authorized by law." Another method authorized by law is discussed in
Higgins v. Fuller,
48 N.M. 218,
148 P.2d 575 (1944).
Higgins states that
an "examined copy" may be admitted into evidence if the person who
made it or who compared it with the original first testifies that it is a copy.
Here, the dispatcher testified she made the original entries and that the copy
was an accurate copy of the original. The policeman that made the copy
testified he compared it with the original and it was an accurate copy. There
was a proper foundation for the admission of the log sheet.
CONSTITUTIONALITY OF THE HABITUAL CRIMINAL STATUTE.
"Appellant [defendant] contends that the Habitual
Criminal Statute 40A-29-5-A N.M.S.A. Compilation (1969 supp.) [sic] is
unconstitutional. It usurps the judicial power of setting sentence and bestows
it upon the office of the District Attorney * * *. If the State Prosecutor sees
fit to invoke the statute 40A-29-5A, [sic] then the judge has no choice but to
sentence accordingly. Thus, the judicial power of setting sentence is bestowed
upon the prosecutor. * * *"
{8} Defendant's contention is
that the district attorney is not required to invoke the Habitual Criminal Act,
rather, that he has discretion in invoking it. The claim is that such asserted
discretion has the practical effect of allowing the district attorney to set
the sentence. As stated in the brief:
"Although the above statute [Sec. 40A-29-6, N.M.S.A.
1953 (Repl. 1969)] informs {*290} the
prosecution of a duty to invoke the habitual criminal act, it does not state
that he must invoke it. Therefore, in actual practice in the State of
New Mexico it is at the discretion of the state prosecutor whether or not he
will invoke the Habitual Criminal Statute in any given case. Hence, the
prosecutor becomes the one who decides the sentence."
{9} There is no merit to the
claim that our statutory law gives the district attorney discretion as to
whether he will invoke the habitual criminal provision. Section 40A-26-6, supra,
states:
"* * * it shall be the duty * * * to file an information
charging the person as a habitual offender."
See also § 40A-29-8, N.M.S.A. 1953 (Repl. 1969). State v.
McCraw, 59 N.M. 348, 284 P.2d 670 (1955) characterizes the Habitual Criminal
Act as "mandatory."
{10} However, defendant
claims that there is, in actual practice, uneven enforcement of the Habitual
Criminal Act. Assuming that such is the fact, that fact does not make the law
unconstitutional. State v. Lujan,
79 N.M. 525,
445 P.2d 749 (1968); State v.
Sharp,
79 N.M. 498,
445 P.2d 101 (1968) and State v. Bladonado,
79 N.M. 175,
441 P.2d 215 (Ct. App. 1968).
{11} Further, in this case,
the law has been carried out. The district attorney has invoked the Act and
defendant has been sentenced, by the court, pursuant to the Act. There has been
no unconstitutional application of the Act to this defendant. The claim of
unconstitutionality is without merit.
LaFel E. Oman, Justice, Supreme Court, Joe W. Wood J.