STATE V. PAUL, 1971-NMCA-040, 82 N.M.
619, 485 P.2d 375 (Ct. App. 1971)
STATE OF NEW MEXICO, Plaintiff-Appellee
vs.
JOHN WESLEY PAUL, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1971-NMCA-040, 82 N.M. 619, 485 P.2d 375
Appeal from the District Court of
Bernalillo County, McManus, Jr., Judge
Motion for Rehearing Denied May 5,
1971; Petition for Writ of Certiorari Denied May 19, 1971
JAMES A. MALONEY, Attorney General, LEILA
A. ANDREWS, Ass't. Attorney General, Santa Fe, New Mexico, Attorneys for
Appellee.
JOHN V. COAN, JACK L. LOVE, Albuquerque,
New Mexico, Attorneys for Appellant.
BLYTHE, DISTRICT Judge, wrote the opinion.
Waldo Spiess, C.J., William R. Hendley, J.
{*620} BLYTHE,
District Judge.
{1} The defendant appeals
from his conviction of armed robbery, raising questions concerning lineup
identification, sufficiency of the evidence to support the grand jury
indictment, and admission of evidence of "casing" of the store which
later was robbed. We affirm.
{2} Despite the line-up
identification issue, the defendant was convicted wholly on circumstantial
evidence. None of the eyewitnesses to the crime was able to identify him as
being one of the three robbers, although his physical characteristics were
similar to those of a masked gunman they did describe. The evidence which
linked the defendant with the crime included the finding of his fingerprint on
a vodka bottle in the getaway car, which was wrecked in the store's parking lot
with some of the stolen money still inside. This car was identified by
appearance and by license number as being the same one used by the suspicions
characters who cased" the store earlier. A small Negro with a gun in his
hand, later identified in the lineup as being the defendant, tried to
commandeer a car near the robbery scene a short time after the robbery
occurred; he had a cut on his hand and his teeth were bloody. In the wrecked
getaway car was a nylon stocking knotted on one end, similar to that worn by
the gun-wielding robber. The money taken in the robbery was in the car, which
also contained a paper plate containing the remains of some barbecued ribs and
potato
{*621} salad similar to a meal
purchased by the defendant a short time before the robbery.
{3} Appellant's first point
is:
"THE COURT SHOULD HAVE HELD A HEARING OUTSIDE THE JURY'S
PRESENCE TO DETERMINE WHETHER THE LINEUP WAS UNLAWFUL, AND SHOULD HAVE EXCLUDED
EVIDENCE OF THE LINEUP IDENTIFICATION,"
{4} The facts which are
necessary to present a question for review by the appellate court are those
facts established by the record and any fact not so established is not before
us on appeal. Section 21-2-1(17)(1), N.M.S.A. 1953 (Repl. Vol. 4 (1970)); State
v. Colvin,
82 N.M. 287,
480 P.2d 401 (Ct. App. 1971).
{5} We do not reach
defendant's first contention. There is nothing in the record on which to base
defendant's allegation. Only Manuel Sanchez and the defendant testified about
the lineup identification procedure. Sanchez testified that about 7 p.m. (a few
minutes after the robbery) on November 10, 1969, he and his brother-in-law were
trying to start a stalled car about two blocks from the store which was robbed.
A Negro man approached the car, got in and asked for a ride. Sanchez refused,
whereupon the Negro pointed a gun at him. Just then a police patrol car passed,
and the Negro got out of the car and ran down the alley. Sanchez noticed that
the Negro had a cut on his right hand, was bleeding from his teeth, and was
about 5 feet 6 inches tall.
{6} Sanchez testified about
the line-up procedure. He said that there were six or seven Negroes in the
lineup; that he thought three or four of them were taller than himself (5 feet
7 inches); that he thought more than one was young; and that he made his
identification of the Negro was approached his car with a gun on the basis of a
cut on the hand and bloody teeth.
{7} The defendant testified
he was in a line-up but the record does not indicate it was the same line-up
viewed by Mr. Sanchez. Even assuming it was the same line-up, we do not know
whom Mr. Sanchez pointed out in the courtroom. The record only shows that the
man picked out of the line-up was sitting in the courtroom. This does not show
that the identification was of the defendant.
{8} On the in-court identification
Mr. Sanchez testified:
"Q. Now, you say you identified this person. Who did you
identify him as?
"A. The person sitting right there, I think,
"Q. Now, do you see in the courtroom this afternoon the
same person that ran up to your car with the gun?
"Q. Would you point him out please?
"Q. The Negro with the white shirt on?
"THE INDICTMENT SHOULD HAVE BEEN QUASHED BECAUSE THE
LEGAL EVIDENCE BEFORE THE GRAND JURY WAS INSUFFICIENT TO ESTABLISH PROBABLE
CAUSE THAT THE DEFENDANT COMMITTED THE OFFENSE."
{9} In so contending,
appellant admits that we would have to overrule or distinguish State v. Chance,
29 N.M. 34,
221 P. 183 (1923) in order to reverse on this ground. He suggests
that we might distinguish the two cases on the basis that in
Chance the
court was concerned with the secrecy of the grand jury proceedings whereas here
the transcript of the grand jury proceedings was revealed to the defense and
made an exhibit in the case, hence no need for secrecy exists. However, secrecy
was not the only or the most important consideration in
Chance, where
the court pointed out the procedural problems involved and the lack of
statutory authority for the
{*622} courts
to review the sufficiency of the evidence adduced before grand juries.
{10} To be sure, the statutes
on the subject have been changed since
Chance was decided in 1953, but they
are essentially similar to those there involved and still do not provide for
judicial review of the sufficiency of the evidence considered by the grand
jury. See §§ 41-5-10 and 41-5-11, N.M.S.A. 1953, as amended by Laws of 1969,
ch. 276, §§ 10 and 11.
{11} Since the legislature in
amending the laws pertaining to grand juries in 1969 still did not see fit to
give the courts authority to review the sufficiency of evidence to support
grand jury indictments, and since it is deemed to have had State v. Chance,
supra, in mind when it enacted the new statutes, we see no reason to overrule
or distinguish
Chance. We note also that the Supreme Court of the Untied
States had adopted a rule similar to that in
Chance. Costello v. United
States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1955).
{12} Another and shorter
answer to the contention that the indictment should have been quashed is that
defendant's motion (to dismiss) was filed after the defendant had pleaded not
guilty to the indictment. We have long held that pleading to an information
waives the right to a preliminary hearing or any formal defects therein, e.g.,
State v. Selgado,
78 N.M. 165,
429 P.2d 363 (1967); State v. Leyba,
80 N.M.
190,
453 P.2d 211 (Ct. App. 1969) cert. denied
80 N.M. 198,
453 P.2d 219
(1969). By the same rationale, and the weight of authority, a motion to quash
an indictment must be made before arraignment and plea. 42 C.J.S., Indictments
and Informations, § 199, pp. 1168, 1169; 41 Am. Jur.2d, Indictments and
Informations, § 281, p. 1053.
{13} For his final point,
appellant states:
"THE EVIDENCE OF THE CASING OF THE PREMISES PERMITTED
THE JURY TO BASE AN INFERENCE ON AN INFERENCE, AND WAS OTHERWISE
IMMATERIAL."
{14} The victims of the
robbery testified that over a period of about 30 days before the robbery three
of four Negroes excited their suspicions by loitering around the store, which
had very few Negroes customers. Three of the victims testified to seeing these
Negroes in or around a car which later turned out to be the getaway car. One
even copied down the license number. None of the victims identified the
defendant as being one of these Negroes who appeared to have reconnoitered or
"cased" the store. Therefore, appellant contends, all this testimony
was immaterial and prejudicial.
{15} It was important to the
state's case to connect the robber with the car which was found wrecked on the
store's parking lot shortly after the robbery. The robbers were not observed
leaving in it, but the victims, from prone positions in the back of the store,
heard the squeal of tires and then a crash. As previously stated, money
identified as having been taken from the store was found in the car, as was a
stocking mask such as one robber wore. The identification of the money was not
by serial numbers but only by the way it was held together in certain
quantities by rubber bands. Thus the "casing" of the premises by
various Negroes, even though not identified as including the defendant, was
material because they were using the purported getaway car.
{16} Under this point, though
not mentioned in it, appellant argues that the court improperly refused to give
an instruction tendered by him relating to circumstantial evidence and
particularly having reference to basing an inference upon an inference. The particular
portion of the instruction to which appellant directs his argument is as
follows:
"An inference of fact which is essential to establishing
an offense cannot be rested upon an inference, nor can presumption be
superimposed on presumption in order to reach ultimate conclusion of
guilt."
{*623} {17} The trial court did give an instruction on
circumstantial evidence, the correctness of which is not challenged. The trial
court, in our opinion, correctly declined to give appellant's tendered
instruction, and, in particular, the portion thereof which we have quoted.
{18} The evidence presented
and to which we have referred does not properly suggest the necessity of
cautioning the jury as suggested by the proposed instruction. The evidence
connecting defendant with the crime is circumstantial and, as such, may
properly serve as a basis for an inference of fact essential to the
establishment of the offense. See State v. Serrano, 74 N.M. 412, 394 P.2d 262
(1964).
{19} Since we find no error,
the conviction should be affirmed.
Waldo Spiess, C.J., William r. Hendley, J.