STATE V. MARTINEZ, 1971-NMCA-115, 83
N.M. 9, 487 P.2d 919 (Ct. App. 1971)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
JAKE MARTINEZ, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1971-NMCA-115, 83 N.M. 9, 487 P.2d 919
Appeal from the District Court of
Bernalillo County, Reidy, Judge
DAVID L. NORVELL, Attorney General, JAMES
B. MULCOCK, Jr., Ass't. Atty. Gen., Santa Fe, New Mexico, Attorneys for
Appellee.
DOUGLAS T. FRANCIS, Albuquerque, New
Mexico, Attorney for Appellant.
WOOD, Chief Judge, wrote the opinion.
William R. Hendley, J., Lewis R. Sutin, J.
{1} Convicted of armed
robbery, 40A-16-2, N.M.S.A. 1953 (Repl. Vol. 6), defendant appeals.
{*10} The four issues, and our answers,
follow:
Failure to provide defendant with a copy of codefendant's
trial transcript.
{2} A codefendant to the
armed robbery charge had been previously tried on a kidnapping charge.
Defendant claims the trial court erred in failing to provide him a copy of the
transcript of that trial. His argument, and the cases cited in support, is
directed to defendant's right, as an indigent, to free access to instruments
needed to vindicate defendant's legal rights. The argument is misdirected.
{3} Codefendant's trial was
held on September 16 or 17, 1970. According to defendant, the codefendant was
sentenced on September 24, 1970, and a praecipe calling for a complete
transcript of that trial was filed September 29, 1970. Defendant filed his
motion asking for the transcript on January 6, 1971, filed a brief in support
of the motion on January 11, 1971, and the motion was argued immediately prior
to the trial on January 12, 1971.
{4} The evidence is
undisputed that the transcript had not been completed, and was not available,
on January 12, 1971. According to defense counsel, the delay in preparation of
the transcript occurred because the court reporter was "taking the cases
in order."
{5} Since the transcript was
unavailable, the trial court treated the motion as a request for a continuance
and denied it as not being timely. A motion for continuance is directed to the
discretion of the court and the denial of the motion is not error unless there
is a clear abuse of discretion. State v. Deats, (Ct. App.),
82 N.M. 711,
487
P.2d 139, decided June 18, 1971.
{6} Here, there is no showing
of an abuse of discretion. Instead, the record shows that the motion requesting
the transcript was not filed until six days prior to trial; that the court had
not been asked at an earlier date to require completion of the transcript; that
the suggested continuance was based solely on the fact that the transcript had
not been completed. The trial court could properly deny the request under these
circumstances. Compare State v. Apodaca,
80 N.M. 244,
453 P.2d 764 (Ct. App.
1969).
Denial of a mistrial on the basis of the prosecutor's
opening statement.
{7} In his opening statement,
the prosecutor narrated the facts of the armed robbery which he intended to prove.
In his narration, he referred to another man, not on trial, [the codefendant],
who "* * * went back in the room where the girls had been placed and took
the girl named Cindy Cumfer and took her out of the room and escaped the police
for the time being. * * n"
{8} Defendant objected to the
remarks "* * referring to Cindy Cumfer and the taking away of Cindy Cumfer
which is prejudicial as the jury has no reference to that in this case and it
ties in with another crime. * * * n" Defendant's motion for a mistrial was
denied.
{9} This is not a case where
the prosecutor, in his opening statement, stated facts which he had reason to
believe could not be proved. See State v. Torres,
81 N.M. 521,
469 P.2d 166
(Ct. App. 1970). The facts of the case, as shown by the evidence, are that two
men, armed with guns, committed the robbery; that in committing the crime they
required the three girls involved to go to a back room; that one of the robbers
returned to the room, pointed his gun at another of the girls but took Cindy
with him. This evidence came in without objection.
{10} Defendant seeks a
requirement that if there is a reasonable possibility that the prosecutor's
"inappropriate remark" contributed to the conviction, the State must
prove beyond a reasonable doubt that the error complained of did not contribute
to the conviction. Such a rule is stated in State v. Jones,
80 N.M. 753,
461
P.2d 235 (Ct. App. 1969) but that case dealt with prosecutor comments
concerning the failure of a defendant to testify. That is not the situation
here.
{11} In this case, the
prosecutor did no more than refer to the events of the armed robbery. His
remarks were appropriate to that charge and were not error when the entire
{*11} record is considered. We do not consider
whether the rule of State v. Jones, supra, should be extended to
"inappropriate remarks" which do not amount to constitutional error,
since facts for such an extension are not in the record before us.
{12} A motion for a mistrial
is addressed to the discretion of the trial court and is reviewable only on the
basis of an abuse of discretion. State v. Verdugo,
78 N.M. 762,
438 P.2d 172
(Ct. App. 1968). At the time the motion was made there was nothing to show an
abuse of discretion because the facts were not then before the court and
counsel did not represent to the court what the facts would be. After the
evidence came in concerning the robbery, and without objection, the record
affirmatively shows no abuse of discretion.
Failure to instruct on a lesser included offense.
{13} Defendant submitted a
requested instruction on the lesser included offense of robbery. He claims the
court erred in refusing to give this instruction. We disagree. Although robbery
is a lesser offense included within the armed robbery charge, defendant was not
entitled to have the jury instructed on the lesser offense unless there was
evidence tending to establish it. State v. Andrada,
82 N.M. 543,
484 P.2d 763
(Ct. App. 1971), and cases therein cited. The evidence is that defendant
committed the robbery while armed. There is no evidence on which to base an
instruction on the lesser offense of robbery.
{14} The indictment charged
defendant with taking money from the immediate control of Cindy Cumfer, Suzana
Ybarra
and Juanita Ybarra while armed with a deadly weapon. Two
instructions told the jury that the proof must be in the conjunctive; that the
taking of the money, while armed, must have been from each of the three girls.
{15} Defendant submitted
three requested instructions which, in essence, repeated the instructions
given, but after naming the three girls in the conjunctive added the words
"and all of them." He complains of the refusal of the court to insert
these words, asserting that without them the instructions were confusing.
Defendant states the jury might have thought the word "and" should be
read as "or."
{16} We see no confusion in
instructions that told the jury that proof must be in the conjunctive. The
instructions given were adequate; therefore, it was not error to refuse to add
the additional words. State v. Zarafonetis,
81 N.M. 674,
472 P.2d 388 (Ct. App.
1970).
{17} The judgment and sentence
is affirmed.
William R. Hendley, J., Lewis R. Sutin, J.