STATE V. LACOUR, 1973-NMCA-022, 84 N.M.
665, 506 P.2d 1212 (Ct. App. 1973)
STATE OF NEW MEXICO, Plaintiff-Appellee
vs.
THOMAS J. LACOUR Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1973-NMCA-022, 84 N.M. 665, 506 P.2d 1212
Appeal from the District Court of
Bernalillo County, Maloney, Judge
DAVID L. NORVELL, Attorney General,
PRENTIS REID GRIFFITH, Jr., Asst. Atty. Gen., Santa Fe, New Mexico, Attorneys
for Plaintiff-Appellee.
JOHN E. BROOKS, Albuquerque, New Mexico,
Attorney for Defendant-Appellant.
HERNANDEZ, Judge, wrote the opinion.
Ramon Lopez, J., LEWIS R. SUTIN, J.,
(Specially concurring)
{1} Defendant was convicted
of robbery while armed with a deadly weapon, (§ 40A-16-2, N.M.S.A. 1953 (2d
Repl. Vol. 6)). He raises two points for reversal: (1) The trial court erred in
not giving defendant a hearing on the issue of the voluntariness of his
confession; (2) the trial court abused its discretion in failing to grant
defendant's motion for continuance, discovery and inspection, and a bill of
particulars.
{2} The first point is
dispositive of this appeal and consequently only the facts relative to it will
be set forth.
{3} Approximately forty-seven
days before trial defendant filed a series of motions including a motion to
suppress all statements made by the defendant relating to the offenses charged
in the indictment. There is nothing in the record to indicate whether the defendant's
motion to suppress was ever acted upon.
{4} On the day of trial
defendant renewed his motion to suppress. The District Attorney's response to
the motion was:
"Just for the record, I think we better have a hearing
on the motion to suppress the confession."
The motion was denied. During the trial a written confession
made by the defendant was offered into evidence. The defendant responded as
follows:
"Let the record reflect that this statement was the
object of the motion to suppress which was... which said motion was denied by
the court without a preliminary evidentiary hearing."
The statement was received into evidence.
{5} The trial court erred in
not holding a hearing out of the presence of the jury in order to determine the
voluntariness of the confession. Jackson v. Denno, 378 U.S. 368, 84 S. Ct.
1774, 12 L. Ed. 2d 908, 1. A.L.R.3d 1205 (1964). As stated in State v. Word,
80
N.M. 377,
456 P.2d 210 (Ct. App. 1969), "Defendant has the constitutional
right at some stage in the proceeding to object to the use of the confession
and to have a fair hearing and a reliable determination on the issue of
voluntariness, a determination uninfluenced by the truth or falsity of the
confession"
{6} The judgment is reversed
and the cause remanded with directions to grant defendant a new trial in a
manner not inconsistent herewith.
Ramon Lopez, J., LEWIS R. SUTIN, J., (Specially concurring)
SUTIN, Judge (Specially concurring)
{8} I concur in the result,
but for different reasons.
A. GRANTING DEFENDANT A NEW TRIAL TOO BROAD
{9} In my opinion, reversal
with remand to grant defendant a new trial is too broad when based solely on
denial of a hearing on motion to suppress a confession.
{10} Jackson v. Denno, 378
U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), 1 A.L.R.3d 1205, and Sims v.
Georgia, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593 (1966), limit the
remand.
{11} Jackson v. Denno, supra,
remanded "to allow the State a reasonable time to afford Jackson a hearing
or a new trial, failing which Jackson is entitled to his release."
{*667} The court said [378 U.S. p. 394, 84 S.
Ct. p. 7290]:
It does not follow, however, that Jackson is automatically
entitled to a complete new trial including a retrial of the issue of guilt or
innocence. * * * But if at the conclusion of such an evidentiary hearing in the
state court on the coercion issue, it is determined that Jackson's confession
was voluntarily given, admissible in evidence, and properly to be considered by
the jury, we see no constitutional necessity at that point for proceeding with
a new trial, for Jackson has already been tried by a jury with the confession
placed before it and has been found guilty. * * * Of course, if the state
court, at an evidentiary hearing, redetermines the facts and decides that
Jackson's confession was involuntary, there must be a new trial on guilty or
innocence without the confession's being admitted in evidence.
{12} In Sims v. Georgia,
supra, the court "remanded for a hearing as provided by
Jackson v.
Denno...." Thereafter, the state trial judge determined that Sims'
confession was voluntary and denied a new trial. The Georgia Supreme Court
affirmed. The Supreme Court of the United States again reversed because the
confession was involuntary, but it also found that "the juries by which
petitioner was indicted and tried were selected in a manner that does not
comport with constitutional requirements." It remanded for further
proceedings not inconsistent with the opinion. Sims v. Georgia, 389 U.S. 404,
88 S. Ct. 523, 19 L. Ed. 2d 634 (1967). See, dissenting opinion, State v.
Gruender,
83 N.M. 327,
491 P.2d 1082 (Ct. App. 1971).
{13} New Mexico has adopted
the "Massachusetts Rule." State v. Burk,
82 N.M. 466,
483 P.2d 940
(Ct. App. 1971), cert. den. 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271
(1971). Under this rule, the trial judge must first fully and independently
resolve the issue of voluntariness against the defendant before this issue can
be submitted to the jury. If the trial judge determines the confession to be
involuntary, it is not admissible in evidence. If the trial judge determines
the confession to be voluntary, the confession is admissible under proper
instructions to the jury.
{14} In the present case, the
conviction was based solely on defendant's confession. If, upon a hearing, the
trial judge determines the confession to be involuntary, it would not have been
admissible in evidence, and defendant should be discharged. If the trial court
determines the confession to be voluntary, it is admissible in evidence in the
original trial, and the conviction should be affirmed because no objections
were made to the instructions given to the jury. State v. Milow, 199 Kan. 576,
433 P.2d 538 (1967); Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969);
State v. Brewton, 238 Or. 590. 395 P.2d 874 (1964).
{15} No new trial should be
granted unless additional error appears in the record which requires a
reversal. Without additional error, this case should be reversed, the
conviction and sentence vacated, and a hearing held on the voluntariness of the
confession. See, State v. Torres,
81 N.M. 521,
469 P.2d 166 (Ct. App. 1970);
State v. Anaya,
76 N.M. 572,
417 P.2d 58 (1966).
{16} Defendant contends the
trial court abused its discretion in failing to grant defendant's motions for
continuance, discovery and inspection, and a bill of particulars.
{17} The record shows the
indictment was filed February 24, 1972. On March 6, 1972, defendant pleaded not
guilty. On March 10, 1972, the motions were filed. A continuance was granted
from April 10, 1972, to April 26, 1972, and trial began. Defendant was present
in person and by attorney.
{18} On the morning of trial,
all motions were denied. Defendant's trial attorney claimed lack of preparation
of a defense because defendant suffered contagious hepatitis
{*668}
and he was unable to contact defendant. The doctor's letter admitted in
evidence stated that defendant had not been seen since March 6, 1972, and he
was unable to comment on his physical condition at the time of trial. No other
evidence was presented. The defendant did not argue the other motions. They
seemed to have been withdrawn. There was no error committed in denying the above
motions.
C. FUNDAMENTAL ERROR REQUIRES REVERSAL
{19} A serious question
arises. Defendant's attorney stated that because of his inability to contact
defendant due to disease, and inadequate preparation as a result thereof, he
would not participate in the trial. Defendant received no defense. Yet, the
trial court proceeded with the trial. This was fundamental error. It shocks the
conscience of the court that trial would proceed against defendant without
legal representation. State v. Garcia,
46 N.M. 302,
128 P.2d 459 (1942).
"The assistance of counsel is a fundamental right in all criminal
proceedings wherein a defendant is accused of a felony or any crime punishable
by a possible penitentiary sentence..." Section 21-1-1(92)(1), N.M.S.A.
1953 (Repl. Vol. 4); State v. Coates,
78 N.M. 366,
431 P.2d 744 (1969); State
v. Moser,
78 N.M. 212,
430 P.2d 106 (1967); 21 Am. Jur. Criminal Law, § 309; 23
C.J.S. Criminal Law, § 979(1). The trial judge has a duty to fully safeguard
the right to counsel. States v. Coates, supra. In this case, defendant had
inadequate representation. State v. Moser, supra. See, State v. Gibby,
78 N.M.
414,
432 P.2d 258 (1967). His rights were violated and he did not receive a
fair trial. Counsel on this appeal was not the attorney at trial.
{20} It is not necessary at
this time to discuss the role of judge and defense counsel at the beginning of
trial in this case. See, Function of the Trial Judge, ABA Project on Standards
for Criminal Justice.
{21} On this point alone,
defendant should be granted a new trial.