STATE V. BREWSTER, 1974-NMCA-070, 86
N.M. 462, 525 P.2d 389 (Ct. App. 1974)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Jeff BREWSTER, Jr., Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1974-NMCA-070, 86 N.M. 462, 525 P.2d 389
Ken Cullen, Knott & D'Angelo,
Albuquerque, for defendant-appellant.
David L. Norvell, Atty. Gen., Jay F.
Rosenthal, Special Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
SUTIN, J., wrote the opinion. WOOD, C.J.,
and HERNANDEZ, J., concur.
{1} Defendant was convicted
of armed robbery. Section 40A-16-2, N.M.S.A. 1953 (2d Repl. Vol.6). He appeals.
We affirm.
(A) The State proved jurisdiction of trial court.
{2} The State proved that the
offense was committed in Bernalillo County. The trial court and this court can
judicially notice that Bernalillo County is located in the State of New Mexico.
State v. Tooke,
81 N.M. 618,
471 P.2d 188 (Ct. App.1970). The trial court had
jurisdiction.
(B) In-court identification was proper.
{3} During direct examination
of the victim of the robbery, defendant objected to the victim pointing to
defendant for the court and jury because the in-court identification was
tainted by pre-trial identification of defendant from photographs and in a
line-up. Without objection, the victim testified that the defendant was in the
courtroom. In denying the motion, the court said: "He has already
identified the defendant, but I will give you the opportunity to voir
dire." After extensive examination of the victim, the defendant moved to
strike the in-court identification. The trial court denied the motion with
permission to renew the motion at the close of the State's case. This motion
was renewed and denied on several grounds, the last of which was that the
victim testified that defendant was the same person who was present at the time
that the robbery took place. We agree. The trial court did not err in denying
defendant's motion to strike the in-court identification. There is nothing
indicating anything suggestive in the photographic identification. State v.
Armstrong,
85 N.M. 234,
511 P.2d 560 (Ct. App.1973). Defendant does not seek to
have the line-up identification stricken. See State v. Sanchez,
85 N.M. 368,
512 P.2d 696 (Ct. App.1973). His claim is that the photographic identification
was marginal and the line-up procedure "suggested and enforced" the
photographic identification. The answer is that nothing suggests an uncertain
photographic identification, and nothing suggests the in-court identification
was in any way tainted.
(C) The trial court did not abuse discretion in denying
motion for continuance.
{4} On the morning of trial,
defendant moved for a continuance on the grounds that crucial and primary
witnesses necessary to establish a defense of alibi were not available; that
defense counsel had been diligent. Defense counsel was diligent. Two of
defendant's alibi witnesses
{*464} were
present and testified on defendant's behalf. A third alibi witness lived in
Phoenix, Arizona, and she refused to attend and testify. The whereabouts of the
other alibi witnesses were unknown, one of them being a brother of an alibi
witness who did testify. Defendant did not show any grounds of reasonable
belief that their attendance could ever be assured.
{5} The motion for a
continuance was denied. The granting or denial of a motion for a continuance
based on absence of evidence rests in the discretion of the trial court. There
must not only be an abuse of discretion, but it must also have been to the
injury of the defendant. State v. Nieto,
78 N.M. 155,
429 P.2d 353 (1967). We
find no abuse of discretion by the trial court in denying the motion for
continuance. State v. Ranne,
80 N.M. 188,
453 P.2d 209 (Ct. App.1969).
WOOD, C.J., and HERNANDEZ, J., concur.