STATE V. MARTINEZ, 1976-NMCA-103, 89
N.M. 729, 557 P.2d 578 (Ct. App. 1976)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Johnny R. MARTINEZ, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1976-NMCA-103, 89 N.M. 729, 557 P.2d 578
Petition for Writ of Certiorari Denied
November 24, 1976
Jan A. Hartke, Acting Chief Public
Defender, Reginald Storment, Appellate Defender, Don Klein, Acting Appellate
Defender, Santa Fe, for appellant.
Toney Anaya, Atty. Gen., Louis E.
Valencia, Anthony Tupler, Asst. Attys. Gen., Santa Fe, for appellee.
WOOD, C.J., wrote the opinion. HENDLEY and
SUTIN, JJ., concur.
{*730} WOOD, Chief
Judge.
{1} Defendant was convicted
of burglary in 1973 upon his plea of guilty. He was convicted by a jury of two
counts of robbery in 1975 and sentence was imposed for each robbery.
Subsequently a supplemental information was filed which charged the status of
habitual offender. He was found to be an habitual offender; an enhanced
sentence was imposed on the basis that defendant has been convicted of three
felonies. The appeal involves: (1) the habitual offender statute and
proceedings thereunder deprived defendant of equal protection; (2) trial in
prison clothing; (3) prosecutor as a witness; (4) validity of the burglary
conviction; and (5) sentence as an habitual offender.
{2} Defendant moved that the
habitual offender charge be dismissed on the basis that nonuniform enforcement
of the habitual offender statute denied him equal protection of the law. He
also moved that the court appoint a statistician to gather information
concerning nonuniform enforcement. In seeking the appointment of a
statistician, defendant relied on equal protection and on § 41-22-2(B),
N.M.S.A. 1953 (2d Repl. Vol. 6). The trial court denied both motions.
{3} On appeal, defendant does
not rely on a statutory right for expenses of investigation under the Indigent
Defense Act. See
State v. Carrillo, 88 N.M. 236,
539 P.2d 626 (Ct.
App.1975);
State v. Frazier, 85 N.M. 545,
514 P.2d 302 (Ct. App.1973).
{4} The appellate claim is
that defendant was denied equal protection when the trial court denied his
motion to appoint a statistician to develop information concerning nonuniform
enforcement of the habitual offender statute and was denied equal protection
when the trial court refused to dismiss on the theory that the habitual
offender statute was not uniformly enforced. Nonuniform enforcement of the
habitual offender statute is not a denial of equal protection.
State v.
Sedillo, 82 N.M. 287,
480 P.2d 401 (Ct. App.1971) and cases therein cited.
Accordingly, the refusal of the trial court to appoint a statistician to
establish nonuniform enforcement is also no denial of equal protection.
{5} Defendant recognizes that
New Mexico decisions are adverse to his contention. He claims these decisions
should be reconsidered in light of
Giaccio v. Pennsylvania, 382 U.S.
399, 86 S. Ct. 518, 15 L. Ed. 2d 447, (1966) and
United States ex rel. Matthews
v. Johnson, 503 F.2d 339 (3rd Cir. 1974).
Giaccio, supra, dealt with
the vagueness of a Pennsylvania statute permitting jurors to assess costs
against a defendant who had been acquitted.
Johnson, supra, involved a
Pennsylvania practice leaving it to the unfettered discretion of the trial
judge as to whether voluntary manslaughter would be submitted to the jury as a
lesser offense included in a murder charge. Both cases dealt with the absence
of standards. There is no absence of a standard as to whether our habitual
offender statute should or should not be applied. The terms of our statute are
mandatory.
State v. McCraw, {*731} 59
N.M. 348,
284 P.2d 670 (1955);
State v. Sedillo, supra.
{6} The parties are in
agreement that at the trial of the habitual offender charge, defendant wore a
shirt issued to him at the penitentiary. They also agree that Exhibit A is a
picture of the shirt.
{7} Defendant asserts his
right to a fair trial was violated in that he was compelled to stand trial in
prison clothing. He relies on
Estelle v. Williams, 425 U.S. 501, 96 S.
Ct. 1691, 48 L. Ed. 2d 126, (1976), which states:
"[A]lthough the State cannot, consistent with the
Fourteenth Amendment, compel an accused to stand trial before a jury while
dressed in identifiable prison clothes, the failure to make an objection to the
court as to being tried in such clothes, for whatever reason, is sufficient to
negate the presence of compulsion necessary to establish a constitutional
violation."
{8} The State asserts this
holding would not be applicable to an habitual proceeding because in such a
proceeding the jury necessarily knows that prior convictions have occurred and
the issue is whether it was the defendant who had been convicted. See
Carroll
v. State, 532 S.W.2d 934 (Tenn.Cr. App.1975).
Estelle, supra,
acknowledges decisions to this effect but, as we read that opinion, did not
rule on the validity of such an approach. It is unnecessary to decide the
question in this case.
{9} The
Estelle
decision involved "identifiable prison clothes". Footnote 1 of
Justice Brennan's dissent in
Estelle identifies the clothing as a white
T-shirt with "'Harris County Jail'" stenciled across the back, white
dungarees with "'Harris County Jail'" stenciled on the legs, and
shower thongs. Defendant asserts that the prison-issued shirt in this case was
"lettered with prison-type lettering". The picture on which defendant
relies, Exhibit A, shows some lettering above the right pocket on the front of
the shirt, but we do not know whether this lettering is "prison-type
lettering". Apart from the lettering, the picture shows nothing indicating
a prison uniform. We cannot say from this record that defendant was dressed in
"identifiable" prison clothes.
{10} Apart from the question
of what the clothing showed, there is the problem of when defendant informed
the trial court of his objection to wearing prison-issued clothing. The case
was scheduled for trial on June 1st but the trial was not held until June 3rd.
Defendant states he appeared before prospective jurors for thirty to forty-five
minutes on June 1st. On June 3rd, defendant moved for a new jury panel on the
basis that he had appeared before prospective jurors on June 1st and "was
at that time in full view of the jury in a prison shirt". We assume the
motion was made prior to selection of the trial jury. Denial of the motion was
not error. Defendant did not raise the issue of his clothing until after he had
twice appeared before the prospective jurors. Whether the delay in raising the
matter is characterized as a negation of compulsion,
Estelle, supra, or
waiver,
Krist v. State, 133 Ga. App. 197, 210 S.E.2d 381 (1974), the
issue was not timely raised.
{11} His trial in a
prison-issued shirt did not deny him a fair trial.
A Prosecutor As A Witness
{12} An assistant district
attorney, the immediate supervisor of the State's trial counsel, testified for
the State. The witness testified that defendant was the same person that he had
prosecuted on the robbery charges. Defendant claims it was improper for a
member of the same law firm to testify concerning a contested issue in the
case.
{13} Defendant's reliance on
two New Mexico decisions is misplaced.
State v. McCuistion, 88 N.M. 94,
537 P.2d 702 (Ct. App.1975) involved the situation where the attorney
prosecuted the case, testified as a witness and then argued his own credibility
to the jury. In
State v. Chambers, 86 N.M. 383,
524 P.2d 999 (Ct.
App.1974),
{*732} the attorney had
represented defendant in a trial that ended in a mistrial. Subsequently, the
attorney was appointed assistant district attorney.
Chambers, supra,
held that the district attorney's office was precluded from conducting the
prosecution. Neither case is applicable to the facts of this case.
{14} Defendant asserts the
testimony violated Rule 5-101(B) of the Code of Professional Responsibility
adopted by the Supreme Court. The Code sets forth rules of conduct for members
of the Bar. The rule on which defendant relies pertains to a lawyer accepting
employment in litigation "if he knows or it is obvious that he or a lawyer
in his firm ought to be called as a witness". The rule on which defendant
relies is entitled: "Refusing employment when the interests of the lawyer
may impair his independent professional judgment." The rule is not
applicable; it pertains to participation as counsel rather than as a witness.
{15} There is no claim that
the witness participated in the habitual offender proceeding as an attorney. It
was not error to permit the witness to testify.
United States v. Cerone,
452 F.2d 274 (7th Cir. 1971);
People v. Mann, 27 Ill.2d 135, 188 N.E.2d
665 (1963);
McKenzie v. State, 507 P.2d 1333 (Okl. Cr.1973).
Validity of the Burglary Conviction
{16} Defendant contends the
1973 burglary conviction cannot be relied on as a prior conviction because it
was invalid.
State v. Moser, 78 N.M. 212,
430 P.2d 106 (1967). The
conviction was on a plea of guilty. Defendant asserts his plea was invalid
under
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274
(1969).
Boykin held that it was plain error for the trial court to
accept a guilty plea without an affirmative showing that it was intelligent and
voluntary.
Boykin identifies certain constitutional rights that are
waived by a guilty plea -- the privilege against compulsory self-incrimination,
the right to a jury trial and the right to confront one's accusers.
Boykin
states: "We cannot presume a waiver of these three important federal
rights from a silent record."
{17} Defendant's claim that
his plea of guilty to burglary was invalid is based on the
Boykin
reference to the waiver of the three constitutional rights listed in the
preceding paragraph. He asserts that the transcript of the guilty plea
proceedings does not show that the trial court informed defendant of the
privilege against self-incrimination of the right to confront witnesses.
Because the trial court did not make specific reference to these two
constitutional rights, defendant contends he did not waive them and his guilty
plea is invalid. We disagree.
{18} Boykin does not provide
a checklist of inquiries which must be specifically covered before the trial
court can accept a valid guilty plea. As stated in footnote 4 to
Brady v.
United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970):
"The new element added in
Boykin was the requirement that the
record must affirmatively disclose that a defendant who pleaded guilty entered
his plea understandingly and voluntarily." The reference to three enumerated
constitutional rights demonstrates the gravity of the trial court's
responsibility in accepting a guilty plea.
Boykin did not impose a
procedural requirement that the three constitutional rights be enumerated
before a guilty plea would be valid.
Stinson v. Turner, 473 F.2d 913
(10th Cir. 1973);
Barrett v. State, 544 P.2d 830 (Alaska, 1975).
{19} New Mexico has
consistently followed the approach that the validity of a guilty plea is
determined by whether the plea was intelligent and voluntary; New Mexico has
not approached the question on the basis of a checklist of specific questions,
but has considered the question by examination of the record as a whole.
State
v. Montler, 85 N.M. 60,
509 P.2d 252 (1973);
State v. French, 82
N.M. 209,
478 P.2d 537 (1970);
State v. Vigil, 85 N.M. 328,
512 P.2d 88
(Ct. App.1973);
State v. Cruz, 82 N.M. 522,
484 P.2d 364 (Ct. App.1971);
{*733} State v. Elledge, 81 N.M.
18,
462 P.2d 152 (Ct. App.1969). Defendant relies on
State v. Guy, 81
N.M. 641,
471 P.2d 675 (Ct. App.1970). We do not read
Guy to state any
requirement contrary to the New Mexico decisions cited in this paragraph.
{20} Defendant does not claim
that his plea was unintelligent or involuntary; his claim was limited to the
contention that his plea was invalid because of the absence of specific
reference to the privilege against self-incrimination and the right to confront
witnesses. We add that the record affirmatively shows an intelligent and
voluntary plea. Defendant pled guilty to burglary in exchange for dismissal of
charges of aggravated burglary and burglary while armed with a deadly weapon.
The plea was a result of a plea bargain. Defendant was informed that he could
be sentenced to the penitentiary if the plea was accepted. He was told that he
had a right to a jury trial with the State being required to prove what
defendant actually did. Defendant denied that anyone had promised what the
trial court would do if the plea were accepted. Defendant originally denied
that his entry into the dwelling house was with the requisite intent for the
crime of burglary, but after consultation with his counsel, admitted the
requisite intent. This showing sustains the validity of the guilty plea.
Sentence as Habitual Offender
{21} This issue involves the
application of the sentencing provisions of § 40A-29-5, N.M.S.A. 1953 (2d Repl.
Vol. 6) to defendant's convictions. Paragraph A states the enhanced sentence
for a second felony conviction; Paragraph B states the enhanced sentence for a
third felony conviction. Defendant was sentenced on the basis of a third
conviction; he asserts this was error. We agree.
{22} Defendant's first
conviction was the burglary conviction in 1973. His second and third
convictions were for robberies committed on the same day, approximately five minutes
apart, with different victims. We are not concerned in this case with whether
the two robberies were a unified course of events or unrelated crimes.
State
v. Ellis, 88 N.M. 90,
537 P.2d 698 (Ct. App.1975);
State v. Sanchez,
87 N.M. 256,
531 P.2d 1229 (Ct. App.1975).
{23} Our concern is with the
rule announced in
French v. Cox, 74 N.M. 593,
396 P.2d 423 (1964).
French
held that under our prior habitual offender statute "each of the prior
convictions [must] precede the commission of the principal offense". We
applied this rule in
State v. Ellis, supra, when considering § 40A-29-5,
supra.
{24} Defendant's enhanced
sentence for a third felony requires that the first robbery be counted as a
second felony conviction. Conviction for this robbery did not precede the
commission of the second robbery (the third felony). Defendant's enhanced
sentence under the habitual offender statute should have been on the basis of a
second felony, § 40A-29-5(A), supra.
{25} The foregoing does not
dispose of the sentencing problem. The record shows that prior to the habitual
offender proceedings, defendant was given consecutive sentences for the two
robberies. Neither of these sentences was vacated before the habitual sentence
was imposed. The sentence for the second robbery should be vacated before the
enhanced sentence under § 40A-29-5(A) is imposed.
Lott v. Cox, 75 N.M.
102,
401 P.2d 93 (1965);
State v. Bonner, 81 N.M. 471,
468 P.2d 636 (Ct.
App.1970).
{26} The result under the
foregoing will be that defendant's sentence for the first robbery remains in
effect. His sentence for the second robbery will be vacated and an enhanced
sentence under the habitual offender statute imposed under § 40A-29-5(A),
supra, for the second robbery.
{27} The judgment that
defendant is an habitual offender is affirmed. The sentence as an habitual
offender is reversed. The cause is remanded for entry of a new sentence in
accordance with the views expressed herein.
HENDLEY and SUTIN, JJ., concur.