STATE V. RICHTER, 1979-NMCA-050, 93 N.M.
55, 596 P.2d 268 (Ct. App. 1979)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Timothy RICHTER and Joseph Martinez,
Defendants-Appellants.
COURT OF APPEALS OF NEW MEXICO
1979-NMCA-050, 93 N.M. 55, 596 P.2d 268
Anthony F. Avallone, Las Cruces, for
defendants-appellants.
Jeff Bingaman, Atty. Gen., Michael A.
Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
HERNANDEZ, J., wrote the opinion. LOPEZ
and ANDREWS, JJ., concur.
{1} Defendants, who were
jointly tried, appeal their conviction of burglary, Section
30-16-3(B),
N.M.S.A. 1978 (formerly Section 40A-16-3(B), N.M.S.A. 1953 (2d Repl. Vol. 6)).
{2} On December 6, 1977,
defendants entered a pawn shop in Las Cruces, each carrying a tape deck that he
offered to the saleslady. Whether for pawn or sale is not disclosed in the
record. Detective Tafoya of the Las Cruces Police Department happened to be in
the pawn shop at the same time checking pawn tickets. The saleslady refused the
offer and the defendants left. After they departed she commented to the officer
that it was unusual for two individuals to come in together with the same item.
The officer went outside and approached the defendants, who were just getting
into the same vehicle. After identifying himself, he requested their
identification and questioned them concerning the tape decks. Their
identification showed that they were students at the New Mexico State
University. Each stated that he had purchased a tape deck at a flea market in
Albuquerque. One of the tape decks had a social security number engraved on its
which did not match that of either defendant. The officer, in addition to
calling this to their attention, commented that one of the tape decks was
brand-new. After advising them of their constitutional rights, he asked them to
accompany him to the police station. A subsequent check disclosed that the tape
deck with the social security number engraved on it had been stolen from an
automobile on the campus of New Mexico State University. An investigator from
the University Police Department was called to the station. After he arrived he
questioned the defendant Richter in one room while Detective Tafoya questioned
Martinez in another. Richter confessed that he and Martinez had stolen one of
the tape decks. Martinez in turn confessed, after being told about Richter's
confession, and in addition confessed to having stolen the other tape deck as
well.
{3} The defendants did not
request separate trials and at trial, over objections, their statements were
admitted.
{4} Defendants allege four
points of error. Point two will not be considered because a motion to amend the
docketing statement was not granted because it was not timely filed. In spite
of this, the point was briefed and a motion by the State to strike it from the
brief was granted. The other points will be considered in sequence.
{5} This first point is that:
"Where there is no corroborating evidence, is it
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prejudicial error violative of the sixth amendment to allow into evidence
confessions from two joint defendants in their joint trial where neither
defendant takes the witness stand." The defendants argue that the only
witness whose evidence could provide corroboration of the corpus delicti was
not transcribed. Defendants' counsel is charged with the duty of seeing that
all parts of record necessary for a review of the errors claimed are included
in the transcript.
State v. Duran, 91 N.M. 756,
581 P.2d 19 (1978).
Absent a showing in the record to the contrary it will be presumed that the
trial was regularly conducted.
State v. Gilbert, 78 N.M. 437,
432 P.2d
402 (1967). We therefore presume that corroborating evidence of the corpus delicti
is in the missing portions of the record.
{6} Defendants further
contend that it was error to admit their confessions because the confession of
the one was hearsay as to the other and violative of his Sixth Amendment right
of confrontation, since neither took the stand. It is necessary to point out
that the confessions established all of the elements of the crime of burglary
and each defendant implicated the other. The defendants' contention is correct.
There was a violation of the
Bruton rule: The confession of a
codefendant, who does not testify, is hearsay as to the other defendant but
more importantly violates his right of confrontation guaranteed by the Sixth
Amendment.
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L.
Ed. 2d 476 (1968). Not every constitutional error compels reversal if it can be
said to be harmless. However, "before a federal constitutional error can
be held harmless, the court must be able to declare the belief that it was
harmless beyond a reasonable doubt."
Chapman v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
{7} This is a matter of first
impression in the appellate courts of this State, i.e., the admission of the
confessions of codefendants where neither takes the stand. Since the error was of
a federal constitutional right, we look to the federal courts for guidance.
Although we encountered some cases to the contrary we agree with the following:
United States ex rel. Catanzaro v. Mancusi, 404 F.2d
296 (2d Cir., 1968): "The reasoning of Hill [United States ex rel. Hill
v. Deegan, 268 F. Supp. 580 (S.D.N.Y. 1967)] and Bruton is not
persuasive here. Both of those cases involved a defendant who did not confess
and who was tried along with a codefendant who did. In our case Catanzaro
himself confessed and his confession interlocks with and supports the
confession of McChesney.
"Where the jury has heard not only a codefendant's
confession but the defendant's own confession no such 'devastating' risk
attends the lack of confrontation as was thought to be involved in Bruton."
Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971): "... the
petitioners each made a complete confession and the evidence against each is
also of such proportions as to render harmless any possible effect of admitting
the codefendants confession."
{8} We also believe that the
following caveat must be kept in mind in situations such as this:
United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976):
"The harmless error rule is not a predicate for the admission of evidence.
We expressly disapprove of the suggestion that there is a 'parallel statements'
exception to the Bruton rule in this circuit. Hearsay errors both of
constitutional and of nonconstitutional dimensions will in appropriate cases be
regarded as grounds for reversal..."
{9} It is our opinion that
the error in allowing into evidence that part of Martinez's confession that was
incriminatory of Richter and the part of Richter's confession that was
incriminatory of Martinez was harmless beyond a reasonable doubt considering
the other parts of the confessions and the other evidence recited at the
beginning of this opinion.
{10} Defendants' third point
is: "Was there an unreasonable seizure violative of
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the fourth and fourteenth amendments rendering inadmissible evidence
obtained as a result because: the detention for investigative purposes was
unreasonable."
{11} "A police officer
may, in appropriate circumstances, approach a person for purposes of
investigating possible criminal behavior even though there is no probable cause
to make an arrest. [Citation omitted.]
{12} What are appropriate
circumstances? Officers must have a reasonable suspicion that the law has been
or is being violated. [Citation omitted.]
{13} What is a reasonable
suspicion? Officers must be 'aware of specific articulable facts, together with
rational inferences from those facts,' and these facts and inferences must
provide the basis for the suspicion. [Citation omitted.] Unsupported intuition
is insufficient. [Citation omitted.] An inarticulate hunch is insufficient.
[Citation omitted.]
{14} How is reasonable
suspicion to be judged? The facts and inferences are to be judged by an
objective standard: Would the facts available to the officer warrant the
officer, as a person of reasonable caution, to believe the action taken was
appropriate?" [Citation omitted.]
State v. Galvan, 90 N.M. 129,
560
P.2d 550 (Ct. App.1977).
{15} It is our opinion that
any other reasonably cautious police officer in the same circumstances as
Detective Tafoya would have acted as he did.
{16} Defendants' fourth point
is: "Was there an unreasonable seizure violative of the fourth and
fourteenth amendments rendering inadmissible evidence obtained as a result
because: After identifying the property as stolen, the defendants were not
charged or brought before a magistrate." The answer to this point is
factual. They were taken before a magistrate. Rule 20(d) of N.M.R. Crim. Proc.
provides: "A preliminary hearing shall be held within a reasonable time
but in any event not later than ten days following the initial appearance if
the defendant is in custody and no later than twenty days if he is not in
custody." It was approximately 1:15 p.m. on December 6, 1977, when
Detective Tafoya asked the defendants to accompany him to the police station.
The defendant Richter's statement was completed at 3:35 p.m. and Martinez's was
completed at 3:55 p.m. They were then released. On the following day they
appeared before a magistrate and then released on their own recognizance.
LOPEZ and ANDREWS, JJ., concur.