STATE V. HAAR, 1980-NMCA-065, 94 N.M.
539, 612 P.2d 1350 (Ct. App. 1980)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
STEPHEN THOMAS HAAR, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1980-NMCA-065, 94 N.M. 539, 612 P.2d 1350
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY COLE, Judge.
Motion for Rehearing Denied May 6,
1980; Petition for Writ of Certiorari Denied June 18, 1980
John L. Walker, Albuquerque, New Mexico,
Attorney for Defendant-Appellant.
Jeff Bingaman, Attorney General, Ray
Padilla, Asst. Attorney General, Frank A. Murray, Asst, Attorney General, Santa
Fe, New Mexico, Attorneys for Plaintiff-Appellee.
Andrews, J., wrote the opinion. WE CONCUR:
William R. Hendley, v., Mary C. Walters, J.
{*540} ON MOTION
FOR REHEARING
The Defendant-Appellant has filed a Motion for Rehearing. We
grant the Motion for Rehearing. The former opinion is withdrawn and the
following is substituted.
{1} Defendant was charged in
magistrate court in two counts: one count of criminal damage to real or
personal property having a value of less than $1,000 in violation of §
30-15-1,
N.M.S.A. 1978, and a second count of aggravated battery, a misdemeanor, in
violation of § 30-3-5(A) and (B), N.M.S.A. 1978.
1
A jury convicted defendant of criminal damage to property and, rather than
aggravated battery, the lesser included offense of battery, a petty
misdemeanor, and he was sentenced to 90 days on each count, to be served
consecutively.
{2} The defendant appealed to
the district court where he requested, but was denied, a jury trial. He was
tried by the court and was convicted and sentenced to six months on each
original count (criminal damage to property and battery), to be served
concurrently. He appeals, contending first that an accused is entitled to a
trial by jury in all cases where the aggregate penalty authorized by statute is
in excess of six months. Secondly, he claims that the trial court erred in
refusing to permit his inspection of the recommendations contained in a
presentence report.
{3} Defendant argues first
that a jury trial is required by the Sixth Amendment of the United States
Constitution where a defendant is on trial for multiple offenses, each of which
individually has a statutory penalty of less than six months, but where the
potential aggregate penalty exceeds six months imprisonment.
Codispoti v.
Pennsylvania, 418 U.S. 506, 41 L. Ed. 2d 912, 94 S. Ct. 2687 (1974). However,
the real issue presented is whether, after a trial by jury in magistrate court,
one is entitled to a jury in a trial de novo in district court. He is not so
entitled.
City of Clovis v. Dendy, 35 N.M. 347,
297 P. 141 (1931);
See
Ludwig v. Massachusetts, 427 U.S. 618, 49 L. Ed. 2d 732, 96 S. Ct. 2781
(1976). Under the procedure attacked herein, the defendant was afforded two
opportunities to avoid a conviction in a hearing of facts -- the first by a
jury and the second by a judge. Such a system is acceptable if, in the de novo
proceedings, the defendant does not ace exposure to a sentence that is longer
than the sentence received in the magistrate court.
See Baldwin v. New York,
399 U.S. 66, 26 L. Ed. 2d 437, 90 S. Ct. 1886 (1970);
Ludwig, supra.
{4} Clearly, according to
Baldwin,
whenever a defendant is exposed to a term of confinement of over six months, he
is entitled to a jury. It makes no difference that this exposure is in the
context of a de novo trial. However, if the judge in the de novo hearing is not
empowered to sentence anew or if he is prohibited from enhancing the earlier
penalty, then a jury need not be afforded. In this instance it can truly be
said that the de novo appeal is an appeal proceeding with a second opportunity
for the defendant to present a factual defense. In this context, the defendant
is not entitled to two jury trials.
{5} Defendant argues that
under
City of Farmington v. Sandoval, 90 N.M. 246,
561 P.2d 945 (Ct.app.
1977), he could receive a greater sentence when he appealed and was, therefore,
entitled to a jury trial de novo in district court. Reliance on that case is
misplaced.
City of Farmington v. Sandoval, supra, deals with an appeal
from a municipal court and not a magistrate court. Our statutory provisions for
those two courts are different. For appeals from the municipal courts, §
35-15-8, N.M.S.A. 1978, provides for the imposition of "the same, a
greater, or a lesser penalty as that imposed in the municipal court."
However, the corresponding provision governing appeals from the magistrate
courts, §
35-13-2, N.M.S.A. 1978, is silent as to penalty.
{6} The history of this
section gives an indication as to how this gap should be filled. Section
36-15-3, N.M.S.A. 1953 (1968 N.M. Laws, ch. 62), provided for "the same or
a
{*541} lesser penalty", but in
1975, language similar to that of the section dealing with municipal courts was
adopted: "the same, a greater, or a lesser penalty as that imposed in the
magistrate court." 1975 N.M. Laws ch. 212. However, two days later,
following the same legislative session, our present version of the section
which is silent as to penalty, was approved by the Governor. 1975 N.M. Laws,
ch. 242. In light of this history, we cannot treat appeals from magistrate
courts in the same way as those from municipal courts; nor, with the
intentional removal of the language which permitted it, can we conclude that on
appeal the district court can impose a greater penalty than that imposed in
magistrate court.
See State v. Prince, 52 N.M. 15,
189 P.2d 993 (1948).
Because the district court has only limited jurisdiction on appeals from the
magistrate courts,
see Barruel v. Irwin, 2 N.M. 223 (1882), there must
be expressed statutory authorization for every action taken by a district judge
in de novo appeals.
Compare, State v. Mann, 94 N.M. 276,
609 P.2d 723,
1980.
{7} More significantly, in
this case the jury had acquitted the defendant of the greater offense of
aggravated battery and convicted him only of the lesser included offense of
battery. Even under
State v. James,
93 N.M. 605,
603 P.2d 715 (1979),
defendant could not be put in jeopardy again for aggravated battery after a
jury had acquitted him of that degree.
See State v. Tanton, 88 N.M. 333,
540 P.2d 813 (1975).
{8} Finally, we address
ourselves to the claim that the defendant is entitled to the entire presentence
report. Defendant's claim is that under N.M.R. Crim. P. 56(b), N.M.S.A. 1978,
the trial court erred in withholding from him the portions of the probation
department's presentence report which contained its specific recommendations.
Next, he claims that under
Gardner v. Florida, 430 U.S. 349, 51 L. Ed.
2d 393, 97 S. Ct. 1197 (1977), he is entitled even to "confidential
materials" in the presentence report.
{9} Although affidavits from
defense counsel and another attorney appear in the court file forwarded on
appeal which purport to establish a prior request to the judge for the full
presentence report, we have said that statements of defendant or his counsel do
not establish the record.
State v. Lord, 91 N.M. 353,
573 P.2d 1208 (Ct.
App. 1977). However, because the right to inspect the presentence report is a
right granted by Rule 56(b), it is a matter that should be discussed.
{10} A defendant has to be
allowed to effectively challenge the reliability of material information about
him introduced at a dispositional hearing.
U.S. v. Tucker, 404 U.S. 443,
30 L. Ed. 2d 592, 92 S. Ct. 589 (1972);
see State v. Montoya, 91 N.M.
425,
575 P.2d 609 (Ct. App. 1978). However, there is no claim that information
was withheld from defendant. Rather, he claims that he should know the
recommendations of the probation office.
{11} Initially we note that
such disclosure is not constitutionally mandated.
Gardner v. Florida, supra,
applies only to capital punishment cases and concerned withheld information as
opposed to mere recommendations when the confidential information was never
sent up to the reviewing court. In those three significant ways, this case is
different.
{12} Good policy reasons
exist to keep this recommendation confidential. First, it aids the court in
terms of uniformity and equal sentencing -- the probation office being a
repository of information to achieve the goal of making the punishment fit the
crime in each case. Second, if a judge treats a defendant in a manner more
lenient than that recommended, the probation office may encounter difficulty in
supervising that individual as a probationer or a parolee. Third, the person
who would benefit most from disclosure of the information would be counsel. He
could prepare or not, depending on what recommendation is given. Counsel should
always be prepared to do his best to aid his client at sentencing.
{13} Finally, in regard to
concerns that the trial court might abuse the process without full disclosure
-- in our view, this concern is removed when the entire report is available, as
in other in-camera inspections, for this court to review.
See N.M.R.
Evid. 510(C), N.M.S.A. 1978;
compare State v. DeBarry, {*542} 86 N.M. 742,
527 P.2d 505 (Ct. App.
1974);
State v. Pohl, 89 N.M. 523,
554 P.2d 984 (Ct. App. 1976).
{14} In the instant case, the
entire report forwarded to this Court discloses factual summaries with the
recommendation. All this information is contained in the portion of the
presentence report which the defendant's attorney reviewed. Under these facts,
we see no Rule 56 or due process violation when the trial judge refused to show
the recommendation of the probation department to counsel.
{15} In conclusion, we hold
that the district judge may not enhance the sentence received in magistrate
court, and that under Rule 56(b), the trial court may withhold the portions of
the probation department presentence report which contains its specific
recommendations. The recommendations are confidential.
{16} The defendant's
conviction is affirmed, however, we remand to the district court for proper
sentencing.
WE CONCUR: William R. Hendley, and Mary C. Walters, JJ.
1
The statutory penalty for the first count is imprisonment for a term not to
exceed six months, and for the second, imprisonment for a term to exceed a
year.