LOPEZ V. STATE, 1988-NMSC-062, 107 N.M.
450, 760 P.2d 142 (S. Ct. 1988)
JAVIER GARCIA LOPEZ, Petitioner,
vs.
STATE OF NEW MEXICO, Respondent
SUPREME COURT OF NEW MEXICO
1988-NMSC-062, 107 N.M. 450, 760 P.2d 142
ORIGINAL PROCEEDING ON CERTIORARI,
Rozier E. Sanchez, District Judge
Motion for Rehearing Denied September
14, 1988; Writ of Certiorari Denied October 13, 1989
JACQUELYN ROBINS, Chief Public Defender,
BRUCE ROGOFF, Assistant Appellate Defender, Santa Fe, New Mexico, for
Petitioner
HON. HAL STRATTON, Attorney General, GAIL
MACQUESTEN, Assistant Attorney General, Santa Fe, New Mexico, for Respondent
{1} We issued a writ of
certiorari to the court of appeals to review the affirmance of defendant's
convictions. Defendant raised sixth amendment speedy trial and fifth amendment
due process claims and issues concerning hearsay, probable cause, and
insufficient evidence. Upon consideration of the case, we affirm the appellate
court's resolution of all but the last issue, and we remand to the court of
appeals to consider the claim of insufficient evidence on the charge of escape
from custody.
{2} The court of appeals
advised in its notice of proposed affirmance that the evidence at trial was
sufficient to warrant the defendant's conviction on the escape charge. It thus
placed the case on its summary calendar. We agree, as the calendaring notice
indicated that an appellate court must review the evidence in a light most
favorable to the State in determining whether the evidence at trial supports
conviction, and that an appellate court will not substitute its judgment for
that of the jury.
See State v. Lankford,
92 N.M. 1, 2,
582 P.2d 378, 379
(1978). But we are perplexed in determining how the court could have reviewed
the evidence when, on summary disposition, it did not have a transcript of the
trial before it. An appellate court cannot make a determination of the
sufficiency of the evidence when it has not reviewed the evidence presented at
trial unless the facts of the docketing statement clearly establish no doubt of
the sufficiency of the evidence.
{3} Resolution of a case on
summary calendar is appropriate only when the facts are undisputed or when
"the application of legal principles to the facts involved is clear and
where no genuine issue of substantial evidence is involved."
State v.
Anaya,
98 N.M. 211, 212,
647 P.2d 413, 414 (1982);
Garrison v. Safeway
Stores, 102 N.M. 179, 181,
692 P.2d 1328, 1330 (Ct. App.),
cert. denied,
102 N.M. 225,
693 P.2d 591 (1984). When a case is assigned to summary calendar,
the facts in the docketing statement are accepted as true unless
{*451} contested.
State v. Sisneros,
98
N.M. 201, 202,
647 P.2d 403, 404 (1982). The docketing statement, fairly read,
relates that defendant was abruptly awakened by the glare of flashlights in his
eyes and bolted from the trailer because he didn't know who was there and was
afraid he was being attacked by "enemies" in the neighborhood; and that
he was not placed under arrest or in custody until he was tackled and
handcuffed. The State did not file anything to dispute the docketing statement.
The court of appeals had the obligation to order so much of the transcript as
was necessary to resolve the factual issue on the charge of escape from
custody.
See id. at 203, 647 P.2d at 405 (Riordan, J., specially
concurring).
{4} We remand the appeal to
the court of appeals to review the trial evidence regarding whether defendant
was in the custody or control of police officers before he ran from the
trailer, and to determine whether there was sufficient evidence to convict him
of escape.
See NMSA 1978, §
30-22-10 (Repl. Pamp.1984); SCRA 1986,
14-2223.
WE CONCUR: TONY SCARBOROUGH, Chief Justice, DAN SOSA, JR.,
Senior Justice, HARRY E. STOWERS, JR., Justice, RICHARD E. RANSOM, Justice