State v. Barboa
506 P.2d 1222
N.M. Ct. App.
1973
Check Treatment

*1 Plaintiff-Appellee, Mexico, New STATE of BARBOA,

Tommy “Brains”, a/k/a Defendant-Appellant. New Mexico. Wells, appel- M. Albuquerque, for John

lant. Norvell, Atty. Gen., Ronald Amberg, Van

for appellee.

SUTIN, Judge. Defendant was convicted of second de- gree 40A-2-1, murder. Section N.M.S.A. (2nd Repl.Vol. 6).

We affirm.

Defendant contends (1) quashed; clos- (2) should have been state’s ing permit- prejudicial; *2 676 41-6-47, Repl. (2nd N.M.S.A.1953 rule was revers- Section of exclusion

ting violation repealed, supra. 6), Vol. ible error. witness, has the ex- a who violated Can Indictment (1)Failure Quash to rule, testify in rebut- be allowed to clusion Not Error. was tal? Defendant claims a matter with held that is We have fails quashed it been should have the trial court. State in the discretion of state, .particularity, 'specificity and to with Warner, 642, 495 P.2d 1089 v. 83 N.M. true, Romero, would which if taken as consti facts 69 see State v. (Ct.App.1972); a crime. 187, tute v. (1961); State N.M. 365 58 Carrillo, 257, (Ct. P.2d 537 82 N.M. 479 of charged the offense The indictment ; Sanchez, App.1970) v. 80 N.M. Sweitzer given of- by using to the the name murder 408, (Ct.App.1969). statute, re- and the indictment creating of the statute ferred to the section claims there was Defendant and sufficient This was valid the offense. allowing the testimo abuse of discretion 41-6-7, Repl. (2nd under N.M.S.A.1953 § predicated on ny. abuse is The claimed Turner, 450, 468 6). 81 N.M. Vol. State exclusionary rule had the the fact that 41-6-7, (Ct.App.1970). P.2d 421 Section testimony the the of wit been invoked and rule, repealed by a Su- supra, court was prejudicial to defendant. We ness was 1, preme July effective Court Order disagree. and filed was returned The indictment had testified that deceased The witness 1972, 23, prior repeal the to the of March gun and he had never never owned present rules see section. For §§ above possession. gun deceased’s Simi- seen a 41-23-7, 41-23-8, 41-23-5, N.M.S.A.1953 given by four other testimony lar had been 6, 1972). (2nd Repl. There was Supp. Vol. testimony not the was witnesses. Since quash the indict- no error for failure to testimony testimony in the new the ment. prejudice the given defendant. did not nothing showing the There is cumulative Closing Argument (2)State’s testimony prejudicial. was effect of this Prejudicial. was not Thus, of is no basis for the claim there the claimed have reviewed We prejudice. during the state prejudicial remarks of testimony was allowed The fact that the jury. defend closing to the exclusionary rule had been after the any time, the object at and ant failed to allowance of the voked was not error since subject not to review. claimed error testimony of the within the discretion 393, Polsky, P.2d 257 State v. 482 trial court. (Ct.App.1971), denied cert. 404 U.S. of the find no abuse discretion We 30 662 S.Ct. L.Ed.2d Though in the record here. below, the matter of vio- Allowing Testimony we believe Un- Witness’ to be of suf- lation of the rule exclusion der Error. of Exclusion Rule was not importance suggestion. warrant ficient to trial, beginning the of the rule At permit to required to leave The ultimate decision whether witnesses invoked which having after violated testify the to courtroom and remain outside witness the discre- to the the sound the called rule remains within until witness was courtroom However, defendant, the trial the testify. objection the tion of trial court. of Over the witness out fa- court should examine trial court the state to call the any testi- presence jury prior in the deceased had been ther of the who mony, determine whether the in order to during the trial as a rebuttal courtroom unintentional. was intentional or day trial. The wit- violation witness on the last State, See, example, So. indictment. Rollins v. listed ness was (Fla.App. 1972). Whether vio 2d inadvertent, or deliberate or

lation was

whether such violation was condoned

counsel, are factors to be considered deciding

trial in or whether to admit testimony.

exclude the witness’

Affirmed.

It is so ordered.

HERNANDEZ, J., concurs.

WOOD, J., concurring. specially C.

WOOD, Judge (specially concur- Chief

ring).

I concur in the result. I also concur opinion exception with the of the last Cox, Reynolds, Donald Easley C. & paragraphs. two Hobbs, appellant. for join I do not paragraphs in the last two Norvell, Gen., Atty. Randolph they discuss matters which were Felker, B. for as issue in this case and appellee. which necessary are not for a decision of presented. Further,

the issues there is no factual basis for the discussion. The vice of the last paragraphs only two is not WOOD, Judge. Chief they advisory opinion; are an in this right The per- issue defendant’s to a they are an advisory opinion. unsolicited copy sonal transcript proceed- of a Telephone See Bell Laboratories v. Bureau ings alleges in his criminal case. he is Revenue, 428 P.2d 617 indigent; this is not controverted. His “ sought motion District . Court transcript proceed-

the official records and ings in Criminal Cause Number . . be . used the Pe- preparing complete, proper titioner petition and perfect for to be filed in Writ Petitioners behalf for Petitioner’s de- [sic] against of said Criminal conviction STATE of New Mexico, Plaintiff-Appellee, Cause Number 4034.” The trial court de- nied the motion the basis that it did Wayne TOUSSAINT, Michael Defendant- adequate g'rounds set forth for relief. We Appellant. agree. Judgment County and sentence in Lea Court of of New Mexico. Cause No. 4034 was entered December 16, 1973. 1970, and no appeal taken within time for Defendant does transcript not claim that desires for he purposes appeal. only of a direct requesting dication as to the reason for transcript comes counsel. Defend- from ant’s brief in this tran- court asserts the “ script requested . . . either