*1
wеight,
along
diabetes
fully
my prior
injury
and
with
lami-
aware of
back
and
nectomy and recurrent
sprain,
back
that
discussing my
in
surgery
conversation
ab-
any signifi-
there is little likelihood for
my
sence from work
of
diabe-
as
result
cant improvement.”
subsequently acknowledged
tes and then
fully
that
of this сondition
aware
are, in my opinion,
There
two material
permit
me to
subsequently
in
issues
which must
of fact
be resolved at the
assembly area.”
work
the final
trial of this matter. The first
is whether
defendant, Lectrosonics,
Inc.,
knew
Mr. Ulibarri denied
Both Mr. Gilmer and
plaintiff’s prior
injury
about
back
аnd sur-
plaintiff’s back
any prior knowledge about
is,
gery. The
if it is determined
second
that
injury
surgery.
and
they
plaintiff’s injury,
knew of
did
false
makes
state-
employee
an
“When
provided
waive the
by
defense
Martinez?
employment,
for
application
in his
ments
at the
application
employ-
is voidable
In- an
filed in
affidavit
the trial court in
employer
option
may
dis-
er’s
and
opposition
motion for sum-
charge
employee.”
Swanson v.
mary the plaintiff
stated the following,
Manufacturing Company,
among
things:
American
other
(Tex.Civ.App.1974).
S.W.2d
“5.
employed by
I was
Leсtrosonics
January
Lectrosonics,
from
of 1975 until
of
defendant,
Inc.,
June
1976.
If the
knew
Gilmer,
Mr.
P.
Thomas
Jr. was advised of
previous
plaintiff’s
injury
of the
and sur-
my prior
injury
surgery.
back
and
I do gery
discharge
and elected not to
her it
exactly
not know
how he knew of this might be determined
that
pro-
defensе
presume
but I
of it
he knew
from
by
vided Martinez was waived.
Dorothy
originally
Moore
had
recom-
waiver is the intentional relinquish-
“[A]
mended me who was fully familiar with
ment
abandonment of
known right,
injury
surgery and from Celeste
and that
the act
of waiver
be evi-
McLeod who worked in the office.
by
denced
well
conduct as
as
express
6.
I have been a
for many
diabetic
Cooper
words.”
Albuquerque
v.
City
years and did lose some time from work
Commission,
me about off work and asked if it my injury, was in connection with back
questioned me injury about the back
the surgery, definitely and did know all injury surgery
about the back year prior six to a injury months to the June, 1976. Mexico, STATE of New 7. When there was opening an in the Plaintiff-Appellee, area, assembly final I promot- asked to be ed to area where I work would CARTER, Garcia, Donald Connie Martin that time Mr. Ted Uli- barri, Defendant-Appellant. supervisor and Mr. Thomas P. Gilmer, my discussed going into the final No. 3934. assembly area approve and refused to Mexico. New Appeals Court my prior injury because back be- cause wоrk required lifting heavy Sept. cabinets.
8. Approximately prior year one my injury June, 1976, Mr. Thomas
Gilmer acknowledged to me that he was
OPINION
LOPEZ, Judge.
aby
jury on an
was tried
Defendant
counts,
charging
aggra-
three
information
larceny
battery
on a
burglary,
vated
police
acquitted defend-
jury
officer. The
II,
larceny charge,
ant on count
the
and on
III,
charge.
the
He was
battery
count
burglary,
guilty
found
of commercial
a less-
charge
aggra-
er included offense to the
burglary.
appeals
vated
Defendant
from
We affirm.
verdict.
(1)
The issues for decision are:
whether
in
the
court erred
to allоw
trial
defendant,
C,
41-1-1
pursuant to §
N.M.S.
A.1978, to recant and revoke statements
made
him to a
officer while he
(2)
the
physician;
was under
care of a
supports
substantial
whether
evidence
the
burglary conviction.
issues listed in
Other
briefed;
docketing
were not
the
statement
consеquently,
appeal,
on
are deemed
Ortiz,
abandoned. State v.
(Ct.App.1977).
P.2d 113
Defendant’s
Statements
Revocation
Independent
Firefighters
Order
burglarized during
early
morning
was
18, 1977.
hours
December
Defendant
was
associate member
the club and
an
security
guard.
there as
employed
was
investigating a call
a silent
While
company,
Albuquerque
officers of
alarm
Department
defendant in-
Police
arrested
premises
approximately
at
side the club’s
previously
on
mentioned date.
4:00 A.M.
arrested,
incurred
While
defendant
injuries.
was tak-
several head
there,
signed
he
hospital,
while
en to a
orally
indicated
rights
a waiver of
form and
Defendant admit-
wished to talk.
ted that he left the club
van
his
and some
get
1:45 or 2:00 A.M. to
club,
Upon,
he stat-
returning
tools.
south
open
ed
he broke
door and
where
found several
then the bar cabinet
stated
he broke
money sacks. He also
by drilling
open
slot machines
several
Resnick, Albuquerque,
Mort
for defend-
the locks.
ant-appellant.
18, 1978,
filed a “No-
April
On
defendant
Gen.,
Atty.
Bingaman,
Jeff
Charlotte
pur-
tice of Revocation of Oral Statements”
Roosen,
Gen.,
Hеatherington
Asst. Atty.
hearing
suant to 41-1-1 C. After
§
Fe,
held,
mo-
plaintiff-appellee.
Santa
for
trial court denied defendant’s
tion
trial,
to revoke. During
argument
The crux of
is that
state-
defendant’s
ments were admitted into
as it is used
“any
evidence over
the term
statement”
only
all state-
objеction.
applies
Subsection
appeal,
On
C
defend-
litigants but
by potential
ments made
civil
argues
ant
that the court erred in refusing
by potential
also to all those
criminal
made
to allow him to revoke these statements.
*3
disagree.
We
defendants.
Section 41-1-1 prоvides:
Settlements,
41-1-1
releases and state-
of a statute must be
details
injured
ments
patients;
germane
subject
acknowledg-
or related to the
matter
required;
expressed
ment
City Albuquerque
notice.
in the title.
Garcia,
776,
585,
71
84 N.M.
508 P.2d
person
A. No
whose interest
is or
IV,
(1973). Additionally, Article
A.L.R.3d 1
become adverse to
person injured
a
re
16 of the New Mexico Constitution
§
is either under the care
person
of a
li-
quires
subject
a
be em
that the
statute
practice
censed to
arts,
the healing
or
braced
The title of the
within its title.
confined to
hospital
a
or sanitarium as a
relies contains
statute on which defendant
patient shall, within
days
fifteen
by
no
made
crimi
reference to statements
the date of the occurrence causing the
defendants;
indicates
nal
its title
rather
person’s injury:
releases.
that
it relates to settlements
(1) negotiate
attempt
or
negotiate
to
a Moreover,
Farm Mut.
v. State
in Mitschelen
settlement
injured
with the
patient; or
586,
Co.,
Auto.
N.M.
Ins.
89
(2) obtain
attempt
or
to obtain
gen-
a
denied,
558
(Ct.App.), cert.
P.2d
eral release of liability
injured
from the
legisla
(1976),
this
examined the
Court
pаtient; or
purpose
tive
section and stated:
of the
(3) obtain
attempt
or
to
any
obtain
clear;
the stat
legislative purpose
“The
is
statement, either written or oral from the
injustice to a
prevent
ute was enacted to
injured patient for use in negotiating
hоspitalized
a
or under
claimant while he is
settlement or obtaining
Id. at
555 P.2d
a release.
care of a doctor.”
addition,
in that
at 710.
In
we indicated
Any
B.
agreement
settlement
entered
intent is discovered
legislative
case that the
into, any general release of liability or
examining the statute
as a
only after
any written statement
by any per-
made
examining
relationship
whole. After
son who is
person
under the care of a
subsections,
among the statute’s various
we
licensed to practice
healing
arts or is
voiding provisions
construed the
of subsec
hospital
confined in a
or sanitarium after
light
provisions
tion C in
of the
of subsec
he
personal injury,
incurs a
which is argument
tions A and B. Defendant’s
obtained in
provi-
accordance with the
A
overlooks these definitions. Subsection
sions of
Section
NMSA
[41-1-2
1978]
“any
limits
statement” to one obtained “for
act,
requiring notice and acknowl-
negotiating
obtaining
use in
a settlement or
edgement, may
by
be disavowed
the in-
added.)
a
(Emphasis
release.”
Subsection
jured person within
days
fifteen
after his
provides
any
B
statement not
written
discharge
persons
from the care of the
obtained in
41—1—2N.M.
accordance
§
practice
healing
licensed to
arts or his S.A.1978,
any
“shall not be evidential
release
hospital
sanitarium,
from the
or
(Em
relating
injury.”
court
to the
action
first,
whichever occurs
and such state-
added.)
phasis
denying
In
defendant’s mo
ment, release or settlement shall not be
tion, the trial court construed the statute as
any
evidential in
court
relating
action
to
being limited to civil proceedings. Based
injury.
upon the definitions contained in subsec
Any
C.
agreement, any
settlement
re-
B,
A
tions
wе rule that
the court’s
lease of liability
any
written statement
ruling
Accordingly,
was correct.
we hold
shall
acknowledged
be void unless it
by
is
the court did
not err in
injured
party
a notary public
before
allow defendant
to revoke those statements
who has no interest adverse to the in-
made
him to a
officer while de
jured person.
physician.
fendant was
care of a
under the
Burgla-
rights
Support
Evidence to
form
admitted that he left the
Substantial
1:45
ry
club at
or 2:00 A.M. to
Conviction
get
some
his van and
tools. He also admit-
claims
is
the evidence
that,
club,
upоn returning
ted
to the
support
burglary
his
convic
insufficient
south door
open
broke
and then the bar
Specifically, he
the evi
tion.
contends that
money
cabinet where
found several
finding
is insufficient
support
dence
Finally,
sacks.
he admitted that he broke
entry
an “unau
that his
into thе club was
open
by drilling
several slot machines
30-16-3,
entry.”
thorized
See
N.M.S.A.
§
evidence,
upon
the locks.
we
Based
1978, Defendant’s contention
on a
is based
fact
rule
trier of
could have
that a rational
testimony
Or
Independent
lack of
that the
found
a reasonable dоubt that
beyond
de-
Firefighters
him
to the
der of
denied
access
into the club was
entry
fendant’s
unauthor-
by-laws, rules,
its
or resolu
policies
club in
Accordingly, we hold that
ized.
there was
In
of such
considering
tions.
the merit
*4
support
to
sufficient evidence
contention,
we must view the evidence
burglary conviction.
ver
light
jury’s
most favorable to the
foregoing,
upon
Based
we affirm de-
indulge
dict and resolve all conflicts and
all
conviction.
fendant’s
permissible inferences in
this ver
favor of
IT IS SO ORDERED.
1,
Aubrey,
dict. State v.
569 P.2d
91 N.M.
(1977);
Fiechter,
74,
411
v.
N.M.
State
89
J.,
WOOD,
concurs.
C.
(1976).
addition,
557
547 P.2d
In
we must
SUTIN, J., specially сoncurs.
determine whether there is
evi
sufficient
to justify
dence
a rational
trier of fact to
SUTIN, Judge (specially concurring).
beyond
guilt
find
a reasonable doubt with
I concur.
every
to
respect
element
to a con
essential
government,
form
a
In our democratiс
viction. See Jackson v. Virginia, 443 U.S.
presumed
is
to be innocent until
defendant
307,
2781,
99 S.Ct.
(1979).
ant and while under the care of a taken
physician, though type of relief even me, PROVIDED,
sought is unknown authority good reasoning or lawyer has support rely the motion. But on the taking”
“oath section of the Tort Release appeal Act and to from a denial of the puerile. motion is sense dictates Cоmmon absent, legislative intent is but com- very mon is sense uncommon. To seek to protective transform a civil device for a person physician under the care of device,
protective authority criminal absent good reasoning, comport does not gоod required lawyers. standards defense Defendant’s Brief-In-Chief followed the Civil, Criminal, Appellate not the Rules of
Procedure. among appellate judges
I do stand alone judicial opinion who use the as a vehicle *5 raising directed to trial standards of appellate practice among and members of Many opinions the Bar. such have been published. large written and A number “Correspondence have been written as Opinions” response to Memorandum
Opinions. practice This provoke does ad- cri- among lawyers. verse comment But a sis now exists in the United States сompetent appellate trial and
reference criminal, lawyers, appel- both civil and accept judges late should not hesitate to eradicating their share of the burden in plague. Mexico, of New
STATE Plaintiff-Appellee, URIOSTE, Jr., Sena, James Frank Orosco, Defendants-Appellants. Ruben
Nos. 4008. Appeals Court of of New Mexico.
Sept.