State v. Helker
545 P.2d 1028
N.M. Ct. App.
1975
Check Treatment

*1 imposed. tax im- The excise tax Therefore,

posed on mobile homes. receipts the sale mobile

gross from exempt inventory held as are

homes receipts gross tax.

from

Taxpayer’s receipts from sale of mobile subject receipts gross

homes tax.

Affirmed.

It is so ordered.- LOPEZ,

HERNANDEZ and JJ.,

cur. Mexico, Plaintiff-Appellee,

STATE New HELKER,

Leatch Allen Defendant- Appellant.

No. 1798. Appeals New Mexico. 2, 1975.

Dec.

Certiorari Denied Jan. 1976. *2 granted

confession. The trial court but wit- any motion defendant did not call Fur- proof. nesses to make his offer ther, testify nor defendant did at trial did he call witnesses. clearly

This court that recognized has defendant has right a constitutional a fаir hearing and a reliable determi- nation on the issue of voluntariness. Simon, Friedland, Morton M. S. Joan Word, 377, 80 N.M. 456 P.2d Fe, defendant-appellant. Santa for (Ct.App.1969)this court stated: Gen., Anaya, Atty. Ralph Toney W. “Defendant has the constitutional Fe, III, Gen., Muxlow, Atty. Asst. Santa stage object at some proceeding plaintiff-appellee. for to the use of the confession to have a fair hearing and a reliable determina OPINION voluntariness; tion on the de issue of a HENDLEY, Judge. termination or uninfluenced the truth falsity of Orte the confession. State v. at- appeals a conviction of Defendant ga, 7, aggravated tempted rape, sodomy and bur- Cox, 591, Pece v. 396 P.2d alleges points reversal glary. He four for Denno, (1964); see Jackson v. 378 U.S. relate to: lack of a volun- (1) which full 908, 1 A. S.Ct. L.Ed.2d confession; inef- tariness on a (2) L.R.3d 1205 (1964). When a defendant counsel; com- (3) fective assistance of say makes it something known he has testify; menting defendant’s failure touching integrity aof claimed con unconstitutionality and, sod- fession, may ap however incredible itas omy statute. court, pear to the trial the defendant Hearing Voluntdriness be heard. had attorney Defendant’s choice.” purported

known of the confession several Gurule, See State a prior nоt file months to trial. He did Gruender, (Ct.App.1972); and State pre motion to within the time (Ct.App.1971). 18, 41-23-18, N.M.S. scribed R.Cr.P. § adopt- Subsequently, our 6, 1972, Supp. (2d Repl. Vol. A. 1953 18(c), supra, provides: ed Rule During 1973). the trial the state offered sup- Filing. Time A motion to “(c) the confession into evidence. Defendant days twenty press shall made within be requested heаring be held out of the unless, upon entry plea, after presence the jury concerning voluntari shown, trial court waives ‍​‌​​​‌‌‌​‌‌​‌​​​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌‍good cause po excused and two ness. rule.” requirement time of this lice officers testified as the voluntari that of criminal Defendant contends rules ness exten confession. Defеndant cannot that set time limitations procedure sively cross-examined officers. constitutionally deprive defendant of testimony and state then moved that the hearing. protected to a voluntariness presented De jury. confession very (1961) was 41(e) fendant then to examine other wit 18 U.S.C.A. moved § pro- Prior Rule nesses as to similar to Rule 18. whether voluntary. The un motion was denied as vided

timely. be- shall be made . The “. . opportunity hearing unless or offer fore

Defendant then moved to make an or exist did not voluntary therefor proof nature grounds was not aware of the for the 1969), denied, (2d Cir. cert. motion, in its but L.Ed.2d may entertаin at or the motion the trial For the reasons in the above enumerated hearing.” proce criminal we hold rules of put dure can a time limitation on the exer 41, supra, has been amend- *3 protected right. cise a constitutionally ed, is a long there line of that prior construed the the effect Assistаnce Counsel Ineffective States, supra. 41(e), In v. United Small point contends that Under this defendant (5th 1968), up- the 396 F.2d 764 Cir. right even if he waived his to have a full a to held a trial court’s denial of motion admissability the confes- hearing on suppress untimely evidence as when suppress sion failure to con- move to suppress motion to was not submitted until stitutes ineffective assistance of counsel. government the evidence at offered a He also contends that failure to offer de- upholding the trial denial court’s requested fense of and submit a instruction the Small court stated: voluntariness, on and dimin- intoxication purposе requir- “The of Rule ished capacity constitutes ineffective assist- ing Suppress Motions be to to introduced ance of counsel. prior is to facilitate a uniform Defendant was not denied his presentation of the facts and law to testify to have at trial witnesses jury with as disruptive few intervals on question Defend voluntariness. possible. ‍​‌​​​‌‌‌​‌‌​‌​​​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌‍the trial only ant a was denied to have judicial free to exercise when suppression hearing as discussed a motion is for the time offered first point. However, first not to he chose do during the trial there be where would so for reasons which are not disclosed prejudice defendant, obvious to the the record. We will to second attempt not granting such a disfavored motion.is guess appeal. trial counsel on Counsel fully where counsel was aware repre given wide latitude in his prior op- facts ample to trial and had Moser, sentation of his client. State v. 78 portunity present the motion. [Cita- All the 430 106 tions omitted].” here, including claims the failure re Similarity, States United instructions, quest go to trial tactics States, Jones v. United attorney strategy. An has the exclusive 725, proce power respect and control with

stated: litiga dural and remedial matters over 41(e), provision “. . This of Rule charged. tion he is with which requiring the motion to to be Selgado, 429 P.2d 363 crystallization made before is a does not show Our review of record that requiring decisions this Court as defendant denied the effective procedure, designed to eliminate sistance of counsel. disputes police from the trial over request instruc As to the failure to immediately duct not relevant voluntariness, intoxi tions issues of on the guilt. question of [Citations omitted].” only can capacity we cation and diminished Hamilton, also v. See United States support the record state that the would v. (9th 1972); F.2d 880 United States Cir. State such instructions. See giving Robinson, 1972); (7th F.2d Cir. Armstrong, v. Ceraso, (3rd States v. F.2d 653 United Watkins, 543 P.2d (Ct.App.1973). v. State ; Cranson, 1972) Cir. United States (Ct.App.) denied, (4th 1971), F.2d 123 cert. Cir. case instant 1607, 31 asserts that 92 S.Ct. L.Ed.2d Defendant U.S. Bennett, Kincheloe, compares United F.2d with State States (Ct.App.1974). camera on the voluntariness and admis- We entirely sibility agree. alleged Kincheloe is different of defendant’s case. The distinguished and is from the instant was excused and composite assert- alleged errors held. After the examination cross-ex- approach police ed here do not those Kinche- amination of officers on behalf two State, permis- requested loe. sion to call on his behalf. The Testify Failure tо Comment Defendant’s objected because of defendant’s fail- attempts Defendant elevate comply ure to with Rule 18 of the Rules of by the following statement into a comment suppression Criminal Procedure on of evi- testify. trial court defendant’s failure to dence. Defendant called to the attention That comment states in ap- of the trial court that Rule was not plicable at of evidence gentlemen Ladies and “THE COURT: *4 argument, trial. the district attor- On oral jury, of the at the lunch recess the State ney strongly trial disagreed and won. The had announced rest at that time and court said: defend- coming back this afternoon the any defense ant has chosen not to submit Upon by the admissions made Mr. Wil-

which is his constitutional so to [public liams that he had no- defender] means, they closed, the State . confession tice of this . . testimony, will be no more [there] months, for several the Court dilitory finds that the defense had beеn by no more The statement the court was rights under Rule asserting its [sic] summary happenings in the than a 18 of the Rules of Civil Procedure. not a on defend- It was comment timely ‍​‌​​​‌‌‌​‌‌​‌​​​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌‍filed and . It was not is testify. issue ant’s failure to No against admissibility of this motion California, 380 presented as in Griffin into evidence at this time overruled. U.S. 85 S.Ct. This is reversible errоr. Stat- Proce- Unconstitutionality Sodomy Rule of Criminal thNRules ute dure reads: person aggrieved by A (a) Property. panel majority this abides for a re- may move a search and seizure prior to State

by of this court the decisions suppress its property and to turn Elliott, (Ct. use as evidence. the New Mexico App.1975) certiorari to on deter Supreme A Court. Other Evidence. Suppression (b) confession, settle the constitu ad- by mination Elliott will person aggrieved A statute. tionality question sodomy may move other evidence mission or evidence. such Affirmed.

HERNANDEZ, J., concurs. It is so ordered. SUTIN, J., dissenting. court suppress shall be less, upon good cause [20] (c) Time days after waives the time Filing. made within entry of a shown, requirement A plea, un- twenty trial this rule. SUTIN, Judge (dissenting). ,, receive shall court Hearing. The (d) I dissent. necessary fact any issue of on evidence denied court defendant fair motion. to the decision

hearing admissibility of confession. aрplies to rule this is obvious po- During direct examination of a It has proceedings. pre-trial officer, hearing criminal requested a lice defendant relationship to the admission of evidence must be voluntariness or otherwise made. during Martinez, of a case. P. 379 Ortega, Evi- 104(a), (c) Rule of the Rules of (1966), set Mоise forth 20-4-104(a), (c), dence Justice N.M.S.A.1953 [§ specifically eight circumstances to be con- (Repl.Vol. Supp.)] provides for a determining sidered the court in wheth- admissibility on the of confessions voluntary. er the confession was This de- pertinent during rule trial. The states rests termination within the court’s discre- “Preliminary questions сoncerning tion, ‍​‌​​​‌‌‌​‌‌​‌​​​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌‍but this must be exercised admissibility . . shall evidence State, great with caution. Dodd v. determined (Fla.App.1970). So.2d 235 Uncontrolled Hearings on the confes- discretion for failure to hear the defendant sions shall in all be conducted out of constitutes reversible error. State v. Ar- jury.” the hearing of the add- [Emphasis mijo, supra. ed]. give failed to may Under 18(b) Rule the defendant hearing. a fair It denied defendant suppress the This is move to confession. present right to inadmissi- mandatory. Defendant has an alterna- bility of the confession. trial court challenge tive the admission of the also failed to make a determinatiоn of the 104(c). under When issue of voluntariness made, challenge mandatory it is that the *5 LaCour, 665, In State v. N.M. 84 506 P.2d the jury. shall be conducted absent 1212 (Ct.App.1973), granted we a new public Defendant had a de- choice. The I favored a remand to determine the procedure, fender the not the chose question of In vоluntariness. State Ar- v. pre-trial procedure, accomplish his chal- mijo, supra, a new was granted. lenge of the of the confes- Gurule, 142, State v. 84 500 P.2d 427 N.M. suggest sion. To even that this choice con- (Ct.App.1972), we remanded with instruc- stituted ineffective assistance of counsel tions to vacate judgment, determine the integrity public insult the of the defend- question voluntariness, of and if the deter- er. was ninety days, mination not in made By adoption Supreme Rule 18(b), of discharged. defendant was to be Court did intend not to violate the Due majority opinion The disregards prior Process of the Clause Constitution New Mexico law Rule 18(c) beсause was United as stated in v. Cran- States State subsequently enacted. ford, 294, 83 491 (1971). N.M. P.2d 511 majority opinion The relies on federal When the offers State a confession arising 41(e) out of former Rule evidence, proof the burden of the Federal Rules of Procedure. Criminal State voluntary. to show that it was State oрinion The states: Barnett, 301, v. 85 N.M. 512 P.2d 61 very 18 41(e) (1961) U.S.C.A. § (1973). judge The trial heard evi similar Rule 18. dence support submitted the State in similarity. I cannot find a Section admission only person aggrieved by covered a an un- duty his to hear and consider evidence lawful search and seizure. It allowed a defendant, offered however incredi property unlawfully return might appear. ble it prop- seized and to use of this Id.; Armijo, no choice. State v. 64 N.M. erty as evidence. 431, 329 P.2d inquiry A full must be made as to all the circumstances Each federal cases cited in the obtained, under which the majority opinion pertains confession was to unlawful and inquiry, from this property. determination search and seizure of None of majority opinion them flouts the involves the admission evidence decision instant confession. The case is United States appellate based and the on unlawful search seizure. courts of New Mexico. years age. Helker is 19 He reсeived procedure in the trial court used three consecutive sentences the State “did afford a reliable determination Penitentiary: ag- for (1) years 10 to 50 of the confession offered voluntariness gravated burglary, years 2 to 10 for (2) trial,” ade at the and “did not attempted rape, years 2 to 10 for quately free protect to be [Helker’s] life, sodomy. liberty, His as well as upon of a based a coerced con conviction subject the rack and stake. We cannot fession therefore withstand do not know factors caused his what Proc constitutional attack under Due departure frоm it his normal life. Was ess the Fourteenth Amendment.” Clause of environment? family? His His schools? Denno, 368, Jackson v. Now, society? His church? absent His 1774, 908, 916, 1 A.L.R.3d 1205 L.Ed. help depths despair, society, from in the re Jackson has been followed or but public fights one defender for ferred Mexico at New least twelve his rights. 400, Lujan, times. v. State N.M. opinion space dissenting Time and in a Barnett, (1975); supra; v. P.2d 1112 State great quotations not allow from Gurule, LaCour, State supra; v. State v. judges. From coun- the foundation of our supra; Paul, ‍​‌​​​‌‌‌​‌‌​‌​​​​​​​‌​​‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌‍N.M. P. State try, protected our courts have life and lib- 2d 797 (Ct.App.1972); Cranford, State v. erty under the of the United Constitution supra; Gruender, State v. 83 N.M. Every рerson charged with a States. (Ct.App.1971); P.2d 1082 crime is entitled to a fair free from LeMarr, reversible error. Burk, State v. majority refuse to follow State v. Word, (Ct.App.1971); State Elliott, (Ct.App. (Ct.App.1969); *6 sodomy stat 1975) where we declared the Cox, Ortega, supra; Pece v. ute unconstitutional. 422 (1964). Today, for another judge one rеmoved need not make for- joined returning in to the Judge Hendley opinion, mal findings of fact or write an majority have a pre-Elliott case law. that the conclusion vol- justice, when duty and to do so untary appear from the record with it, It is they see the return. demands clarity. unmistakable Here there said, “a аbuse as the Elliott blatant dissent absolutely ruling been on that issue power.” judicial impossible it is therefore to know granted certiorari judge thought whether confes- footsteps in the Elliott and may follow sion voluntary if the or considered may reverse on Hendley dissent. It it guilt. as such in its determination of grounds not determine оther Georgia, Sims v. State not, perhaps question. If it does stitutional will so case. it this Sims has been followed New Mexico enough to re- legislature wise four Lujan, supra; times. State v. adopt a peal sodomy the old statute LaCour, supra J., ; (Sutin, concurring) re- constitutional all new one meets City Butt, Albuquerque Helker will Elliott and quirements. But (Ct.App.1972); did crime which punishment for a suffer Gruender, supra (Sutin, J., law, constitutional dissenting). exist and which

problem appellate courts of this State volved. attorneys Some courts and district studiously pursue refused to determine. vehemently. By this course deny- ing person away a fair chipping Today, are wе faced with what some segments Constitution, begin we people call “a waive of terror in the crimi- slow return good days old when men nal grown slowly It has two field”. feared witches and burnt women. But years. begins hundred with adolescence. judges today, preach who doctrine People cry aloud for a return to the feu- dissenting opinions, severely criticized. “punishment dalists doctrine of to fit the crime”, except their in- let it when own child is So be.