*1 Plaintiff-Appellee, Mexico, STATE New SILVER, Defendant-Appellant.
Robert Lee
No. 646. Appeals Mexico. New July 23, 1971.
Harold Parker, H. Albuquerque, for de- fendant-appellant.
David Norvell, Atty. L. Gen., C. Emery Cuddy, Jr., Joseph Whelan, Patrick Jr., Fe, Attys. Gen., Asst. plaintiff- Santa appellee. OPINION WOOD, Judge. Chief Silver was convicted and sentenced for attempted robbery. armed He was found guilty attempted ap- murder. He peals. We affirm.
Silver contends (1) that
the trial court
erred
failing
compel
an election or
severance of
of attempted robbery
and attempted murder because Silver was
denied
opportunity
to remain silent and
testify against
attempted
himself in the
robbery
charge;
(2)
statu-
tory
attorney
limit of
fee for de-
$400.00
fense counsel for services rendered is a
equal protection
denial of
and due
to Compel
1. Failure
Election or Sever-
court,
In this
he
Silver contends
should
have had
trials on each count. He
argues
testify
the charge
had to
prove
murder to
his innocence.
acquitted. By testifying,
He was
says
he had convicted himself of
*2
1970).
taking
fact that in
the stand
been
The
had
robbery.
a severance
If
armed
behalf,
may thereby
re-
in his
defendant
own
says he
have
granted, Silver
himself,
itself,
not,
attempted
in
es
incriminate
does
charge of
the
silent on
mained
deprived of
therefore,
tablish that defendant
claims,
that
was
robbery. He
Sero,
v.
due
82 N.M.
preju-
trial
State
in one
was
trial
two counts
of
Lind
(Ct.App. 1970);
474 P.2d
v.
State
dicial.
sey,
(Ct.App.
trial,
that he
moved
to
defendant
Prior
1969).
request
of
for sever
The denial
only
each count. The
separately tried on
be
ance
not a
for
unless abuse
is
basis
reversal
in-support of the motion
advanced
reasons
prejudice
of
is shown. State
discretion
being
from
tried
prejudice
to asserted
went
Gunthorpe, supra.
record does not
The
in
Nothing
the motion
co-defendants.
per
prejudice.
establish
se
prejudice
the basis that the two
on
asserts
against
tried at
that
defendant would be
does
record show
Nor
counts
court,
argument
time.
in
the same
defendant makes
this
concerning prejudice,
presented to the
was
Hearing
pre-trial
held
this
mo-
was
on
trial
do
go
court. We
outside
tion,
record
but there is no
of what took
considering
sever
in
for
record
motion
place
the hearing.
at
The trial
or-
court
Andrada,
State
grant-
that each
dered
of
defendants be
(Ct.App.1971).
Since
separate
ruling
ed a
trial. There was
no
pres
record does not show that defendant’s
the claim
there
that
should be a
presented
ent
to the trial
contention
trial
against
on each
of
counts
defend-
court, it
be
here. State
will not
considered
ant
Harrison,
N.M.
trial,
beginning
At the
of his
defendant
(Ct.App.1970).
moved:
thing,
Honor,
Attorney
“The other
Your
is to
Counsel
Limiting
Defense
my
again,
renew
motion
that the counts Fees.
severed.
required
That Mr. Wilson be
facts,
argues, without
today to elect on which
he will
count
statutory attorney
that
fee limitation
proceed
attempted
further on the
murder
indigent
in defense of
$400.00
count
on the
armed robbert
protection and
equal
cases is
denial
And
argument
no new
I
[sic].
Con
process
due
under
States
United
the Court.
simply again say to
I would
is
amount
to
stitution;
that
to limit the
you
my
severely
that
client
prejudiced
a criminal
representation for
poor
invite
inability
because of his
to either exercise
payment provisions defendant. The
right
behalf,
speak
his
to
in his own
in
41-
Act are found
§
has,
which he
or to remain
silent.
6, Supp.
22-8,
(Repl.Vol.
N.M.S.A.1953
two counts prejudice
right,
that
as I
1969).
explained
Court, plus
to the
the other
and due
equal protection
A denial of
reasons for prejudice
gave
that
I
attempt
no
to
process whom?
There
Court earlier.”
has
case
been
defendant in this
show that
The foregoing quotation
all
the record
rights be-
deprived of these constitutional
in support
shows
of his claim that each
his court-
a statute limits the fee
cause
count should
separately
have been
tried.
attorney.
no claim
There is
How the two counts made defendant unable
in this
represented
poorly
defendant was
speak”
either to “exercise his
or to
case.
explained.
“remain silent” is not
indicating how
Here, there are no facts
deprives the
statutory fee
limitation
fact
two
are
the law
joined
not,
equal protection of
itself,
in
one trial does
show defendant
attack
process
legal prejudice
law.
to defendant. State v.
due
Gun
limitation,
statutory
without
against
thorpe,
(Ct.App.
N.M.
showing
continuing
Absent a
reference
facts.
incidents in which Silver in-
constitutional
volved
persons.
how the asserted
violation
different
The attempted
defendant,
presents
applies
the claim
murder
immediately
to the
followed
charge
Hines,
78 of
no issue for
State v.
robbery.
decision.
These circumstances
*3
471,
grant
(1967).
N.M.
the
judge
827
trial
a broad and sound
judicial discretion
highest
of the
order to
judgment
and
is affirmed.
sentence
determine whether
both
should be
It is so ordered.
together
tried
jury.
before one
State v.
Paschall,
750,
N.M.
74
HENDLEY,
(1965).
439
J., concurs.
judge
The trial
denied Silver’s motion.
SUTIN, J., specially concurring.
His action will not be disturbed on review
affirmatively
unless Silver
shows
SUTIN, Judge
concurring).
(specially
was in fact prejudiced in his defense on
specially concur
I
to answer the claims
merits,
the
41-6-38(4), N.M.S.A.1953
§
emphasize
of error and
importance
to
the
(Repl.Vol. 6), and the trial court abused its
of the issues.
discretion,
515,
Gunthorpe,
State v.
81 N.M.
This court
is burdened with Rule 93 521, 469 P.2d
(Ct.App.1970),
160
cert. den.
21-1-1(93),
(Repl.Vol.
N.M.S.A.1953
[§
588,
(1970),
P.2d 309
den.
cert.
4)],
1968,
and
the
Act of
941,
943,
401 U.S.
91 S.Ct.
L.Ed.2d 221
through
41-22-10,
41-22-1
N.M.S.A.
§
§
1953 (Repl.Vol.
Supp.1969).
The record
the
proved
shows
state
Silver
Indigent defendants are entitled to free
guilty
of
robbery beyond
a
representation
appellate
in trial and
work.
reasonable doubt whether Silver testified
appointed attorney
the
If
expert
not an
or not. Silver
does
contend otherwise.
lawyer,
may
criminal
claims of error
not Even if there
denying
was error in
sever-
properly
trial,
during
properly
made
nor
ance, the error was harmless.
Jones
preserved for review.
the
If
claimed error Commonwealth, 457
(Ky.1970),
S.W.2d
decided,
can,
indigent
defendant
cert. den. 401 U.S.
S.Ct.
28 L.
expense
state, continuously
at the
of the
Ed.2d 229 (1971).
appellate
move the trial and
to
courts
speaks against
Another
factor
Silver’s
vacate or set
aside
conviction under
jury acquitted
claim. When the
of
Rule 93.
murder,
proved
it
jury
sidestep
This court should
its technical
apply
able to
to
and
the evidence
follow
ap-
rules and decide all claims of error on
charge
each
by
as instructed
the trial court.
peal
indigent
defense cases.
Sero,
State v.
N.M.
Supreme
As one
has
(Ct.App.1970).
ample
prove
writ-
This
Justice
ten:
prejudicial.
denial of severance was not
As the
operates,
rule
now
93]
Upon
[Rule
what basis
he was
can Silver claim
nonsense,
mostly
motions are
false-
prejudiced?
Temple
Silver relies on 41
hoods,
upon
or otherwise insufficient
entitled,
Quarterly
Law
(1968),
“Join-
They occupy
grant
which to
relief.
der of Counts as a
of an Ac-
Violation
courts,
time
appellate
of the trial
au-
Right
cused’s
Remain Silent.”
they
legal
courts
profession,
and the
a
thor
that severance as matter
believes
of
impose
great
a
financial burden on the
protect
right would
to be needed to
seem
public
legal
very
profession
and the
privileges.
dual testimonial
little fruitful results.
conten-
The state did not answer Silver’s
Compel
Failure to
Election or Sever-
tion in
brief. After due consid-
its answer
eration,
agree
accused is
I do not
that an
robbery
entitled to
as matter
attempted armed
and at-
severance
tempted
upon
testimony privilege, even
but
based
dual
murder were two
Brewster,
of crime. Hale
during
cused
trial.
It
or
if.requested before
(1970), If the statute men-
trial
of the
discretion
within
a matter
unconstitutional, law-
reasons,
declared
tioned were
economic
For modern
court.
re-
yers
return to their traditional
delay
in hold-
dockets, the
judicial
status
Attorney’s
witnesses,
sponsibilities found in the
Oath (cid:127):
identical
ing
trials with
two
cases,
dis-
burden
reject,
any
increased
considera-
I
never
from
will
or
exercised
court
trial
personal myself,
cretion
tion
cause
ordinarily speaks with
severance
against
oppressed,
delay
defenseless
sepse
justice.
for lucre or malice.
man’s cause
Standards
Association
Heretofore,
Bar
American
legal profession
received
applicable,
Justice, when
Criminal
indigents
commendations for its devotion to
*4
Supreme
by
Court
approved
compensation.
been
in criminal cases without
Court, 484
v. District
Sims,
(Ct.App.
People
Colorado.
v.
(a)
must be
or defendants
of offenses
ance
However,
lawyers
confronted
are
when
a
trial, except that motion
made before
affecting their
staggering
burdens
at
may be
before
made
for severance
relationships,
family and business
own
upon a
if based
all evidence
the close of
power
payment
courts have the
to order
known. Severance
ground
previously
not
People
compensation.
ex
reasonable
at
is not made
motion
if the
is waived
24,
N.E.
Randolph,
rel. Conn v.
Ill.2d
time.
appropriate
337,
As a
(1966).
2d
18 A.L.R.3rd 1065
result,
their
for
some
have amended
pretrial motion
states
(b) If a defendant’s
grant
may
indigent compensation
overruled,
renew
statutes
was
severance
courts,
circumstances,
extraordinary
grounds before
in
on the same
motion
right
provide
in excess
compensation
for
Sev-
all the evidence.
the close of
or at
Sims,
statutory
People v.
limits.
by
to renew
failure
erance waived
People
(Ct.App.Ill.1970);
tional No claim is made that attorneys incompetent. It The judgment were and sentence is reversed. legislative is a problem, discharged. Mexico New Shuemak Bar Association should be “the most inter It is so ordered. *5 protecting ested its members from oppressive burdens and de WOOD, sacrifices J., HENDLEY, J., C. con- upon represent indigents.” mands them to cur. Commonwealth, 457 S.W.2d Jones (Ky.1970), cert. den. 401 U.S. 91 S.Ct. 964, 28 L.Ed.2d 229 Act is constitu- equal protec-
tional. Silver was not denied tion of the law and due Whether monetary justice to court attor- Plaintiff-Appellee, Mexico, STATE of New neys necessary depends upon the attitude New Mexico Bar Association and legislature. PHILLIPS, Defendant-Appellant. Amos B.
No. 674. Appeals of New Mexico.
July 1971. Mexico, Plaintiff-Appellee, STATE of New SHUEMAK, Defendant-Appellant.
Carl
No. 673. Appeals of Court of New Mexico.
July 23, Stephen Durkovich, Albuquerque, G. defendant-appellant.