{ "id": 708698, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jimmie L. McDUFFIE, Defendant-Appellant", "name_abbreviation": "State v. McDuffie", "decision_date": "1987-06-04", "docket_number": "No. 9657", "first_page": "120", "last_page": "123", "citations": [ { "type": "official", "cite": "106 N.M. 120" }, { "type": "parallel", "cite": "739 P.2d 989" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "98 N.M. 417", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582488 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0417-01" ] }, { "cite": "88 L.Ed.2d 292", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "106 S.Ct. 345", "category": "reporters:federal", "reporter": "S. 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Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "400 U.S. 821", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12057666, 12057733, 12057895, 12057495, 12057585, 12057972, 12057398, 12057815, 12057272, 12057343 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0821-06", "/us/400/0821-07", "/us/400/0821-09", "/us/400/0821-04", "/us/400/0821-05", "/us/400/0821-10", "/us/400/0821-03", "/us/400/0821-08", "/us/400/0821-01", "/us/400/0821-02" ] }, { "cite": "424 F.2d 45", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2251025 ], "opinion_index": 0, "case_paths": [ "/f2d/424/0045-01" ] }, { "cite": "477 F.2d 31", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2265820 ], "opinion_index": 0, "case_paths": [ "/f2d/477/0031-01" ] }, { "cite": "34 L.Ed.2d 258", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "93 S.Ct. 335", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "409 U.S. 991", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6432514, 6432171, 6432299, 6432047, 6432401, 6432787, 6431800, 6431930, 6432667 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/0991-07", "/us/409/0991-04", "/us/409/0991-05", "/us/409/0991-03", "/us/409/0991-06", "/us/409/0991-09", "/us/409/0991-01", "/us/409/0991-02", "/us/409/0991-08" ] }, { "cite": "464 F.2d 667", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 709175 ], "opinion_index": 0, "case_paths": [ "/f2d/464/0667-01" ] }, { "cite": "34 L.Ed.2d 151", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "93 S.Ct. 203", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "409 U.S. 894", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6366497, 6367335, 6366312, 6366921, 6366704, 6366101, 6367126 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/0894-03", "/us/409/0894-07", "/us/409/0894-02", "/us/409/0894-05", "/us/409/0894-04", "/us/409/0894-01", "/us/409/0894-06" ] }, { "cite": "434 F.2d 880", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2219993 ], "opinion_index": 0, "case_paths": [ "/f2d/434/0880-01" ] }, { "cite": "291 U.S. 97", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1498121 ], "weight": 3, "year": 1934, "opinion_index": 0, "case_paths": [ "/us/291/0097-01" ] }, { "cite": "685 F.2d 1227", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 525657 ], "weight": 2, "pin_cites": [ { "page": "1256" } ], "opinion_index": 0, "case_paths": [ "/f2d/685/1227-01" ] } ], "analysis": { "cardinality": 553, "char_count": 9437, "ocr_confidence": 0.772, "pagerank": { "raw": 9.966087760673534e-08, "percentile": 0.5376965992998047 }, "sha256": "b3b82334d29774a701ffc410555cc881694d613feb8e5e4b6f0e0cdb3aff6056", "simhash": "1:a8608c3074f01ca3", "word_count": 1543 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS, and MINZNER, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jimmie L. McDUFFIE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\nThis case involves the district court\u2019s dismissal of defendant\u2019s appeal from a conviction in metropolitan court. Defendant raises three issues on appeal: 1) whether refusal to grant a continuance, so that defendant could be present at all stages of his trial, was error; 2) whether defendant received ineffective assistance of counsel; and 3) whether NMSA 1978, Section 30-7-2 (Cum.Supp.1986) is unconstitutional as applied. We reverse and remand.\nFACTS\nDefendant was convicted in metropolitan court of carrying a concealed deadly weapon in violation of Section 30-7-2, and he appealed to the district court. On October 15, 1986, notice for the appeal trial setting was given by the district court clerk. It was set for November 4, 1986. The notice of hearing was sent by the court clerk to defense counsel; due to counsel\u2019s oversight, notice was not given to defendant. Defense counsel was under the mistaken impression that the district court clerk would notify defendant of the setting.\nDefendant is homeless and is a \u201cstreet person.\u201d He receives mail at a shelter and it usually took about a week for counsel to notify defendant of matters concerning his case. Defendant had been in attendance at all prior court proceedings and was in frequent contact with defense counsel. In late October, defense counsel learned that it was her responsibility to notify defendant of the trial setting and counsel mailed a tardy notice to defendant.\nDefense counsel then filed a motion for continuance. Earlier, counsel filed a motion to suppress evidence and a motion to produce. The motions were all set for November 3. At that hearing, defense counsel asked for a continuance of the hearing on the pending motion to suppress and of the trial because of defendant\u2019s absence. She explained defendant\u2019s circumstances and that it was her own fault notice was not mailed sooner. Defendant was not present and counsel argued that not enough time had passed for defendant to have picked up his mail from the shelter. The state did not object to the continuance.\nThe trial court, cognizant of its responsibility to expeditiously dispose of cases on its docket, explained that the district court\u2019s practice was to schedule metropolitan court appeals for the first day of its criminal docket. The court agreed to grant a continuance of one day on the suppression motion, but not for the trial set for the next day. Inexplicably, defense counsel chose not to take advantage of the one day continuance and informed the court that she was prepared to proceed on the suppression hearing. Counsel then waived the presence of defendant, and evidence on the motion was presented in defendant\u2019s absence. The trial court denied the motion to suppress.\nThe following day, the day set for trial, defense counsel explained that defendant was still not present and renewed her motion for continuance. The trial court again denied the motion for continuance. Noting that the state was ready to proceed, the trial court dismissed the case. The record indicates that the case was dismissed \u201cfor failure to prosecute.\u201d\nDEFENDANT\u2019S ABSENCE\nDefendant argues that the trial court abused its discretion in refusing to grant a continuance so that defendant could be present at the suppression hearing, and that he received ineffective assistance of counsel when counsel proceeded with the hearing in his absence. Because we hold that defendant was entitled to be present at the suppression hearing, absent a knowing and voluntary waiver, we do not reach the ineffective assistance of counsel issue.\nSCRA 1986, 5-612(A) requires that \u201cdefendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impanelling of the jury and the return of the verdict and the imposition of any sentence, except as otherwise provided by this rule.\u201d (Emphasis added.) Subsection C provides that \u201cin prosecutions for offenses punishable by fine or by imprisonment for a term of less than one (1) year, or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant\u2019s absence\u201d or \u201cat a conference or argument upon a question of law.\u201d Defendant\u2019s absence at the evidentiary suppression hearing does not fit either of the exceptions.\nDerived from the confrontation clause of the sixth amendment and the due process clause of the fourteenth amendment, a defendant has a right to be present at all stages of the criminal trial. Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982). \u201cThis right extends to all hearings that are an essential part of the trial \u2014 i.e., to all proceedings at which the defendant\u2019s presence \u2018has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.\u2019 \u201d Id. at 1256 (quoting Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). Here, the suppression hearing represented defendant\u2019s only realistic chance of prevailing. It was essential to his case and the critical part of the proceedings. The arresting officers testified that defendant admitted having a concealed weapon. The use or suppression of defendant\u2019s statement and of the weapon represented the focal point of defendant\u2019s appeal.\nSome federal courts hold the defendant's right of presence does not extend to a suppression hearing. See United States v. Gradsky, 434 F.2d 880 (5th Cir.1970), cert denied, 409 U.S. 894, 93 S.Ct. 203, 34 L.Ed.2d 151 (1972). Accord United States v. Bell, 464 F.2d 667 (2nd Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972). However, we think the better rule is that a defendant has a right to be present at a suppression hearing where testimony is to be taken. See United States v. Hurse, 477 F.2d 31 (8th Cir.1973); United States v. Dalli, 424 F.2d 45 (2nd Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49 (1970). See also 8B J. Moore, Moore\u2019s Federal Practice, \u00b6 43.-03[1] (2nd ed. 1987).\nMoreover, while a defendant\u2019s right to be present is not absolute and may be relinquished by acts or statements of the defendant which constitute a waiver, Dalli, the waiver of defendant\u2019s presence in this case was made by defense counsel. When a waiver is sought to be accomplished by counsel, extra caution and circumspection is required to ascertain whether counsel is waiving the right or whether defendant voluntarily was doing so through his attorney. See Hovey v. State, 104 N.M. 667, 726 P.2d 344 (1986).\nIn Hovey, the supreme court rejected the claim that defense counsel waived defendant\u2019s right to be present during a communication between court and jury. In spite of counsel\u2019s oral waiver, the court noted \u201c[bjecause defendant was in custody at the time of the communications at issue here, the trial court could not properly infer that he had waived his presence by voluntary absence * * 104 N.M. at 671, 726 P.2d at 348. Such is the case here. Defense counsel had not spoken with defendant. For that matter, it was probable that defendant had yet to receive notice of the hearing. Defendant could not voluntarily, knowingly and intelligently waive his presence. Thus here, as in Hovey, counsel\u2019s waiver was ineffective. Since the suppression hearing was critical to defendant\u2019s case, he had a right to be present and, under statutory as well as case law, it was error to proceed with the hearing in defendant\u2019s absence.\nCONSTITUTIONALITY OF SECTION 30-7-2\nDefendant argues that Section 30-7-2, the prohibition against carrying a concealed weapon, violates equal protection. See State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967). This issue was not presented to the trial court; however, defendant\u2019s claim that the statute creating an offense is unconstitutional may be raised for the first time on appeal since it is jurisdictional. See State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969).\nDefendant contends the statute impermissibly distinguishes between rich and poor in that home and vehicle owners may properly conceal weapons, but poor people do not own a residence or vehicle in which to conceal a weapon. This argument is without merit. Since poverty is not a suspect class, the court presumes constitutionality and requires only that the classification challenged be rationally related to a legitimate state interest. See City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Chapman v. Luna, 101 N.M. 59, 678 P.2d 687 (1984), cert. denied, 474 U.S. 947, 106 S.Ct. 345, 88 L.Ed.2d 292 (1985). We think it obvious that the state has a legitimate interest in the safety of its citizens and their awareness of a potential deadly weapon. The purpose of the statute is for the protection of society. Defendant\u2019s constitutional argument must be rejected. See State v. Sandoval, 98 N.M. 417, 649 P.2d 485 (Ct.App.1982).\nCONCLUSION\nIn sum, we hold that it was error for the trial court to proceed with the suppression hearing in defendant\u2019s absence and reverse and remand.\nIT IS SO ORDERED.\nBIVINS, and MINZNER, JJ., concur.", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Hal Stratton, Atty. Gen., Tracy Hughes, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "739 P.2d 989\nSTATE of New Mexico, Plaintiff-Appellee, v. Jimmie L. McDUFFIE, Defendant-Appellant.\nNo. 9657.\nCourt of Appeals of New Mexico.\nJune 4, 1987.\nHal Stratton, Atty. Gen., Tracy Hughes, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0120-01", "first_page_order": 160, "last_page_order": 163 }