{ "id": 5377136, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Alfred GOMEZ, Jr., Defendant-Appellant", "name_abbreviation": "State v. Gomez", "decision_date": "1965-11-01", "docket_number": "No. 7693", "first_page": "545", "last_page": "549", "citations": [ { "type": "official", "cite": "75 N.M. 545" }, { "type": "parallel", "cite": "408 P.2d 48" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "75 N.M. 183", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5371656 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/75/0183-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "67 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2716439 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0287-01" ] }, { "cite": "307 S.W.2d 182", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10162737, 10162871 ], "opinion_index": 0, "case_paths": [ "/sw2d/307/0182-01", "/sw2d/307/0182-02" ] }, { "cite": "311 F.2d 74", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 190030 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f2d/311/0074-01" ] }, { "cite": "274 F.2d 572", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1956589 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/f2d/274/0572-01" ] }, { "cite": "107 U.S.App.D.C. 63", "category": "reporters:state", "reporter": "U.S. App. D.C.", "year": 1959, "opinion_index": 0 }, { "cite": "145 P. 679", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "19 N.M. 474", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4703750 ], "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/nm/19/0474-01" ] }, { "cite": "69 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790500 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0106-01" ] }, { "cite": "143 P. 1012", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "19 N.M. 420", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "35 N.M. 533", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558012 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/35/0533-01" ] }, { "cite": "157 N.E. 1", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "199 Ind. 235", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1505171 ], "opinion_index": 0, "case_paths": [ "/ind/199/0235-01" ] }, { "cite": "110 F.2d 562", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1034406 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/f2d/110/0562-01" ] }, { "cite": "71 App.D.C. 400", "category": "reporters:state", "reporter": "App. D.C.", "year": 1940, "opinion_index": 0 }, { "cite": "24 A.L.R. 1022", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "132 N.E. 530", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "299 Ill. 125", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5024426 ], "opinion_index": 0, "case_paths": [ "/ill/299/0125-01" ] }, { "cite": "135 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "235 Ind. 531", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1760233 ], "opinion_index": 0, "case_paths": [ "/ind/235/0531-01" ] }, { "cite": "33 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554400 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/33/0259-01" ] }, { "cite": "100 So. 254", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "87 Fla. 392", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1646127 ], "opinion_index": 0, "case_paths": [ "/fla/87/0392-01" ] }, { "cite": "49 A.L.R.2d 1238", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "116 A.2d 433", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "142 Conn. 619", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1593510 ], "opinion_index": 0, "case_paths": [ "/conn/142/0619-01" ] }, { "cite": "46 So. 152", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "55 Fla. 1", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1072141 ], "opinion_index": 0, "case_paths": [ "/fla/55/0001-01" ] }, { "cite": "50 So. 627", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 1436115, 3463660, 8835254 ], "opinion_index": 0, "case_paths": [ "/miss/100/0095-01", "/ala/165/0516-01", "/miss/96/0369-01" ] }, { "cite": "96 Miss. 369", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 8835254 ], "opinion_index": 0, "case_paths": [ "/miss/96/0369-01" ] }, { "cite": "67 N.M. 31", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714852 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/67/0031-01" ] } ], "analysis": { "cardinality": 642, "char_count": 9542, "ocr_confidence": 0.669, "pagerank": { "raw": 2.595009243587725e-07, "percentile": 0.8189745811435338 }, "sha256": "a74d34e7c6180eef8ba3fd8c0fe4af5c65c2cb24bda89af499cd1665c0e3b1dd", "simhash": "1:49b4aa321c868a7b", "word_count": 1659 }, "last_updated": "2023-07-14T16:36:05.656930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHAVEZ and COMPTON, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Alfred GOMEZ, Jr., Defendant-Appellant." ], "opinions": [ { "text": "MOISE, Justice.\nDefendant-appellant was tried and convicted of second degree murder in the death of one Joe Reyes. Reversal of that conviction is sought because of alleged error in denying defendant\u2019s motion for a new trial on the ground of newly discovered evidence, and because of alleged error in denying the defendant an opportunity to inspect a police report referred to during the trial.\nThe proof of defendant\u2019s guilt as developed at the trial through the evidence of Saul Gonzales alone is briefly to the effect that Saul Gonzales and defendant had been doing considerable drinking, and during the evening were joined by Joe Reyes. About 1:00 a. m. they went to the Reyes home, where Joe Reyes fixed a meal for the three of them. After eating, Reyes and defendant did some \u201carm\u201d or \u201cIndian\u201d wrestling during which time defendant became sick and complained of pain in his chest. The three also drank and talked but had no arguments or disagreements. Some time after 3:00 a. m., defendant and Gonzales were leaving and had said good night when deceased suggested to Gonzales that, they .\u201cgo a few rounds.\u201d Gonzales removed his coat and put it on the Tiood of his car and he and Reyes went \u25a0across the street to a school playground. They started to spar when Gonzales, in blocking a punch with his right arm, fell to the ground. As Gonzales was getting up, he heard a sound and a grunt which \u25a0scared him. He saw defendant running toward the car and heard him say, \u201cLet\u2019s get out of here, Saul,\u201d or \u201cLet\u2019s make it,\u201d \u2022or something to a like effect. Gonzales and defendant got in the car and drove off. \u2022Gonzales testified he said to defendant, \u25a0\u201cYou didn\u2019t have to do that,\u201d and defendant \u201cmumbled, \u2018He was going to get you,\u2019 or \u2018Getting the best of you,\u2019 or something like that.\u201d Gonzales drove defendant to his girl friend\u2019s house and let him off, and noticed at that time that defendant had a scabbard in his hand. It was a scabbard like Gonzales kept under the left front seat \u2022of his car with a hunting knife in it. Upon searching, it was found to be missing. After letting defendant out, he was seen staggering toward his girl friend\u2019s house. Gonzales then returned to the Reyes house where he was arrested.\nThe only other testimony connecting defendant with the killing was that of the officer who arrested him who testified that he found defendant on the floor between a bed and wall, and when he got up, a knife and scabbard identified as the \u25a0 knife and scabbard owned by Saul Gonzales were found on- the floor where he had been lying. What appeared to be fresh blood was on the knife. The only other material evidence in the case disclosed that Reyes\u2019 body was found lying at the.front of his house. There was blood on the grass, curbing and sidewalk near where he was found but none in the playground across the street or in the street. Also, a yellow-handled knife with the blade open and identified as belonging to Reyes was found close to blood spots near the curb in front of the Reyes home. Defendant did not offer any evidence, nor did he testify in his own behalf.\nAt the close of the State\u2019s case, the court sustained a motion to dismiss the charge of first degree murder, but overruled a motion to dismiss the second degree murder charge. The jury was instructed on second degree murder and on manslaughter. Defendant was found guilty of second degree murder.\nDefendant\u2019s first point relied on for reversal asserts error in the trial court\u2019s refusal to grant a new trial because of newly discovered evidence.\nThe requirements which must be met before a new trial is granted because of newly discovered evidence are itemized in State v. Fuentes, .67 N.M. 31, 351 P.2d 209, as follows:\n\u201c1. Must have been discovered since the former trial.\n\u201c2. Must be' such as by- reasonable diligence on'the part.of the defendant could not have been secured at the former-trial.\n\u201c3. Must be material in its object, and not merely cumulative, corroborative or collateral.\n\u201c4. Must be such as ought to produce, on another trial, an opposite result on the merits, and\n\u201c5. Must go to the merits of the case, and not merely impeach the character of a former witness.\u201d\nDefendant asserts that his motion discloses compliance with these conditions, but he goes further and cites a rule applied in certain instances where the conviction is based on weak, unsatisfactory, or uncorroborated evidence. Watson v. State, 96 Miss. 369, 50 So. 627, is such a case. So, too, is Adams v. State, 55 Fla. 1, 46 So. 152, in which it is pointed out that where under evidence grave doubt exists concerning a defendant\u2019s guilt, some relaxation of the strict rules applicable in granting new trials because of newly discovered evidence is permissible. See also Taborsky v. State, 142 Conn. 619, 116 A.2d 433, 49 A.L.R.2d 1238, and Tyson v. State, 87 Fla. 392, 100 So. 254. It is apparent from the following 'quoted from State v. Fuentes, supra, and the cases cited therein, that this has been the view of this court:\n\u201cThe discretion of a trial court is not to be lightly interfered with as to the granting of a motion for new trial. Nevertheless, the facts in this case 'fairly cry out\u2019 that in the interest of justice a new trial should be granted.\n* * * \u201d\nAside from the fact that the evidence upon which defendant was convicted is to our minds far from conclusive, and might even be characterized as unsubstantial, counsel who represented defendant at the trial was totally inexperienced in criminal practice and has here pleaded his own lack of knowledge and experience resulting in a denial of adequate representation of defendant at the trial. We specifically disavow any intention to hold that one convicted of crime is entitled to a second opportunity to gain acquittal simply because counsel made certain errors of judgment in the trial. Neither do we announce a rule for general application. However, under the facts here present, when the unsatisfactory proof by the state is considered, along with the inadequate defense provided at the trial, the very real possibility of a miscarriage of justice which could be overcome if all the pertinent proof is properly presented and considered, requires a reversal. State v. Houston, 33 N.M. 259, 263 P. 754; Ward v. State, 235 Ind. 531, 135 N.E.2d 509. Compare People v. Schulman, 299 Ill. 125, 132 N.E. 530, 24 A.L.R. 1022; Taborsky v. State, supra.\nWhile not intending to pass upon what specific errors of judgment occurred during the trial, it should be fairly obvious that counsel did not adequately or aggressively investigate the facts, and develop and present a reasonable defense. Numerous possibilities in this regard will readily present themselves to a lawyer experienced in criminal practice. It is immaterial if counsel has been appointed by the court or employed by the accused or by some one in his behalf. Compare Johnson v. United States, 71 App.D.C. 400, 110 F.2d 562 (1940); Sanchez v. State, 199 Ind. 235, 157 N.E. 1; People v. Schulman, supra. We are responsible to see that a person convicted of crime shall have a fair trial with a proper defense, and that no conviction shall stand because of the absence of either. See State v. Armijo, 35 N.M. 533, 2 P.2d 1075; State v. Garcia (Rehearing), 19 N.M. 420, 143 P. 1012; State v. Peoples, 69 N.M. 106, 364 P.2d 359.\nWe would note in passing that we do not consider our conclusion in any way to conflict with what was said in State v. Klasner, 19 N.M. 474, 489, 145 P. 679, because here an excuse for failure to attach the affidavits of the newly discovered witnesses is explained. In addition, we observe that when counsel for defendant inquired if the court would hear anything beyond the offer of the affidavits attached to the motion, the reply of the court was, \u201cI see no point in it. * * * \u201d Compare Adams v. State, supra, and the recent cases of Blocker v. United States, 107 U.S.App.D.C. 63, 274 F.2d 572 (1959) and Newsom v. United States, 311 F.2d 74 (C.A.5, 1962).\nWe are also .of the opinion that defendant\u2019s second point has merit. During the trial a request was made for a disclosure of the contents of a supplement\u00e1l police report in the possession of the prosecutor. The court did not rule on whether defendant was entitled to examine it, and* defense counsel did not pursue the matter. We consider the failure to rule to be in effect a denial of the request. Arthur v. Commonwealth, (Ky.1957), 307 S.W.2d 182.\nCounsel learned of the supplemental police report when one of the policemen who participated in making the original report was testifying on the stand, and a notation appeared on his report that there was also a supplemental report. That defendant was entitled to see and examine the supplemental report under the circumstances is in accord with right, justice and the rationale of the decisions of the United States Supreme Court and of this court. See State v. Morgan, 67 N.M. 287, 354 P.2d 1002; Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and our recent decision in Trimble v. State, 75 N.M. 183, 402 P.2d 162.\nThe cause will be reversed and remanded with instructions to grant defendant a new trial.\nIt is so ordered.\nCHAVEZ and COMPTON, JJ., concur.", "type": "majority", "author": "MOISE, Justice." } ], "attorneys": [ "Charles D. Harris, Roswell, for appellant.", "'Boston E. Witt, Atty. Gen., James V. Noble, Roy G. Hill, Asst. Attys. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "408 P.2d 48\nSTATE of New Mexico, Plaintiff-Appellee, v. Alfred GOMEZ, Jr., Defendant-Appellant.\nNo. 7693.\nSupreme Court of New Mexico.\nNov. 1, 1965.\nRehearing Denied Dec. 7, 1965.\nCharles D. Harris, Roswell, for appellant.\n'Boston E. Witt, Atty. Gen., James V. Noble, Roy G. Hill, Asst. Attys. Gen., Santa Fe, for appellee." }, "file_name": "0545-01", "first_page_order": 601, "last_page_order": 605 }