{
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  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Eugenio Carlos TAPIA, Defendant-Appellant",
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    "judges": [
      "CARMODY, C. J., and CHAVEZ, MOISE and COMPTON, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Eugenio Carlos TAPIA, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "NOBLE, Justice.\nEugenio Carlos Tapia and Carlos Cordova, jointly accused of murder, were tried' together before a jury. Cordova was acquitted by an instructed verdict, while Tapia was conviqted of murder in the first degree from which he has appealed.\nBoth defendants being indigent, the court appointed two attorneys to represent both defendants at the preliminary examination and in the trial of the case in the district \u25a0court. Since the Tapia appeal is in forma \u25a0pauperis, counsel was appointed to represent him in this court.\nTapia rests his appeal largely -upon the contention that the interests of the two defendants were conflicting and \u25a0that the court\u2019s failure to appoint separate \u25a0counsel to represent him constituted a denial \u25a0of due process requiring a remand for a\u25a0new trial. We agree. Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799, 93 A.L.R.2d 733, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, there is no doubt that the right of one charged with crime to be represented by counsel at every critical stage of a criminal proceeding is fundamental and required in state courts. And, as Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680, said:\n\u201c * * * the 'Assistance of Counsel\u2019 guaranteed by the Sixth Amendment \u25a0contemplates that such assistance be untrammeled and unimpaired by a court \u25a0order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance \u25a0of counsel means less than this, a valued constitutional safeguard is substantially impaired [,]\u201d\nit is argued that no objection was made to the joint representation of the two defendants, but we indulge every reasonable presumption against the waiver of fundamental rights in preserving the protection of the Bill of Rights for defendants in criminal cases. The duty rests upon the trial judge to see \u201cthat the trial is conducted with solicitude for the essential rights of the accused.\u201d Glasser v. United States, supra. In State v. Peoples, 69 N.M. 106, 364 P.2d 359, attention was called to the argument of the state that the error complained of was not saved for review. After saying that it probably was saved, this court said:\n\u201cBut, be that as it may, the error complained of goes to the very foundation of the case. In this circumstance, we will consider on appeal the error whether or not timely objections and exceptions are made. * * * \u201d\nSee, also, State v. Gomez, 75 N.M. 545, 408 P.2d 48, where we said that notwithstanding the failure of counsel to present a defense:\n\u201cWe 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. * * * \u201d\nSee, also, State v. Varos, 69 N.M. 19, 363 P.2d 629; Aetna Life Ins. Co. of Hartford, Conn. v. Kelley, 70 F.2d 589, 93 A.L.R. 471 (8th Cir. 1934) ; State v. Moore, 194 Or. 232, 241 P.2d 455; and Brooks v. State, 209 Miss. 150, 46 So.2d 94.\nWe think the record in this case fails to disclose such concern for the basic rights of Tapia. The charge was the premeditated and intentional killing of Felix Maes. Tapia argues with much force that the State\u2019s evidence against him, upon which the jury-returned a verdict of murder in the first degree, consisted almost entirely of two statements made by his co-defendant Cordova to police officers. These statements, it is said, furnished the principal evidence against Tapia of premeditation and intent to injure, and contained exculpatory matter concerning Cordova.\nThe criminal information recites that a preliminary examination was held. Counsel no doubt knew of those statements by Cordova, yet, notwithstanding the apparent conflict in interest between the two defendants, the record does not disclose a request for separate trials either before impaneling the jury or during the trial when it became obvious that the interests of the two defendants were diametrically opposed. Tapia\u2019s interests demanded more than a mere request to limit the statements to the defendant Cordova, or an admonishment that the jury should not consider them against Tapia. People v. Aranda, Cal., 47 Cal.Rptr. 353, 407 P.2d 265. Compare Underwood v. Commonwealth, 390 S.W.2d 635 (Ky.). His interests at that point demanded vigorous opposition to the admission in evidence of the Cordova statements. The conflict in interest was crucial at this point. Admission of the statements clearly damaged Tapia but their exclusion might well destroy Cordova. Further, by trying both defendants jointly, Cordova could not be called as a witness by the State, thus depriving Tapia of his valuable right to be confronted by and to cross-examine the principal witness against him.\nWe are not required to determine the exact degree of prejudice sustained by Tapia as the result of the court\u2019s appointment of the same counsel to represent both defendants. The answer is found in Glasser, where it was said:\n\u201c * * * The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.\u201d\nCf. State v. Karston, 247 Iowa 32, 72 N.W. 2d 463; Wright v. Johnston, 77 F.Supp. 687 (N.D.Cal.1948); People v. Douglas, 61 Cal. 2d 430, 38 Cal.Rptr. 884, 392 P.2d 964: Craig v. United States, 217 F.2d 355 (6th Cir. 1954).\nOur determination that the error in not assigning separate counsel to represent Tapia requires a reversal makes it unnecessary to consider other questions briefed and argued.\nThe judgment and sentence are reversed and the cause remanded with instructions to vacate the verdict, judgment and sentence, and to grant the defendant Tapia a new trial. It is so ordered.\nCARMODY, C. J., and CHAVEZ, MOISE and COMPTON, JJ., concur.",
        "type": "majority",
        "author": "NOBLE, Justice."
      }
    ],
    "attorneys": [
      "Edward T. Johnson, Santa Fe, for appellant.",
      "Boston E. Witt, \u2019 Atty. Gen., James V. Noble, Paul Lacy, Asst. Atty. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "411 P.2d 234\nSTATE of New Mexico, Plaintiff-Appellee, v. Eugenio Carlos TAPIA, Defendant-Appellant.\nNo. 7812.\nSupreme Court of New Mexico.\nFeb. 14, 1966.\nEdward T. Johnson, Santa Fe, for appellant.\nBoston E. Witt, \u2019 Atty. Gen., James V. Noble, Paul Lacy, Asst. Atty. Gen., Santa Fe, for appellee."
  },
  "file_name": "0757-01",
  "first_page_order": 813,
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