{ "id": 2744458, "name": "Albert NIETO, Jr., Petitioner, v. STATE of New Mexico, Respondent", "name_abbreviation": "Nieto v. State", "decision_date": "1968-06-28", "docket_number": "No. 140", "first_page": "330", "last_page": "332", "citations": [ { "type": "official", "cite": "79 N.M. 330" }, { "type": "parallel", "cite": "443 P.2d 500" } ], "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": "62 N.M. 147", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2712667 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0147-01" ] }, { "cite": "376 F.2d 1009", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2031546 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/376/1009-01" ] }, { "cite": "78 N.M. 431", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325932 ], "weight": 6, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0431-01" ] }, { "cite": "79 N.M. 213", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740909 ], "weight": 5, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/79/0213-01" ] }, { "cite": "78 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326879 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0155-01" ] } ], "analysis": { "cardinality": 335, "char_count": 5732, "ocr_confidence": 0.68, "pagerank": { "raw": 1.0607001323696893e-07, "percentile": 0.5570015858067401 }, "sha256": "4b3f4d45745ff46d7ee3bea253a1f1c82c4bf5a412cb64dfea1ca08768667c54", "simhash": "1:a4df8b49d5a61b69", "word_count": 927 }, "last_updated": "2023-07-14T18:21:18.946358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN and ARMIJO, JJ., concur." ], "parties": [ "Albert NIETO, Jr., Petitioner, v. STATE of New Mexico, Respondent." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nDefendant (petitioner, Nieto) moved for post-conviction relief under \u00a7 21-1-1(93) N.M.S.A.1953 (Supp.1967). This motion is based on the fact that a police informer \u201c * * * testified as to how the crime supposedly happened * * The motion was denied without a hearing. Defendant appeals, claiming it was error \u201c * * * to summarily deny him relief * * *_\u00ab\nDefendant was convicted of a narcotics offense; his conviction was affirmed in State v. Nieto, 78 N.M. 155, 429 P.2d 353 (1967).\nAt the trial, Castaneda, an admitted police informer, testified that he purchased the narcotic from defendant; that at the time of the purchase, by prior arrangement, a policeman was concealed in the trunk of Castaneda\u2019s car and another policeman was watching from an unmarked car about one-half block away. Castaneda had performed similar services for law enforcement agencies on previous occasions.\nDefendant claims that Castaneda and law enforcement officers conspired to violate the law and his constitutional rights and infers that Castaneda is guilty of the same offense.\nThe trial court instructed the jury that one who \u201c * * * without criminal intent, feigns complicity in the commission of a crime merely for the purpose of detectmg the perpetrator thereof, with a view to prosecution for the offense, is not an accomplice in law, * * * The jury was informed that although officers or another person had cooperated with the defendant and had provided the opportunity for commission of the crime, it was no defense if the defendant, apart from such cooperation, \u201c * * * intends to commit the acts constituting a crime, and if he does acts necessary to constitute the crime, * * * \u201d. Although we are not concerned with whether these instructions were correct statements of law, we note that the defense had no objection to them. Compare \u00a7 54-7-7, N.M.S.A.(1953).\nDefendant seeks relief from his conviction and sentence on the basis of the arrangement between the informer and the police. The effect of this arrangement was an issue at his trial. If the trial court had incorrectly instructed the jury as to the legal effect of this arrangement, the question could have been raised as an issue in defendant\u2019s direct appeal. This was not done.\nA post-conviction proceeding is not a method of obtaining consideration of questions which might have been raised on appeal. State v. Reid, 79 N.M. 213, 441 P.2d 742, decided June 10, 1968; State v. Williams, 78 N.M. 431, 432 P.2d 396 (1967). The trial court correctly ruled that the question of the legal effect of the arrangement between the informer and the police could not be raised as an issue in the post-conviction proceeding. See Craig v. United States, 376 F.2d 1009 (8th Cir. 1967).\nBecause of Castaneda\u2019s status as an informer, defendant asserts that doubt should be cast on Castaneda\u2019s testimony and \u201c * * * [t]his should have been pointed out to the jury by the trial judge.\u201d\nIf this contention is an attack on the credibility of Castaneda as a witness, it provides no basis for post-conviction relief. State v. Reid, supra; State v. Williams, supra. Credibility of the witness is a matter to be resolved by the trier of the facts, in defendant\u2019s case, the jury. State v. Williams, supra.\nIf this contention is a claim that the jury should have been informed of Castaneda\u2019s status as a police informer, it provides no basis for relief. Both the State and the defense referred to Castaneda\u2019s status on voir dire; his status was clearly set forth in testimony presented to the jury; his status was commented on in closing arguments.\nIf this contention is a claim that the jury should have been instructed to* doubt Castaneda\u2019s testimony, it provides no> basis for relief. Assuming, but not deciding, that such an instruction could properly be given as to an informer\u2019s testimony and that such an instruction had been requested, this claim goes to the weight of the testimony. Thus this is a claim concerning the credibility of the witness. Credibility of a witness is not a basis for post-conviction relief. State v. Reid, supra; State v. Williams, supra.\nDefendant contends that \u201cif the full information\u201d known to the investigators substantiates Castaneda\u2019s testimony, then Castaneda is a person who perjured himself. We assume this is a claim that defendant was convicted on the basis of perjured testimony given by Castaneda and further assume that by \u201cperjury\u201d defendant means, that Castaneda wilfully testified falsely under oath. See \u00a7 40A-25-1, N.M.S.A.1953; State v. Reed, 62 N.M. 147, 306 P.2d 640 (1957).\nThere must be a factual basis for the relief sought. State v. Williams, supra. Thus, there must be a factual basis for the claim that Castaneda committed perjury. Testimony of the law enforcement officers supports Castaneda\u2019s, testimony concerning the crime. If, as alleged, there is additional information which is not in the record, and if this additional information also substantiates Castaneda\u2019s testimony, all we would have is further evidence corroborating Castaneda; there still would be no factual basis for the asserted perjury. This contention did not present an issue requiring an inquiry. State v. Reid, supra.\nSince the post-conviction motion did not present an issue on which post-conviction relief could be granted, the trial court did not err in denying the motion without a hearing.\nThe order denying relief is affirmed.\nIt is so ordered.\nOMAN and ARMIJO, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "John H. Schuelke, Gallup, for petitioner.", "Boston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for respondent." ], "corrections": "", "head_matter": "443 P.2d 500\nAlbert NIETO, Jr., Petitioner, v. STATE of New Mexico, Respondent.\nNo. 140.\nCourt of Appeals of New Mexico.\nJune 28, 1968.\nJohn H. Schuelke, Gallup, for petitioner.\nBoston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for respondent." }, "file_name": "0330-01", "first_page_order": 362, "last_page_order": 364 }