{ "id": 5364764, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Bobbie Gene GARCIA, Defendant-Appellant", "name_abbreviation": "State v. Garcia", "decision_date": "1969-08-04", "docket_number": "No. 8742", "first_page": "466", "last_page": "468", "citations": [ { "type": "official", "cite": "80 N.M. 466" }, { "type": "parallel", "cite": "457 P.2d 985" } ], "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": "419 P.2d 219", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2805699, 2807333 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0007-01", "/nm/77/0006-01" ] }, { "cite": "77 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805699 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0007-01" ] }, { "cite": "54 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582001 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/nm/54/0189-01" ] }, { "cite": "51 N.M. 501", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578133 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/51/0501-01" ] }, { "cite": "177 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "22 Ill.2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2789215 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0518-01" ] }, { "cite": "80 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363538 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0364-01" ] } ], "analysis": { "cardinality": 434, "char_count": 6306, "ocr_confidence": 0.659, "pagerank": { "raw": 1.4240086013036417e-07, "percentile": 0.6495876786638912 }, "sha256": "77623698aed7370c19d23721681138cfc0eab16282b4b1ed4180114499356d59", "simhash": "1:06ebf395d68b0dd4", "word_count": 1079 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MOISE and COMPTON, JJ., WALDO SPIESS, C. J., Ct.App., JAMES W: MUS-GROVE, D. J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Bobbie Gene GARCIA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nTACKETT, Justice.\nThe defendant was charged with and convicted of murder in the first degree in the District Court of Quay County, New Mexico, and upon the failure of the jury to recommend a life sentence, was sentenced to be executed. Thus this appeal.\nAppellant alleges six points for reversal, as follows: -\n\"1. PROSPECTIVE JURORS WERE UNCONSTITIONALLY DISMISSED BECAUSE THEY EXPRESSED GENERAL OBJECTIONS TO THE DEATH PENALTY ON CONSCIENTIOUS AND RELIGIOUS GROUNDS.\n\u201c2. IMPROPER QUESTIONING BY THE DISTRICT ATTORNEY UPON CROSS EXAMINATION OF THE APPELLANT BROUGHT ABOUT STATEMENTS WHICH CREATED PREJUDICE IN THE MINDS OF TITE JURY AGAINST THE APPELLANT WHICH RESULTED IN A VERDICT INFLUENCED BY FACTORS OTHER THAN RELEVANT FACTS INTRODUCED AT THE TRIAL.\n\u201c3. 40A-29-2, N.M.S.A., 1953, IS UNCONSTITUTIONAL INSOFAR AS IT PROVIDES FOR THE DEATH PENALTY IN THAT IT IMPOSES AN IMPERMISSIBLE BURDEN UPON THE ACCUSED EXERCISING HIS RIGHT TO TRIAL BY JURY.\n\u201c4. 40A-29-2, N.M.S.A., 1953, GIVES TO THE JURY IN A CAPITAL CASE UNGUIDED, ABSOLUTE DISCRETION TO MAKE AN ARBITRARY DECISION AS TO WHETHER THE DEATH PENALTY IS TO BE IMPOSED AND VIOLATES THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.\n\u201c5. THE STATUTE IMPOSING THE DEATH PENALTY AND DEATH SENTENCE IMPOSED THEREUNDER ARE UNCONSTITUTIONAL.\n\u201c6. THE RECORD IN THIS CASE SHOWS THAT THE DEFENDANT WAS NOT CAPABLE OF ASSISTING HIS COUNSEL IN PREPARING FOR A DEFENSE OR CONDUCTING THE TRIAL.\u201d\nPoints 1, 3, 4 and 5 are attacks on the death penalty.\nChapter 128, N.M.S.L., 1969 at 415, \u25a0which became effective June 20, 1969, abolishes the death penalty for murder, except under particular circumstances not applicable here.\nPoints 1 and 5 are controlled by what we said in State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969), as we there considered and disposed of these very same issues. What we said in the Pace case renders points 3 and 4 moot.\nIt is contended under point 2 that the cross-examination of appellant by the district attorney was improper.\nWe are reluctant to set forth testimony in an opinion; however, it becomes necessary in this case:\n\u201cQ. And you would do it again, Bobby.\n\u201cA. Would I?\n\u201cTHE COURT: Just a minute, Mr. Breen. Just a moment, both of you. When the Court is trying to run this Court according to rules and proper decorum, both of you stop.\n\u201cMR. BREEN: I\u2019m sorry, your Honor.\n\u201cTHE COURT: Let\u2019s get down\u2014\n\u201cTHE DEFENDANT: If you think I regretted \u2014>\n\u201cTHE COURT: Just a moment.\n\u201cMR. BREEN: Just a minute.\n\u201cTHE COURT: Just wait for the question and answer it. Go ahead, Mr. Breen.\n\u201cQ. Did you shoot at Annie ?\n\u201cA. No, sir, I did not shoot at Annie, I pointed the gun at her, but I did not shoot at her. I stake my life on that, which I am doing right now, and you wanted me to be truthful about it so I will be truthful about it, no matter what the out turn is.\n\u201cTHE COURT: Just a minute.\n\u201cTHE DEFENDANT: Your Honor, this is my trial.\n\u201cTHE COURT: Wait just a moment. You can hurt yourself more.\n\u201cTHE DEFENDANT: I know I can hurt \u2014\n\u201cTHE COURT: Just a moment. We are going to run it according to the rules. Wait for the question and answer the question as put to you and your lawyers can ask you what they think.\n\u201cMR. BREEN: That\u2019s all, your honor.\n\u201cTHE COURT: Any re-direct?\n\u201cMR. ARMIJO: Sir?\n\u201cTHE COURT: He is through. Any re-direct ?\n\u201cTELE DEFENDANT: And I have no remorse whatsoever.\n\u201cMR. ARMIJO: No further questions.\n\u201cTHE COURT: Next witness.\n\u201cTHE DEFENDANT: And I will do it again if I have the same circumstances.\n\u201cTHE COURT: Just a moment. Next witness.\n\u201cTHE DEFENDANT: That\u2019s exactly what you wanted to hear, Mr. Breen, so that\u2019s exactly what you heard.\n\u201cTHE COURT: Just a moment.\n\u201cTHE DEFENDANT: Nobody meddles in my business, nobody.\u201d\nIn view of the above testimony, by no stretch of the imagination could we say there was improper questioning by the district attorney. Rather, such were voluntary statements made by appellant after he had been repeatedly stopped by the court, all to no avail, and also after he had 'been dismissed as a witness. As a matter of fact, the record reveals that both the trial court and the district attorney admonished appellant not to volunteer statements, but he continued to do so. The voluntary statements of appellant furnish no basis for reversal. A party cannot complain of prejudice possibly resulting from a situation which he created by his own remarks during the course of the trial. People v. Musinski, 22 Ill.2d 518, 177 N.E.2d 142 (1961). Compare, State v. Wilcoxson, 51 N.M. 501, 188 P.2d 611 (1948); State v. Edwards, 54 N.M. 189, 217 P.2d 854 (1950).\nUnder point 6, it is contended that appellant was not capable of assisting counsel in his defense. This issue was raised in the progress of the trial. The trial judge suspended proceedings to allow a psychiatrist to examine appellant. The examination was agreed to by both the State and the defense. After the examination, Dr. Jacobson, a psychiatrist, testified that appellant was competent to intelligently assist in his defense. The trial court followed the procedure as set forth in \u00a7 41-13-3.1, N.M.S.A., 1953 Comp.\nIn State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966), this court said:\n\u201c* * * \u2018The burden of proof, when present insanity is alleged as a ground for preventing trial, sentence, or execution, is generally said to be upon the defendant, to prove by a preponderance of evidence that he is too unsound mentally to be tried, sentenced, or executed, as the case may be.\u2019 * * *\u201d\nIt is our considered view that appellant did not carry the necessary burden of proof in the instant case.\nWe hold against appellant on points 2 and 6.\nFinding no error, the decision' is affirmed.\nNevertheless, since the execution could not be carried out before the effective date of Ch. 128, supra, the case is remanded to the district court so that appellant may be resentenced thereunder.\nIt is so ordered.\nMOISE and COMPTON, JJ., WALDO SPIESS, C. J., Ct.App., JAMES W: MUS-GROVE, D. J., concur.", "type": "majority", "author": "TACKETT, Justice." } ], "attorneys": [ "Emmett C. Hart, Stanley F. Frost, Tucumcari, for appellant.", "James A'. Maloney, Atty. Gen., Ray FI. Shollenbarger, Asst. Atty. Gen., Sante Fe, for appellee." ], "corrections": "", "head_matter": "457 P.2d 985\nSTATE of New Mexico, Plaintiff-Appellee, v. Bobbie Gene GARCIA, Defendant-Appellant.\nNo. 8742.\nSupreme Court of New Mexico.\nAug. 4, 1969.\nEmmett C. Hart, Stanley F. Frost, Tucumcari, for appellant.\nJames A'. Maloney, Atty. Gen., Ray FI. Shollenbarger, Asst. Atty. Gen., Sante Fe, for appellee." }, "file_name": "0466-01", "first_page_order": 522, "last_page_order": 524 }