{ "id": 5360602, "name": "STATE of New Mexico, Plaintiff-Appellee, v. James W. HOLLOWELL, Defendant-Appellant", "name_abbreviation": "State v. Hollowell", "decision_date": "1969-10-31", "docket_number": "No. 342", "first_page": "756", "last_page": "760", "citations": [ { "type": "official", "cite": "80 N.M. 756" }, { "type": "parallel", "cite": "461 P.2d 238" } ], "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": "57 N.M. 227", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841627 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0227-01" ] }, { "cite": "85 P. 1044", "category": "reporters:state_regional", "reporter": "P.", "year": 1906, "opinion_index": 0 }, { "cite": "13 N.M. 491", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4675901 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/nm/13/0491-01" ] }, { "cite": "73 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5319949 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0109-01" ] }, { "cite": "79 N.M. 618", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736919 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0618-01" ] }, { "cite": "78 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324091 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0165-01" ] }, { "cite": "76 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502468 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0376-01" ] }, { "cite": "79 N.M. 186", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2745633 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0186-01" ] }, { "cite": "80 N.M. 373", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5357535 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0373-01" ] }, { "cite": "80 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358492 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0537-01" ] } ], "analysis": { "cardinality": 640, "char_count": 14098, "ocr_confidence": 0.677, "pagerank": { "raw": 1.6168522199431068e-07, "percentile": 0.6865743910166191 }, "sha256": "3af56a659022d8ab245dfdc2ad6470c5ae55b4fe7af84839671a9be00e814273", "simhash": "1:2af5f13b75a038f0", "word_count": 2277 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and OMAN, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. James W. HOLLOWELL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nConvicted of violating \u00a7 40A-22-16, N.M.S.A.1953 (Repl.Vol. 6), defendant appeals. The offense is \u201cassault by prisoner.\u201d The issues concern: (1) lack of mental competency to stand trial; (2) a motion for continuance; and, (3) the instruction stating the material allegations of the offense.\nCompetency to stand trial.\nDefendant asserted his incompetency to stand trial on four separate occasions. The issue concerning his competency is presented as both a constitutional and statutory matter.\nDefendant was charged by criminal complaint. \u201cUpon appearing for preliminary hearing * * * the defendant stated * * * he was not mentally competent to stand trial and requested the court to suspend all proceedings until the question as to his mental competency should be properly determined. * * * \u201d The justice of the peace denied the request and held the preliminary hearing. Defendant contends the preliminary examination should have been suspended and the cause transferred to District Court for a determination of his competency to stand trial. Section 41-13-3.1, N.M.S.A.1953 (Repl.Vol. 6, Supp. 1969).\nDefendant claimed he was incompetent a second time when he moved to quash the criminal information filed in the District Court. He asserts that the preliminary examination violated \u00a7 41-13-3.1, supra, that because of this violation the preliminary examination is void, and that he has been denied a valid preliminary examination in violation of N.M.Const. Art. II, \u00a7 14. In the alternative, he claims the holding of the preliminary examination after he asserted his lack of competency to stand trial deprived him of due process of law. See Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969).\nAnother motion asserted his incompetency for the third time. Defendant stated \u201c * * * that he believes he is not mentally competent to stand trial. * * * \u201d Defendant asked that all proceedings in the District Court be suspended until the issue of his competency had been determined and that he be given a mental examination before any determination as to his competency. Section 41-13-3.1, supra, and \u00a7 41-13-3.2, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969).\nFollowing this third assertion of incompetency, a mental examination was ordered. The examination was held less than three weeks later. The report of the examination, made to the District Judge, was to the effect that defendant was competent to stand trial and was not \u201cinsane in legal terms\u201d when he committed the assault. Accompanying this report was a report made three months prior to the date of the assault. This report was to the effect that defendant was not psychotic.\nWhen the case came on for trial defendant moved for a continuance. One of the grounds asserted was that he was entitled to a \u201csanity hearing.\u201d The trial court understood the reference to a \u201csanity hearing\u201d to include an assertion that defendant was not competent to stand trial (the fourth assertion of incompetency). The trial court ruled that defendant was competent to stand trial, and denied all the motions raising the issue of defendant\u2019s competency. In doing so, it relied on the reports of two psychiatrists (the two reports previously mentioned).\nDefendant states the ruling on this fourth assertion was not a determination of competency as required under \u00a7\u00a7 41-13-3.1 and 41-13-3.2, supra. Defendant asserts that the. procedure involved was inadequate; that the trial court made its determination after \u201c * * * reviewing some unsworn medical reports and having a conversation in court with defendant, * * * \u201d\nAll of defendant\u2019s contentions concerning his competency to stand trial are based on the premise that there was a \u201cquestion\u201d as to his competency. That premise is false. State v. Hovey, 80 N.M. 373, 456 P.2d 206 (Ct.App.1969) states:\n\u201cSection 41-13-3.1, supra, requires there to be a \u2018question\u2019 as to the accused\u2019s capacity to stand trial. The \u2018question\u2019 is not raised by an assertion of that issue, even though the assertion is in good faith. As in the similar federal statute, there must be a showing of reasonable cause for the belief that an accused is not competent to stand trial. * * *\u00bb\nAlthough defendant asserted his incompetency to stand trial four times, he alleged nothing, other than his own belief, in support of these assertions. Defendant did, in connection with the fourth assertion, refer to his \u201cstate of mind.\u201d This reference was as to his mental state at the time he committed the assault, some thirteen months prior to trial. It did not go to his capacity to stand trial. No question of defendant\u2019s capacity to stand trial was raised because there was no showing of reasonable cause for defendant\u2019s belief in his incapacity. Compare Hoffman v. State, 79 N.M. 186, 441 P.2d 226 (Ct.App.1968). Since the question of incompetency was not raised, no decision is necessary as to the procedure to be followed in determining whether an accused is competent to stand trial.\nMotion for continuance.\nDefendant asked for a continuance on the ground that he was not prepared to go to trial. At his counsel\u2019s request, and with, the court\u2019s permission, defendant argued the motion personally. Defendant contends the trial court erred in denying him a continuance.\nA lengthy colloquy between the court and defendant shows the motion for continuance was motivated by defendant\u2019s desire to have a \u201csanity hearing\u201d prior to trial. He asked that his court appointed counsel be discharged because the attorney \u201c * * \u2022 * , does not want to subpoena any witnesses for this sanity hearing, * * \u201d \u201c* ?.-\u25a0*, ..I just, more or less, wanted to acquire .'my: own attorney, so I could go through this sanity hearing first, *\nDefendant named a long list of witnesses that he 'desired to call. Two categories are easily id\u00e9nti fiable \u2014 those named as witnesses on the claim'that'he was incompetent'to stand-trial and those named as witnesses who would testify as to his \u201cstate of mind\u201d at the time defendant committed the assault. A possible third category consists of witnesses who would testify concerning the assault itself. Thus, we construe defendant\u2019s motion for continuance to be a claim that he was not ready to proceed either with a \u201csanity hearing\u201d or with the trial itself.\nThe reason for the asserted state of unreadiness is a lack of evidence; thus, defendant\u2019s desire to call the witnesses named. Section 21-8-10, N.M.S.A.1953 applies. Although defendant made several references to his \u201cstate of mind\u201d at the time he committed the assault, he never indicated what p\u00e1rticular facts these witnesses would' prove,' or that he knew of no other witnesses by which such facts' could be proved. Compare State v. James, 76 N.M. 376, 415 P.2d 350 (1966). Defendant simply did not present a basis for a continuance, either on the question of a \u201csanity hearing\u201d or on the merits of the cause.\nDefendant wanted time to attempt to retain his own counsel. This presents no independent basis for a continuance. He never represented that he could retain counsel, only that he wanted time to try to do so. Further, the desired change of counsel relates directly to his dissatisfac-, tion with his court appointed counsel. Defendant charged that court appointed counsel was incompetent and prejudiced because of his failure to call witnesses.\nIn order to answer this contention, we assume, but do not decide, that a failure of court appointed counsel to call witnesses who could testify concerning pending issues would be a ground for continuance. In considering this charge we sta.rt with the trial court\u2019s statement: \u201c * * * I know that he [counsel] is one of the most competent, qualified attorneys admitted to practice at the Bar of the State of New Mexico.\u201d Defendant does not contest this statement as a general proposition; his. claim is that counsel was \u201c * * * incompetent, * * * on this particular case, right now. * * * \u201d\nCounsel had been appointed for more than one year prior to defendant\u2019s motion. He represented defendant at the preliminary hearing. As a result of this hearing the justice of the peace refused to bind defendant over on one of the two charges brought against him. The attorney filed motions on defendant\u2019s behalf and obtained for him the mental examination referred to previously. He moved for a speedy trial with the result that the trial setting was advanced. He gave defendant prompt notice of the trial setting, corresponded with defendant about the case and conferred with him when defendant was returned from the penitentiary to Raton for-the trial.\nAlthough requested by defendant, coun\u2022sel refused to subpoena three of the witnesses named by defendant. He refused to do so in the exercise of his professional judgment. Compare State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967). Counsel stated he had never been advised of defendant\u2019s desire to call witnesses other than these three. Further, that he had never been advised of defendant\u2019s dissatisfaction with counsel prior to defendant\u2019s :statement in court when the case was called for trial.\nDefendant did not contradict any of the \u25a0foregoing; he confirmed some of the items. 'There is nothing. in the record indicating \u25a0that court appointed counsel had failed to prepare for trial or had failed to call any person whose testimony would have been of benefit to the defendant.\nAs to defendant\u2019s \u201csanity\u201d, there is nothing indicating any witness could have testified as to a reasonable cause for a belief that defendant was not competent to stand trial. There is nothing indicating there was a defense of insanity at the time of commission of the assault. See \u00a7 41-13-3, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969). The only items in the record, the reports of the mental examinations, are to the contrary. Compare Trujillo v. State, 79 N.M. 618, 447 P.2d 279 (1968).\nThere being nothing in the record supporting the charge that counsel had refused to call persons who could testify as to matter pertinent to defendant\u2019s case, there was no basis for a continuance. The record supports the trial court\u2019s view of defendant\u2019s motion for continuance \u2014 that the motion was an attempt to delay the trial and that defendant wanted a change in counsel in the hope that a defense might be manufactured.\nInstruction stating the material allegations.\nDefendant was convicted of violating that part of \u00a7 40A-22-16, supra, which reads:\n\u201cAssault by prisoner consists of intentionally :\n<( * % *\n\u201cB. causing or attempting -to cause great bodily harm to an office.r or employee of any penal institution, reformatory, jail or prison farm or ranch, * (Emphasis added.)\nSection 40A-1-13, N.M.S.A.1953 (Repl.Vol. 6) defines \u201cgreat bodily harm\u201d as follows:\n\u201cA. \u2018Great bodily harm\u2019 means an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body;\u201d (Emphasis added.) ; ...\nThe jury was instructed 'in accordance with these statutes. It was told that to find the defendant guilty they must determine that defendant intentionally caused or attempted to cause great bodily harm.\nThe assault is not disputed. Defendant, while a prisoner in the county jail, threw coffee at the Sheriff and physically fought with him. There is evidence from which the jury could determine that the coffee burned the Sheriff in two places, that defendant attempted to choke the Sheriff with one hand while attempting to get the Sheriff\u2019s gun with the other hand. There is evidence that when defendant threw the coffee he said, \u201c T am going to kill you,\u2019.\u201d\nDefendant concedes there is evidence from which the jury could determine that defendant attempted to cause great bodily harm to the Sheriff. His contention is that there is no evidence that defendant did, in fact, cause such harm. In support of this contention, he relies on his counsel\u2019s cross-examination of the Sheriff. The Sheriff testified that the two burned places healed and left no scar; that after the fight was over he was able to breathe normally and that he had no other injury.\nBecause of the asserted lack of evidence showing that defendant caused great bodily harm, he claims the instruction on \u201ccausing\u201d great bodily harm submitted a false issue to the jury, and that this false issue was prejudicial.\nWe agree that instructions should be confined to issues upon which testimony was given at trial. State v. Romero, 73 N.M. 109, 385 P.2d 967 (1963). However, we entertain doubt as to whether an instruction which follows the statutory language, and informs the jury that there must be proof of at least one of two alternatives, goes beyond the issue as to those alternatives even if there is no evidence as to one of them. Compare Territory v. Neatherlin, 13 N.M. 491, 85 P. 1044 (1906). Further, we are uncertain as to whether such an instruction, if error, is prejudicial when the evidence is substantial as to one of the alternatives. It might be harmless error. State v. Compton, 57 N.M. 227, 257 P.2d 915 (1953). In this case it is not necessary to decide these questions.\nWe decide this point on the basis of evidence which defendant overlooks. The Sheriff testified that when defendant was choking him \u201c * * * my breath was practically cut-off. I realized instantaneously that it was he or I, one or the other. * * * \u201d This is evidence that the choking created a \u201chigh probability of death\u201d which is one part of the definition of great bodily harm. This is also evidence that defendant\u2019s actions caused this high probability of death. This evidence justified instructing the jury to consider whether defendant caused great bodily harm under \u00a7 40A-1-13, supra, and \u00a7 40A-22-16, supra.\nThe judgment and sentence are affirmed.\nIt is so ordered.\nSPIESS, C. J., and OMAN, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Robert S. Skinner, Raton, for appellant.", "James A. Maloney, Atty. Gen., Santa Fe, James V. Noble, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "461 P.2d 238\nSTATE of New Mexico, Plaintiff-Appellee, v. James W. HOLLOWELL, Defendant-Appellant.\nNo. 342.\nCourt of Appeals of New Mexico.\nOct. 31, 1969.\nRobert S. Skinner, Raton, for appellant.\nJames A. Maloney, Atty. Gen., Santa Fe, James V. Noble, Asst. Atty. Gen., for appellee." }, "file_name": "0756-01", "first_page_order": 812, "last_page_order": 816 }