{ "id": 5364739, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Phillip A. TAPIA, Defendant-Appellant", "name_abbreviation": "State v. Tapia", "decision_date": "1970-03-13", "docket_number": "No. 408", "first_page": "365", "last_page": "368", "citations": [ { "type": "official", "cite": "81 N.M. 365" }, { "type": "parallel", "cite": "467 P.2d 31" } ], "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": "81 N.M. 52", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362531 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/81/0052-01" ] }, { "cite": "378 U.S. 478", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166688 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/378/0478-01" ] }, { "cite": "10 A.L.R. 3d 974", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1966, "opinion_index": 0 }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "75 N.M. 348", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5374669 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0348-01" ] }, { "cite": "79 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744578 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0189-01" ] }, { "cite": "78 N.M. 108", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322263 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0108-01" ] }, { "cite": "345 F.2d 299", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 866675 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/345/0299-01" ] }, { "cite": "345 F.2d 302", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 866679 ], "opinion_index": 0, "case_paths": [ "/f2d/345/0302-01" ] }, { "cite": "15 L.Ed. 125", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 5678330 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/58/0580-01" ] }, { "cite": "86 S.Ct. 179", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1965, "opinion_index": 0 }, { "cite": "382 U.S. 889", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6334089, 6333836, 6334513, 6334261, 6333693 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/382/0889-03", "/us/382/0889-02", "/us/382/0889-05", "/us/382/0889-04", "/us/382/0889-01" ] }, { "cite": "348 F.2d 156", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 857572 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/348/0156-01" ] }, { "cite": "81 N.M. 173", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358615 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0173-01" ] }, { "cite": "20 L.Ed.2d 668", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "88 S.Ct. 1829", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1968, "opinion_index": 0 }, { "cite": "391 U.S. 927", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767299, 1767749, 1767687, 1767692, 1767757, 1767724, 1767632, 1767606, 1767480, 1767673, 1767678 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0927-09", "/us/391/0927-05", "/us/391/0927-01", "/us/391/0927-11", "/us/391/0927-10", "/us/391/0927-07", "/us/391/0927-02", "/us/391/0927-04", "/us/391/0927-08", "/us/391/0927-03", "/us/391/0927-06" ] }, { "cite": "78 N.M. 607", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325802 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0607-01" ] }, { "cite": "260 F.2d 384", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 444381 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/f2d/260/0384-01" ] }, { "cite": "347 F.2d 948", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 860456 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/347/0948-01" ] }, { "cite": "332 U.S. 261", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 364932 ], "weight": 4, "year": 1947, "opinion_index": 0, "case_paths": [ "/us/332/0261-01" ] }, { "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" ] }, { "cite": "80 N.M. 188", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361570 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0188-01" ] } ], "analysis": { "cardinality": 522, "char_count": 7088, "ocr_confidence": 0.694, "pagerank": { "raw": 1.8150918821770817e-07, "percentile": 0.7183434246552598 }, "sha256": "45f12430bfe00edd23ccf6e36b4a6884f28cb22a9682c1e66719ac245e0802bd", "simhash": "1:a3e9362eaf4f9344", "word_count": 1201 }, "last_updated": "2023-07-14T14:30:08.757301+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. Phillip A. TAPIA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nDefendant was convicted of the unlawful sale of a narcotic drug \u2014 heroin. Section 54 \u2014 7-14, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2). He appeals giving five points for reversal.\nW\u00e9 affirm.\n1. \u201cTHE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT\u2019S MOTION FOR CONTINUANCE BECAUSE OF THE UNAVAILABILITY OF THREE DEFENSE WITNESSES.\u201d\nSection 21-8-10, N.M.S.A. 1953 sets forth the requirements for a motion for continuance based on absence of evidence. Section 21-8-7, N.M.S.A. 1953 states that unless the facts be within the knowledge of the court, then the application for a continuance shall be supported by an oath. The granting or denying of a motion for continuance rests in the sound discretion of the trial court and will not be interfered with except for abuse. State v. Ranne, 80 N.M. 188, 453 P.2d 209 (Ct.App. 1969).\nThe motion for continuance was orally presented on the morning of trial alT leging that three witnesses were not available. One witness was in the hospital. The State stipulated to what that witness would testify. We fail to see any prejudice to defendant with regard to .the .hospitalized witness. See State v. Nieto, 78 N.M. 155, 429 P.2d 353 (1967).\nAs to the other two witnesses defendant failed to indicate what testimony could be expected from them. He neither indicated they could be found or that their absence would be prejudicial to defendant\u2019s case. Compare facts in State v. Ranne, supra.\nEven assuming defendant\u2019s compliance with the above statutes we find no abuse of discretion in the trial court\u2019s denial of defendant\u2019s motion for continuance.\n2. \u201cTHE JURY PANEL WAS NOT REPRESENTATIVE OF THE COMMUNITY AND IT WAS ERROR FOR TRIAL COURT TO DENY DEFENDANT\u2019S MOTION TO DISMISS THE ENTIRE JURY PANEL.\u201d\nOne is not entitled to relief simply because there isn\u2019t a member of his race on the jury ttnless he shows that the absence resulted from purposeful discrimination. Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); Woods v. Munns, 347 F.2d 948 (10th Cir. 1965). Conversely, one is entitled to relief regardless, of palpable guilt if he shows actual exclusion resulting from purposeful discrimination based on race or economic status. Windom v. United States, 260 F.2d 384 (10th Cir. 1958).\nDefendant contends:\n\u201c * * * that the great majority of the potential jurors work at the same place, are the same type of people; that the Spanish American Nationality is not represented in true precentage on the jury list.\u201d\ntie does not allege, nor does the record support, actual exclusion. In the trial court he made no showing to indicate the cause of his alleged de facto unrepresentative jury panel. He has therefore shown no grounds for the dismissal of the jury panel. Fay v. New York, supra; Windom v. United States, sttpra.\n3. \u201cIT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT\u2019S MOTION FOR A \u25a0 CHANGE OF VENUE ON THE GROUNDS OF ADVERSE PUBLICITY.\u201d\nFrom defendant\u2019s oral statements at trial it appears he was relying on \u00a7 21-S-3 (A) (2) (c), N.M.S.A. 1953 (Supp. 1967) regarding publicity of questions involved in his indictment. He failed to comply with subsections B and C of the same provision which relate to time for filing and notice of hearing. On the' morning of trial he urged an oral motion which in no way complied with the statutory requirements as to form or substance.- His motion was neither supported by affidavits nor was it timely filed. State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1829, 20 L.Ed.2d 668 (1968).\nNot having satisfied form or substance in his motion, defendant may not now be heard to complain that the denial of his motion was an abuse of discretion. State v. Lindsey, (Ct.App.) 81 N.M. 173, 464 P.2d 903, decided December 5, 1969.\n4. \u201cTHE VERDICT OF THE JURY WAS CONTRARY TO THE EVI- ' DENCE AND THE STATE FAIL\u25a0ED TO SUSTAIN THE BURDEN OF PROOF.\u201d\nDefendant maintains that Lujan v. United States, 348 F.2d 156 (10th Cir. 1965), cert. denied 382 U.S. 889, 86 S.Ct. 179, 15 L.Ed. 125 (1965) makes it clear that the testimony of an informer must be corroborated. We read that case as stating that a refusal of a defendant\u2019s requested cautionary instruction on the credibility of an Informer is not error when the informer\u2019s testimony is adequately corroborated. Jordan v. United States, 345 F.2d 302 (10th Cir.1965); Todd v. United States, 345 F.2d 299 (10th Cir. 1965).\nIn this case we have no.issue of a refused requested cautionary instruction. Furthermore, there was in fact adequate corroboration. The informer and his car were thoroughly searched before and after the \u201cbuy.\u201d .One of the searching officers, who personally knew defendant, watched with binoculars and saw an exchange between the informer and defendant. When the informer was searched after the \u201cbuy\u201d the $5.00 bill given to him, just prior to the \u201cbuy,\u201d was gone and instead he had a cap of heroin in his possession. During the entire interval from the first search, through the \u201cbuy\u201d transaction and until the final search the informer was closely followed and observed by the officers. Compare facts in Lujan v. United States, supra.\nDefendant claims that the character of the informer was impeached and so his testimony should have been discredited. The function of determining the credibility of a witness and the weight to be given to his testimony is the function of the jury. State v. McAfee, 78 N.M. 108, 428 P.2d 647 (1967); State v. Manlove, 79 N.M. 189, 441 P.2d 229 (Ct.App. 1968). At the close of the State\u2019s case defendant made the motion for the directed verdict. At this point there was evidence supporting the State\u2019s case. There was no conflicting testimony. It would have been error to have directed a verdict for defendant. State v. Mosley, 75 N.M. 348, 404 P.2d 304 (1965).\n5.\u201cTHE CONSTITUTIONAL RIGHTS OF THE DEFENDANT WERE VIOLATED WHEN HE WAS NOT ADVISED OF HIS RIGHTS ONCE INVESTIGATION REACHED ACCUSATORY STAGE.\u201d\nDefendant contends and we agree that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R. 3d 974 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) proclaim the constitutional right of an accused person to be informed of his right to remain silent once an investigation has reached an accusatory stage and has focused on the accused. We fail to see how this rule aids the defendant. Here, defendant was not in custody, not under indictment and was not being interrogated. State v. Anaya, 81 N.M. 52, 462 P.2d 637 (Ct.App. 1969). The informer had notified the police he was going to make a \u201cbuy\u201d and did make a \u201cbuy.\u201d The advisory system had not begun to operate against the defendant. State v. Anaya, supra.\nAffirmed.\nIt is so ordered.\nSPIESS, C. J., and OMAN, J., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Warren O. F. Harris, King & Plarris, Albuquerque, for appellant.", "James A. Maloney, Atty. Gen., Ray Shollenbarger, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "467 P.2d 31\nSTATE of New Mexico, Plaintiff-Appellee, v. Phillip A. TAPIA, Defendant-Appellant.\nNo. 408.\nCourt of Appeals of New Mexico.\nMarch 13, 1970.\nWarren O. F. Harris, King & Plarris, Albuquerque, for appellant.\nJames A. Maloney, Atty. Gen., Ray Shollenbarger, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0365-01", "first_page_order": 411, "last_page_order": 414 }