{ "id": 5366968, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Herman SALAZAR, Defendant-Appellant", "name_abbreviation": "State v. Salazar", "decision_date": "1970-04-24", "docket_number": "No. 437", "first_page": "512", "last_page": "514", "citations": [ { "type": "official", "cite": "81 N.M. 512" }, { "type": "parallel", "cite": "469 P.2d 157" } ], "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": "460 P.2d 874", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1869057 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/or-app/1/0460-01" ] }, { "cite": "450 P.2d 258", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1969, "opinion_index": 0 }, { "cite": "74 Cal.Rptr. 882", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1969, "opinion_index": 0 }, { "cite": "70 Cal.2d 369", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2308233 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/cal-2d/70/0369-01" ] }, { "cite": "104 Ariz. 392", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 630020 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/ariz/104/0392-01" ] }, { "cite": "202 Kan. 475", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 547189 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/kan/202/0475-01" ] }, { "cite": "464 P.2d 569", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5359682 ], "opinion_index": 0, "case_paths": [ "/nm/81/0150-01" ] }, { "cite": "81 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370713, 5363539, 5371028, 5364702 ], "opinion_index": 0, "case_paths": [ "/nm/81/0140-01", "/nm/81/0140-03", "/nm/81/0140-04", "/nm/81/0140-02" ] }, { "cite": "81 N.M. 331", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5367583 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0331-01" ] }, { "cite": "80 N.M. 747", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362480 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0747-01" ] }, { "cite": "80 N.M. 328", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356773 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0328-01" ] }, { "cite": "88 S.Ct. 1414", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1968, "opinion_index": 0 }, { "cite": "20 L.Ed.2d 283", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "390 U.S. 1026", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6370048, 6370215, 6370735, 6369840, 6370579, 6370391 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/390/1026-02", "/us/390/1026-03", "/us/390/1026-06", "/us/390/1026-01", "/us/390/1026-05", "/us/390/1026-04" ] }, { "cite": "20 A.L.R.3d 1", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1968, "opinion_index": 0 }, { "cite": "78 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320208 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0450-01" ] }, { "cite": "67 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2716439 ], "weight": 4, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0287-01" ] }, { "cite": "2 N.M. (Gild.) 93", "category": "reporters:state", "reporter": "N.M. (G.)", "weight": 3, "year": 1881, "opinion_index": 0 }, { "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" ] } ], "analysis": { "cardinality": 463, "char_count": 7965, "ocr_confidence": 0.664, "pagerank": { "raw": 3.4514370431196485e-07, "percentile": 0.880191084499521 }, "sha256": "34879a5aa970a3c87c9d29babea3af451b4a9d2660524e0147f7ff0c282f345b", "simhash": "1:9567a8561f5fe87e", "word_count": 1279 }, "last_updated": "2023-07-14T14:30:08.757301+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN and HENDLEY, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Herman SALAZAR, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nDefendant was convicted of assault with intent to commit a violent felony (rape). Section 40A-3-3, N.M.S.A.1953 (Repl.Vol. 6). His appeal raises five issues: (1) lack of a preliminary hearing; (2) cross-examination of grand jury witnesses; (3) transcript of grand jury proceedings; (4) inadequate representation by counsel; and (5) the trial court\u2019s refusal to appoint substitute counsel.\nLack of preliminary hearing.\nDefendant moved for a preliminary hearing prior to his trial. He claims the trial court erred in denying his motion because N.M.Const., Art. II, \u00a7 14 gives him the right to a preliminary hearing. This constitutional provision affords a right to a preliminary hearing when the accused is charged by a criminal information. This provision does not afford a right to a preliminary hearing when the accused is indicted by a grand jury. State v. Mosley, 75 N.M. 348, 404 P.2d 304 (1965). Defendant, having been indicted by a grand jury, had no right to a preliminary hearing.\nCross-examination of grand ptry witnesses.\nDefendant claims he has the right to cross-examine witnesses who appeared before the grand jury. He does not explain the basis of this contention in his brief. Before the trial court he equated the grand jury proceedings with a preliminary hearing and asserted the right of cross-examination on the theory the two procedures were equal.\nTerritory v. Young, 2 N.M. (Gild.) 93 (1881), also reported in 37 Pac. State Reports, states:\n\u201c * * * We cannot fail to recognize the wide distinction between a grand and a petit jury as to their functions and methods of procedure. The action of the former is simply preliminary; it is an inquiry by the grand inquest as to whether there is such probability from the statements made before them, which are usually ex parte of the guilt of a certain person, that he ought to be placed on trial. * * * \u201d\nThe preliminary examination also is an inquiry into probable cause. Section 41-3-12, N.M.S.A.1953 (Repl.Vol. 6). To this extent there is a similarity between grand jury proceedings and a preliminary examination.\nBut the nature of the two procedures is different. The grand jury inquiry is secret. One of the reasons for secrecy is because at the time of these proceedings, the defendant has not been charged with the crime. State v. Morgan, 67 N.M. 287, 354 P.2d 1002 (1960). A preliminary examination is held after a criminal complaint has been made against the defendant. Section 41-3-7, N.M.S.A.1953 (Repl.Vol. 6).\nBecause of the difference in the nature of the two procedures, a defendant, subsequently indicted by the grand jury, has no right to appear before the grand jury. See Territory v. Young, supra. Nor does such a defendant have the right to cross-examine witnesses appearing before the grand jury. He has no such right because the testimony of witnesses before the grand jury is secret, at least until an indictment is voted, see State v. Morgan, supra, and because \u201c * * * on all principles, the Jury-trial rules of Evidence should not apply * * see I Wigmore, Evidence \u00a7 4(5) (3rd ed. 1940).\nN.M.Const., Art. II, \u00a7 14 gives the accused the right to appear and to be confronted with the witnesses against him. This right, however, applies \u201cin all criminal prosecutions.\u201d The grand jury proceedings are not prosecutions; they are inquests into whether there should be a prosecution. Territory v. Young, supra. This constitutional provision does not give defendant the right to cross-examine witnesses appearing before the grand jury.\nTranscript of grand jury proceedings.\nDefendant claims he was entitled to a transcript of the grand jury proceedings. Although we cannot tell from the record, or the briefs, we assume defendant is not seeking a transcript of everything that occurred before the grand jury. Rather, we assume he seeks only a transcript of the proceedings pertaining to the criminal charge brought against him.\nEven with this assumption, there is nothing in the record before us indicating he was entitled to this portion of the grand jury proceedings. There is nothing indicating any use was made of grand jury testimony at defendant\u2019s trial, State v. Morgan, supra, or that any witness at the trial testified before the grand jury. State v. Tackett, 78 N.M. 450, 432 P.2d 415 (1967), 20 A.L.R.3d 1, cert. denied 390 U.S. 1026, 20 L.Ed.2d 283, 88 S.Ct. 1414 (1968). All we have here is a \u201cwholesale request;\u201d no showing of any particularized need. State v. Tackett, supra. With such a record, defendant was not entitled to examine the grand jury proceedings.\nInadequate representation by counsel.\nDefendant claims he was inadequately represented by his court appointed counsel. A claim of inadequate representation requires a showing that the proceedings leading to his conviction were a sham, farce or mockery. State v. Dominguez, 80 N.M. 328, 455 P.2d 194 (Ct.App.1969) and cases therein cited.\nDefendant contends he was inadequately represented because counsel advised him to plead guilty, and when defendant rejected this advice, counsel allegedly said, \u201cI will see you fry.\u201d Neither the advice nor the comment raise an issue as to whether the proceedings resulting in defendant\u2019s conviction were a sham, farce or mockery. State v. Pavlich, 80 N.M. 747, 461 P.2d 229 (1969); Pena v. State, (Ct.App.), 81 N.M. 331, 466 P.2d 897, decided February 20, 1970; State v. Ramirez, 81 N.M. 140, 464 P.2d 569 (Ct.App.1970).\nRefusal to appoint substitute counsel.\nDefendant states \u201c * * * as he was dissatisfied with his court appointed counsel the Court was required to appoint him another trial counsel to defend him.\u201d That is not the law. State v. Walker, 202 Kan. 475, 449 P.2d 515 (1969) states:\n\u201c * * * An indigent defendant may not compel the court to appoint such counsel as defendant may choose. Such appointment lies within the sound discretion of the trial court * * *. Likewise, whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide. * * * \u201d\nState v. Thorne, 104 Ariz. 392, 453 P.2d 963 (1969); People v. Aikens, 70 Cal.2d 369, 74 Cal.Rptr. 882, 450 P.2d 258 (1969); State v. Miller, 460 P.2d 874 (Or.App. 1969).\nThe issue then, is whether the trial court abused its discretion in refusing to appoint substitute counsel. The reason given to the trial court for being dissatisfied with counsel was the advice to plead guilty and the comment about seeing defendant fry. The trial court questioned counsel. Counsel indicated he didn\u2019t recall the \u201cfry\u201d remark, but had indicated defendant should plead guilty to a lesser charge. This occurred after counsel had talked to at least some of the witnesses for the State. In response to the court\u2019s questions, counsel stated he had no animosity to defendant and could represent defendant in good faith. The trial court did not abuse its discretion in refusing to appoint substitute counsel. State v. Walker, supra; State v. Miller, supra.\nAfter the trial court\u2019s ruling, defendant continued to refuse to allow counsel to represent him. At the court\u2019s suggestion, counsel remained in the courtroom, available for advice and assistance upon request. Although defendant questioned the witnesses, counsel did assist in matters relating to the presence of witnesses and clarification of one of the issues presented by defendant. Counsel also reviewed the proposed instructions. Even with defendant\u2019s attitude toward counsel, he was not deprived of assistance of counsel. State v. Thorne, supra.\nAffirmed.\nIt is so ordered.\nOMAN and HENDLEY, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Snyder H. Downs, Santa Fe, for defendant-appellant.", "James A. Maloney, Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "469 P.2d 157\nSTATE of New Mexico, Plaintiff-Appellee, v. Herman SALAZAR, Defendant-Appellant.\nNo. 437.\nCourt of Appeals of New Mexico.\nApril 24, 1970.\nSnyder H. Downs, Santa Fe, for defendant-appellant.\nJames A. Maloney, Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0512-01", "first_page_order": 558, "last_page_order": 560 }