{
  "id": 5360018,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gilbert RAEL, Defendant-Appellant",
  "name_abbreviation": "State v. Rael",
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  "casebody": {
    "judges": [
      "OMAN and HENDLEY, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Gilbert RAEL, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nDefendant appeals his conviction of sodomy and aggravated assault. Sections 40A-9-6 and 40A-3-2, N.M.S.A.1953 (Repl. Vol. 6). There are two issues: (1) the refusal to suppress defendant\u2019s statement and (2) a refused instruction.\nRefusal to suppress statement.\nDefendant made a statement to the police that, in effect, was a confession. He moved to suppress the statement prior to trial. The trial court held an evidentiary hearing, ruled that the statement would not be suppressed and that upon a proper foundation being laid, would be submitted to the jury at trial.\nDefendant contends the trial court erred, as a matter of law, in refusing to suppress the statement. Pie claims the statement was involuntary under the \u201ctotality of the circumstances.\u201d State v. Ortiz, 77 N.M. 316, 422 P.2d 355 (1967); State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966); see State v. Beachum, 78 N.M. 390, 432 P.2d 101 (1967), cert. denied 392 U.S. 911, 88 S.Ct. 2068, 20 L.Ed.2d 1369 (1968); compare State v. Reid, 79 N.M. 213, 441 P.2d 742 (1968).\nThe circumstances on which defendant relies are: (a) the length of time he was interrogated prior to making the statement; (b) the lack of opportunity to 'consult with an attorney prior to making the statement; and (c) the fact that he made the statement before being taken before a magistrate.\nThe only evidence at the hearing on the motion was the testimony of a police officer. The officer testified that defendant was arrested between 4:30 and 5:00 p. m., was advised of his constitutional rights, was taken to the police station, was questioned and again advised of his rights before making a statement. Defendant made his statement at 8:30 p. m. The evidence is that defendant was not \u201c * * * under questioning at all times * * * \u201d, that he was \u201c * * * both in and out of the cell. * * * \u201d The uncontradicted record is that defendant was advised of his right to have an attorney present and that if he didn\u2019t have the money to pay for an attorney one would be furnished him free of charge. The testimony is that defendant indicated he understood the advice given to him.\nThe foregoing testimony was repeated at trial. In addition, at trial, the officer testified that defendant \u201c * * * was asked if he wanted to have a lawyer present and he said no, he\u2019d go ahead and talk to us without the presence of his attorney.\u201d\nThe foregoing evidence does not compel a conclusion that defendant was questioned continuously for three and one-half hours, or that he had no opportunity to have an attorney present. The evidence does not require a conclusion that defendant\u2019s will was overborne at the time he gave his statement. State v. Ortiz, supra; see State v. Reid, supra. Under the circumstances here, the elapsed time from arrest to giving the statement and the absence of counsel during that time does not require a holding that the statement was involuntary. State v. Beachum, supra; State v. Ortiz, supra; State v. Ortega, supra.\nThe record shows that defendant was not taken before a magistrate until the following morning. Thus, it supports the contention that defendant gave his statement prior to appearing before the magistrate. The statement having been held to be voluntary by the trial court, and the evidence at the motion hearing not requiring a contrary conclusion, the fact that the statement was made prior to defendant's appearance before a magistrate did not require that the statement be suppressed. State v. Minor, 78 N.M. 680, 437 P.2d 141 (1968) ; State v. Gray, 80 N.M. 751, 461 P. 2d 233 (Ct.App.1969).\nNone of defendant\u2019s contentions, considered singly or in combination, required the suppression of defendant\u2019s statement. State v. Ortiz, supra. The authorities relied on by defendant, most of which are cited in State v. Ortiz, supra, do not require a contrary result.\nThe refused instruction.\nDefendant requested an instruction concerning the consideration the jury was to give to defendant\u2019s statement. In objecting to the court\u2019s refusal to give the requested instruction, he stated: \u201c * * * it is a correct statement of the law in respect to the voluntariness of a confession and would have better informed the jury than the instruction given by the Court on this point.\u201d\nFour instructions were given concerning the voluntariness of the statement and how the jury was to consider it. The jury having been fully instructed as to each element of defendant\u2019s requested instruction supported by the evidence, it was not error to refuse the requested instruction. State v. Mora, 81 N.M. 631, 471 P.2d 201, decided May 28, 1970; State v. McFerran, 80 N.M. 622, 459 P.2d 148 (Ct.App. 1969).\nDefendant also argues that the jury was not instructed on the effect to be given the statement if they found defendant was insane at the time of giving the statement. See State v. Padilla, 66 N.M. 289, 347 P.2d 312 (1959). We assume, but do not decide, there is evidence that defendant was legally insane when he gave his statement. However, his requested instruction did not cover this issue. The issue was never presented to the trial court. An instruction covering this issue not having been presented to the trial court, it cannot be first raised on appeal. State v. Ramirez, 79 N.M. 475, 444 P.2d 986 (1968); State v. Selgado, 76 N.M. 187, 413 P.2d 469 (1966) ; see State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App. 1969). The requested instruction did go to defendant\u2019s mental condition at the time of making the statement, however, the instructions given by the court covered the concept of \u201cmental condition.\u201d\nThe judgment of conviction is affirmed.\nIt is so ordered.\nOMAN and HENDLEY, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "George H. Perez, Albuquerque, for de~ f endant-app ellant.",
      "James A. Maloney, Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "474 P.2d 83\nSTATE of New Mexico, Plaintiff-Appellee, v. Gilbert RAEL, Defendant-Appellant.\nNo. 481.\nCourt of Appeals of New Mexico.\nAug. 14, 1970.\nGeorge H. Perez, Albuquerque, for de~ f endant-app ellant.\nJames A. Maloney, Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0791-01",
  "first_page_order": 837,
  "last_page_order": 838
}