{ "id": 5332704, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Cecil E. SEXTON, Defendant-Appellant", "name_abbreviation": "State v. Sexton", "decision_date": "1971-04-09", "docket_number": "No. 586", "first_page": "648", "last_page": "650", "citations": [ { "type": "official", "cite": "82 N.M. 648" }, { "type": "parallel", "cite": "485 P.2d 982" } ], "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. 623", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370694 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0623-01" ] }, { "cite": "80 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356958 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/80/0126-01" ] }, { "cite": "20 L.Ed.2d 106", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "88 S.Ct. 1250", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1968, "opinion_index": 0 }, { "cite": "390 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6345666, 6345293, 6346415, 6346639, 6346225, 6345810, 6346900, 6346043, 6345469 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/390/1006-03", "/us/390/1006-01", "/us/390/1006-07", "/us/390/1006-08", "/us/390/1006-06", "/us/390/1006-04", "/us/390/1006-09", "/us/390/1006-05", "/us/390/1006-02" ] }, { "cite": "385 F.2d 375", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2085199 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/385/0375-01" ] }, { "cite": "82 N.M. 466", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326071 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0466-01" ] } ], "analysis": { "cardinality": 324, "char_count": 5152, "ocr_confidence": 0.701, "pagerank": { "raw": 2.6010835285074747e-07, "percentile": 0.8194970054238684 }, "sha256": "bedec1e949c00fe88e3cd79c75d5bb95bfe84686e2a40fcb73e3f81eb86d95dd", "simhash": "1:3ebb4404fd338bad", "word_count": 851 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD and HENDLEY, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Cecil E. SEXTON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nSexton was convicted and sentenced on two counts of armed robbery. The defendant appeals.\nWe affirm.\nSexton contends, (1) that he was entitled to a preliminary hearing and the indictment should have been dismissed; and (2) that some of Sexton\u2019s statements made in a police car were erroneously admitted in evidence and considered by the jury.\nAbsence of Preliminary Hearing.\nSexton was denied a preliminary hearing. A race took place between the assistant district attorney and Sexton whether Sexton should have a preliminary hearing before a grand jury indictment was returned. Sexton lost the race. The indictment was first returned and the preliminary hearing was not held. This same issue was decided contrary to Sexton\u2019s contentions in the companionate case of State v. Burk, 82 N.M. 466, 483 P.2d 940 (Ct.App.) February 19, 1971. Sexton\u2019s claims are denied.\nErroneous Admission of Evidence.\n. Sexton was arrested with Burk east of Albuquerque. He was immediately advised of his constitutional rights to remain silent and have counsel during interrogation. While being returned to Albuquerque in a police car, a conversation began back and forth, between Sexton and Burk, not initiated by the police officers. The detective asked Sexton why he shot the alleged victim of the robbery, and his response was that it was an accident. Sexton was asked whether his gun was cocked and his response was that he guessed so. During opening statement to the jury, the assistant district attorney admitted that the shooting was accidental.\nThe question raised by Sexton is: Did Sexton waive his rights to remain silent and have counsel before these inquiries were put to him?\nThere is a complete absence of express waiver. There is no express statement by Sexton that he understood his rights when he received his constitutional warnings. Such express waiver or statement of understanding is not an essential link in the chain of proof. Whether an intelligent waiver occurs depends upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused. United States v. Hayes, 385 F.2d 375 (4th Cir. 1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968), cited in State v. Smith, 80 N.M. 126, 452 P.2d 195 (Ct.App.1969).\nBoth Sexton and Burk moved to suppress statements made by them. At the hearing on this motion, the only testimony concerning statements by Sexton is Sexton\u2019s testimony that he made no statements. At this point, no issue as to the admissibility of statements by Sexton or waiver of constitutional rights by Sexton had been raised.\nAt the trial, an officer testified as to Sexton\u2019s statements during the ride to Albuquerque. The only objection to this testimony was that it was inadmissible because of an illegal arrest. Subsequently, this officer testified that Sexton had been advised that he would have the right to an attorney after he was charged. Sexton then moved for a mistrial on the basis that he was not told that he had the right to have an attorney present during any questioning. Specifically, the motion for mistrial was that the testimony showed defendant\u2019s statements \u201cwere made after faulty warning.\u201d\nOther officers testified, however, that Sexton had been advised that he had a right to have an attorney during any questioning.\nNowhere in the record is the issue raised to the trial court that defendant seeks to raise here \u2014 that he did not waive his right to remain silent because there is no showing that defendant understood this. Sexton never claimed, prior to this appeal, that he did not understand the advice given him as to his rights.\nDefendant seeks to raise the waiver issue for the first time on appeal. He may not do so. State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct.App.1970); compare State v. Smith, 80 N.M. 126, 452 P.2d 195 (Ct.App.1969).\nSexton further contends there was no evidence in the record to sustain two portions of a long instruction to the jury, stating seven matters to be considered by the jury in determining whether the confession was admissible. Two of these seven matters are directed to \u201cexpress waiver\u201d and imposd a burden on the state, in order to use defendant\u2019s statements, that is not required by law. Sexton claims that regardless of the correctness of the instruction, it is the law of the case, and since there is no evidence of express waiver, no issue as to his statements should have been submitted to the jury. Our answer is that this issue was never presented to the trial court. Defendant\u2019s objection to the instruction never went to the question of express waiver. He may not raise it here for the first time.\nThe conviction and sentence are affirmed.\nIt is so ordered.\nWOOD and HENDLEY, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Scott McCarty, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Leila Andrews, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "485 P.2d 982\nSTATE of New Mexico, Plaintiff-Appellee, v. Cecil E. SEXTON, Defendant-Appellant.\nNo. 586.\nCourt of Appeals of New Mexico.\nApril 9, 1971.\nRehearing Denied May 18, 1971.\nCertiorari Denied June 1, 1971.\nScott McCarty, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Leila Andrews, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0648-01", "first_page_order": 704, "last_page_order": 706 }