{ "id": 5341167, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Robert Joe SAMORA, Defendant-Appellant", "name_abbreviation": "State v. Samora", "decision_date": "1971-10-22", "docket_number": "No. 667", "first_page": "222", "last_page": "224", "citations": [ { "type": "official", "cite": "83 N.M. 222" }, { "type": "parallel", "cite": "490 P.2d 480" } ], "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": "80 N.M. 41", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358838 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0041-01" ] }, { "cite": "282 S.W.2d 547", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10182790 ], "opinion_index": 0, "case_paths": [ "/sw2d/282/0547-01" ] }, { "cite": "221 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "35 Ill.2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378323 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/35/0516-01" ] }, { "cite": "450 P.2d 857", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10576922 ], "opinion_index": 0, "case_paths": [ "/p2d/450/0857-01" ] }, { "cite": "80 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356710 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0340-01" ] }, { "cite": "80 N.M. 91", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359939 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0091-01" ] }, { "cite": "81 N.M. 571", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358341 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0571-01" ] }, { "cite": "405 F.2d 1104", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1211697, 3580301 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/405/1104-01" ] }, { "cite": "132 U.S.App.D.C. 36", "category": "reporters:state", "reporter": "U.S. App. D.C.", "case_ids": [ 3580301 ], "year": 1968, "opinion_index": 0, "case_paths": [] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "39 A.L.R.3d 791", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1967, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "81 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360149 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0333-01" ] }, { "cite": "487 P.2d 919", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5333409 ], "opinion_index": 0, "case_paths": [ "/nm/83/0009-01" ] }, { "cite": "82 N.M. 9", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 } ], "analysis": { "cardinality": 392, "char_count": 6087, "ocr_confidence": 0.666, "pagerank": { "raw": 1.3629864799416017e-07, "percentile": 0.6366942628701519 }, "sha256": "caa56c0005e31c075912bf80c1ce6fe60b17f8f5245fa33a4db886f27b6d520a", "simhash": "1:910ddebead0c0b70", "word_count": 1010 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and HENDLEY, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Robert Joe SAMORA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nSamora was convicted of kidnapping, under \u00a7 40A-4-1, N.M.S.A.1953 (Repl.Vol. 6).\nWe affirm.\nThis is a companion case to State v. Martinez, 82 N.M. 9, 487 P.2d 919 (Ct.App.1971), in which Martinez was convicted of armed robbery. We affirmed Martir nez.\nSamora first contends the trial court erred in allowing a police officer to testify at trial to an out-of-court identification of Samora at an elevator in a police station because, in the absence of defense counsel, this constituted an illegal \u201cshowup.\u201d\nThe term \u201cshowup\u201d has sometimes been used interchangeably with \u201clineup,\u201d State v. Morales, 81 N.M. 333, 466 P.2d 899 (Ct.App.1970), and is also used to refer to a situation where one suspect is shown by himself to a witness. 39 A.L.R.3d 791, 793, Note 1. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). This is called a \u201cone-man show-up.\u201d Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (1968).\nWe interpret Samora\u2019s use of the term \u201cshowup\u201d to mean a one to one confrontation between the accused and a witness. In this case, there was evidence introduced at trial of an out-of-court confrontation of Samora with a witness, a police officer, in the absence of an attorney for Samora.\nSamora was first seen by the police officer between 12:30 a. m. and 1:00 a. m. at Larry\u2019s Drive-In where two men had entered with the apparent intent to commit robbery. The lights were on in the kitchen area. The man, later identified as Samora,\u2019 had a 45 automatic gun in his hand. He was 30 feet from the police officer when seen. Samora faced the officer ten or fifteen seconds. Prior to his arrest, the officer independently identified Samora from a photograph at the police station.\nSome six hours later, Samora was arrested and taken to the police station. The arresting officer and Samora were standing at the elevator in the building, at this time, the police officer witness came out of the radio room, saw Samora and identified him as the man he had seen inside Larry\u2019s Drive-In during the armed robbery. This identification was made without an attorney for Samora being present. During trial, on direct examination, the officer identified Samora positively as the man he saw in the kitchen at Larry\u2019s Drive-In.\nOn cross-examination, defense counsel referred to \u201cmug\u201d photographs of Samora. On redirect examination, the trial court, over specific objection, allowed the police officer to testify to the out-of-court elevator identification of Samora when no defense attorney was present. However, the police officer further testified that he was not influenced by the fact that Samora was in custody at the elevator. He was positive at the^ time of trial that Samora was the same man he had seen earlier in the drive-in.\nWas the out-of-court elevator identification illegal and inadmissible because Samora, at that time, was without an attorney, was not advised of his right to an attorney, and did not waive this right? The answer is \u201cno.\u201d\nThe out-of-court identification was inadvertent or accidental. State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App.1970). It was not an arranged lineup or confrontation planned by the police department. We have assumed that a lineup identification of a defendant is illegal where a defendant was not represented by counsel at that lineup. State v. Clark, 80 N.M. 91, 451 P.2d 995, (Ct.App.1969), reversed on other grounds, 80 N.M. 340, 455 P.2d 844 (1969). That issue is absent here. The admission in evidence of the accidental elevator identification was not error.\nSecondly, Samora contends it was error to allow in evidence a gun and other evidence found on the person of Jake Martinez, a participant with Samora in the armed robbery of Larry\u2019s Drive-In, because this was an abuse of discretion. No authority is cited. Samora claims that the Martinez items of evidence did not materially aid the jury while its prejudice to Samora far outweighed its probative value. This point has no merit. The crime of kidnapping, with which Samora was charged, grew out of the attempted robbery of the drive-in by Samora and Martinez. Both were identified as being at the place of the crime in the building at the same time, each in possession of guns. Both had a common design of robbery. Under these circumstances, the Martinez items of evidence were admissible.\nThe rule is well established that a weapon or other instrument found in the possession of the accused\u2019s associates is admissible as part of the history of the arrest and as bearing on the crime. 22A C.J.S. Criminal Law \u00a7 712(C); Harris v. State, 450 P.2d 857 (Okl.Cr.1969); People v. Johnson, 35 Ill.2d 516, 221 N.E.2d 497 (1966); State v. Lindner, 282 S.W.2d 547 (S.Ct.Mo.1955). See State v. Everitt, 80 N.M. 41, 450 P.2d 927 (Ct.App.1969).\nThe trial court did not abuse its discretion in admitting the Martinez items in evidence.\nSamora further contends the trial court abused its discretion in allowing in evidence a \u201cmug shot\u201d of Samora because it was suggestive of guilt and was prejudicial. The record shows the state did not offer the \u201cmug shot\u201d in evidence on direct examination of a police officer. Samora\u2019s attorney on cross-examination first questioned the police officer on the photographs and opened up the subject. On redirect examination, the state properly questioned the police officer with reference to the \u201cmug shot.\u201d It was identified without objection before it was offered in evidence. At this late stage, Samora\u2019s attorney objected. The trial court did not abuse its discretion in admitting the photograph in evidence.\nFinally, Samora claims he was entitled to a directed verdict. There is no merit to this contention.\nAffirmed.\nIt is so ordered.\nWOOD, C. J., and HENDLEY, J., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Harold H. Parker, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Ethan K. Stevens, James H. Russell, Jr., Asst. Attys. Gen., for plaintiff-appellee." ], "corrections": "", "head_matter": "490 P.2d 480\nSTATE of New Mexico, Plaintiff-Appellee, v. Robert Joe SAMORA, Defendant-Appellant.\nNo. 667.\nCourt of Appeals of New Mexico.\nOct. 22, 1971.\nHarold H. Parker, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Ethan K. Stevens, James H. Russell, Jr., Asst. Attys. Gen., for plaintiff-appellee." }, "file_name": "0222-01", "first_page_order": 348, "last_page_order": 350 }