{ "id": 5336402, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jessie CLARK, Defendant-Appellant", "name_abbreviation": "State v. Clark", "decision_date": "1971-12-10", "docket_number": "No. 772", "first_page": "484", "last_page": "487", "citations": [ { "type": "official", "cite": "83 N.M. 484" }, { "type": "parallel", "cite": "493 P.2d 969" } ], "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": "74 N.M. 743", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806326 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/74/0743-01" ] }, { "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": "83 N.M. 250", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341089 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0250-01" ] }, { "cite": "82 N.M. 722", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333253 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0722-01" ] }, { "cite": "45 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565200 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/nm/45/0204-01" ] }, { "cite": "76 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501837 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0273-01" ] }, { "cite": "78 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324091 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0165-01" ] }, { "cite": "82 N.M. 543", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334220 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0543-01" ] }, { "cite": "82 N.M. 17", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327629 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0017-01" ] } ], "analysis": { "cardinality": 463, "char_count": 7673, "ocr_confidence": 0.664, "pagerank": { "raw": 3.264802424170919e-07, "percentile": 0.8697383515409586 }, "sha256": "a18ae0f99d01879efc76c7991c3762db829fc46bef642aeaabf9b201b170a320", "simhash": "1:8cbeb4c6779c1ce6", "word_count": 1271 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and COWAN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jessie CLARK, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of three counts of forgery, defendant appeals. Section 40A-16-9, N.M. S.A.1953 (Repl.Vol. 6). The asserted errors and our answers follow.\nSeverance.\nThe three forgery counts are contained in one information. Defendant, through his attorney, moved that each count be the subject of a separate trial so that defendant would not be embarrassed in his defense by the multiplicity of charges. Defendant claims denial of the motion was error.\nPrior to, and at the time the motion was heard, defendant indicated he did not want his court-appointed attorney to represent him. The trial court refused to appoint another attorney and stated that defendant could represent himself if he wanted to do so. However, court-appointed counsel was directed to continue in the case and see that defendant\u2019s constitutional rights were protected.\nThereafter, ascertaining from defendant that defendant did not want the counts severed, ascertaining that court-appointed counsel had advised defendant of possible prejudice if the counts were not severed and ascertaining that defendant was aware of this possible prejudice, the trial court denied the motion for severance.\nThe trial court\u2019s ruling was not error absent a showing of an abuse of discretion which resulted in prejudice to defendant. State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App.1970); see State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971). Defendant claims there was an abuse of discretion because the trial court acceded to defendant\u2019s express wish not to have the counts severed when court-appointed counsel, directed to remain in the case by- .the trial court, was asking for a severance. The claim is that the trial court ignored counsel\u2019s control over procedural matters. See State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967). Since defendant was representing himself in connection with the motion and proceeded contrary to counsel\u2019s advice, we cannot say that counsel, at the time, was controlling the matter. There was no abuse of discretion in these circumstances.\nBias of the trial court.\nThe claim is that bias on the part of the trial court denied defendant a fair trial. The basis for the claim is:\n(a) In considering some of defendant\u2019s motions and petitions, the trial court indicated defendant had filed \u201ctoo damned many\u201d and that there was nothing in them but a \u201cbunch of wind.\u201d\n(b) During the trial the court did some questioning of both State and defense witnesses.\n(c) Defense counsel\u2019s objection to one of the court\u2019s questions was overruled.' Counsel then commented: \u201cThat\u2019s for the prosecution.\u201d The court stated to defense counsel: \u201c . . . another remark like that and you\u2019ll go to jail. . . .\u201d\nThe trial court\u2019s comment concerning the motions and petitions is not approved. However, it did not occur in the presence of the jury.\n\u201cA trial judge . . . may properly propound questions to the witnesses, so long as he keeps the same within the bounds demanded of him by his position as tidal judge, and so long as he displays no bias against or favor for either of the litigants. . . .\u201d State v. Sedillo, 76 N.M. 273, 414 P.2d 500 (1966). Here, the questions were directed almost equally to witnesses on both sides of the case, and none of the questions displayed a bias for or against either side.\nThe \u201cthreat\u201d to counsel was a response to the remark made by counsel. Assuming the court\u2019s remark was improper, it did not deter defense counsel from making further objections. No claim is made that presentation of the defense was in any way hampered. Nor, when the remark is considered in context, can we say that the< court\u2019s remark could be understood by the jury as indicating the trial court was biased against the defendant.\nWe cannot say the trial court was biased against defendant as a matter of law.\nHabeas corpus petitions.\nDefendant (personally, not through counsel) filed two petitions for habeas corpus\u2014one prior and one subsequent to his trial. His appeal asserts error in denying these petitions. In re Forest, 45 N.M. 204, 113 P.2d 582 (1941) holds that the denial of a petition for habeas corpus by the district court is not appealable. We apply the rule of Forest. In addition, however, the claims made in the two petitions (fourteen or more) are either factually incorrect or raise legal issues that are without merit. Most of the claims have been previously-decided by the New Mexico appellate courts. It would be of no benefit to the public or to the bar to index these claims and cite the dispositive authority. We expressly hold, however, that none of the claims have any merit. Compare State v. Hibbs, 82 N.M. 722, 487 P.2d 150 (Ct.App.1971) with State v. Bogdan, 83 N.M. 250, 490 P.2d 967 (Ct.App.), decided October 21, 1971.\nPetition for writ of mandamus.\nThis petition of defendant (again personally and not through counsel) is a diatribe against Judge Neal, the New Mexico Courts, the New Mexico Bar and Assistant District Attorney McCormick which alleges generally that defendant is, or will be, deprived of due process because he is poor and black. Judge Neal\u2019s.characterization of it as a \u201cbunch of wind\u201d is charitable. We disregard the tirade of vitriolic comment. The claim of lack of \u201cdue process\u201d is too general to present an issue for review. Pena v. State, 81 N.M. 331, 466 P.2d 897 (Ct.App.1970).\nRefusal of trial court to disqualify himself.\nThe record shows that on May 4, 1971, after defendant had unsuccessfully attempted to get the trial court to change his court-appointed attorney, after the motion for severance had been ruled on, after defendant was partially successful in his motion for a bill of particulars and after he had been arraigned, defendant handed Judge Neal a request that Judge Neal be disqualified. He claims denial of the request was error. It was not; the request was too late. The disqualification affidavit must be filed before the court has acted judicially on a material issue. State ex rel. Howell v. Montoya, 74 N.M. 743, 398 P.2d 263 (1965).\nDenial of a request for transcript of proceedings.\nSubsequent to trial, defendant requested a copy of all charges, arraignment proceedings, trial transcript and judgment. All these documents are in the record before us and, therefore, were available to his counsel in this appeal. Since in fact they were provided, no error can be predicated on the order of the trial court to the effect that the request was denied. If defendant\u2019s request can be construed as a request that he be provided with a personal copy of these records, the order denying the request was proper since the records were available to his counsel.\nDefendant also requested a copy of the asserted warrant for extradition and asserted waiver signed at the time of his asserted extradition from Florida. There is nothing to show that these records, if they exist, are a part of the proceedings resulting in defendant\u2019s conviction and on which this appeal is based. The clerk\u2019s certificate states that the record before us is a \u201cfull, true and correct transcript of the record and proceedings\u201d in this case. There is nothing to show the trial court could have furnished the asserted extradition documents. Thus, denial of the request was not error.\nThe judgment and sentence is affirmed.\nIt is so ordered.\nHENDLEY and COWAN, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "James F. Warden, Carlsbad, for appellant.", "David L. Norvell, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "493 P.2d 969\nSTATE of New Mexico, Plaintiff-Appellee, v. Jessie CLARK, Defendant-Appellant.\nNo. 772.\nCourt of Appeals of New Mexico.\nDec. 10, 1971.\nRehearing Denied Jan. 3, 1972.\nCertiorari Denied Jan. 25, 1972.\nJames F. Warden, Carlsbad, for appellant.\nDavid L. Norvell, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0484-01", "first_page_order": 610, "last_page_order": 613 }