{ "id": 2765108, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Dario Pete GURULE, Defendant-Appellant", "name_abbreviation": "State v. Gurule", "decision_date": "1972-07-28", "docket_number": "No. 856", "first_page": "142", "last_page": "146", "citations": [ { "type": "official", "cite": "84 N.M. 142" }, { "type": "parallel", "cite": "500 P.2d 427" } ], "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": "35 P.2d 285", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1455388, 1559221 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/okla-crim/56/0139-01", "/nm/38/0462-01" ] }, { "cite": "38 N.M. 462", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559221 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nm/38/0462-01" ] }, { "cite": "82 N.M. 242", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334148 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0242-01" ] }, { "cite": "81 N.M. 521", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0521-01" ] }, { "cite": "1 A.L.R. 3d 1205", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1964, "opinion_index": 0 }, { "cite": "378 U.S. 368", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166505 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/378/0368-01" ] }, { "cite": "80 N.M. 377", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5355971 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0377-01" ] }, { "cite": "83 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335699 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0327-01" ] }, { "cite": "399 U.S. 42", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168334 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/399/0042-01" ] }, { "cite": "83 N.M. 474", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336547 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/83/0474-01" ] }, { "cite": "403 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027286 ], "weight": 4, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0443-01" ] }, { "cite": "83 N.M. 388", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335009 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0388-01" ] } ], "analysis": { "cardinality": 474, "char_count": 7632, "ocr_confidence": 0.69, "pagerank": { "raw": 8.047636492700885e-08, "percentile": 0.46606365853762133 }, "sha256": "93943398a9ec521dae3677f52a067c06c6343bc16b4cff006c7ebed2a07e8052", "simhash": "1:3b54377f3e40da96", "word_count": 1278 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN and HERNANDEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Dario Pete GURULE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nDefendant, age seventeen at the time of the shooting, was tried as an adult on the charges of voluntary manslaughter (\u00a7 40A-2-3, N.M.S.A.1953 (Repl.Vol. 1964)) and aggravated battery (\u00a7 40A-3-5, N.M.S.A.1953 (Repl.Vol. 1964, Supp.1971)). The jury returned a verdict of guilty of involuntary manslaughter and not guilty of aggravated battery. Defendant appeals asserting four points for reversal.\nPhotographs.\nThree photographs were admitted into evidence. One showing the license number of the car in which defendant was apprehended; and the other two photographs showing the pistol in the car prior to its removal.\nDefendant contends there was no testimony relating to the accuracy of the photographs nor did the State lay a foundation for their admission into evidence. We cannot agree. The officer who took the photographs stated that he took the photographs at the place and at the location he \u201csaw it.\u201d Although the language used is not in the standard form (representative of what was seen) the reasonable inference from the foregoing is that the photographs were representative.\nEven assuming there was a lack of proper foundation, we fail to see how the admission into evidence was prejudicial. Defendant admitted the shooting in self-defense. He told the police the gun was under the seat of the car and that he was driving the car with the license number which was photographed. State v. Vasquez, 83 N.M. 388, 492 P.2d 1005 (Ct.App.1971).\nPistol.\nAfter the shooting defendant left in his car. \u201cA couple of blocks\u201d from the shooting he saw the police \u201cgoing after me\u201d and pulled over. The police removed defendant from the car and asked the location of the gun and \u201cso I told him.\u201d\nDefendant filed a pre-trial motion to suppress the admission of the pistol. The pistol was shown to the jury several times prior to its admission. It was first identified by the alleged victim of the aggravated battery as being the pistol which defendant had in his possession several hours prior to the shooting and also as the pistol with which defendant used to shoot him. Subsequently, it was identified by a police officer who took a picture of it under the seat of defendant\u2019s car, shortly after defendant\u2019s car was stopped following the shooting.\nAt the time of the offer into evidence of the pistol defendant objected on the grounds that the officers should have obtained a search warrant because the pistol was not in \u201cplain view\u201d, the car was not going anywhere, it was not on a person or in the proximity of defendant at the time of his arrest.\nDefendant relies on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) for the proposition that the police can only search the automobile if the defendant is so close to it that he could obtain or destroy a weapon. Defendant asserts under our facts the police had ample time to obtain a search warrant.\nWe do not so read Coolidge. Coolidge did not change the law of a search of an automobile. Here only a matter of minutes had elapsed from the time of the shooting. The police were called and told that a shooting was in progress. The police responding to the call were directed by friends of the alleged victim to the car of defendant. Defendant then got out of the car, was placed under arrest, and given his advice of rights. Defendant then stated he was sorry, \u201che didn\u2019t mean to shoot anyone.\u201d Upon being asked, defendant told the officers the gun was under the front seat of his car. The officer then found the gun under the defendant\u2019s front car seat.\nThe search was not remote in time. The police' had probable cause for the arrest and the search and seizure. State v. Courtright, 83 N.M. 474, 493 P.2d 959 (Ct.App.1972). There existed \u201cexigent circumstances\u201d to justify the warrantless search of the automobile. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), followed in Coolidge v. New Hampshire, supra, and State v. Courtright, supra.\nConfession.\nDefendant by pre-trial motion to suppress stated that the statements of defendant \u201c . . . were the result of duress and were taken in violation of his constitutional rights. . . . \u201d The record does not show a disposition of this motion. Defendant indicated during trial that a hearing should be held outside the presence of the jury concerning the voluntariness of the statements. The record does not indicate a hearing was held.\nDefendant has a constitutional right to have a fair hearing and a reliable determination on the issue of voluntariness uninfluenced by the truth or falsity of the confession. State v. Gruender, 83 N.M. 327, 491 P.2d 1082 (Ct.App.1971) ; State v. Word, 80 N.M. 377, 456 P.2d 210 (Ct.App. 1969); see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R. 3d 1205 (1964). As we stated in Word:\n\u201cWhen a defendant makes it known he has something to say touching the integrity of a claimed confession, however incredible as it may appear to the trial court, the defendant must be heard.\nSince we affirm on all other issues we vacate the conviction and sentence pending a trial court determination on the issue of voluntariness of the confession. Should it be determined the confession was voluntary then defendant\u2019s conviction is to be reinstated. Should it be determined the confession was not voluntary then the trial court must award defendant a new trial. See State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970).\nSubstantial Evidence.\nDefendant contends there is no substantial evidence of the state of mind of the defendant during the firing of the shots. We disagree.\nDefendant\u2019s own testimony stated when he first shot he did not intend to hit anyone but after he saw he hit Toby he got \u201c . . . scared and shot him [David].\u201d This testimony alone is sufficient for the jury to draw an inference of intent sufficient to sustain a conviction of voluntary manslaughter. State v. McLam, 82 N.M. 242, 478 P.2d 570 (Ct.App.1970).\nJuror.\nDefendant challenged a juror for cause when the juror stated he would believe the testimony of a policeman over the testimony of a layman. The record shows defendant only exercised three of his five peremptory challenges. Section 41-10-3, N.M.S.A.1953 (Repl.Vol.1964). We fail to see any prejudice to the defendant. Even assuming prejudice, it was from defendant\u2019s choice not to exercise his remaining peremptory challenge. Compare State v. Burrus, 38 N.M. 462, 35 P.2d 285 (1934).\nWe note in passing that the index to the transcript is totally inaccurate and of no help or assistance in the review of this cause. The obligation lies with the Court Reporter to prepare an accurate record for appeal and with the appealing attorney to check for that accuracy.\nAll issues raised by defendant on appeal are affirmed except the issue relating to voluntariness of the confession. Because the trial court failed to grant a hearing on that issue, outside the presence of the jury, the cause is remanded with instructions to vacate the judgment, determine the question of voluntariness and otherwise proceed in a manner consistent with this opinion. Should a hearing on the issue of voluntariness not be held within 90 days from the date of our mandate the defendant is to be discharged.\nIt is so ordered.\nSUTIN and HERNANDEZ, JJ., concur.\n. See footnote 17.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Patrick L. Chowning, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., James B. Mulcock, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "500 P.2d 427\nSTATE of New Mexico, Plaintiff-Appellee, v. Dario Pete GURULE, Defendant-Appellant.\nNo. 856.\nCourt of Appeals of New Mexico.\nJuly 28, 1972.\nPatrick L. Chowning, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., James B. Mulcock, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0142-01", "first_page_order": 298, "last_page_order": 302 }