{ "id": 2824800, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Riley I. GILLIHAN, Defendant-Appellant", "name_abbreviation": "State v. Gillihan", "decision_date": "1974-07-26", "docket_number": "No. 9918", "first_page": "439", "last_page": "441", "citations": [ { "type": "official", "cite": "86 N.M. 439" }, { "type": "parallel", "cite": "524 P.2d 1335" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "30 L.Ed.2d 662", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "92 S.Ct. 688", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "404 U.S. 1015", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6454080, 6454298, 6454820, 6454712, 6455082, 6454603, 6454990, 6454197, 6454391, 6454904, 6454490 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/404/1015-01", "/us/404/1015-03", "/us/404/1015-08", "/us/404/1015-07", "/us/404/1015-11", "/us/404/1015-06", "/us/404/1015-10", "/us/404/1015-02", "/us/404/1015-04", "/us/404/1015-09", "/us/404/1015-05" ] }, { "cite": "82 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326341 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0393-01" ] }, { "cite": "54 N.M. 213", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582002 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/nm/54/0213-01" ] }, { "cite": "86 N.M. 244", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2827182 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0244-01" ] }, { "cite": "46 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563084 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "309" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nm/46/0302-01" ] }, { "cite": "86 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824335 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/86/0039-01" ] }, { "cite": "84 N.M. 491", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763757 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0491-01" ] }, { "cite": "80 N.M. 265", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5357507 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0265-01" ] }, { "cite": "83 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335149 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0393-01" ] }, { "cite": "83 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337946 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0655-01" ] }, { "cite": "84 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2762467 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0150-01" ] }, { "cite": "84 N.M. 172", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763710 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0172-01" ] }, { "cite": "78 N.M. 431", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325932 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0431-01" ] }, { "cite": "80 N.M. 21", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359740 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0021-01" ] }, { "cite": "85 N.M. 514", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772666 ], "weight": 4, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0514-01" ] }, { "cite": "81 N.M. 535", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361194 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0535-01" ] } ], "analysis": { "cardinality": 535, "char_count": 7980, "ocr_confidence": 0.811, "pagerank": { "raw": 3.926753397433729e-07, "percentile": 0.902859780628137 }, "sha256": "0ce0067c53bb36555844a283d10a8f2e3fdf3ba51d942b5f690ba75ed2645d2e", "simhash": "1:0dedfaebbd25df7a", "word_count": 1329 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McMANUS, C. J., and OMAN, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Riley I. GILLIHAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSTEPHENSON, Justice.\nIn September, 1968, Gillihan was convicted by a jury on four separate counts of murder in the first degree. Each conviction specified that the death penalty be imposed. On appeal, this court issued a mandate on September 10, 1969, remanding for resentencing as provided in newly enacted statutes limiting capital punishment. Ch. 128, Laws 1969.\nThe trial court resentenced Gillihan to life imprisonment on each of the four separate convictions, and provided that the second, third and fourth convictions be served concurrently with each other but consecutively to the life sentence imposed upon the first.\nGillihan appealed, raising only the issue of the consecutive sentences. We affirmed. State v. Gillihan, 81 N.M. 535, 469 P.2d 514 (1970).\nGillihan next sought post conviction relief pursuant to Rule 93 [\u00a7 21-1-1 (93), N.M.S.A. 1953 (Repl. Vol. 4, 1970)]. He asserted that:\n1. His court appointed attorney was ineffective and incompetent.\n2. At the time of his arrest, he was denied the assistance of counsel and his confession was obtained through coercion and threats.\n3. The trial court had committed fundamental error in admitting his confession into evidence.\nThe trial court denied the motion without a hearing or the appointment of counsel. Gillihan appealed. We affirmed. State v. Gillihan, 85 N.M. 514, 514 P.2d 33 (1973).\nGillihan then filed a second Rule 93 motion attacking his sentence on five grounds, none of which were raised either in his appeal or in the first Rule 93 proceeding. The trial court denied the motion without a hearing. The trial court found, in the words of Rule 93(b), that the court files and records in this case \u201cconclusively show that (Gillihan) is entitled to no relief.\u201d This appeal followed.\nThe only ground asserted in the motion which is argued by Gillihan on this appeal is that the district attorney made certain inflammatory remarks in his closing argument which effectively deprived appellant of a fair trial. It seems that the district attorney twice characterized Gillihan as a \u201cmad dog\u201d. No objection was made to these remarks.\nGillihan is confronted at the outset with two basic propositions. The first is that Rule 93 proceedings cannot be utilized as a substitute for an appeal, or as a means for correcting errors which occurred during trial. State v. Garcia, 80 N.M. 21, 450 P.2d 621 (1969); State v. Williams, 78 N.M. 431, 432 P.2d 396 (1967). This is true even though the claimed errors relate to constitutional grounds. State v. Garcia, supra. This principle applies with even greater force where a prisoner attempts to assert in post conviction proceedings issues which he failed to raise on direct appeal. See Apodaca v. State, 84 N.M. 172, 500 P.2d 742 (Ct.App.1972); State v. Clark, 84 N.M. 150, 500 P.2d 435 (Ct.App.1972); State v. Lee, 83 N.M. 655, 495 P.2d 1102 (Ct.App.1972); Andrada v. State, 83 N.M. 393, 492 P.2d 1010 (Ct.App.1971). Such contentions are deemed waived when not raised on appeal.\nHere the prosecutor\u2019s comments were not advanced as error on the direct appeal, Nothing prevented such an assertion.\nIn fact, the only ground argued on this appeal was advanced neither in the prior Rule 93 proceedings nor in the appeal relating thereto. Rule 93(d) provides:\n\u201c(d) Successive motions. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.\u201d\nAs a logical extension of our cases holding that relief predicated upon Rule 93 cannot be obtained upon grounds which could have been, but were not, raised on direct appeal, and upon Rule 93(d), we now hold that we will not consider grounds asserted in a second or successive (Rule 93 proceeding which could have been, but were not, asserted in a prior Rule 93 proceeding. Such grounds omitted in the prior proceedings are deemed waived.\nNaturally, this holding will not apply to grounds constituting fundamental error or to situations in which the prisoner\u2019s mental capacities preclude an intelligent waiver. Compare State v. Barefield, 80 N.M. 265, 454 P.2d 279 (1969).\nThe second basic proposition confronting Gillihan arises from his failure to object to the statements of the prosecutor at the time they were made, before the jury retired or, in fact, at any time prior to the filing of this motion. In State v. Victorian, 84 N.M. 491, 505 P.2d 436 (1973) the defendant failed to object to allegedly improper argument by the prosecutor until after the verdict was returned. We said:\n\u201cEven were we to concede the argument in some particulars exceeded the bounds of propriety, defendant is in no position to complain. No objections were made to any of the arguments about which he now complains on appeal. If he felt the remarks by the prosecutor exceeded the bounds or propriety, the burden was on him to make objection at the time the remarks were made, * * *.\u201d\nSee also State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974) and cases cited-therein.\nThe foregoing relegates Gillihan to asserting fundamental error. The elements of fundamental error were laid down in one of our prior opinions regarding his problems. In State v. Gillihan, 85 N.M. 514, 514 P.2d 33 (1973) we said:\n\u201cFundamental error has been defined by this Court as follows: \u2018Error that is fundamental must be such error as goes to the foundation or basis of a defendant\u2019s rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense * * * \u2019 State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942). This court further stated that no court \u2018 * * * could or ought to permit [the defendant] to waive * * * \u2019 this right and in determining whether fundamental error exists, each case must stand on its own.\u201d\nSee also State v. Romero, 86 N.M. 244, 522 P.2d 579 (1974); State v. Sena, 54 N.M. 213, 219 P.2d 287 (1950).\nIn State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App.1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 688, 30 L.Ed.2d 662 (1972), it was said that a prosecutor is given reasonable latitude in his closing arguments and that the trial court has wide discretion in controlling their scope. This principle is not disputed.\nGillihan relies principally on State v. Vallejos, supra. In that case the Court of Appeals, based in part upon improper argument by the prosecutor, found fundamental error and reversed. There the district attorney had engaged in a continuous course of reprehensible conduct the recounting of which would unduly lengthen this opinion. Two specific actions involved closing argument. It is clear that the Court of Appeals reversed because of the cumulative effect of these and other actions. It was said:\n\u201c * * * We consider the cumulative impact of the three items of misconduct. An accumulation of irregularities, each of which, in itself, might be deemed harmless may, in the aggregate, show the absence of a fair trial.\u201d\nGauged by these rules, did characterizing Gillihan as a \u201cmad dog\u201d in closing argument, standing alone, constitute fundamental error? We think not. In reaching this conclusion, a measure of discretion and judgment is necessarily involved, but it does not seem to us that the remark was such error as went to the basis of Gillihan\u2019s rights or to the foundation of the case or took from him a right which was essential to his defense. We doubt that the comment so aroused the passions of the jury as to preclude a fair and impartial verdict.\nThe order from which this appeal is prosecuted is affirmed.\nIt is so ordered.\nMcMANUS, C. J., and OMAN, J., concur.", "type": "majority", "author": "STEPHENSON, Justice." } ], "attorneys": [ "Chester H. Walter, Chief Public Defender, Bruce L. Herr, App. Defender, Pedro G. Rael, Sp. Asst. Public Defender, Santa Fe, for defendant-appellant.", "David L. Norvell, Atty. Gen., Ralph Muxlow, II, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "524 P.2d 1335\nSTATE of New Mexico, Plaintiff-Appellee, v. Riley I. GILLIHAN, Defendant-Appellant.\nNo. 9918.\nSupreme Court of New Mexico.\nJuly 26, 1974.\nChester H. Walter, Chief Public Defender, Bruce L. Herr, App. Defender, Pedro G. Rael, Sp. Asst. Public Defender, Santa Fe, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Ralph Muxlow, II, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0439-01", "first_page_order": 469, "last_page_order": 471 }