{ "id": 2832148, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Daniel Joe SANCHEZ, Defendant-Appellant", "name_abbreviation": "State v. Sanchez", "decision_date": "1974-12-11", "docket_number": "No. 1423", "first_page": "140", "last_page": "143", "citations": [ { "type": "official", "cite": "87 N.M. 140" }, { "type": "parallel", "cite": "530 P.2d 404" } ], "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": "84 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765703 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0005-01" ] }, { "cite": "83 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335909 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0644-01" ] }, { "cite": "83 N.M. 544", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340473 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0544-01" ] }, { "cite": "167 P. 426", "category": "reporters:state_regional", "reporter": "P.", "year": 1917, "opinion_index": 0 }, { "cite": "23 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2394087 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nm/23/0156-01" ] }, { "cite": "82 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325762 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0619-01" ] }, { "cite": "78 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326683 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0588-01" ] }, { "cite": "84 N.M. 399", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2762121 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0399-01" ] }, { "cite": "86 N.M. 351", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823467 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/86/0351-01" ] }, { "cite": "84 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764665 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/84/0595-01" ] }, { "cite": "84 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764665 ], "weight": 4, "pin_cites": [ { "page": "342" } ], "opinion_index": 1, "case_paths": [ "/nm/84/0595-01" ] } ], "analysis": { "cardinality": 588, "char_count": 11050, "ocr_confidence": 0.804, "pagerank": { "raw": 2.911541831282647e-07, "percentile": 0.8458413984753551 }, "sha256": "2aec3a445a512a13db95da24cc1c03faf2e6241d5125b68c0d5956e53c34885d", "simhash": "1:7d7c7b26743714b0", "word_count": 1852 }, "last_updated": "2023-07-14T21:55:50.541053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "SUTIN, Judge, specially concurring." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Daniel Joe SANCHEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nDefendant was convicted by a jury of robbery while armed with a deadly weapon, to wit: a firearm, contrary to \u00a7 40A-16-2, N.M.S.A.1953 (2d Repl.Vol. 6, Supp. 1973) and \u00a7 40A-29-3.1, N.M.S.A.1953 (2d Repl.Vol. 6). Judgment and sentence were entered for robbery while armed with a deadly weapon, and defendant appeals. We affirm.\nDefendant urges four points for reversal: (1) that the indictment was void, being based upon an unconstitutional statute; (2) that the defendant was improperly convicted and sentenced; (3) that the trial court erred in refusing to allow defendant to reexamine a witness; and (4) that the trial court erred in denying defendant\u2019s motion for a mistrial based upon alleged prosecutorial misconduct.\nConstitutionality of \u00a7 40A-29-3.1, supra\nDefendant contends that the combined use of \u00a7 40A-16-2, supra, and \u00a7 40A-29-3.1, supra, in the indictment unconstitutionally creates a new crime in violation of N.M. Const. Art. IV, \u00a7 18, which provides in part:\n\u201cNo law shall be revised or amended, or the provisions thereof extended by reference to its title only; but each section thereof as revised, amended or extended shall be set out in full.\u201d\nAs further authority, defendant cites State v. Blea, 84 N.M. 595, 506 P.2d 339 (Ct.App.1973), wherein it is stated \u201cthat \u00a7 40A-29-3.1(A), supra, creates a new class of crimes.\u201d It is defendant\u2019s contention that the wording of the two statutes above, read together, creates a crime of robbery with a firearm, a third degree felony.\nThe Blea decision concerned the judicial application of \u00a7 40A-29-3.1, supra, for sentencing purposes to a conviction of statutory rape, as charged in the indictment. The problem in Blea was that the defendant was not charged in the indictment so as to advise him of the need to prepare his defense to meet the enhanced sentence imposed pursuant to \u00a7 40A-29-3.1, supra. The court in Blea did not declare the section unconstitutional but merely remanded the case to the lower court for resentencing in accordance with the crime with which the defendant had been convicted.\nIn the case at bar, no new crime is created by the combined use of \u00a7\u00a7 40A-16-2 and 40A-29-3.1, supra, in the indictment. Section 40A-16-2, supra, defines robbery with a deadly weapon as a second degree felony. This is the crime of which defendant was convicted. Section 40A-29-3.1, supra, is superfluous to the indictment. It specifies various consequences for the defendant if a finding is made that the deadly weapon used in the robbery was, in fact, a firearm. The conviction rests upon \u00a7 40A-16-2, supra. Section 40A-29-3.1, supra, serves no other purpose in the indictment than to alert the defendant to the possible sentencing consequences following a conviction under \u00a7 40A-16-2, supra.\nWe hold that the defendant was validly indicted and that there was no violation of any constitutional provision.\nJudgment and Sentence\nThe defendant asserts that the trial court sentenced him under both \u00a7 40A-16-2, supra, and \u00a7 40A-29-3.1, supra. The argument, as in point (1) above would have the court sentence defendant for robbery, a third degree felony, and thereafter apply the provisions of \u00a7 40A-29-3.1(B), supra. This is an improper reading of the effect of the two sections cited.\nAs we said in State v. Urban, 86 N.M. 351, 524 P.2d 523 (Ct.App.1974):\n\u201cThe sentences imposed in this case . are authorized by \u00a7 40A-29-3, N.M.S.A.1953 (2d Repl.Vol. 6). There is nothing showing that \u00a7 40A \u2014 29-3.-1(B), supra, has been applied to defendant\u2019s sentences. Defendant\u2019s claim that \u00a7 40A-29-3.1(B), supra, was applied to his sentences has no basis other than speculation. No reviewable question is presented. State v. Snow, 84 N.M. 399, 503 P.2d 1177 (Ct.App.1972).\u201d\nIt is true that in the case at bar the jury found \u201cthat a firearm WAS used in the commission of this offense.\u201d There is, however, no indication that the trial court made any use of the provisions of \u00a7 40A-29-3.1, supra, in handing down the sentence. Defendant was sentenced to ten (10) to fifty (50) years imprisonment for \u201cROBBERY WHILE ARMED WITH A DEADLY WEAPON.\u201d Section 40A-16-2, supra. We hold that the judgment and sentence of the trial court were proper and are affirmed. State v. Urban, supra; see State v. Blea, supra. In so holding, we make no comment upon the defendant\u2019s assertion that sentencing under \u00a7 40A-29-3.1 (B), supra, enhances the penalty prescribed for conviction under \u00a7 '40A-16-2, supra. As \u2018 we view the record, that issue is not before us.\nRecall of a Witness\nDefendant argues that the trial court erred by refusing to recall a state witness for additional cross-examination. Defendant apparently wished to attempt impeachment of the witness through his prior inconsistent testimony before the grand jury.\nDuring the regular cross-examination defendant had ample opportunity to attempt to impeach the testimony of the witness. The defense did, in fact, cross-examine the witness on other topics. Further, the defense did not reserve the right to re-examine the witness. Our review is limited to consideration of matters disclosed by the record. State v. Buchanan, 78 N.M. 588, 435 P.2d 207 (1967); State v. Paul, 82 N.M. 619, 485 P.2d 375 (Ct.App. 1971). The matter of allowing recall and re-examination of a witness is within the trial court\u2019s discretion. State v. Rodriguez, 23 N.M. 156, 167 P. 426 (1917); State v. McAdams, 83 N.M. 544, 494 P.2d 622 (Ct.App.1972). After reviewing the record, we hold that the trial court did not abuse its discretion.\n\\Motion for Mistrial\nThe district attorney asked the following question of a state witness :\n\u201cQ Didn\u2019t you state to that officer when you were questioned that you and the defendant, Mr. Sanchez, went to the Shell Service Station to buy some gas and that you went to sleep as you were leaving the Shell Service Station and that the next thing you remember is being at your house on Summer and that Mr. Sanchez, the defendant in this case, changed his shirt, shaved off his mustache \u2014 \u201d\nDefendant moved for a mistrial on the basis of this question, which motion was denied. The jury was instructed at that time to disregard the question and was later instructed that statements of counsel were not to be considered as evidence.\nThe transcript indicates that there was little, if any, prejudice created by the unanswered question. The admonition of the court to the jury adequately cured any prejudice which may have resulted. State v. Carlton, 83 N.M. 644, 495 P.2d 1091 (Ct.App. 1972). We hold that the trial court, in denying defendant\u2019s motion for a mistrial, did not abuse its discretion. State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct. App.1972).\nThe conviction, judgment and sentence are affirmed.\nIt is so ordered.\nHERNANDEZ, J., concurs.\nSUTIN, Judge, specially concurring.", "type": "majority", "author": "LOPEZ, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nDefendant contends that when \u00a7 40A-16-2 in the Criminal Code (armed robbery) is read, as in the indictment by which he was charged, along with \u00a7 40A-29-3.1 (increased sentences for use of a firearm), a new offense is created, viz., \u201carmed robbery with a firearm\u201d. He contends that creation of a new offense in such fashion is in violation of the New Mexico Constitution, Art. IV, \u00a7 18.\nThe record shows that, although the jury found that defendant had used a firearm in commission of the armed robbery, defendant was convicted only of \u201crobbery while armed with a deadly weapon\u201d, and he was sentenced only in accordance with \u00a7 40A-16-2. The mention of \u00a7 40A-29-3.1 in the indictment was \u201csurplusage\u201d. Rule 7(b) of the Rules of Criminal Procedure [\u00a7 41-23-7, N.M.S.A.1953 (2d Repl.Vol. 6, 1973 Supp.) ] Since defendant was convicted and sentenced only pursuant to \u00a7 40A-16-2, the indictment is not void; the constitutional question does not arise; and this Court\u2019s opinion in State v. Blea, 84 N.M. 595, 506 P.2d 339 (1973), is not material to the instant case.\nI feel constrained to discuss, briefly, the constitutional question even though it does not properly arise in this case, because the majority opinion did deal with this question. In doing so, the majority wrongly analyzed the constitutional question, and distorted the clear meaning of the opinion in State v. Blea.\nThere is a constitutional question regarding \u00a7 40A-29-3.1(A), which would properly be at issue in a case in which a defendant was charged with one of the crimes named in subdivision (A) of \u00a7 40A-29-3.1. These crimes are:\nmurder other than murder in the first degree, rape, statutory rape, rape of a child, sexual assault, escape from jail, escape from penitentiary, escape from custody of a peace officer or assault by prisoner .\nBlea holds that \u00a7 40A-29-3.1(A) creates a \u201cnew class of crimes\u201d, by adding a new element to each of the named crimes, viz., use of a firearm in commission of the crime, and a new penalty, viz., the penalty provided in the statute defining each of the named crimes, plus five years. 84 N.M. at 598, 506 P.2d 339.\nIf the holding in Blea is correct, the consequence may be that \u00a7 40A-29-3.1(A) is unconstitutional, in violation of Art. IV, \u00a7 18 of the New Mexico Constitution. The reason is that \u00a7 40A-29-3.1(A), by creating this \u201cnew class of crimes\u201d, revises, amends, or extends the statutes which define the named crimes, without setting out these statutes in full, \u201cas revised, amended or extended\u201d. Art. IV, \u00a7 18.\nI dissented in Blea, because I do not believe \u00a7 40A-29-3.1(A) does create a new class of crimes, for the reasons set out in that dissent. However, I also do not believe the way to resolve this question is to say that the Court\u2019s opinion in Blea does not say what it clearly does say. That is what the majority in the case at hand seems to do. The Court in Blea explicitly held that \u00a7 40A-29-3.1(A) \u201cdefines a new class of crimes\u201d. 84 N.M. at 598, 506 P.2d at 342. This was not \u201cdictum\u201d, as the majority today asserts. Whatever the views of appellate judges, a court\u2019s written opinions must always reflect reality, not the world of fantasy, where the following is permissible:\n\u201cWhen I use a word,\u201d Humpty Dumpty said, in rather a scornful tone, \u201cit means just what I choose it to mean\u2014 neither more nor less.\u201d\n\u201cThe question is,\u201d said Alice, \u201cwhether you can make words mean so many different things.\u201d\n\u201cThe question is,\u201d said Humpty Dumpty, \u201cwhich is to be master \u2014 that\u2019s all.\u201d \u2014Lewis Carroll, Through the Looking Glass, c. 6.\nA defendant in a proper case can question the Blea holding by asking the New Mexico Supreme Court to decide whether \u00a7 40A-29-3.1(A) does create a new class of crimes, and, if so, whether the section is unconstitutional.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Division, Don Klein, Associate Appellate Defender, Santa Fe, for defendant-appellant.", "David L. Norvell, Atty. Gen., Andrea Buzzard, Jane E. Pendleton, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "530 P.2d 404\nSTATE of New Mexico, Plaintiff-Appellee, v. Daniel Joe SANCHEZ, Defendant-Appellant.\nNo. 1423.\nCourt of Appeals of New Mexico.\nDec. 11, 1974.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Division, Don Klein, Associate Appellate Defender, Santa Fe, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Andrea Buzzard, Jane E. Pendleton, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0140-01", "first_page_order": 166, "last_page_order": 169 }