{ "id": 1557159, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Orlando J. PADILLA, Defendant-Appellant", "name_abbreviation": "State v. Padilla", "decision_date": "1978-06-20", "docket_number": "No. 3468", "first_page": "19", "last_page": "23", "citations": [ { "type": "official", "cite": "92 N.M. 19" }, { "type": "parallel", "cite": "582 P.2d 396" } ], "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": "377 F.2d 276", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2028877 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/377/0276-01" ] }, { "cite": "89 N.M. 635", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2863515 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0635-01" ] }, { "cite": "91 N.M. 107", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571035 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0107-01" ] }, { "cite": "91 N.M. 70", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571174 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/91/0070-01" ] }, { "cite": "82 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334686 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0235-01" ] }, { "cite": "40 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842073 ], "weight": 2, "year": 1936, "opinion_index": 0, "case_paths": [ "/nm/40/0367-01" ] }, { "cite": "90 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869988 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0103-01" ] }, { "cite": "88 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840282 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0125-01" ] }, { "cite": "91 N.M. 296", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571194 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0296-01" ] }, { "cite": "90 N.M. 806", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874097 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0806-01" ] }, { "cite": "89 N.M. 82", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861449 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0082-01" ] }, { "cite": "90 N.M. 664", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874003, 2869015 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0664-01", "/nm/90/0664-02" ] } ], "analysis": { "cardinality": 562, "char_count": 12419, "ocr_confidence": 0.799, "pagerank": { "raw": 1.437245475469533e-07, "percentile": 0.6524542550550244 }, "sha256": "2f969585830ed7b5f9e228e90446d3f1718add9942a15186d66c2daddce9b005", "simhash": "1:eb9aed867d26ed73", "word_count": 1972 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Orlando J. PADILLA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nFound to be, and sentenced as, an habitual offender, defendant appeals. We discuss: (1) applicability of Rule of Crim.Proc. 37; (2) trial court jurisdiction; (3) admission of documentary evidence; and (4) right of confrontation.\nApplicability of Rule of Crim.Proc. 37(b)\nFinal judgment for defendant\u2019s robbery conviction was entered November 20, 1976. A supplemental information, charging defendant as an habitual offender on the basis of prior burglary and larceny convictions in 1971 (1972), was filed January 20, 1977. In March, 1977 the trial court granted defendant\u2019s motion to dismiss on the basis that the sentence for the 1971 (1972) convictions had been deferred. The State appealed, we reversed, and the Supreme Court affirmed the reversal. Padilla v. State, 90 N.M. 664, 568 P.2d 190 (1977). This Court\u2019s mandate was issued September 9,1977.\nDefendant then moved to dismiss the supplemental information on the basis of Rule of Crim.Proc. 37(b). That rule states:\n(b) Trial. The trial shall be commenced within six months after the date of filing in the district court of the complaint, information, indictment, or notice of appeal from the magistrate court or the date of arrest, whichever is later. In the event of a new trial, mistrial or reversal of a conviction on appeal, a subsequent trial shall be commenced within six months after the date of the order granting the new trial, the declaration of the mistrial or the mandate of the appellate court.\nRule of Crim.Proc. 37(b) applies to habitual offender proceedings. State v. Lopez, 89 N.M. 82, 547 P.2d 565 (1976). The question is whether the rule applies to the facts of this case.\nThe trial court dismissed the supplemental information; the State appealed. During the pendency of the appeal, the State did not seek an extension of time for trial under the supplemental information, nor did it seek a determination that defendant was responsible for the delay. See State v. DeBaca, 90 N.M. 806, 568 P.2d 1252 (Ct.App.1977). Defendant sought dismissal under Rule of Crim.Proc. 37(b) prior to trial on the supplemental information and after six months had run, whether it ran from the filing of, or arrest under, the supplemental information. See State v. Dominguez, 91 N.M. 296, 573 P.2d 230 (Ct.App.1977). Avoidance of Rule of Crim.Proc. 37(b) depends on the effect of the State\u2019s appeal from dismissal of the supplemental information.\nWe hold that Rule of Crim.Proc. 37(b) was inapplicable on each of the following grounds, but without ruling as to which ground is controlling.\n(1) The second sentence of Rule of Crim.Proc. 37(b) states: \u201cIn the event of a new trial, mistrial or reversal of a conviction on appeal, a subsequent trial shall be commenced within six months after the date of the order granting the new trial, the declaration of the mistrial or the mandate of the appellate court.\u201d\nWhile this language does not expressly refer to the appellate court\u2019s reversal of the trial court\u2019s dismissal of an information, the reference to \u201creversal of a conviction\u201d is sufficiently analogous to indicate the Supreme Court did not intend the six-month provision to apply to delay resulting from appellate proceedings. Under this reasoning, there were six months from September 9,1977 in which to try the habitual offender charge. Trial was on December 30, 1977 and was timely.\n(2) In State v. Peavler, 88 N.M. 125, 537 P.2d 1387 (1975) the trial court\u2019s dismissal of an indictment was reversed. The opinion states: \u201cAll time deadlines arising under the Rules of Criminal Procedure, including Rule 37, are tolled for the period commencing with the filing of defendants\u2019 motions in district court and ending on the date of our mandate.\u201d Defendant filed his motion to dismiss the supplemental information, on the basis of the deferred sentence, on March 17, 1977; our mandate issued September 9, 1977. Under Peavler, supra, this time period was tolled. The dates that count against the six-month period are January 20, 1977 to March 17, 1977 and September 9,1977 to trial on December 30, 1977. Under Peavler, supra, the trial was timely.\n(3) Once the trial court dismissed the supplemental information, there was no case to be tried in the district court and, thus, no case to which the time limitation of Rule of Crim.Proc. 37(b) applied. Only upon reversal of the trial court\u2019s dismissal and the issuance of a mandate returning the case to the district court, would there be a case in the district court to which a time limitation was applicable. This reasoning does not choose between (1) and (2) above, but supports both.\nTrial Court Jurisdiction\nThere was a two-month interval between the final judgment on the robbery conviction, entered November 20, 1976, and the filing of the supplemental information on January 20, 1977. The robbery conviction was after a non-jury trial.\nSection 21-9-1, N.M.S.A. 1953 (Repl.Vol. 4) gives a trial court jurisdiction over its final judgment in a non-jury trial for thirty days after entry of the final judgment. Defendant contends that under \u00a7 21-9-1, supra, the trial court lacked jurisdiction over the supplemental information, filed two months after entry of the final judgment. We disagree.\nSection 40A-29-6, N.M.S.A. 1953 (2d Repl.Vol. 6) provides for the institution of habitual offender charges \u201cat any time, either after sentence or conviction\u201d. See also \u00a7 40A-29-8, N.M.S.A. 1953 (2d Repl. Vol. 6). The provisions of the Habitual Offender Act are mandatory. State v. Lujan, 90 N.M. 103, 560 P.2d 167 (1977). The specific provision of filing \u201cat any time\u201d controls over the general provision of \u00a7 21-9-1, supra. State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936); State v. Riley, 82 N.M. 235, 478 P.2d 563 (Ct.App.1970).\nAdmission of Documentary Evidence\nThe evidence involved under this issue consists of a series of documents taken from the records of the penitentiary. The eleven series \u2014 11A through 11C \u2014 consist of a photograph, a judgment and sentence, and a fingerprint card \u2014 all purporting to pertain to Orlando J. Padilla; 11D is a certification, signed by the records manager and the warden, and bears the penitentiary seal. The twelve series \u2014 12A through 12C \u2014 consist of a photograph, a commitment, a judgment and sentence, and a fingerprint card \u2014 all purporting to pertain to Orlando J. Padilla; 12D is a certification, signed by the records manager and the warden, and bears the penitentiary seal.\nDefendant contends these documents were never admitted as evidence. The tapes show that defendant objected to the admission of the documents on various grounds, that the trial court considered the objections, ruled the documents were properly authenticated and were admissible under Evidence Rule 803(8) as an exception to the hearsay rule. Defendant\u2019s argument is that the trial court ruled the documents \u201care admissible\u201d but never actually stated that the documents \u201care admitted\u201d. This argument is frivolous; the tapes show the documents were considered as admitted and that defendant, by questions directed toward the photographs and fingerprint cards, understood that the documents were admitted.\nDefendant points out that the State never offered the certifications into evidence. He argues that, without the authentication provided by the certifications, the other documents were improperly admitted. This claim is also frivolous. The documents in both the eleven and twelve series are stapled together. The trial court remarked that each series was \u201cbasically one exhibit\u201d; its ruling of admissibility applied to the entire series as one exhibit. There is no factual basis for defendant\u2019s claim.\nEvidence Rule 803(8) exempts public records and reports from the hearsay rule. It reads in part:\n(8)Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel\nDefendant contends the photographs and fingerprint cards were improperly admitted under either paragraphs (A) and (B) of the rule because there was no evidence \u201cthat the photographs and fingerprints fit either category.\u201d We do not consider the arguments directed to paragraph (B) because no issue as to paragraph (B) was raised in the trial court. N.M.Crim.App. [Rule] 308. Admissibility under paragraph (A) was raised in the trial court by defendant\u2019s argument that the certifications were an insufficient foundation for admissibility of the photographs and fingerprint cards.\nThe certifications of the record manager are that the photographs and fingerprint cards are true and correct copies of the original records of Orlando J. Padilla, a person \u201cheretofore committed to said penal institution\u201d. The certifications of the warden are that the records manager was in fact the records manager, had custody of the original records, and the signature of the records manager was genuine. The warden\u2019s signature bears the penitentiary seal. The certifications were sufficient to authenticate the documents under Evidence Rule 902(1) and (4). Extrinsic evidence of authenticity was not required. See State v. Dawson, 91 N.M. 70, 570 P.2d 608 (Ct.App.1977).\nAlthough the photographs and fingerprint cards were authenticated as records of the penitentiary, defendant contends the \u201cfoundation\u201d for admissibility was insufficient because there is nothing showing these records were \u201cactivities of the office or agency\u201d. See Evidence Rule 803(8)(A). Defendant claims that for the photographs and fingerprint cards to be admissible, there must be testimony showing that it was an activity of the penitentiary to include photographs and fingerprint cards in the penitentiary records. Compare State v. Gallegos, 91 N.M. 107, 570 P.2d 938 (Ct.App.1977).\n\u25a0 We agree there is no testimony that photographs and fingerprint cards are a part of the penitentiary\u2019s activities.\nState v. Ramirez, 89 N.M. 635, 556 P.2d 43 (Ct.App.1976) discusses the differences in admissibility requirements under Evidence Rule 803(6) and 803(8). Admissibility under Evidence Rule 803(8) does not require the testimony of the custodian or other qualified witness. Why? Because of the assurance of accuracy for public records. 4 Weinstein\u2019s Evidence, \u00b6 803(8)[01] (1977) states that \u201cgenerally, the record itself can be admitted as proof of the facts which it relates without foundation testimony\u201d and \u201cthe sole criteria is whether the record is that of a public body.\u201d\nThe Penitentiary of New Mexico is a public body. Section 42-1-2, N.M.S.A. 1953 (2d Repl.Vol. 6). The certifications establish that the photographs and fingerprint cards were records of the penitentiary. Defendant claims this is insufficient, that there must be something showing that records of photographs and fingerprint cards were activities of the penitentiary. Our answer is that such \u201cactivity\u201d is necessarily implied from certifications stating that the photographs and fingerprint cards are part of the original records of a person committed to the penitentiary.\nThe foundation for admission of the photographs and fingerprint cards was supplied by the certifications.\nRight of Confrontation\nDefendant contends that his right to confront the witnesses against him was denied because basically he received a \u201cpaper trial\u201d, that \u201c[a]s each paper was offered, he objected that he wanted to confront the witnesses and cross-examine them about what those papers said.\u201d The use of properly authenticated public records was not an unconstitutional deprivation of defendant\u2019s right of confrontation. State v. Dawson, supra; Tomlin v. Beto, 377 F.2d 276 (5th Cir. 1967).\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "John B. Bigelow, Chief Public Defender, Santa Fe, Joseph N. Riggs, III, Asst. Public Defender, Mark H. Shapiro, Asst. Appellate Defender, Albuquerque, for defendant-appellant.", "Toney Anaya, Atty. Gen., Dennis P. Murphy, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "582 P.2d 396\nSTATE of New Mexico, Plaintiff-Appellee, v. Orlando J. PADILLA, Defendant-Appellant.\nNo. 3468.\nCourt of Appeals of New Mexico.\nJune 20, 1978.\nWrit of Certiorari Denied July 19, 1978.\nJohn B. Bigelow, Chief Public Defender, Santa Fe, Joseph N. Riggs, III, Asst. Public Defender, Mark H. Shapiro, Asst. Appellate Defender, Albuquerque, for defendant-appellant.\nToney Anaya, Atty. Gen., Dennis P. Murphy, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0019-01", "first_page_order": 55, "last_page_order": 59 }