{ "id": 1568685, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Mark HADDENHAM, Defendant-Appellant", "name_abbreviation": "State v. Haddenham", "decision_date": "1979-07-26", "docket_number": "No. 3951", "first_page": "394", "last_page": "398", "citations": [ { "type": "official", "cite": "93 N.M. 394" }, { "type": "parallel", "cite": "600 P.2d 846" } ], "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": "86 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824335 ], "weight": 3, "pin_cites": [ { "page": "43" }, { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0039-01" ] }, { "cite": "87 N.M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835988 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0034-01" ] }, { "cite": "88 N.M. 538", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836898 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0538-01" ] }, { "cite": "86 N.M. 44", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823260 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0044-01" ] }, { "cite": "91 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571127 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0007-01" ] } ], "analysis": { "cardinality": 574, "char_count": 10444, "ocr_confidence": 0.779, "pagerank": { "raw": 9.644524892947116e-08, "percentile": 0.5278543266422097 }, "sha256": "d7c2b4316cf0c8252698c0630f415822c8fd1d2dafd59a80dd3e21bf7a1398fb", "simhash": "1:1b60c6747fa511e0", "word_count": 1702 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., concurs.", "SUTIN, J., concurring in part and dissenting part." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Mark HADDENHAM, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWALTERS, Judge.\nDefendant, charged as an accessory, was convicted by a jury of residential burglary. He raises five issues on appeal. We will consider four of them: improper instruction and refusal to give two of defendant\u2019s requested instructions; denial of effective counsel resulting from the trial court\u2019s refusal to grant a continuance of the hearing for a new trial; denial of a new trial; and denial of due process because of fundamental error arising from the aforementioned alleged errors. We do not discuss the fifth contention, failure of the due process resulting from inadequate notice and denial of continuance of a later hearing on defendant\u2019s competency to stand trial, since it is the subject of the consolidated appeal, Nos. 3893/3894, determined adversely to appellant and, consequently, of no effect on the consideration of this appeal. The conviction and sentence in this case are affirmed.\n1. Error in Instructions.\nDefendant\u2019s tendered Instruction 1 would have instructed the jury that defendant himself would have had to do the acts done by the principal in order to be found guilty of the crime of residential burglary. The accessory instruction, U.J.I. Crim. 28.30, was given; its Use Note requires that the essential elements of the crime must also be given. The trial court instructed regarding the elements of burglary committed by the principal, in accordance with U.J.I. Crim. 16.20.\nThere was no evidence to support the requested instruction, i. e., that defendant entered a dwelling house, without permission, with intent to commit a theft therein. There is evidence that defendant intended that the crime be committed; that it was committed; and that he helped, encouraged or caused the crime to be committed. The jury was properly instructed, and the court did not commit error in refusing the requested instruction. See State v. Roque, 91 N.M. 7, 569 P.2d 417 (Ct.App.1977).\n2. Refusal to Allow Continuance.\nDefendant says he was deprived unconstitutionally of effective assistance of counsel when the court refused, on the day defendant was scheduled for sentencing, to permit a continuance in order that counsel could prepare for an evidentiary hearing on a motion filed that day for a new trial.\nCounsel recognizes in their brief that allowance of a continuance is discretionary with the trial court. Thus, the issue presented is whether the court abused its discretion rather than whether defendant was denied effective counsel. The record indicates that on the day of sentencing, present counsel entered their appearance on behalf of defendant. A continuance was requested before sentence was imposed upon grounds that counsel wished to \u201cproperly prepare and present to the court affidavits and testimony in support of\u201d the motion for new trial.\nThe person charged as principal in the burglary, Davis, was the crucial witness in defendant\u2019s conviction, and the \u201cnewly discovered evidence\u201d forming the basis for defendant\u2019s motion for new trial was Davis\u2019s recantation of his trial evidence. He was in the courtroom at the time the request for continuance was made. Defense counsel told the court that he also wanted to call an investigator from the district attorney\u2019s office who was on vacation but who had not been subpoenaed. The following colloquy between counsel and the court ensued:\nQ. For what purpose would you want Mr. DeLouch?\nA. i To find out what he knows about Mr. Davis\u2014\nQ. What do you believe Mr. DeLouch knows; do you have any reason to believe he knows anything?\nA. I would certainly like an opportunity to find out, Your Honor.\nQ. Put Mr. Davis on.\nNothing in the foregoing exchange establishes an abuse of discretion in the trial court\u2019s refusal to grant a continuance so that defendant could examine Mr. DeLouch. Counsel made no showing that diligence had been exercised to assure Mr. DeLouch\u2019s presence. He did not suggest then or later that he be permitted to submit additional affidavits or evidence to supplement the testimony of Mr. Davis and the two other witnesses whom the court heard that day.\nThe record of the hearing does not support the claim on appeal that defendant was denied effective assistance of counsel. He was permitted to, and did, extensively examine the three witnesses in support of the motion; the fact that their presence had been obtained and that counsel\u2019s questioning of them exhibited his extensive awareness of the facts testified to at the earlier trial, negates the suggestion on appeal that counsel\u2019s effectiveness was minimized by reason of inadequate opportunity to prepare for the hearing.\nThe abuse of discretion case cited to us by defendant differs radically from the circumstances of this case. The sole basis for the new trial request was \u201cthat the testimony of the witness, Yancy Davis, who testified on behalf of the State and against the Defendant in that trial, was perjured.\u201d Defendant thoroughly explored that ground in examining Davis and the other witnesses. State v. Billington, 86 N.M. 44, 519 P.2d 140 (Ct.App.1974), relied on by defendant, decided (with a dissenting opinion by Chief Judge Wood) that denial of a continuance to permit the defendant to adequately prepare for the cross-examination of a \u201ccritical\u201d witness whose name was added to the State\u2019s list of witnesses on the date of trial, was an abuse of discretion. But here, defendant presented his critical witness in support of his motion, together with the testimony of two others, and was unable to express even the slightest hint that the additional desired witness had any evidence to offer on the question of Davis\u2019s perjury. We are only concerned with the facts of this case, and under its facts, defendant has not shown to us how he was prejudiced or injured by the trial court\u2019s decision to hear evidence on the day the motion for a new trial was filed. See State v. Blea, 88 N.M. 538, 543 P.2d 831 (Ct.App.1975). The action taken by the trial court was not capricious, arbitrary, or in disregard of defendant\u2019s fundamental rights. State v. Kincheloe, 87 N.M. 34, 528 P.2d 893 (Ct.App.1975).\n3. Denial of a New Trial.\nIn the companion appeal referred to above, defendant contended that he should have been allowed to withdraw subsequent guilty pleas to other charges because he was not sufficiently competent to fully understand a Plea and Disposition Agreement entered into at that time. The pleas were made four days after the conviction with which this appeal is concerned, and more than a month before the sentencing and new trial proceedings were held. Defendant extrapolates the argument in the other appeal to a contention here that if he were incompetent to enter the guilty pleas, he was equally incompetent to stand trial earlier that same week.\nThe affirmance of the trial court\u2019s finding of competency in consolidated Nos. 3893/3894 disposes of this point in this appeal. The trial court did not err in denying a new trial.\n4. Denial of Due Process by Accumulation of Error.\nDefendant calls our attention to an order entered by the district court directing the district court clerk not to honor any notice of appeal because of counsel\u2019s failure to comply with certain procedural rules necessary to preserve an appeal. The entry of this order, together with the alleged errors discussed above, are claimed to constitute such fundamental error that defendant was denied a fair trial. We are exhorted: \u201c[I]f fundamental error ... is not deemed present in this Appeal, it would take pure and fanciful imagination run wild to present a case in which it would exist.\u201d\nHaving decided appellant\u2019s other alleged errors against him, only the last-cited instance remains to be considered in connection with this final point on appeal. We have some difficulty relating a post-trial, post-conviction, post-sentencing act of the trial judge with denial of a fair trial. The act itself, however, was erased by a subsequent order of the Supreme Court (in Cause No. 12289, on January 17, 1979) directing that a notice of appeal be accepted, and by the very fact that this appeal was submitted, briefed, and is now decided.\nBearing in mind Chief Judge Wood\u2019s observation that \u201c[a]n accumulation of irregularities, each of which, in itself, might be deemed harmless, may, in the aggregate, show the absence of a fair trial,\u201d State v. Vallejos, 86 N.M. 39, 43, 519 P.2d 135, 139 (Ct.App.1974), it is nevertheless apparent that this case is not one in which an accumulation of irregularities exists. We have determined that the first three issues presented disclose no \u201cirregularities.\u201d The last point raised occurred after trial and was rectified under the Supreme Court\u2019s superintending powers. Defendant was accorded the full protection of due process and fair trial.\nAs Vallejos, supra, demonstrates, flights of imagination and fancy need not be resorted to in order to strike down convictions obtained through the prejudicial impact of cumulative error. This is not such a case.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nWOOD, C. J., concurs.\nSUTIN, J., concurring in part and dissenting part.", "type": "majority", "author": "WALTERS, Judge." }, { "text": "SUTIN, Judge\n(concurring in part and dissenting in part).\nI concur and dissent.\nI concur in the points decided in Judge Walters\u2019 opinion. I dissent on defendant\u2019s Point III raised in this appeal which was not discussed. Defendant claims he was denied due process by reason of the court\u2019s failure to provide adequate and timely notice of the hearing on the competency of defendant, or to grant defendant\u2019s request for a continuance in order to present expert testimony on defendant\u2019s competency.\nThe record of the proceedings under which this point is raised appears in a companionate case entitled State v. Haddenham, No. 3893 in this appeal.\nA competency hearing was held on November 10, 1978. Defendant was denied the right to a continuance to have his doctor present to testify as to defendant\u2019s competency. Nevertheless, no order was entered determining the competency of defendant.\nThis cause should be remanded for the purpose of conducting a fair hearing and a determination made of defendant\u2019s competency.", "type": "concurring-in-part-and-dissenting-in-part", "author": "SUTIN, Judge" } ], "attorneys": [ "Tom Cherryhomes, Carlsbad, M. J. Collopy, Hobbs, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Sammy Lawrence Pacheco, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "600 P.2d 846\nSTATE of New Mexico, Plaintiff-Appellee, v. Mark HADDENHAM, Defendant-Appellant.\nNo. 3951.\nCourt of Appeals of New Mexico.\nJuly 26, 1979.\nTom Cherryhomes, Carlsbad, M. J. Collopy, Hobbs, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Sammy Lawrence Pacheco, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0394-01", "first_page_order": 440, "last_page_order": 444 }