{ "id": 1573156, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Ira HARGE, Defendant-Appellee", "name_abbreviation": "State v. Harge", "decision_date": "1979-09-18", "docket_number": "No. 3817", "first_page": "11", "last_page": "17", "citations": [ { "type": "official", "cite": "94 N.M. 11" }, { "type": "parallel", "cite": "606 P.2d 1105" } ], "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": "400 U.S. 74", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046557 ], "weight": 4, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0074-01" ] }, { "cite": "90 N.M. 12", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873968 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0012-01" ] }, { "cite": "91 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571098 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/91/0445-01" ] }, { "cite": "424 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027289 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/424/0648-01" ] }, { "cite": "317 U.S. 424", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 304215 ], "weight": 3, "year": 1943, "opinion_index": 0, "case_paths": [ "/us/317/0424-01" ] }, { "cite": "142 U.S. 547", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3557472 ], "weight": 3, "year": 1892, "opinion_index": 0, "case_paths": [ "/us/142/0547-01" ] }, { "cite": "431 U.S. 181", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2180 ], "weight": 7, "year": 1977, "pin_cites": [ { "page": "186" }, { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/us/431/0181-01" ] }, { "cite": "79 N.M. 600", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2743890 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0600-01" ] }, { "cite": "80 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356958 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0126-01" ] }, { "cite": "367 U.S. 568", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785545 ], "weight": 3, "year": 1961, "opinion_index": 0, "case_paths": [ "/us/367/0568-01" ] }, { "cite": "429 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7010 ], "weight": 4, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/0492-01" ] }, { "cite": "423 U.S. 96", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175104 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/423/0096-01" ] }, { "cite": "89 N.M. 635", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2863515 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/89/0635-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "539 P.2d 792", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1975, "opinion_index": 0 }, { "cite": "124 Cal.Rptr. 32", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1975, "opinion_index": 0 }, { "cite": "15 Cal.3d 248", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2272242 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/cal-3d/15/0248-01" ] }, { "cite": "93 N.M. 442", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568823 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/93/0442-01" ] }, { "cite": "89 N.M. 631", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865410 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/89/0631-01" ] }, { "cite": "29 N.M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841249 ], "weight": 3, "year": 1923, "opinion_index": 0, "case_paths": [ "/nm/29/0034-01" ] } ], "analysis": { "cardinality": 855, "char_count": 17962, "ocr_confidence": 0.808, "pagerank": { "raw": 1.6572532958240144e-07, "percentile": 0.6937215258495766 }, "sha256": "148a37b5e69762911180e29c1f9dfbb53b0eded7735de4883c9eda540734f5ef", "simhash": "1:ad73973099a239bc", "word_count": 2909 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Ira HARGE, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nDefendant was indicted on charges of arson and conspiracy to commit arson. The trial court (1) quashed the indictment for prosecutorial misconduct, (2) suppressed defendant\u2019s statements to fire investigators as a denial of his Fifth Amendment rights and (3) excluded statements made by a deceased co-conspirator to an unindicted co-conspirator. The State appeals and we reverse. Quashing the Indictment for Prosecutorial Misconduct\nThe State submitted a bill to the grand jury charging defendant with arson, contrary to \u00a7 30-17-5, N.M.S.A.1978, and conspiracy to commit arson, contrary to \u00a7 30-28-2, N.M.S.A.1978. At the grand jury proceeding the following interchange took place between the grand jury foreman and the assistant district attorney, Mr. Gober.\nTHE FOREMAN: Would it be feasible for the grand jury to ask when Ira Harge stated he was in Santa Fe on the weekend of the fire to have a witness corroborate his testimony?\n******\nMR. GOBER: Yes. As to his being in Santa Fe, I don\u2019t have to prove that he was in Santa Fe. He would probably want to do that, so where do we stand at this point?\nTHE FOREMAN: ... If we feel that there was a possible conspiracy by another individual other than the one that is being served the indictment is it feasible for this grand jury to call other witnesses?\nMR. GOBER: You can instruct anybody in the state to go check it out or any law enforcement official who is responsible to you. .\n******\nThe second thing is, I don\u2019t know if you want to bring somebody before you and direct them to go check something out just tell them who the guy is and we will bring them in.\nThe grand jury returned a true bill against defendant on both charges. Defendant moved to quash the indictment on grounds of prosecutorial misconduct.\nIn granting the motion, the trial court apparently believed that the State should have adher\u00e9d to the grand jury\u2019s request and produced a corroborating witness (although no reference to the existence of one is present in the record) and the district attorney should have informed defendant or his attorneys of the grand jury\u2019s request.\nIn dismissing the indictment against defendant, the trial court considered \u00a7 31-6-7, N.M.S.A.1978, and \u00a7 31-6-ll(B), N.M.S.A. 1978. Section 31-6 \u2014 7, supra, in pertinent part reads:\nThe district attorney shall attend the grand jury, examine witnesses, prepare indictments, reports and other undertakings of the grand jury.\nSection 31-6-ll(B), supra, states:\nThe grand jury is not required to hear evidence for an accused person, but it is its duty to weigh all the evidence submitted to it, and when it has reason to believe that other competent evidence is available that may explain away or disprove a charge or accusation or that would make an indictment unjustified, then, it should order the evidence produced.\nInState v. Chance, 29 N.M. 34, 221 P.183 (1923), the Supreme Court held that, although the grand jury statutes were written in the absolute, they were merely directory and for the guidance of the grand jury. However, the grand jury and the district attorney should endeavor to comply with them. Under Chance, supra, the courts are prohibited from inquiring into the sufficiency, legality, or competency of the evidence upon which the grand jury relied in returning its indictment.\nHowever, this court may expressly review the actions of the district attorney for knowingly withholding exculpatory evidence or \u201cevidence reasonably tending to negate guilt\u201d from the grand jury to determine whether the defendant was denied due process. State v. McGill, 89 N.M. 631, 556 P.2d 39 (Ct.App.1976); State v. Herrera, 93 N.M. 442, 601 P.2d 75 (Ct.App.1979). While defendant here couches his argument in terms of prosecutorial misconduct, his claim is essentially one of due process.\nIn McGill, supra, defendant argued that he was denied due process because the prosecutor withheld from the grand jury exculpatory evidence that fingerprints found at the scene of two robberies did not belong to him. The prosecutor testified that prior to the grand jury presentation he did not know this fact; and, in any event, other positive identification of the defendant was presented. Defendant also argued that testimony by a detective that a robbery victim had identified him at a lineup, when, in fact, she had misidentified him physically but had identified him by his voice, was improperly withheld exculpatory evidence. The court concluded that neither action deprived defendant of fundamental fairness and, consequently, there was no denial of due process.\nIn Herrera, supra, this court found that the:\ndue process requirement of presenting evidence tending to negate guilt is not to be determined on the basis of the prosecutor\u2019s subjective belief; rather, the claim is to be determined by objectively analyzing the withheld evidence to determine whether, in fact, it tended to negate guilt.\nIn the present case, the foreman asked Mr. Gober whether it was feasible to call a corroborating witness. Mr. Gober responded that the State did not need to prove defendant\u2019s whereabouts on the weekend and that, if the grand jury so desired, they were authorized to direct various State law enforcement officials to bring in potential witnesses or other persons for questioning.\nWe cannot say as a matter of law that Mr. Gober was withholding any exculpatory evidence. Nor can we say that Mr. Gober refused a request. The foreman was told he could instruct any responsible law enforcement official to bring in any person the grand jury wanted. No request was made.\nDefendant further argues that had Mr. Gober informed him or his attorneys of the request for a corroborating witness, they would have provided one. Chance, supra; McGill, supra; and Herrera, supra, do not require that a defendant be allowed to present his case. Instead, they only require the prosecutor to present exculpatory evidence if he has knowledge of it and to withhold it would deny defendant a fair trial.\nDefendant cites Johnson v. Superior Court of San Joaquin County, 15 Cal.3d 248, 124 Cal.Rptr. 32, 539 P.2d 792 (1975) in support of his position. In McGill, supra, this court specifically declined to follow the Johnson, supra, reasoning.\nThe trial court erred in quashing the indictment. Since we are remanding this cause for trial, we answer the other issues which will necessarily arise during the trial. Suppression of Defendant\u2019s Statement to Sheriff and Fire Marshall\nOn the day after the fire at the Thunderbird Bar in Placitas, defendant went to the Sandoval County Sheriff\u2019s Office and made certain statements to Deputy James Gutierrez and Fire Marshall D. G. Dabbs. He later sought to suppress those statements on the grounds that he had not been given his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that his statements were involuntary as the product of an \u201cin-custody\u201d interrogation after he had become the focus of the arson investigation. The trial court granted defendant\u2019s motion to suppress.\nDeputy Gutierrez testified that he responded to the original fire call as a routine matter. On the morning of the day after the fire he spoke with the assistant fire chief who suggested he speak to one David Brown about the fire. Upon speaking to Brown, Gutierrez learned that shortly before the fire Brown had held two men at gunpoint at the bar. This statement gave Gutierrez the impetus to call D. G. Dabbs, an investigator for the fire marshall\u2019s office, to determine the cause of the fire. Both Dabbs and Gutierrez went to the scene of the fire where defendant was also present. Dabbs testified that after his investigation, he believed the fire to have been caused by arson.\nGutierrez testified that later that day defendant went to the police station, although he could not clearly recollect whether defendant had come of his own accord or whether he had been requested to do so by Dabbs or himself. At the time of the statement Gutierrez testified that Dabbs believed the two men Brown had held at gunpoint were suspects, and both he and Dabbs believed Brown was a suspect. While Gutierrez could not state exactly when defendant became a suspect, he did state that he was not one at the time of the statement. At the time of the statement defendant was not taken into custody, nor did Gutierrez promise, trick, or coerce him into giving his statement.\nThe content of defendant\u2019s statement was not made a part of the appellate record and, therefore, we only consider the application of Miranda to the situation generally.\nIn the granting of a motion to suppress, it is for the trial court to weigh the evidence and so long as there is substantial evidence to support its ruling, the appellate court will not find error as a matter of law. State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (Ct.App.1976). The trial court found that defendant should have been given his rights under Miranda. Miranda requires law enforcement officers \u201cbefore questioning someone in custody, to give specified warnings and follow specified procedures during the course of an interrogation.\u201d Ramirez, supra; Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Miranda applies when the individual is first subjected to police interrogation while in custody at the station \u201cor otherwise deprived of his freedom of action in any significant way.\u201d\nMiranda warnings need not be given simply because the \u201cquestioning takes place in the station house, or because the questioned person is one whom the police suspect,\u201d nor need the police give the warnings to everyone whom they question. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Miranda warnings are required only where there is such a restriction on a person\u2019s freedom as to render him \u201cin custody\u201d and subject to a coercive environment. Mathiason, supra.\nIn the instant case, defendant was neither in custody nor deprived of his freedom of action in any significant way. There was no coercive atmosphere against which Miranda was designed to protect.\nDefendant also contends that his statement was involuntary and in violation of the Fifth Amendment. The test for the voluntariness of a statement is based upon a clear manifestation by words and circumstances of a free and unconstrained choice. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), as cited in State v. Smith, 80 N.M. 126, 452 P.2d 195 (Ct.App.1969). Deputy Gutierrez testified that defendant made his statement without any promise, trick, or coercion on his part, and defendant introduced no evidence to refute this.\nA statement is also considered voluntary if the evidence demonstrates the defendant had \u201csufficient mental capacity at that time to be conscious of what he was doing, to retain memory of his actions, and to relate with reasonable accuracy the details of his actions.\u201d State v. Sisneros, 79 N.M. 600, 446 P.2d 875 (1968). The record shows that defendant appeared to be in control of his faculties at the time of the statement.\nDefendant\u2019s statements were voluntary. The trial court erred in suppressing these statements.\nSuppression of Grand Jury Testimony on the Grounds That Miranda Rights Should Have Been Given\nThe trial court suppressed defendant\u2019s testimony before the grand jury for use at trial unless defendant \u201ctakes stand and then for purposes of impeachment\u201d on the basis that \u201cDefendant was not informed of his rights against self-incrimination prior to his giving testimony before the Grand Jury.\u201d At one of the motion hearings the trial court asked the district attorney whether defendant had been informed of his rights against self-incrimination before testifying in front of the grand jury. The district attorney responded in the negative, but stated that defense counsel had requested that defendant be permitted to testify before the grand jury. He was not subpoenaed, but came to the proceeding with his attorneys who were present outside of the grand jury room during his testimony.\nThere is no New Mexico law determining the applicability of Miranda warnings to grand jury proceedings. However, the U. S. Supreme Court in U. S. v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977) has held:\n. But this Court has not decided that the grand jury setting presents coercive elements which compel witnesses to incriminate themselves. Nor have we decided whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses; . 431 U.S. at 186, 97 S.Ct. at 1818.\nThe U. S. Supreme Court, then, has not made mandatory the giving of Miranda warnings to potential defendants before they testify in front of a grand jury.\nMiranda warnings have been viewed as necessary for the protection of a defendant isolated from the protections of a lawyer and society, and in the custody of law enforcement officials. In this case, defendant requested that he be allowed to testify before the grand jury. . He came with his lawyers who remained outside the hearing room throughout his testimony. Defendant was not in custody or separated from the protections of his attorney. His experience before the grand jury contains none of the compelling circumstances underlying the reasons for the Miranda rights. Miranda warnings were not necessary. The trial court erred in holding that they were so required.\nEven though the parties only briefed the Miranda issue, the court suppressed defendant\u2019s statements on grounds that he was deprived of his Fifth Amendment rights. It is well-settled that the Fifth Amendment privilege against compelled self-incrimination extends to grand jury proceedings. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). The Fifth Amendment \u201cdoes not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials.\u201d Washington, supra. \u201cIt does not preclude a witness from testifying voluntarily in mat ters which may incriminate him.\u201d U. S. v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943). In Washington, supra, the court in discussing Garner v. U. S., 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976) stated that:\n. the Self-Incrimination Clause is violated only when the Government compels disclosures which it knows will incriminate the declarant \u2014 that is, only when it intentionally places the individual under \u201ccompulsions to incriminate, not merely compulsions to make unprivileged disclosures.\u201d 431 U.S. at 190, 97 S.Ct. at 1820.\nAlthough defendant in this case could have asserted his Fifth Amendment right not to answer grand jury questions which would compel him to testify against himself, he chose not to do so by voluntarily appearing and testifying before the grand jury. He was assisted by counsel\u2019s presence just outside the hearing room. Regardless of whether defendant made incriminating statements or merely unprivileged disclosures, his statements were not compelled.\nThe district attorney was under no mandate to inform him of his rights. The trial court erred in restricting the use of defendant\u2019s testimony before the grand jury on this basis.\nSuppression of Statements by a Deceased Co-conspirator to an Unindicted Co-conspira tor\nWalt Strumoski, an unindicted co-conspirator, testified before the grand jury about statements made to him by Tony Candelaria, a deceased co-conspirator. The court suppressed these statements unconditionally in the event the case went to trial on grounds that (1) admission would deprive defendant of his Sixth Amendment right to confront and cross-examine the witnesses against him; and (2) the statements were hearsay not falling within the exceptions of N.M.R.Evid. 801(d)(2)(A-E) or 804(b)(4), (6), N.M.S.A.1978.\nOut of court statements made by a co-conspirator about matters relating to the conspiracy are not admissible unless and until a prima facie case of conspiracy is shown by other independent evidence. State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.1978); State v. Armijo, 90 N.M. 12, 558 P.2d 1151 (Ct.App.1976). This is the preliminary showing which must be made before the trial court can even consider unconditionally suppressing such statements. Here, however, the trial court suppressed the statements as a matter of law without regard to their content. Since the trial court could not have known whether the State could present a prima facie case of conspiracy at trial, it reversibly erred in unconditionally excluding such testimony. Admissibility should have been made contingent upon proof of a prima facie case of conspiracy through use of independent evidence and other factors generally considered in admitting or excluding evidence.\nThe court should not have made this determination as a matter of law until the State had the opportunity to make a prima facie showing of the existence of a conspiracy. Jacobs, supra; Armijo, supra.\nSince the trial court erred in unconditionally excluding the testimony of Strumoski, any discussion of Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), which sets forth criteria for the admissibility of hearsay statements by co-conspirators under the Rules of Evidence is premature. The Dutton, supra, standards would be more appropriately used by the trial court in determining whether to admit Strumoski\u2019s statements in the event the State can demonstrate a prima facie case of conspiracy.\nThe trial court is reversed, the indictment is reinstated, and the case is remanded for trial.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Jeff Bingaman, Atty. Gen., Charlotte Hetherington Roosen, Ralph Muxlow II, Asst. Attys. Gen., Santa Fe, for plaintiff-appellant.", "Edmund J. Lang, Raymond G. Sanchez, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "606 P.2d 1105\nSTATE of New Mexico, Plaintiff-Appellant, v. Ira HARGE, Defendant-Appellee.\nNo. 3817.\nCourt of Appeals of New Mexico.\nSept. 18, 1979.\nRehearing Denied Oct. 4, 1979.\nJeff Bingaman, Atty. Gen., Charlotte Hetherington Roosen, Ralph Muxlow II, Asst. Attys. Gen., Santa Fe, for plaintiff-appellant.\nEdmund J. Lang, Raymond G. Sanchez, Albuquerque, for defendant-appellee." }, "file_name": "0011-01", "first_page_order": 47, "last_page_order": 53 }