State v. Silver

487 P.2d 910, 83 N.M. 1

• Court: New Mexico Court of Appeals
• Decided: July 23, 1971
• Docket: 646
• Status: Published

Opinions

OPINION

WOOD, Chief Judge.

Silver was convicted and sentenced for attempted armed robbery. He was found not guilty of attempted murder. He appeals.

We affirm.

Silver contends (1) that the trial court erred in failing to compel an election or severance of charges of attempted robbery and attempted murder because Silver was denied the opportunity to remain silent and not testify against himself in the attempted armed robbery charge; (2) that a statutory limit of $400.00 attorney fee for defense counsel for services rendered is a denial of equal protection and due process.

1. Failure to Compel Election or Severance.

In this court, Silver contends he should have had separate trials on each count. He argues that he had to testify on the charge of attempted murder to prove his innocence. He was acquitted. By testifying, Silver says he had convicted himself of attempted armed robbery. If a severance had been granted, Silver says he would have remained silent on the charge of attempted armed robbery. He claims, therefore, that trial of two counts in one trial was prejudicial.

Prior to trial, defendant moved that he be separately tried on each count. The only reasons advanced in-support of the motion went to asserted prejudice from being tried with co-defendants. Nothing in the motion asserts prejudice on the basis that the two counts against defendant would be tried at the same time.

Hearing was held on this pre-trial motion, but there is no record of what took place at the hearing. The trial court ordered that each of the defendants be granted a separate trial. There was no ruling on the claim that there should be a separate trial on each of the counts against defendant

At the beginning of his trial, defendant moved:

“The other thing, Your Honor, is to renew my motion again, that the counts be severed. That Mr. Wilson be required today to elect on which count he will proceed further on the attempted murder count or on the attempted armed robbert [sic]. And I have no new argument for the Court. I would simply again say to you that my client is severely prejudiced because of his inability to either exercise his right to speak in his own behalf, which he has, or to remain silent. The two counts prejudice that right, as I explained to the Court, plus the other reasons for prejudice that I gave the Court earlier.”

The foregoing quotation is all the record shows in support of his claim that each count should have been separately tried. How the two counts made defendant unable either to “exercise his right to speak” or to “remain silent” is not explained.

The fact that two charges are joined in one trial does not, in itself, show legal prejudice to defendant. State v. Gunthorpe, 81 N.M. 515, 469 P.2d 160 (Ct.App.1970). The fact that in taking the stand in his own behalf, defendant may thereby incriminate himself, does not, in itself, establish that defendant was deprived of due process. State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App.1970); State v. Lindsey, 81 N.M. 173, 464 P.2d 903 (Ct.App. 1969). The denial of the request for severance is not a basis for reversal unless abuse of discretion and prejudice is shown. State v. Gunthorpe, supra. The record does not establish per se prejudice.

Nor does the record show that the argument defendant makes in this court, concerning prejudice, was presented to the trial court. We do not go outside the record in considering a motion for severance. State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971). Since the record does not show that defendant’s present contention was presented to the trial court, it will not be considered here. State v. Harrison, 81 N.M. 324, 466 P.2d 890 (Ct.App.1970).

2. Limiting Defense Counsel Attorney Fees.

Silver argues, without any facts, that the statutory attorney fee limitation of $400.00 in defense of indigent criminal cases is a denial of equal protection and due process under the United States Constitution; that to limit the amount is to invite poor representation for a criminal defendant. The payment provisions of the Indigent Defense Act are found in § 41-22-8, N.M.S.A.1953 (Repl.Vol. 6, Supp. 1969).

A denial of equal protection and due process to whom? There is no attempt to show that defendant in this case has been deprived of these constitutional rights because a statute limits the fee of his court-appointed attorney. There is no claim that defendant was poorly represented in this case.

Here, there are no facts indicating how the statutory fee limitation deprives the defendant of equal protection of the law or due process of law. The attack is against the statutory limitation, without reference to facts. Absent a showing of how the asserted constitutional violation applies to the defendant, the claim presents no issue for decision. State v. Hines, 78 N.M. 471, 432 P.2d 827 (1967).

The judgment and sentence is affirmed.

It is so ordered.

HENDLEY, J., concurs. SUTIN, J., specially concurring.