State v. Tisthammer

1998 NMCA 115, 966 P.2d 760, 126 N.M. 52
CourtNew Mexico Court of Appeals
DecidedJune 9, 1998
Docket18,328
StatusPublished
Cited by11 cases

This text of 1998 NMCA 115 (State v. Tisthammer) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tisthammer, 1998 NMCA 115, 966 P.2d 760, 126 N.M. 52 (N.M. Ct. App. 1998).

Opinion

OPINION

PICKARD, Judge.

{1} In this case, we consider whether the Grand Jury Act or the Public Defender Act provides a target witness testifying before a grand jury with a right to counsel such that an indictment must be dismissed if counsel is not present and there is no express voluntary, knowing, and intelligent waiver of counsel’s presence. We hold that they do not. Defendant appeals the denial of his motion seeking to dismiss a grand jury indictment for multiple counts of burglary, conspiracy, and other related charges because Defendant did not have an attorney present when he testified as a target witness before the grand jury. After being convicted of all charges at trial, Defendant asserts two additional challenges: (1) whether there was insufficient evidence to support the convictions and (2) whether under the general-specific rule of statutory construction, he should have been charged with larceny of a firearm and burglary instead of aggravated burglary. We affirm.

FACTS

{2} Defendant was arrested on June 24, 1996, in connection with a number of crimes arising from six burglaries in Roosevelt County. Defendant was taken before the magistrate judge who appointed the Public Defender to represent Defendant. Two and a half weeks later, on July 12, 1996, Defendant received a letter notifying him that he was the target of a grand jury investigation. The letter also informed Defendant that the grand jury would convene on Monday, July 15.

{3} Defendant wanted to testify before the grand jury. While incarcerated, he phoned Thomas Harden (Harden), a Public Defender contract attorney, who was representing Defendant in separate proceedings. Harden informed Defendant that he could not accompany Defendant before the grand jury because Harden had not received notification that he was representing Defendant in that case. Defendant then attempted, unsuccessfully, to reach the public defender who had represented him in a previous case.

{4} On Monday morning, Defendant appeared at the grand jury. Defendant explained to the prosecutor that he was appearing without counsel. The prosecutor suggested that Defendant call Harden. Defendant spoke to Harden, who once again told Defendant that he could not attend the grand jury. Defendant consulted with Harden about the questions the prosecutor intended to ask, and the prosecutor consulted with Harden about the questions Defendant wanted the State to ask.

{5} At the grand jury hearing, the State presented testimony from five individuals whose homes had been'burglarized and from the manager of a business that had also been burglarized. Two law enforcement officers testified, as did Ray Chavez (Chavez), Defendant’s brother-in-law. Chavez testified that he and Defendant had committed all six burglaries and that Defendant had decided which places to burglarize.

{6} Defendant then took the stand. Pri- or to testifying, the prosecutor informed Defendant that he had the right to consult with an attorney before testifying and that if Defendant had an attorney, the attorney could be present during his testimony. Defendant immediately began to testify and denied committing the burglaries with Chavez. The prosecutor asked Defendant if he wished to make a statement about Chavez’s motive to implicate him in the burglaries. Defendant explained that Chavez had been caught burglarizing a house and was trying to get out of trouble by blaming Defendant, that Chavez did not like Defendant, and that Chavez had been in prison before.

{7} The prosecutor then questioned Defendant about where he was at the time of the various burglaries. Defendant stated that he was either at work or at home, and he needed to check with his wife and his employer to be sure. The prosecutor then asked Defendant whether his wife was in custody for participating in one of the burglaries, and Defendant stated that his attorney had advised him to say what he wanted to say and then quit and that Defendant wanted to quit. The grand jury indicted Defendant on four counts of burglary, two counts of aggravated burglary, six counts of larceny, six counts of conspiracy, and one count of criminal damage to property.

{8} On the day after the indictment was returned, Harden was officially appointed to represent Defendant. Harden filed a motion in district court alleging that the grand jury indictment should be dismissed because Defendant was denied his statutory right to have his attorney present. Defendant testified at the hearing that he had not waived his right to have an attorney present. Harden argued that had the State postponed the hearing and had Harden been present with Defendant, he would have provided the prosecutor with a list of questions to ask Defendant. Harden also stated that he could also have possibly presented an alibi for Defendant. The prosecutor argued that the State was not required to schedule grand jury proceedings at Defendant’s convenience and that Defendant had an opportunity to consult with an attorney before he testified. The prosecutor also explained that the Public Defender Act and the Indigent Defense Act do not mandate representation of a defendant before the grand jury. The trial court found that even if an attorney had been present, the attorney would not have a right to participate in the proceedings and that Defendant was advised that he could stop speaking if he wished to consult with an attorney, which is the same right Defendant would have had if counsel were present. The trial court denied the motion.

{9} At trial, Defendant did not testify; nor did he present an alibi. Defendant did, however, attack Chavez’s credibility. The jury convicted Defendant of all charges.

DISCUSSION

I. STATUTORY RIGHT TO COUNSEL

{10} Defendant claims that the trial court erred in denying his motion to dismiss the indictment. Defendant argues that under NMSA 1978, § 31-6-4(B) (1981), he had a statutory right, as a target witness, to have counsel present during his grand jury testimony. Alternatively, Defendant argues that under the Public Defender Act, NMSA 1978, §§ 31-15-1 to -12 (1973, as amended through 1993), he was entitled to representation by counsel in all proceedings, including the taking of his testimony before the grand jury. We address each of Defendant’s arguments in turn.

A The Grand Jury Act

{11} Defendant explains that he wanted to exonerate himself by testifying before the grand jury and he wanted an attorney to help him. Defendant contends that Section 31-6-4(B) creates a statutory right to counsel for target witnesses who wish to testify before the grand jury. Defendant argues that he was denied this right and his indictment should therefore be dismissed. We disagree.

{12} In interpreting a statute we seek to give effect to the legislature’s intent. See Roth v. Thompson, 113 N.M. 331, 332, 825 P.2d 1241, 1242 (1992). All parts of a statute must be read together to ascertain legislative intent. See Quintana v. New Mexico Dep’t of Corrections, 100 N.M. 224, 225, 668 P.2d 1101, 1102 (1983). We read the statute in its entirety and construe each part in connection with every other part to produce a harmonious whole. See General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 76,

Related

State v. Pareo
420 P.3d 605 (New Mexico Court of Appeals, 2018)
State v. Garcia
New Mexico Court of Appeals, 2010
State v. Martinez
2008 NMCA 019 (New Mexico Court of Appeals, 2007)
State v. Turner
2007 NMCA 105 (New Mexico Court of Appeals, 2007)
Tisthammer v. Williams
49 F. App'x 757 (Tenth Circuit, 2002)
State v. Reyes
2002 NMSC 024 (New Mexico Supreme Court, 2002)
State v. Anderson
2001 NMCA 027 (New Mexico Court of Appeals, 2001)
State v. Vallejos
9 P.3d 668 (New Mexico Court of Appeals, 2000)
State Ex Rel. Children, Youth & Families Department v. Vanessa C.
2000 NMCA 025 (New Mexico Court of Appeals, 2000)
State v. Cleve
1999 NMSC 017 (New Mexico Supreme Court, 1999)

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Bluebook (online)
1998 NMCA 115, 966 P.2d 760, 126 N.M. 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tisthammer-nmctapp-1998.