State v. Helker , 88 N.M. 650 ( 1975 )

OPINION

HENDLEY, Judge.

Defendant appeals a conviction of attempted rape, sodomy and aggravated burglary. He alleges four points for reversal which relate to: (1) lack of a full volun-tariness hearing on a confession; (2) ineffective assistance of counsel; (3) commenting on defendant’s failure to testify; and, (4) the unconstitutionality of the sodomy statute.

V oluntdriness Hearing

Defendant’s trial attorney had known of the purported confession several months prior to trial. He did not file a motion to suppress within the time prescribed by R.Cr.P. 18, § 41-23-18, N.M.S.A. 1953 (2d Repl. Vol. 6, 1972, Supp.1973). During the trial the state offered the confession into evidence. Defendant then requested a hearing be held out of the presence of the jury concerning voluntariness. The jury was excused and two police officers testified as to the voluntariness of the confession. Defendant extensively cross-examined the officers. The state then moved that the testimony and confession be presented to the jury. Defendant then moved to examine other witnesses as to whether the confession was voluntary. The motion was denied as untimely.

Defendant then moved to make an offer of proof as to the voluntary nature of this confession. The trial court granted the motion but defendant did not call any witnesses to make his offer of proof. Further, defendant did not testify at trial nor did he call any witnesses.

This court has clearly recognized that defendant has a constitutional right to have a fair hearing and a reliable determination on the issue of voluntariness. In State v. Word, 80 N.M. 377, 456 P.2d 210 (Ct.App.1969) this court stated:

“Defendant has the constitutional right at some stage in the proceeding to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness; a determination uninfluenced by the truth or falsity of the confession. State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966); Pece v. Cox, 74 N.M. 591, 396 P.2d 422 (1964); see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964). When a defendant makes it known he has something to say touching the integrity of a claimed confession, however incredible as it may appear to the trial court, the defendant must be heard. The trial judge has no choice.”

See State v. Gurule, 84 N.M. 142, 500 P.2d 427 (Ct.App.1972); and State v. Gruender, 83 N.M. 327, 491 P.2d 1082 (Ct.App.1971).

Subsequently, our Supreme Court adopted Rule 18(c), supra, which provides:

“(c) Time for Filing. A motion to suppress shall be made within twenty days after the entry of a plea, unless, upon good cause shown, the trial court waives the time requirement of this rule.”

Defendant contends that rules of criminal procedure that set time limitations cannot deprive defendant of his constitutionally protected right to a voluntariness hearing.

18 U.S.C.A. § 41(e) (1961) was very similar to Rule 18. Prior Rule 41(e) provided in part:

“. . . . The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.”

Although Rule 41, supra, has been amended, there is a long line of cases that have construed the effect of the prior Rule 41(e), supra. In Small v. United States, 396 F.2d 764 (5th Cir. 1968), the court upheld a trial court’s denial of a motion to suppress evidence as untimely when the motion to suppress was not submitted until the government offered the evidence at trial. In upholding the trial court’s denial the Small court stated:

“The purpose of Rule 41(e) in requiring Motions to Suppress to be introduced prior to trial is to facilitate a uniform presentation of the facts and law to the jury with as few disruptive intervals as possible. Although the trial judge is free to exercise judicial discretion when a motion is offered for the first time during the trial where there would be obvious prejudice to the defendant, the granting of such a motion.is disfavored where counsel was fully aware of the facts prior to trial and had ample opportunity to present the motion. [Citations omitted].”

Similarity, the United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) stated:

“. . . This provision of Rule 41(e), requiring the motion to suppress to be made before trial, is a crystallization of decisions of this Court requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt. [Citations omitted].”

See also United States v. Hamilton, 469 F.2d 880 (9th Cir. 1972); United States v. Robinson, 470 F.2d 121 (7th Cir. 1972); United States v. Ceraso, 467 F.2d 653 (3rd Cir. 1972) ; United States v. Cranson, 453 F.2d 123 (4th Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1607, 31 L.Ed.2d 821 (1972); United States v. Bennett, 409 F.2d 888 (2d Cir. 1969), cert. denied, 396 U.S. 852, 90 S.Ct. 117, 24 L.Ed.2d 101 (1969). For the reasons enumerated in the above cases we hold that rules of criminal procedure can put a time limitation on the exercise of a constitutionally protected right.

Ineffective Assistance of Counsel

Under this point defendant contends that even if he waived his right to have a full hearing on the admissability of the confession then failure to move to suppress constitutes ineffective assistance of counsel. He also contends that failure to offer a defense of and submit a requested instruction on voluntariness, intoxication and diminished capacity constitutes ineffective assistance of counsel.

Defendant was not denied his right to have witnesses at trial to testify on the question of voluntariness. Defendant was only denied the right to have a suppression hearing as discussed in the first point. However, he chose not to do so for reasons which are not disclosed by the record. We will not attempt to second guess trial counsel on appeal. Counsel must be given a wide latitude in his representation of his client. State v. Moser, 78 N.M. 212, 430 P.2d 106 (1967). All the claims here, including the failure to request instructions, go to trial tactics and strategy. An attorney has the exclusive power and control with respect to procedural and remedial matters over the litigation with which he is charged. State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967). Our review of the record does not show that defendant was denied the effective assistance of counsel.

As to the failure to request instructions on the issues of voluntariness, intoxication and diminished capacity we can only state that the record would not support the giving of any such instructions. See State v. Armstrong, 85 N.M. 234, 511 P.2d 560 (Ct.App.1973). State v. Watkins, 543 P.2d 1189 (Ct.App.)

Defendant asserts that the instant case compares with State v. Kincheloe, 87 N.M. 34, 528 P.2d 893 (Ct.App.1974). We do not agree. Kincheloe is entirely different and is distinguished from the instant case. The composite of the alleged errors asserted here do not approach those in Kinche-loe.

Defendant’s Failure to Testify Comment

Defendant attempts to elevate the following statement into a comment by the trial court on defendant’s failure to testify. That comment states in part:

“THE COURT: Ladies and gentlemen of the jury, at the lunch recess the State had announced rest at that time and then coming back this afternoon the defendant has chosen not to submit any defense which is his constitutional right so to do and they the State closed, which means, [there] will be no more testimony,

The statement by the court was no more than a summary of the happenings in the trial. It was not a comment on defendant’s failure to testify. No issue is presented as in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

Unconstitutionality of the Sodomy Statute

The majority of this panel abides by the decisions of this court prior to State v. Elliott, 88 N.M. 187, 539 P.2d 207 (Ct.App.1975) on certiorari to the New Mexico Supreme Court. A Supreme Court determination in Elliott will settle the constitutionality question of the sodomy statute.

Affirmed.

It is so ordered.

HERNANDEZ, J., concurs. SUTIN, J., dissenting.