State v. LaCour , 84 N.M. 665 ( 1973 )

OPINION

HERNANDEZ, Judge.

Defendant was convicted of robbery while armed with a deadly weapon (§ 40A-16-2, N.M.S.A.1953 (2d Repl.Vol. 6)). ITe raises two points for reversal: (1) The trial court erred in not giving defendant a hearing on the issue of the voluntariness of his confession; (2) the trial court abused its discretion in failing to grant defendant’s motion for continuance, discovery and inspection, and a bill of particulars.

The first point is dispositive of this appeal and consequently only the facts relative to it will be set forth.

Approximately forty-seven days before trial defendant filed a series of motions including a motion to suppress all statements ’made by the defendant relating to the offenses charged in the indictment. There is nothing in the record to indicate whether the defendant’s motion to suppress was ever acted upon.

On the day of trial defendant renewed his motion to suppress. The District Attorney’s response to the motion was:

“Just for the record, I think we better have a hearing on the motion to suppress the confession.”

The motion was denied. During the trial a written confession made by the defendant was offered into evidence. The defendant responded as follows:

“Let the record reflect that this statement was the object of the motion to suppress which was . . . which said motion was denied by the court without a preliminary evidentiary hearing.”

The statement was received into evidence.

The trial court erred in not holding a hearing out of the presence of the jury in order to determine the voluntariness of the confession. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205 (1964). As stated in State v. Word, 80 N.M. 377, 456 P.2d 210 (Ct.App.1969), “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”.

The judgment is reversed and the cause remanded with directions to grant defendant a new trial in a manner not inconsistent herewith.

It is so ordered.

LOPEZ, J., concurs. SUTIN, J., specially concurring.