Opposition Brief — Pascarella v. New Mexico

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i Supreme Court, U.S,

ot & Ae ee

No. 85-206 »- a ie

NIOL, JR.

CLERK

IN THE

Supreme Court of the United States

October Term, 1985

JOE PASCARELLA,

Petitioner,

STATE OF NEW MEXICO,

Respondent.

COPY

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW MEXICO

RESPONDENT’S BRIEF IN OPPOSITION

PAUL BARDACKE

Attorney General of New Mexico -

ANTHONY TUPLER

Assistant Attorney General

Counsel of Record

P.O. Drawer 1508

Santa Fe, New Mexico 87504-1508

(505) 827-6000

ELIZABETH MAJOR

CHARLES H. RENNICK

Assistant Attorneys General

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Counsel for Respondent

Octobe; 25, 1985

VERGARA PRINTING CO + SANTA FE, NEW MEXICO

41 PL

QUESTIONS PRESENTED

1. When New Mexico Courts Use the Massachusetts Procedure

for Deciding Voluntariness of a Confession, Can the Trial

Court’s Ruling on Voluntariness Be Determined from the

Record Absent an Explicit Finding?

2. Were the Jury Instructions Adequate to Instruct the Jury on

the Elements of Solicitation of Felony Aggravated Battery?

3. Did Defense Counsel’s Request for a Definitional Instruc-

tion Provide Effective Assistance of Counsel?

TABLE OF CONTENTS

Page

CORRE ees WUD xs oc ba dade cc ace ane i

STA Pesmeee se Gar Cee a cc ao ca wesnhaeeneee es 2

ARGUMENT:

1. The Trial Court Made a Sufficient

Determination of the Voluntariness

of the Defendant’s Confession. .................. 4

2. The Jury Was Adequately Instructed

on Solicitation of Aggravated Battery............. 7

3. Defense Counsel Provided Effective

Am GE CE 6g a kk 10

CPR ARUINS sb 0 ccc as bee's ae Oe ee eee 11

TABLE OF AUTHORITIES

Cases Cited: Page

Cranford v. Rodriguez,

eT OR ) ) 5

Erving v. Sigler,

453 F.2d 843 (8th Cir.),

cert. denied, 406 U.S. 976 (1972)................... 5

Jackson vy. Denno,

De ike becca aeeeenan 4,5,6

Martinez v. Estelle,

rn Soe , BOND, coc toc ees c ese esasen 5

Mincey v. Arizona,

ES ee a 5

Miranda vy. Arizona,

a .

Pece v. Cox,

Pee, ee, Bee © .20 422 (1964)... 2. we ce cc wees 5

Sims v. Georgia,

EES 4,5,6

State v. Beachum,

78 N.M. 390, 432 P.2d 101 (1967),

ee ee BS, SP ESD, 2g www ccccscccccces 6

State v. Burk,

82 N.M. 466, 483 P.2d 940 (Ct.App.),

rr (Clo WOR CREP ED. wwe cc cece eesece 5

State v. Soliz,

ee ee. Re Ae DID CEDOR) 2c oc wwe cee cee 5-6

State v. Stout,

82 N.M. 455, 483 P.2d 510 (Ct.App. 1971) ........... 6

Strickland v. Washington,

ee le Be a | 11

Swenson v. Stidham,

EE 5

ili

United States v. Gardner,

516 F.2d 334 (7th Cir.),

cert. denied, 423 U.S. 861 (1975). .........

United States v. Garrett,

S28 F.26 448 (6 Cir. 1979)... cc cnn e ss

United States v. Medina,

552 F.2d 181 (7th Cir.),

cert. denied, 434 U.S. 839 (1977).........

New Mexico Statutes Cited:

N.M.Stat.Ann. § 30-3-5(B) and (C) (Repl.

se a. cna she ed ho -6

N.M.Stat.Ann. § 30-28-3(E) (Repl.

RUNROI ens e a tee

a ek as ee 7

No. 85—206

IN THE

Supreme Court of the United States

October Term, 1985

JOE PASCARELLA,

Petitioner,

Vv.

STATE OF NEW MEXICO,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW MEXICO

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent, State of New Mexico, respectfully requests

that this Court deny the petition for writ of certiorari seeking

review of the denial of a petition for writ of certiorari in the

New Mexico Supreme Court and of the Memorandum Opinion

of the New Mexico Court of Appeals in this case.

STATEMENT OF THE CASE

The defendant was charged with solicitation of felony aggra-

vated battery (R. at 1), after he hired David Garcia to injure

his employer. Unbeknownst to the defendant, Mr. Garcia was

an undercover law enforcement cfficer (Tape 3, 317, 329),

and the defendant’s telephone conversations and meetings

with this ostensible hit man were tape recorded. (Tape 3, 396,

450, 483, 566, 719, 800; Tape 4, 35). After the defendant

was arrested, he made inculpatory statements to Officer Darrell

Allred.

Officer Allred testified at trial that the defendant was twice

advised of his rights, that the defendant stated he would talk

to the police, that he didn’t need an attorney, and that he

understood his rights. (Tape 7, 86, 108). Defense counsel

approached the bench, and after an inaudible bench confer-

ence, the trial court dismissed the jury for the day. The court

then told defense counsel, “Outside the presence of the jury,

you may voir dire the witness, Mr. Pickett, as to voluntariness

of the statement.” (Tape 7, 135). On voir dire, Officer Allred

stated that the defendant was twice advised of his rights pur-

suant to Miranda vy. Arizona, 384 U.S. 503, 83 S.Ct. 1336,

10 L.Ed.2d 694 (1966) (Tape 7, 150, 175). Officer Allred

testified he asked the defendant if he understood his rights

and the defendant stated that he did, that he had given them

to people himself. (Tape 7, 185). (The defendant had been a

police officer. (Tape 8, 381) ). Officer Allred stated that he did

not tell the defendant that he or any officer would determine

whether the charge would be a misdemeanor, or that if the

defendant cooperated that there was a good possibility he

would only be charged with a misdemeanor. (Tape 7, 232).

After the defendant had made inculpatory statements to the

police, Offficer Allred asked if he would agree to repeat those

statements on a tape recording. At that point, the defendant

stated that he wanted to talk to an attorney. (Tape 7, 302).

After the voir dire, the court adjourned for the day. (Tape 7,

341). The next day, direct examination of Officer Allred con-

tinued. (Tape 7, 352). Before questioning began on the sub-

stance of the defendant’s statements, the following exchange

occurred:

[Defense Counsel]: Your honor, again I would

object to this officer testifying to any conver-

sation that he had with Mr. Pascarella. i make

that objection at this time on the grounds that

he was improperly advised of his rights, and

for those reasons that I raised with the court

yesterday.

Judge Galvan: That it was not a voluntary state-

ment.

[Defense Counsel]: That’s correct, your honor.

Judge Galvan: The voluntariness of the state-

ment will be considered by the jury, and the

objection is overruled at this time. You may

proceed.

(Trial Tape 7, 372). Officer Allred then proceeded to testify

about statements made by the defendant.

Later in the trial, the defendant testified that he had been

advised of his rights. (Tape 9, 317). He stated that Officer

Allred told him that the charge could be a misdemeanor or a

felony, and if he demonstrated sufficient remorse, Officer

Allred would do what he could, or push, for a misdemeanor

charge. (Tape 9, 369; Tape 10, 327). He also stated that Officer

Allred told him that if he came across as if he “‘wanted” the

victim, then he’d be hung. (Tape 9, 376).

On the remaining issues pertaining to jury instructions and

ineffective assistance of counsel, the central fact is that the

defendant requested jury instruction No. 4. (Petition, Appendix

at 7). That instruction stated:

In New Mexico there is a lesser degree of simple

aggravated battery when the injury does not

amount to great bodily harm, but which injury,

although not likely to cause death or great

bodily harm, does cause painful temporary dis-

figurement or temporary loss or impairment of

the functions of any member or organ of the

body.

(R. at 46).

ARGUMENT

1. The Trial Court Made a Sufficient Determi-

nation of Voluntariness of the Defendant’s

Statement.

The defendant claims that a line of New Mexico cases,

including the present one, fails to comply with the standards

for determining voluntariness set out in Sims v. Georgia, 358

U.S. 538 (1967). The defendant faults the New Mexico cases,

because they do not require an explicit finding of voluntari-

ness by the trial court before submitting the issue to the jury.

This Court, in Jackson v. Denno, 378 U.S. 368, 377 (1964),

held that a trial judge must determine a confession to have

been voluntarily given prior to submitting it to the jury. The

Count approved two procedures. Under the Massachusetts

rule, the jury passes on voluntariness only after the judge

has fully and independently resolved the issue against the

accused. Under the orthodox rule, the judge solely and finally

determines the voluntariness of the confession. In both cases,

the judge’s conclusions are “clearly evident from the record

since he either admits the confession into evidence if it is

voluntary or rejects it if involuntary. Moreover, his findings

upop disputed issues of fact are expressly stated or may be

ascertainable from the record.” /d at 378-79. The Court

elaborated on the procedure in Sims, stating that while the

judge ‘‘need not make formal findings of fact or write an

*-s

opinion, his conclusion that the confession is voluntary must

appear froin the record with unmistakable clarity.”” 358 U.S.

at 544. Since Sims, this Court has approved voluntariness deter-

minations which were not explicit, but which were clear from

the record. See, e.g., Mincey v. Arizona, 437 U.S. 385, 397 n.12

(1978); Swenson v. Stidham, 409 U.S. 224, 230 (1972).

As suggested in Jackson, lower courts have stated that when a

jurisdiction follows the Massachusetts or orthodox procedures,

a determination of voluntariness is inherent in the overruling

of a defendant’s objection to a confession on voluntariness

grounds. Martinez v. Estelle, 612 F.2d 173 (Sth Cir. 1980);

United States v. Medina, 552 F.2d 181 (7th Cir.), cert. denied,

434 U.S. 839 (1977); Erving v. Sigler, 453 F.2d 843 (8th Cir.),

cert. denied, 406 U.S. 976 (1972). Also, courts are willing to

find an implicit determination of voluntariness in a trial court’s

overruling of an objection when that trial court has been square-

ly presented with the issue of voluntariness. Medina, 552 F.2d

at 185; United States v. Gardner, 516 F.2d 334 (7th Cir.), cert.

denied, 423 U.S. 861 (1975); Cranford v. Rodriguez, 512 F.2d

860 (10th Cir. 1975). When the purpose of the hearing to sup-

press the confession is to determine its voluntariness, “‘[t] he

trial judge unmistakably makes a determination that the confes-

sion was voluntary by his ruling denying suppression’’. United

States v. Garrett, 521 F.2d 444, 447 n.3 (8th Cir. 1975).

New Mexice courts have clearly adopted the Massachusetts

procedure for determining voluntariness. Pece v. Cox, 74 N.M.

591, 396 P.2d 422 (1964); State v. Burk, 82 N.M. 466, 483

P.2d 940 (Ct.App.), cert. denied, 404 U.S. 955 (1971). They

also require that the judicial determination of voluntariness be

explicitly stated or ascertainable from the record. State v. Burk,

82 N.M. at 470. The fact that New Mexico courts have found

an implicit determination of voluntariness when the trial court

overrules the defendant’s objection and allows the issue to go

to the jury is in accord with Jackson and its progeny. See State

v. Soliz, 79 N.M. 263, 442 P.2d 575 (1968); State v. Beachum,

78 N.M. 390, 432 P.2d 101 (1967), cert. denied, 392 U.S. 911

(1968); State v. Stout, 82 N.M. 455, 483 P.2d 510 (Ct.App.

1971).

In this case, the issue of voluntariness was squarely presented

to the trial court. The New Mexico Court of Appeals found

that the trial court’s overruling of the defendant’s objection and

its decision to send the issue to the jury evidenced a determina-

tion of voluntariness by the trial court. (Petition, Appendix at

11-12). That court noted that the defendant did not request

clarification of the trial court’s ruling. See United States v. Medi-

na, 552 F.2d at 185; United States v. Gardner, 516 F.2d at 340.

The defendant limits his challenge on this issue to an allega-

tion that New Mexico courts do not accept the requirement in

Sims that a judicial determination of voluntariness must be

unmistakably clear from the record. However, New Mexico

cases show that New Mexico courts have adopted the require-

ment of a judicial determination of voluntariness before sub-

mitting the question to a jury, and they have held that that

determination must be either explicitly stated or ascertainable

from the record. There is no conflict between New Mexico

case law and the Court’s rulings in Jackson and Sims.

This Court should not consider this issue, because there is

no discrepancy between Sims and the New Mexico decisions

in this case and in previous cases. Additionally, this case does

not raise any issue that has not already been addressed by this

Court in both Jackson and Sims, Finally, the facts of this case

do not provide a compelling basis for further comment on this

area of the law. The defendant does not challenge the fairness

of the ruling on voluntariness; he argues only that the ruling

lacked definitiveness. Under the facts of this case, the ruling

on voluntariness was sufficient, and the defendant requested

nothing further. The New Mexico Court of Appeals recognized

and correctly applied the requirements of Jackson and Sims.

2. The Jury Was Adequately Instructed on

Solicitation of Aggravated Battery.

In New Mexico, solicitation is a crime only when the solicited

act constitutes a felony. N.M.Stat.Ann. § 30-28-3(E) (Repl.

Pamph. 1984). The defendant was properly charged with solici-

tation of felony aggravated battery. The defendant claims that

the jury instructions did not adequately inform the jury that it

could only convict the defendant of solicitation of felony aggra-

vated battery, as opposed to solicitation of misdemeanor aggra-

vated battery. The defendant also claims that the jury was not

told of this distinction. (Petition at 14).

The element that distinguishes felony aggravated battery

from misdemeanor aggravated battery is the requirement of

great bodily harm. N.N.Stat.Ann. § 30-3-5(B) and (C), (Repl.

Pamp. 1984). The trial court gave the following instructions on

the elements of the crime:

Instruction Number 1

For you to find the defendant guilty of criminal

solicitation, the State must prove to your satis-

faction beyond a reasonable doubt each of the

following elements of the crime:

1. The defendant intended that another person

commit aggravated battery;

2. The defendant employed the other person

to commit the crime.

3. This happened in New Mexico on or about

the 5th day of May, 1983.

Instruction Number 2

In New Mexico, the elements of the crime of

aggravated battery are as follows:

1. Injury is done to a victim;

2. The injury is done intentionally;

3. The injury amounts to great bodily harm.

(R. at 43, 44).

These instructions required the jury to find that the defendant

solicited another person to do great bodily harm to the victim.

In other wo: s, the jury had to convict the defendant of solici-

tation of the felony form of aggravated battery.

The trial court aiso gave the jury an instruction on the defini-

tion of great bodily harm and an instruction on the definition

of the lesser type of aggravated battery:

this issue:

Instruction No. 3

Great bodily harm means an injury to a person

which creates a high probability of death or

results in serious disfigurement or results in

loss of any member or organ of the body or

results in permanent or prolonged impairment

of the use of any member or organ of the body.

Instruction No. 4

In New Mexico there is a lesser degree of simple

aggravated battery when the injury does not

amount to great bodily harm, but which injury,

although not likely to cause death or great

bodily harm, does cause painful temporary dis-

figurement or temporary loss or impairment of

the functions of any member or organ of the

body.

(R. at 45 and 46).

There are three reasons why this Court should not consider

1) it was not preserved for review; 2) the defend-

ant’s claims about the issue are unfounded; and 3) the situ-

ation out of which the issue arose is idiosyncratic.

—————

1. The defendant concedes that he did not object to the

instruction. (Petition at 14). In fact, the defendant requested

Instruction No. 4, which is the only instruction which even

mentions the misdemeanor form of aggravated battery. On ap-

peal, the New Mexico Court of Appeals held that the defendant

did not preserve the issue for review, because he did not object,

and because the instructions given did not cause jurisdictional

or fundamental error. (Petition, Appendix at 4-5). In discussing

its reasons for finding that the instructions did not give rise to

either jurisdictional or fundamental error, that court reached

the merits of the instruction issue. However, the crux of that

court’s holding was that the issue was not preserved for review.

This Court should decline to consider this issue on the basis

that the decision of the New Mexico Court of Appeals was

based on adequate state grounds, which was the failure to pre-

serve the issue.

2. The defendant’s claim that the jury instructions would

have allowed the defendant to be convicted of solicitation of

misdemeanor aggravated battery is not supported by the record.

Instructions 1 and 2 were the elements instructions in this case.

When those two instructions are read together, it is clear that

the jury was required to find as essential elements of the crime

that the defendant employed another person to intentionally

injure the victim, and that the :atended injury had to amount

to great bodily harm. The subsequent Instructions 3 and 4

explain the type of injury that constitutes great bodily harm

and the type of injury that does not amount to great bodily

harm. They are correct definitions of the two types of injury.

In addition, during closing argument both parties discussed

the distinction between great bodily harm and a lesser type of

injury. The defendant used the definitions in Instructions 3

and 4 to argue that the jury had to acquit the defendant if it

determined that the intended harm to the victim did not

amount to great bodily harm. (Trial tape 12, 337).

The instructions properly instructed the jury on the essential

elements of solicitation of felony aggravated battery. There was

substantial evidence to support each element, including great

bodily harm. There was no provision in the instructions which

would have allowed the jury to convict the defendant of solici-

tation of misdemeanor aggravated battery.

3. The instructions are idiosyncratic to this case, and

would not likely recur in another case. Instruction 4 would

not ordinarily be given in a similar type of case, and was only

given in this case because the defendant requested it. Consider-

ation of this issue would not develop law in a recurring problem

area, but would be limited to the factual pattern of this case.

This Court should not hear an issue in which the defendant

complains about a jury instruction which he requested, which

was not preserved for review, which did not prejudice or harm

the defendant in any way, and which is limited to the specific

facts of this case.

3. Defense Counsel Provided Effective

Assistance of Counsel.

The defendant points to only one instance of conduct by

defense counsel on which he bases his claim of ineffective

assistance of counsel. He argues that defense counsel rendered

per se ineffective assistance of counsel when he tendered

Instruction 4. This argument is based on the prémise that the

giving of Instruction 4 allowed the defendant to be convicted of

solicitation of misdemeanor aggravated battery, which is not a

crime. That premise is unfounded. As discussed in Point II,

Instruction 4 did not allow the jury to convict the defendant

of solicitation of misdemeanor aggravated battery. The elements

instructions clearly required that the jury find great bodily

harm as an element of the solicited aggravated battery, which

would make it felony aggravated battery.

This issue does not warrant the Court’s attention. First,

defense counsel was not ineffective by requesting Instruction 4.

Instruction 4 did nothing more than describe to the jury the

type of injury that did not amount to great bodily harm. One

theory of defense at trial was that the tvpe of harm solicited

by the defendant did not amount to great bodily harm. He

requested the instruction to make sure that the jury understood

the difference between great bodily harm and a lesser type of

injury. The instruction accomplished that purpose. It did not

alter the elements instructions, or allow the jury to convict the

defendant of noncriminal conduct. It also did not so confuse

the jury that it could not properly apply the elements instruc-

tions. The request for Instruction 4 was reasonable conduct

by defense counsel in furthering his theory of defense, and

that conduct did not prejudice the defendant. The request for

Instruction 4 did not establish ineffective assistance of counsel.

Strickland v. Washington, 466 U.S.__, 104 S.Ct. 2052 (1984).

Another reason the Court should not consider this issue is

that, given the issues as framed by the defendant, effectiveness

of counsel is not dispositive. [f the Court finds that the jury

instructions adequately instructed on the crime charged, then

there is no basis for a claim of ineffective assistance of counsel.

If this Court were to find that the instructions were inadequate

on the essential elements, then that situation would be deter-

minative, regardless of who tendered the instructions.

CONCLUSION

The Petitioner has not stated any issues which warrant con-

sideration by this Court. This Court should deny the petition

for certiorari.

October 25, 1985

Respectfully submitted,