(specially concurring).
I concur in the result, but for different reasons.
A. GRANTING DEFENDANT A NEW TRIAL TOO BROAD
In my opinion, reversal with remand to grant defendant a new trial is too broad when based solely on denial of a hearing on motion to suppress a confession.
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), 1 A.L.R.3d 1205, and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1966), limit the remand.
Jackson v. Denno, supra, remanded “to allow the State a reasonable time to afford Jackson a hearing or a new trial, failing which Jackson is entitled to his release.”
The court said [378 U.S. p. 394, 84 S.Ct. p. 1790]:
It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence. * * * But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. * * * Of course, if the state court, at an evidentiary hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.
In Sims v. Georgia, supra, the court “remanded for a hearing as provided by Jackson v. Denno. . . . ” Thereafter, the state trial judge determined that Sims’ confession was voluntary and denied a new trial. The Georgia Supreme Court affirmed. The Supreme Court of the United States again reversed because the confession was involuntary, but it also found that “the juries by which petitioner was indicted and tried were selected in a manner that does not comport with constitutional requirements.” It remanded for further proceedings not inconsistent with the opinion. Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967). See, dissenting opinion, State v. Gruender, 83 N.M. 327, 491 P.2d 1082 (Ct.App.1971).
New Mexico has adopted the “Massachusetts Rule.” State v. Burk, 82 N.M. 466, 483 P.2d 940 (Ct.App.1971), cert. den. 404 U.S. 955, 92 S.Ct. 309, 30 L.Ed.2d 271 (1971). Under this rule, the trial judge must first fully and independently resolve the issue of voluntariness against the defendant before this issue can be submitted to the jury. If the trial judge determines the confession to he involuntary, it is not admissible in evidence. If the trial judge determines the confession to be voluntary, the confession is admissible under proper instructions to the jury.
In the present case, the conviction was based solely on defendant’s confession. If, upon a hearing the trial judge determines the confession to be involuntary, it would not have been admissible in evidence, and defendant should be discharged. If the trial court determines the confession to be voluntary, it is admissible in evidence in the original trial, and the conviction should be affirmed because no objections were made to the instructions given to the jury. State v. Milow, 199 Kan. 576, 433 P.2d 538 (1967); Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969); State v. Brewton, 238 Or. 590, 395 P.2d 874 (1964).
No new trial should be granted unless additional error appears in the record which requires a reversal. Without additional error, this case should be reversed, the conviction and sentence vacated, and a hearing held on the voluntariness of the confession. See, State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970); State v. Anaya, 76 N.M. 572, 417 P.2d 58 (1966).
B. NO ADDITIONAL ERROR
Defendant contends the trial court abused its discretion in failing to grant defendant’s motions for continuance, discovery and inspection, and a bill of particulars.
The record shows the indictment was filed February 24, 1972. On March 6, 1972, defendant pleaded not guilty. On March 10, 1972, the motions were filed. A continuance was granted from April 10, 1972, to April 26, 1972, and trial began. Defendant was present in person and by attorney.
On the morning of trial, all motions were denied. Defendant’s trial attorney claimed lack of preparation of a defense because defendant suffered contagious hepatitis and he was unable to contact defendant. The doctor’s letter admitted in evidence stated that defendant had not been seen since March 6, 1972, and he was unable to comment on his physical condition at the time of trial. No other evidence was presented. The defendant did not argue the other motions. They seemed to have been withdrawn. There was no error committed in denying the above motions.
C. FUNDAMENTAL ERROR REQUIRES REVERSAL
A serious question arises. Defendant’s attorney stated that because of his inability to contact defendant due to disease, and inadequate preparation as a result thereof, he would not participate in the trial. Defendant received no defense. Yet, the trial court proceeded with the trial. This was fundamental error. It shocks the conscience of the court that trial would proceed against defendant without legal representation. State v. Garcia, 46 N.M. 302, 128 P.2d 459 (1942). “The assistance of counsel is a fundamental right in all criminal proceedings wherein a defendant is accused of a felony or any crime punishable by a possible penitentiary sentence ...” Section 21-1-1(92) (1), N.M.S.A.1953 (Repl.Vol. 4); State v. Coates, 78 N.M. 366, 431 P.2d 744 (1969); State v. Moser, 78 N.M. 212, 430 P.2d 106 (1967); 21 Am. Jur. Criminal Law, § 309; 23 C.J.S. Criminal Law § 979(1). The trial judge has a duty to fully safeguard the right to counsel. State v. Coates, supra. In this case, defendant had inadequate representation. State v. Moser, supra. See, State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967). His rights were violated and he did not receive a fair trial. Counsel on this appeal was not the attorney at trial.
It is not necessary at this time to discuss the role of judge and defense counsel at the beginning of trial in this case. See, Function of the Trial Judge, ABA Project on Standards for Criminal Justice.
On this point alone, defendant should be granted a new trial.