(specially concurring).
I specially concur to answer the claims of error and to emphasize the importance of the issues.
This court is burdened with Rule 93 [§ 21-1-1(93), N.M.S.A.1953 (Repl.Vol. 4)], and the Indigent Defense Act of 1968, § 41-22-1 through § 41-22-10, N.M.S.A. 1953 (Repl.Vol. 6, Supp.1969).
Indigent defendants are entitled to free representation in trial and appellate work. If the appointed attorney is not an expert criminal lawyer, claims of error may not be properly made during trial, nor properly preserved for review. If the claimed error is not decided, the indigent defendant can, at the expense of the state, continuously move the trial and appellate courts to vacate or set aside the conviction under Rule 93.
This court should sidestep its technical rules and decide all claims of error on appeal in indigent defense cases.
As one Supreme Court Justice has written:
As the rule [Rule 93] now operates, the motions are mostly nonsense, falsehoods, or otherwise insufficient upon which to grant relief. They occupy the time of the trial courts, the appellate courts and the legal profession, and they impose a great financial burden on the public and the legal profession with very little fruitful results.
1. Failure to Compel Election or Severance.
The attempted armed robbery and attempted murder were two separate but continuing incidents in which Silver involved different persons. The attempted murder immediately followed the charge of attempted robbery. These circumstances grant the trial judge a broad and sound judicial discretion of the highest order to determine whether both charges should be tried together before one jury. State v. Paschall, 74 N.M. 750, 398 P.2d 439 (1965). The trial judge denied Silver’s motion. His action will not be disturbed on review unless Silver affirmatively shows that he was in fact prejudiced in his defense on the merits, § 41-6-38(4), N.M.S.A.1953 (Repl.Vol. 6), and the trial court abused its discretion, State v. Gunthorpe, 81 N.M. 515, 521, 469 P.2d 160 (Ct.App.1970), cert. den. 81 N.M. 588, 470 P.2d 309 (1970), cert. den. 401 U.S. 941, 91 S.Ct. 943, 28 L.Ed.2d 221 (1971).
The record shows the state proved Silver guilty of attempted armed robbery beyond a reasonable doubt whether Silver testified or not. Silver does not contend otherwise. Even if there was error in denying severance, the error was harmless. Jones v. Commonwealth, 457 S.W.2d 627 (Ky.1970), cert. den. 401 U.S. 946, 91 S.Ct. 964, 28 L. Ed.2d 229 (1971).
Another factor speaks against Silver’s claim. When the jury acquitted Silver of attempted murder, the jury proved it was able to follow and apply the evidence to each charge as instructed by the trial court. State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App.1970). This is ample to prove that denial of severance was not prejudicial.
Upon what basis can Silver claim he was prejudiced? Silver relies on 41 Temple Law Quarterly 458 (1968), entitled, “Joinder of Counts as a Violation of an Accused’s Right to Remain Silent.” The author believes that severance as a matter of right would seem to be needed to protect dual testimonial privileges.
The state did not answer Silver’s contention in its answer brief. After due consideration, I do not agree that an accused is entitled to severance as a matter of right based upon dual testimony privilege, even if.requested before or during trial. It is a matter within the discretion of the trial court. For modern economic reasons, the status of judicial dockets, the delay in holding two trials with identical witnesses, the increased burden of criminal cases, the discretion of the trial court exercised for or against severance ordinarily speaks with a sepse of justice.
American Bar Association Standards of Criminal Justice, when applicable, have been approved by the Supreme Court of Colorado. Jaramillo v. District Court, 484 P.2d 1219 (Colo.1971).
American Bar Association Standards of 'Criminal Justice relating to Joinder and Severance are deemed applicable, and may be approved by the Supreme Court of New Mexico. Sections 2.1(a) (b) read as follows:
(a) A defendant’s motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time.
(b) If a defendant’s pretrial motion for severance was overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion.
The commentary amply supports the above standards.
Silver’s claim of error is denied because, (1) the trial court did not abuse its discretion in denying severance; (2) Silver did not affirmatively show prejudice on the merits; (3) the jury understood the difference in the two charges; (4) even if there was error, it was harmless.
2. Limiting Defense Counsel Attorney Fees.
Appointed lawyers in indigent criminal defense cases must remember that courts have the right to impose, without compensation, the duty to defend indigents accused of crime. Hale v. Brewster, 81 N.M. 342, 467 P.2d 8 (1970), If the statute mentioned were declared unconstitutional, lawyers would return to their traditional responsibilities found in the Attorney’s Oath •:
I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man’s cause for lucre or malice.
Heretofore, the legal profession received commendations for its devotion to indigents in criminal cases without compensation. People v. Sims, 266 N.E.2d 536 (Ct.App.Ill.1970); People v. Wilson, 60 Misc.2d 144, 302 N.Y.S.2d 647 (1969).
Legislation affecting the reasonable regulations of the legal profession is a valid exercise of the police power of the state. In re Gibson, 35 N.M. 550, 4 P.2d 643 (1931). The Indigent Defense Act falls within this principle.
However, when lawyers are confronted with staggering burdens affecting their own family and business relationships, courts have the power to order payment of reasonable compensation. People ex rel. Conn v. Randolph, 35 Ill.2d 24, 219 N.E. 2d 337, 18 A.L.R.3rd 1065 (1966). As a result, some states have amended their indigent compensation statutes to grant courts, in extraordinary circumstances, the right to provide for compensation in excess of the statutory limits. People v. Sims, 266 N.E.2d 536 (Ct.App.Ill.1970); People v. Wilson, 60 Misc.2d 144, 302 N.Y.S.2d 647 (1969); State v. Apodaca, 252 Or. 345, 449 P.2d 445 (1969). New Mexico does not have such a provision.
In the United States, we have a principle of “Equal Justice to All.” Any indigent person accused of crime, or any person of modest means accused of felonious crimes, should have court appointed lawyers with experience, competence, skill and knowledge in criminal law, practice and procedure. The reason is that it meets the challenge of district attorneys and staff who specialize in the prosecution of criminal cases. Constitutional questions might arise if young, inexperienced criminal lawr yers were appointed. Errors and mistakes would ordinarily follow, which deny defendants a fair and impartial trial. Claims of error may not be reviewed on appeal. But such questions cannot arise under limited compensation statutes when competent attorneys are appointed unless the court denies additional compensation where burdens are staggering and the family, business and life of the lawyers are seriously impaired. See Brown v. Board of County Com’rs of Washoe County, 85 Nev. 149, 451 P.2d 708 (1969).
The error claimed here is not a constitutional problem. No claim is made that the appointed attorneys were incompetent. It is a legislative problem, The New Mexico Bar Association should be “the most interested in protecting its members from the burdens and sacrifices of oppressive demands upon them to represent indigents.” Jones v. Commonwealth, 457 S.W.2d 627 (Ky.1970), cert. den. 401 U.S. 946, 91 S.Ct. 964, 28 L.Ed.2d 229 (1971).
The Indigent Defense Act is constitutional. Silver was not denied equal protection of the law and due process. Whether monetary justice to court appointed attorneys is necessary depends upon the attitude of the New Mexico Bar Association and the legislature.