(dissenting in part and specially concurring in part).
I would affirm Benavidez’ conviction.
The majority opinion omits two decisive facts: (1) Martinez, the former District Attorney, talked to the defendants at the request of defendants; and (2) Martinez told the defendants “to give him the things, that he would try to help us out.”
The majority opinion gives little, if any, weight to another fact. There is nothing in the record indicating any understanding by Benavidez that Martinez would get the charges dropped. The most that Benavidez understood was that Martinez would talk “to you people” about dropping the charges.
The above items distinguish all of the cases cited in support of the result reached by the majority. For example, in State v. Foster, 25 N.M. 361, 183 P. 397, 7 A.L.R. 417 (1919), there was a definite understanding that there would be no prosecution if the defendant met with the victim of the larceny and told what he knew. That is not the situation in this case.
I agree that the convictions of Romero and Chavez should be reversed on the basis that they were entitled to severance as of right. I do not agree with the discussion of that issue in the majority opinion.
Section 41-23-34(b) (2), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973) provides for severance as of right “if the court finds that the prosecution probably will present evidence against a joint defendant . which would not be admissible in a separate trial of the moving defendant.” The showing made was that the State intended to present evidence of Benavidez’ statement. That statement implicated Romero and Chavez. Under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L. Ed.2d 476 (1968), Benavidez’ statement would not have been admissible in separate trials of Romero or Chavez.
The trial court did not grant severance. Instead it required the deletion of all references to Romero and Chavez and ruled that the statement, after said deletions, was admissible. This procedure complied with ABA Standards Relating to Joinder and Severance, Section 2.3 (Approved Draft 1968).
The trial court followed this procedure because of the commentary to Rule 34(b)(2) of the Rules of Criminal Procedure. That commentary states that Rule 34(b) (2) is consistent with the ABA Standards Relating to Severance.
The commentary is not correct. Section 2.3 of the ABA Standards on Severance provides that where a statement by one defendant is inadmissible against co-defendants, the trial court should require the prosecutor to elect one of three courses, one of which is the deletion procedure followed in this case. Section 41-23-34(b)(2), supra, does not provide for the prosecutor to elect the course to be followed. Section 41-23-34 (b) (2), supra, provides for severance as of right.
It should be noted that the commentaries to the Rules of Criminal Procedure are a copyrighted publication of the University of New Mexico School of Law and are not commentaries adopted by the New Mexico Supreme Court.
The trial court erred in following the commentary because the rules, not the commentaries, govern. Section 41-23-1, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). The trial court erred in not granting severance as of right under § 41-23-34(b) (2), supra. Compare State v. Volkman, 86 N. M. 529, 525 P.2d 889 (Ct.App.1974).