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Summaries
of Recent New Mexico Appellate Opinions - Criminal Cases
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Full Opinions - Hard Copy
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Criminal Cases: January 2008 (most
recent cases listed first)
State v. Caldwell, CA 26,322 (Fry) Jan 28, 2008
Defendant’s convictions for both fraud and forgery, based on the unitary conduct of passing one check, do not violate double jeopardy because the statutes have different elements and different legislative intents (fraud to protect against people getting cheated and forgery to protect confidence in certain documents); although court gave non-uniform instruction for elements of forgery, the instruction tracked the language of the statute and did not take away a factual question from the jury and there was therefore not fundamental error; there was sufficient evidence for both convictions.
State v. Robinson, CA 26,594 (Fry) Jan 28, 2008
Applying de novo review, court holds that trial court erred in disqualifying the entire DA’s office from a retrial of a CSP case when the defendant threatened one of the assistant DAs and was prosecuted for it in another case, and when that assistant did not participate in the retrial, but another assistant who took a keen interest in the prosecution for the threat did, because the threat was a different offense from the offense for which the DA was now prosecuting the defendant and to allow a defendant to manipulate the disqualification of the DA’s office by committing a crime against one assistant would be bad policy (Kennedy, dissenting on the ground that the trial court did not abuse discretion in finding that the facts warranted disqualification).
State v. Quintana, CA 25,107 (Vigil) Jun 15, 2006, aff’d, SC 29,909 (Chavez) Jan 25, 2008
A state road, owned by the US and administered by the Forest Service, and lying on the boundary between two pueblos is not Indian Country because it satisfies neither the set aside nor the superintendence test of Venetie, and there is no evidence in this case that the road was ever within the exterior boundaries of a pueblo grant.
Aff’d on the ground that the road was not set aside by some explicit action by congress or the executive and that practical use of the property is not sufficient to meet the set-aside test, and therefore the superintendence prong need not be addressed.
State v. Schoonmaker, CA 23,927 (Bustamante) Sep 10, 2004, rev’d, SC 28,954 (Bosson) Jan 23, 2008
Trial court properly instructed in child abuse case in accordance with new instructions drafted in response to Supreme Court cases; Defendant was not put in double jeopardy, nor was collateral estoppel violated, when the jury acquitted him of intentional child abuse, but hung on negligent child abuse, and Defendant was retried and convicted of the latter crime because they are not the same crime; character evidence claim was not preserved; there was sufficient evidence of negligent child abuse when Defendant was shown to have shaken a baby and Defendant’s different explanations were not believed; trial court could find that Defendant’s offense was serious violent one when the evidence establishes a substantial and unjustified risk and Defendant should have known it was dangerous to the child; in addition, subjective knowledge not required by statute.
Rev’d on a ground first brought to the Court of Appeals’ attention on rehearing - that Defendant was deprived of effective assistance of counsel when the trial court would not let his counsel withdraw so that Defendant could get the Public Defender and funding for expert witnesses, where it was undisputed that Defendant was indigent and where experts were crucial to assess the State’s evidence on shaken baby syndrome and Defendant’s defense that the child fell; other issues argued on appeal that were covered by Court of Appeals opinion are affirmed, although some for different reasons; trial court is instructed to insure that Defendant is not convicted at retrial of theory of intentional child abuse of which he was acquitted at first trial; when there is double jeopardy, merger is not a sufficient remedy, and one conviction must be vacated.
State v. Hornbeck, CA 26,308 (Kennedy) Jan 17, 2008
Fraud and embezzlement are mutually exclusive so that while a defendant may be charged with both, he may be convicted only of one; where jury convicted Defendant of both, the finding of fraud precludes the embezzlement conviction because Defendant did not acquire the property lawfully, so that is the conviction that is vacated; convictions for fraud and securities fraud did not violate double jeopardy or the general/specific rule because of statutory language that makes clear the legislative intent to allow both convictions; parol evidence rule does not apply to criminal charges so the State was allowed to introduce evidence of circumstances surrounding what appeared to be a simple note; deficiencies in the State’s prima facie case may be made up by the defendant’s case; Defendant’s instructions, which were comments on the evidence, were properly refused and other instructions were properly refused because they were incorrect statements of the law; there was sufficient evidence of securities fraud and fraud.
State v. Dombos, CA 26,070 (Castillo) Jan 16, 2008
There was no double jeopardy violation where the facts showed three distinct actions of confining the victim followed by release and there was also no double jeopardy when the jury, in answer to a question, was told that it was required to find two different kidnappings and the facts showed two distinct confinements; similarly, there was no double jeopardy when the facts revealed four separate instances, separated by days and other events, of attempted CSP and Defendant was convicted only of two counts of attempted CSP; Defendant was not prejudiced by changing the dates in the indictment where Defendant’s defense was not based on specific dates; Defendant did not show any compelling need for a psychological examination of the victim; admission of partial videotape of Defendant’s hand sodomizing victim with a carrot was not error when Defendant did not challenge the foundation, and instead contended that the prejudice outweighed the probative value; prosecutor’s calling Defendant vile, a sexual deviant, and sick was not fundamental error and Defendant had to object if he wanted relief; there is no prima facie case of ineffective assistance of counsel when the record does not support Defendant’s allegations; there was no cumulative error because the only possible error was during closing argument and that did not amount to fundamental error; a defendant is entitled to a fair trial, not a perfect one.
State v. Sewell, CA 26,742 (Kennedy) Jan 10, 2008
Defendant has standing to object to search of companion in a car when both Defendant’s and companion’s rights were violated when stop was continued beyond any time or circumstances necessary to complete the investigation relating to initial reason for the stop; where officer saw conduct that he articulated was common to prostitutes’ negotiating drug transactions, and other officers stopped the car to investigate and separated Defendant from the alleged prostitute, got permission to search the car, searched and found nothing, and viewed the alleged prostitute as being nervous and fidgety and looking toward Defendant and then back toward the officer in a way that made the officer think that she was afraid of something that he needed to investigate, the detention was too long and was not supported by any further reasonable suspicion and so crack found in alleged prostitute’s bra had to be suppressed.
State v. Day, CA 25,290 (Sutin) Jun 1, 2006, rev’d, SC 29,953 (Serna) Jan 8, 2008
Absent scientific evidence on alcohol absorption and elimination process, fact-finder could not have rationally inferred Defendant’s BAC as .08 at the time of driving as required by the per se statute under which Defendant was convicted when Defendant’s BAC was tested as .08 over an hour after driving; prior cases indicating that Defendant’s behavior can supply missing scientific evidence are not to be followed; this ruling applies to per se statute, not to portion of statute allowing conviction when a defendant is impaired to the slightest degree, nor does ruling prevent legislature from changing the statute to not require scientific evidence.
Rev’d on the ground that existing case law, particularly State v. Christmas, mandates that there is sufficient evidence when all the evidence in the case is considered; court notes that legislature recently made per se DWI provable by a blood test within three hours of driving, but extrapolation evidence might still be necessary when the test is lower than .08 and state still wants to show it was .08 within the three hours and might still be necessary when the test is outside of the three hour limit.
State v. Soto, CA 26,861 (Fry) Jan 8, 2008
When officers pull up beside a bicycle, which stops, and the officers immediately begin asking questions and asking for identification, there is a sufficient show of authority that a person has been seized and because the officers had no reasonable suspicion, what the defendant discarded was properly suppressed by the district court; a later discovered warrant does not dissipate the taint of the illegal detention.
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