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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: February 2008
(most recent cases listed first)
State v. Demongey, CA 26,453 (Sutin) Feb 29, 2008
Although Defendant fired three shots during a chase that lasted two minutes and covered two miles, for unit of prosecution purposes, there could not be three separate counts of attempted murder or assault on an officer; attempted murder and assault with intent to commit a violent felony on an officer are different crimes because each has an element the other does not, and narrowly construing the societal evil each statute addresses, the murder statute protects life while the assault statute protects against mental harm; there was sufficient evidence of the offenses; there was no due process violation in the five year delay between arraignment and the evidentiary hearing to see if an incompetent defendant should be incarcerated because the delay was for the benefit of Defendant to determine his competency; because misdemeanor offenses do not allow commitment pursuant to the Competency Act, they cannot be used to determine the length of the sentence (Robinson, dissenting on the ground that each shot was a separate event and there was therefore no double jeopardy).
State v. Stone, CA 26,967 (Sutin) Feb 27, 2008
Where Defendant lived with his 15-year old daughter and bought alcohol for her and her friends and told them to spend the night because he did not want them driving home drunk and then he proceeded to serve them various types of drinks, actively encouraging them to drink, and helped them hide the alcohol when a friend’s parent arrived and when he served another friend later that month and then sexually penetrated her while she was drunk, Defendant could be convicted of multiple counts of contributing to the delinquency of minors, one for each victim on each day; Defendant’s counsel was not ineffective for giving up a severance motion in return for some charges being dropped.
State v. Flores, CA 27,067 (Vigil) Feb 27, 2008
State constitution does not require police officers conducting a “knock and talk” to inform subjects that they don’t have to consent to search; substantial evidence supported that Defendant’s consent was valid; where officers stepped into house at invitation of a person other than Defendant, but none of evidence was discovered or obtained because of that, there was no issue to review.
Martinez v. Chavez, CA 26,935 (Alarid) Feb 26, 2008
On remand from Supreme Court, where Supreme Court decided that proceeding below were not habeas corpus, Court of Appeals explains why it thought proceedings were habeas corpus and would continue to evaluate lower court proceedings to determine whether they are habeas corpus, subject to petition in the Supreme Court rather than appeal to Court of Appeals; on merits, conduct of municipal court judge to have DWI defendants routinely sign waivers of counsel is not so egregious to require Defendant’s conviction to be precluded on double jeopardy grounds and instead the proper remedy is to allow him to withdraw his plea and have a trial.
State v. Martinez, CA 26,893 (Castillo) Feb 26, 2008
Because a defendant does not have the burden to bring herself to trial, where a defendant does not think that exceptional circumstances exist to support an extension of the six month rule, and the court nonetheless sua sponte extends the time on the basis of exceptional circumstances (which the state now agrees do not exist), the defendant can wait until after the six month rule expires to file her motion to dismiss; nor does the defendant invite error under these circumstances.
State v. Nguyen, CA 27,032 (Pickard) Feb 21, 2008
Having a Vietnamese speaking Defendant share an interpreter with a Vietnamese speaking juror, when there was only one Vietnamese speaking interpreter capable of simultaneous translation in the district, when she used equipment to translate directly into the ears of the two people and could mute either’s hearing, when Defendant’s counsel suggested that the procedure would be okay, and when Defendant could interrupt to consult with counsel and the interpreter would use the mute button, was not structural or fundamental error; no ineffective assistance of counsel on the record.
State v. Myers, CA 26,837 (Vigil) Feb 19, 2008
A defendant who installed a video camera in a ladies room and took footage of partially unclothed women, which was then reduced to still photos for purposes of trial evidence, cannot be convicted of sexual exploitation of minors when the photos do not depict a prohibited sexual act because they are not objectively for the purpose of sexual stimulation, even though that’s what Defendant’s intent was; in addition, State did not correlate each count to a particular photograph and this would be reason enough to reverse.
State v. Horton, CA 26,504 (Pickard) Feb 15, 2008
Where Defendant’s attorney told him that he would earn good time while in jail, even though the law is that the magistrate has discretion to award good time or not, and where Defendant moved to withdraw his plea made on that advice and appealed to district court, where State did not contest the facts or the remedy the district court proposed (requiring good time to be allowed to be earned), district court was correct in ordering the allowance of good time, and therefore disposition was not contrary to law and State’s appeal would be dismissed.
State v. Watkins, CA 27,745 (Pickard) Feb 13, 2008
Court follows recent Supreme Court case of Alvarez-Lopez, which held that legislature intended separate punishment for stealing generic property and stealing firearms at the same time as receiving stolen property statute and overrules 1983 case of Smith in the process; case is appropriately decided on summary calendar when there are no questions of fact and application of legal principles is clear.
State v. Pacheco, CA 26,356 (Wechsler) Feb 12, 2008
When a defendant is charged with felony DWI and wants to challenge prior convictions, he or she must produce evidence of invalidity before the state is required to prove validity because this is a collateral attack; Defendant’s complaint that the municipal judge did not follow formal plea-taking procedures did not amount to fundamental error because the municipal judge testified that it was his practice to advise defendants of required issues and Defendant did not present any specific evidence of why her pleas were involuntary or not made on the basis of constitutionally required advisements.
State v. Hand, SC 30,193 (Serna) Feb 7, 2008
Waiting 10 to 20 seconds after knocking and announcing is sufficient to then break into a trailer, when the officers heard movement in the trailer but not toward the door while they announced themselves 20 times.
State v. Lewis, CA 27,316 (Sutin) Feb 6, 2008
Colorado conviction for driving while ability impaired can be used to enhance NM DWI sentence, and this is true even though the sentence can be enhanced only by convictions under this section because an amendment to the DWI law defined conviction under this section to mean a conviction by any jurisdiction in the US that is similar to our DWI and Colorado’s law is.
State v. Martinez, CA 26,270 (Pickard) Feb 5, 2008
A fingerprint card has legal efficacy and so it may be the basis of a forgery conviction when a defendant signs another’s name to it; determining legal efficacy of non-commercial document is two step process, requiring the document to be necessary or convenient to public official’s duties and then requiring it to be capable of being the foundation of some legal liability and good and valid for the purpose for which it was created.
State v. Rayburns, CA 26,797 (Castillo) Feb 5, 2008
Where magistrate case is being tried near the end of the six-month rule and magistrate excludes evidence for discovery violations, State cannot refile in district court and get a new six-month period.
State v. Garcia, CA 27,091 (Bustamante) Feb 1, 2008
Where a defendant does not respond to an officer’s show of authority, even when the officer uses pepper spray on the defendant, at least when the record does not indicate that the pepper spray had any effect, there is no seizure and items that are dropped by the defendant are abandoned and do not need to be suppressed; Defendant did not preserve his argument that NM constitution provides greater protection in this situation by merely citing NM constitution and therefore Court does not reach whether NM should not follow Hodari D. case as a matter of state constitutional law; Defendant is not denied equal protection when Court rules that it will not reach his issue for lack of preservation because he is in a different category from defendants who have preserved issues.
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