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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: March 2008 (most
recent cases listed first)
State v. Grossetete, CA 26,380 (Sutin) Mar 31, 2008
State’s appeal from denial and dismissal of petition to revoke probation is dismissed because State has no statutory right to appeal such orders and there was no disposition contrary to law when the court decided that it had jurisdiction to revoke probation although the probation would not start for several years but that it would be pointless to do so when Defendant was still serving another sentence.
State v. Almeida, CA 26,567 (Castillo) Mar 28, 2008
Double jeopardy is violated when a defendant is convicted of possessing a baggie of drugs and also convicted of violating the drug paraphernalia statute because the conduct is unitary and although the statutes have different elements, in the situation of a common, household item like one baggie, the offenses would almost always be committed together because drugs are almost always kept in something, the paraphernalia statute is more lenient than the possession statute, and the societal evils the statutes are aimed at are identical and therefore the presumption of separate punishments arising from the Blockburger test is rebutted; if there were doubt, the principle of lenity would apply.
State v. Utley, CA 27,049 (Wechsler) Mar 27, 2008
Where a defendant was convicted of a third degree felony (allowing a parole period of two years) and several fourth degree felonies (allowing a parole period of one year) and the court recited them with the third degree felony first and ran the sentences consecutively, the parole period could be two years and this is true notwithstanding a case that says a parole term runs concurrently to the next prison term when there are multiple sentences.
State v. Rael, CA 26,737 (Wechsler) Mar 27, 2008
Trial court did not abuse discretion in ruling Defendant competent to stand trial even though the only expert testified that he was incompetent, when the factual basis for his opinion could have been viewed as indicating competency and when two lay witnesses (Defendant’s employers) gave testimony also indicating competence; trial court does not have to revisit the issue or submit it to the jury just because defense counsel at trial professes an inability to adequately communicate with Defendant; structure of rule on competency indicates that court can make the decision when there is no reasonable doubt as to the defendant’s competency and the fact that there is conflicting evidence does not mean that there is reasonable doubt.
State v. Bailey, CA 26,500 (Wechsler) Mar 27, 2008
When a defendant has been given Miranda warnings and then talks to police, but at some point says “I don=t think I should say anything else without seeing a lawyer,” the police can clarify whether that means that the defendant wants to end the entire interview or just does not want to talk about the subject at hand, and when the defendant says he just doesn’t want to talk about that subject, the police can continue the interview on other subjects and ask “is there anything else I need to know?” and when the defendant talks about the subject he did not want to talk about earlier, his statements are admissible; there is no Batson violation when the State gives race neutral reasons for excluding jurors; no error, no cumulative error.
State v. Whittington, CA 27,131 (Vigil) Mar 26, 2008
Where it was unclear whether the conduct that was reported to CYFD over six years ago was the same conduct that Defendant was being prosecuted for now, trial court erred in dismissing criminal prosecution for CSCM pursuant to statute providing that statute of limitations does not being to run until “the” violation is reported to a law enforcement agency; use of definite article means that specific instances must have been reported.
State v. Moore, CA 27,308 (Vigil) Mar 19, 2008
Smell of anhydrous ammonia coming from free standing garage located 30-40 feet from mobile home did not give sufficient exigent circumstances to search home where officers could not point to any admissible evidence of particular circumstances of why an exigency existed as to the home; on motions to suppress, historical facts are reviewed deferentially and legal issues are reviewed de novo; where party offers evidence to which hearsay objection is made and party relies solely on excited utterance exception and court rules in part because no other rationale is offered for admission of evidence, party cannot claim either that rules of evidence do not apply or that evidence was non-hearsay on appeal.
State v. Vargas, CA 24,880 (Alarid) Nov 9, 2006, rev’d SC 30,131 (Serna) Mar 18, 2008
Because persons have a constitutional right to refuse entry to police who have no warrant, an element of knock and announce is the requirement that the police announce they have a warrant; person’s opening door and seeing police and shutting door does not give rise to exigent circumstances even though police testified that they felt threatened (Wechsler, dissenting on the ground that announcement would have been futile and purposes served by knock and announce (to allow person to compose self before answering door) were served in this case where defendant was going out as officers were about to knock).
Rev’d on the grounds set forth in the CA dissent.
State v. Scott, CA 26,883 (Pickard) Mar 14, 2008
Requirement of legal efficacy applies to both subsections of forgery statute (making or altering and issuing or transferring); providing false doctor’s notes to court as an excuse for not going to treatment that was a condition of probation is not forgery because the notes do not have legal efficacy.
State v. Pacheco, CA 27,255 (Fry) Mar 12, 2008
There was no violation of the bail forfeiture statute when the responsible surety received notice within the number of days required by the statute, and although the hearing had already taken place, the judge gave the surety several more opportunities to find the absconding defendant before forfeiting the bond; there was no abuse of discretion in forfeiting the bond where the surety was given a year to find defendant and never did; there was no error in forfeiting the bond when the surety posted it although it did so pursuant to an agreement with another bonding company that could not do business in the jurisdiction.
State v. Sena, CA 27,319 (Vigil) Mar 6, 2008
Trial court erred in allowing State to impeach Defendant with a juvenile adjudication when Defendant testified on direct examination that he had never been convicted of a crime because juvenile adjudications are inadmissible; even if Defendant put his character in issue, he could only be cross-examined about the specific incidents and the adjudication could not be admitted; finally, on cross-examination, Defendant admitted that he had problems as a juvenile, so the adjudication was not necessary to correct any false impression; the error was not harmless when Defendant testified to a different version than the victim did.
State v. Cantrell, SC 30,250 (Maes) Mar 5, 2008
Requiring a defendant to submit to involuntary antipsychotic drugs so that he will attain competency does not violate due process where trying the defendant is an important government interest and there was sufficient evidence that the drugs would help defendant attain competency and would not harm her; Court also explains the standard of review for determining the mixed questions of fact and law that are required to be addressed in this issue.
State v. Miller, CA 26,895 (Wechsler) Mar 5, 2008
Rules of Criminal Procedure for Magistrate Court do not allow the acceptance of a plea of no contest at a video arraignment unless the defendant specifically waives his right to be present; nor is this harmless error as the State has not demonstrated harmlessness and argued only that Defendant did not show prejudice.
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