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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: April 2008 (most
recent cases listed first)
State v. Lozano, CA 27,527 (Pickard) Apr 29, 2008
Rayburns and Carreon, in which the State dismissed magistrate proceedings close to the end of the six-month rule (when it became clear that the defendants were filing motions to suppress or otherwise contesting the charges) and then refiled them in district court and in which the appellate courts held that the six-month rule would run from the magistrate arraignment instead of the district arraignment, did not apply where the State was conscious of Defendant’s speedy trial rights and made the decision to dismiss and refile early on in the six-month period.
State v. Boyett, SC 29,730 (Serna) Apr 28, 2008
While it is not necessary that an intruder be inside one’s home to be entitled to a defense of habitation instruction, there still must be evidence that the person is assaulting the home or intending to do violence therein, and here the evidence that the victim hated Defendant, was furious at him on day of incident, and always carried a gun was not enough to allow a defense of habitation instruction when Defendant shot her when she knocked on his door and then stepped back four feet while she waited for it to open; when inability to form specific intent due to organic brain damage due to head injury is a defendant’s theory, there must be expert testimony to support it because it is not within the common knowledge of lay people; trial court did not err in denying motion for new trial so that Defendant could present requisite expert testimony where Defendant did not request a continuance at trial.
State v. Wyman, CA 28,237 (Alarid) Apr 22, 2008
Statute governing credit for time served in jail pursuant to misdemeanor conviction gives sentencing judge discretion to disallow such credit; this does not deny due process because cases involving forfeiture of credits already earned are inapposite; rule of lenity does not apply because statute is clear.
State v. Anaya, CA 27,114 (Castillo) Apr 18, 2008
Directive in a DWI checkpoint plan that officers stop vehicles that exhibit an apparent intention to avoid the checkpoint is invalid because it gives the officers too much discretion in determining what is an intention to avoid; nor does apparent avoidance of the checkpoint by making a legal u-turn amount to reasonable suspicion by itself and there was no other evidence in this case.
State v. Funderburg, SC 30,180 (Bosson) Apr 15, 2008
When a police officer lawfully finds drugs in a car in the possession of the passenger, he is permitted to briefly question the driver about anything else in the car he needed to know about and to ask for consent to search the car when the driver said no; the presence of drugs on the passenger gave the officer reasonable suspicion that there might be drugs in the car so as to allow a brief question and request for consent.
Case v. Hatch, SC 29,786 (Chavez) Apr 15, 2008
Where a defendant petitions for habeas corpus on the ground of newly discovered evidence of recantation of witness testimony and it is beyond the two-year limit on motions for new trial on the basis of newly discovered evidence, the first new trial factor (that the new evidence will probably produce a different result) is changed to the harder-to-prove factor that the court has a firm belief that but for the perjured testimony the defendant would not have been convicted; testimony here does not meet the standard for newly discovered evidence because there was evidence at the original trial that witnesses had changed their stories and thus the inconsistencies were presented at trial; one of four statements of a witness that was not disclosed to the defense was not material since it would not have changed the result because all it did was provide some support for this person having a motive to kill the decedent, which is not admissible unless the person is linked somehow to the crime (Bosson, concurring on the Brady issue, but dissenting on recantation issue and suggesting that the matter ought to be remanded so that the district court can make a determination of whether the recantations were credible).
State v. Ochoa, CA 24,720 (Vigil) Aug 30, 2006, rev’d SC 30,016 (Maes) Apr 8, 2008
The police team exception to the requirement of misdemeanors being committed in the presence of the officer does not apply when the police are not involved in an exigency or working cooperatively on a prearranged basis, so when one officer saw a seatbelt violation and another officer wanted to stop defendant to question him about drugs, the other officer could not reasonably do under federal constitution based on the first officer’s view of the seatbelt that the other officer did not see.
Rev’d on the ground that the misdemeanor arrest rule does not apply to the mere stopping of a car, and for that, all that is needed is reasonable suspicion, which the officer had; further, stop was reasonable under Fourth Amendment because officers can rely on one another for information; case is remanded to COA to consider whether stop was pretextual and whether pretextual stops violate the NM constitution.
State v. Katrina F., CA 25,991 (Sutin) Apr 4, 2008
Where Child did not file motion to suppress until right before trial and where motion required evidentiary hearing, but Child did not propose a way to have such a hearing after the jury had been sworn and jeopardy attached, such as by continuance, mistrial, or new trial if she was convicted or stipulated facts about what the witness who could not attend the trial would testify, she waived her right to have the trial court decide the motion to suppress and therefore, although the motion was technically timely pursuant to the Doe case that says the court can hear motions to suppress made at trial, it was untimely under the circumstances of this case that required a separate evidentiary hearing with witness other than the trial witnesses; lack of magistrate’s signature on nighttime portion of warrant was not fatal where magistrate intended to allow nighttime search and so testified at a hearing on remand and where the facts of the case and timing supported the magistrate’s testimony.
State v. Haskins, CA 26,595 (Pickard) Apr 2, 2008
Substantial evidence supported proposition that massage therapist who massaged teenagers was in a position of authority because the victims were vulnerable, Defendant was a professional, and massage therapy training and regulations indicate that there is a power imbalance between therapist and clients; double jeopardy was not violated when, during and then after a course of a one-hour massage, Defendant massaged victim’s breasts, then concluded the massage with a touching of victim’s vagina, and then touched her buttocks after she had dressed following the massage because Herron factors indicate that these are three separate events and cases involving unitary conduct occurred in a much quicker time frame or were not CSCM cases and were instead assault or battery or evading officer cases; there was no error in allowing massage teacher to testify about states of relaxation or in allowing testimony by videotape when a witness was in Saudi Arabia and has visa difficulties.
Lessen v. City of Albuquerque, CA 26,391 (Fry) Apr 1, 2008
A ruling is invoked on an issue when the defendant argues it in the summary judgment motion and the plaintiff has included it in an amended complaint, even if not argued in the response to summary judgment; trial court did not err in granting City summary judgment under Tort Claims Act when Plaintiff alleged that her decedent, who had been treated for addiction in the jail hospital, was released from jail and then died of hypothermia when he did not take required van transportation or waive such transportation because the waivers of immunity for operation of a motor vehicle, operation or maintenance of a building, operation of an infirmary, or conduct of law enforcement officers were inapplicable because none of those waivers cover the conduct at issue here and cases that applied those waivers to unique conduct are distinguishable.
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