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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: May 2008 (most
recent cases listed first)
State v. Ellis, CA 26,263 (Pickard) Feb 7, 2007, rev’d SC 30,258 (Bosson) May 29, 2008
Trial court erred in refusing to give defendant’s requested elements instruction, which included the absence of self-defense, when it gave a self-defense instruction; although error could have been harmless if there was insufficient evidence to support the self-defense instruction in the first place, there was sufficient evidence to support the defense in this case involving excessive force by a police officer.
Rev’d on the ground that there was insufficient evidence to support the instruction here because the issue of excessive force is viewed from the perspective of a reasonable police officer and therefore is an objective standard and based on the evidence presented no reasonable juror could have found that the officer used excessive force when pulling a gun and pointing at Defendant when Defendant began to get out of control and hostile when the officer gave him a ticket for a seat belt violation.
State v. Lohberger, SC 30,523 (Daniels) May 28, 2008
Case law has long required a final written order to be signed by the judge and filed in the case before an appeal can be processed; this rule applies equally to metro court such that initialed case notes and routing slips indicating that the judge dismissed the prosecution cannot be considered final orders from which the State had to appeal within a certain number of days or forfeit its right to appeal; need for clarity overrides needs created by heavy metro court caseloads and mandates that final orders be in writing, signed by the judge, and filed in the case; accordingly, State’s appeal was not subject to being dismissed for being untimely filed from the case notes or routing slip.
State v. Williamson, CA 27,193 (Alarid) May 28, 2008
Unexplained failure of trained dog to alert on suspicious package at UPS store fatally undermined probable cause determination in light of previous cases’ language giving strong credibility to dog alerts (Sutin, dissenting on the ground that UPS agent’s report that Defendant appeared nervous and gave inconsistent answers about what was in package and to whom it was being sent and affiant’s report that package contained smaller packages wrapped in duct tape and vacuum sealed, which was consistent with narcotics, established probable cause apart from dog sniff).
State v. Munoz, CA 26,956 (Wechsler) May 21, 2008
When a suspect is confronted on a bus because dogs alert to a duffel that is associated with the suspect’s seat and the suspect does not claim the duffel is his, the duffel is abandoned, and when it is searched to reveal drugs, the officers have reasonable suspicion to detain the suspect and ask him questions, and if the only evidence is that the officers ask him to get off the bus and question him, this is not custodial interrogation and thus Miranda warnings need not be given; sufficient evidence to support that Defendant’s consent to empty his pockets and take off his shoes was voluntary; Defendant=s argument that NM constitution should require officers to tell bus passengers that they don’t have to cooperate with the officers was not preserved in the trial court.
State v. Morales, CA 26,825 (Kennedy) May 15, 2008
Where Defendant is in the back seat of a car from which a driver alights and makes a drug sale, and there are no other circumstances to connect Defendant to the sale, there is no probable cause to arrest Defendant for the crime of accessory to trafficking and evidence found on him as an incident to arrest must be suppressed.
State v. Moreland, CA 25,381 (Vigil) Feb 28, 2006, aff’d SC 30,301 (Serna) May 9, 2008
Where a defendant moves for a new trial before sentencing on the basis of evidence he discovered about defendant’s mental state during a diagnostic evaluation and he supplements that evidence with another private evaluation, and the district court grants a continuance of sentencing so that he can evaluate the motion for new trial, the motion was on the basis of newly discovered evidence, the district court granted itself an extension of time so that the deemed-denied provision does not apply, and the evidence was properly newly discovered as there was testimony that it could not have been discovered by a lay person.
Aff’d on the ground that the State withdrew its argument on the deemed denied provision and argues only that 14 months to hear and decide the motion is unreasonable, but the Court holds that a series of events (time it took to get information from State, time it took to evaluate, time it took to set hearing, time it took to consider and decide matter) were all reasonable in this complicated case; decision to grant new trial affirmed because of testimony that new evidence could not have been discovered.
State v. Bomboy, CA 26,687 (Sutin) Apr 12, 2007, rev’d SC 30,381 (Chavez) May 5, 2008
New Mexico case law forbids the seizure of contraband in plain view and within reach from outside of a vehicle once the defendant has been removed from the vehicle and arrested unless there are exigent circumstances or some other exception to the warrant requirement; even when there is no privacy interest in the search aspect because the evidence was in plain view, there is still a privacy interest in the seizure aspect when that required entry into constitutionally protected space; NM Supreme Court cases do not distinguish between privacy and possessory interests (Fry, specially concurring on the ground that but for language in NM Supreme Court cases, NM’s state constitutional jurisprudence should allow the seizure of items that are contraband in which a person cannot have a possessory interest once the privacy threshold is breached by a defendant’s own actions in showing the contraband to the world). Rev’d on the ground that obvious contraband in plain view to the world in a vehicle presents an exigent circumstance on which police are allowed to act and NM cases to the contrary are modified; determination of exigent circumstances is to be made on facts of each case, rather than bright line rules; when drug are plainly visible from outside the car, there is a danger that they will be tampered with or destroyed and there is therefore exigency.
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