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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: June 2008
(most recent cases listed first)
State v. Aleman, CA 25,224 & 25,225 (Robinson) Jun 30, 2008
Drug Recognition Evaluator (DRE) Protocol pursuant to which an trained police officer examines DWI suspects in ordered way was not expert testimony based on scientific knowledge and trial court did not err in ruling it admissible; even if one aspect of it was scientific (HGN), that aspect was satisfactorily proved in this case; even if whole Protocol was deemed scientific, there was sufficient evidence that it was reliable; that DRE was unable to observe one or two elements did not render testimony inadmissible as a matter of law.
State v. Montoya, SC 30,225 (Maes) Jun 27, 2008
Where as a result of suppression of evidence, magistrate entered order dismissing the case, the State had a right to appeal as the order dismissing was a final order ending the case and it did not appear to be based on a finding of acquittal.
State ex rel. CYFD v. Jeremy N., CA 27,397 (Vigil) Jun 27, 2008
Where CYFD filed a petition against Father contending that he abused the child and a petition against Mother contending that she negligently permitted the abuse, and where the lower court granted Mother a directed verdict (really a decision under Rule 1-041) that CYFD did not make out a case against Mother, and that is the only thing Father is appealing, he does not have standing because he was not injured by such a ruling; he was allowed to present any admissible evidence he wished to establish that it was Mother that abused the child, and hearsay inculpating Mother would not have been allowed to be presented by Father in any event since he was not a party opponent.
State v. McClaugherty, CA 24,409 (Wechsler) Feb 15, 2007, rev’d SC 30,272 (Maes) Jun 27, 2008
Misconduct of prosecutor in asking improper questions on cross-examination of Defendant did not rise to the level of willfulness such that a retrial of defendant would be barred by double jeopardy; trial court had authority in its discretion to allow reopening of motion to dismiss to allow State to present evidence of motives and knowledge of prosecutor in asking questions that were asserted to be improper when State originally appealed the trial court’s granting of Defendant’s motion to dismiss and this court remanded the matter to the trial court to determine whether it wanted to hear the State’s evidence, even if more than 30 days elapsed since the filing of the motion to reopen; denial of a motion to dismiss on double jeopardy grounds is directly appealable (Kennedy, dissenting on the grounds that the trial court abused its discretion in allowing the State to present new evidence that it did not present at the original hearing on Defendant’s motion because it thought it would win without that evidence and also that the State’s actions were willful and it should have known better than to be asking the improper questions).
Rev’d on the double jeopardy issue, adopting much of Kennedy’s dissent, although affirmed on the procedural issue.
State v. Rowell, CA 26,429 (Sutin) Apr 12, 2007, rev’d, SC 30,380 (Daniels) Jun 26, 2008
Officer’s seizure of marijuana in plain view sticking out of pocket of driver of vehicle was permissible under Weidner and therefore trial court’s suppression of guns later found as fruit of poisonous tree cannot stand; however, state failed to justify warrantless seizure of weapons that Defendant said were in vehicle after he was arrested for marijuana violation because once Defendant was arrested, there were no exigent circumstances, even though vehicle was on school grounds during lunch hour.
Rev’d on the ground that the gun in the car on school grounds presented the same sort of exigency that was present in Bomboy in that anyone could have reached in and gotten the gun; in the process of the opinion the Court reaffirms its Gomez opinion and explains why this cannot be search incident to arrest.
State v. Layne, CA 27,467 (Vigil) Jun 26, 2008
Trial court’s exclusion of testimony of confidential informant for State’s failure to abide by discovery order was affirmed because CI was only eyewitness to drug transaction with Defendant and the order to disclose to defense counsel a list of other cases the CI was involved in with the proviso that counsel could not share the information with Defendant was tailored to provide Defendant with information that could have led to impeachment while at the same time protecting the identity of the CI, all of which was discretionary with the trial court (discovery orders and sanctions).
State v. Harrison, CA 27,224 (Vigil) Jun 24, 2008
Although a state officer cannot arrest an Indian on the reservation, if the officer sees a person violating the law off the reservation and gives chase and the person goes onto the reservation, the officer can stop the person to find out whether the person is an Indian and if the person consents to field sobriety tests, they are admissible in evidence, as is other evidence discovered as a result of the stop that did not exploit other illegality (in this case, the officer allowed the defendant to walk away to a residence).
State v. Stephen F., CA 24,007 (Fry) Jan 9, 2007, aff’d, SC 30,199 (Bosson) Jun 23, 2008
Where Child wanted trial court to admit evidence of alleged rape victim’s prior consensual sex, which was punished by her parents, to show a motive to lie about what he claimed was another incident of consensual sex, trial court erred in excluding the evidence pursuant to the rape shield law because Child presented a plausible theory that was not based on propensity and because it was uncontested that the prior acts occurred and because it was Child’s only defense.
Aff’d, the Court emphasizing that the factors it established in a prior case to determine whether a defendant’s confrontation rights overcame the rape shield law were not to be rigidly applied.
State v. Chavez, CA 26,563 (Pickard) Jun 20, 2008
Evidence of dangerous conditions in home was sufficient to support child abuse by endangerment convictions; where one child died from possibly being put in a drawer that was too small for her to use as a bed, and two other children, as well as that child, were endangered by the general conditions, double jeopardy precluded three convictions, but because the act with regard to the child that died was different from the general conditions, it was permissible to have two convictions; trial court did not err in denying a directed verdict on the child abuse resulting in death count because the evidence supported it and Defendant was acquitted anyway; UJI on child abuse is not erroneous.
State v. Chavez, CA 27,346 (Kennedy) Jun 20, 2008
The contents of a note were a present sense impression and not a testimonial statement prohibited by the confrontation clause when an unidentified person handed the victim of an auto burglary a note containing a license number and description of the burglar, which led the police to Defendant, who told police that his girlfriend took the CDs out of the victim’s car.
State v. Johnson, CA 26,878 (Kennedy) Jun 18, 2008
Contract security guards at a school are not school employees under the statute providing increased penalties for people to commit crimes against school employees because they are employed by the guard company, strictly construing the statute (Pickard, dissenting on the ground that the ordinary meaning of employed (performing service for) encompasses these guards and statute should be construed to effect its purpose).
State v. Lopez, CA 27,143 (Pickard) Jun 5, 2008
Where Defendant led officers on long foot chase during which he twice stopped and turned around to confront officers, once hitting one in the face, that battery was not the same offense as the resisting by fleeing because the conduct was not unitary due to the prolonged nature of the chase and the change in focus from fleeing to confronting, which was Defendant’s own volition, as opposed to when a defendant kicks an officer who has tackled him while fleeing, which is unitary conduct.
State v. Rudolfo, SC 29,622 (Daniels) Jun 5, 2008
Predicate felony is lesser included offense of felony murder and therefore there cannot be separate conviction on it; self defense is not available when the shooter shoots a person in the back as the person is driving away; Court takes the opportunity to abolish reference to the term “slight evidence” in evaluating whether there is enough evidence for self defense instruction; sufficient evidence supported tampering conviction when guns were hidden; trial courts should not indicate anything in the J&S about how much good time can be earned when statutes either preclude good time, as in murder, or preclude limiting the good time, as in offenses that are not and cannot be made serious violent offenses.
State v. Bullcoming, CA 26,413 (Wechsler) Jun 4, 2008
When Defendant was in an accident and the other driver smelled alcohol on Defendant and told him he was calling the police, whereupon Defendant excused himself saying he needed the bathroom, and police brought him back ten minutes later, prosecutor could argue about Defendant not telling the police that he drank vodka in the bushes with other men he found when he excused himself because the comment referred to pre-arrest silence; where police officer was qualified as an expert in accident reconstruction by education, certification, and experience, it was not error to admit his testimony about what caused the accident and proponent does not have to formally offer the witness as an expert; person from state lab who did not prepare the analysis may testify about blood alcohol analysis without offending confrontation clause; preponderance of the evidence is proper standard for proving prior convictions for DWI.
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