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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: July 2008 (most
recent cases listed first)
State v. Talley, CA 27,480 (Castillo) July 30, 2008
Where officers were investigating heavy foot traffic at a house, their request of Defendant to step outside was properly found by the district court to be consensual; when Defendant was ordered to take his hand out of his pocket and did not comply, that was not a seizure because he did not comply; when an officer took Defendant’s wrist, that was not a de minimus intrusion, but the officers did have reasonable suspicion that Defendant was armed and dangerous because Defendant had complied with their requests in the past and he did not do so this time and the officers testified that they were nervous for their safety and therefore the seizure was proper.
State v. Candelaria, CA 27,675 (Vigil) July 30, 2008
Metro court did not abuse its discretion in dismissing a domestic violence prosecution where two mistrials were caused by state’s witnesses violating in limine rulings and a witness the state represented it would subpoena did not show up at the third trial setting after the state was warned that the court would not reset the trial if there were further witness problems and the court allowed the state an opportunity to argue against dismissal; although the non-showing witness was not the state’s witness, the state had represented that it would insure his presence and Defendant was entitled to rely on that.
State v. Perea, CA 26,617 (Kennedy) Jul 29, 2008
Where the evidence was that the much older Defendant told the teenaged victim that she was ready to have sex, took her to a remote location, locked the doors of the car, climbed on top of her, forced her legs open with his legs, and penetrated her, there was sufficient force to convict of third degree CSP; on another occasion, when Defendant picked the victim up at the school bus and drove her around until his mother was not home and then took her to his home to have sex with her and where the victim testified that she was not comfortable with Defendant, that was sufficient possession of the victim, in the sense of control of her, to convict of enticement of a child.
State v. Candelario, CA 27,299 (Alarid) Jul 28, 2008
When evaluating whether a trial commenced for purposes of the metro court 182-day rule, the fact that the parties appeared and were ready for the bench trial, but Defendant asked the court to first rule on a suppression motion, which the court heard and then took under advisement and denied, was a sufficient commencement of trial, particularly where there was no intent to circumvent the rule.
State v. Marquez, CA 27,735 (Pickard) Jul 28, 2008
Defendant’s appearing for his metro court trial in military uniform, contrary to the instructions of his attorney, and his leading the court to believe that he could not go home to get a change of clothes in time for trial was an exceptional circumstance that allowed the metro court to grant a 30-day extension on the 182-day rule; sufficient evidence supported the DWI conviction where there was evidence of bad driving and other indications of drinking and driving; admission of evidence of 90% chance that Defendant was over the legal limit based on field sobriety tests including HGN was error, but it was harmless under the facts of this case where fact of DWI was supported by abundant evidence, Defendant’s denials were not plausible, and Defendant was not charged with per se offense (Kennedy, dissenting on the ground that scientific evidence of guilt of another offense than that charged was harmful).
State v. Yates, CA 27,290 (Alarid) Jul 25, 2008
When the State files criminal charges in magistrate court and then dismisses them and refiles in district court as part of a policy to litigate contested cases in district court, six month rule runs from arraignment in magistrate court, disagreeing with recent Court of Appeals Lozano case that looked to timing of dismissal and reasons therefor in order to evaluate prosecutor’s intent to evade six month rule (Castillo, specially concurring on the ground that the majority’s analysis is inconsistent with NM law and that under Lozano and other NM cases, the same result would obtain anyway so the majority’s creating a new rule was unnecessary).
Harkness v. McKay Oil Corp., CA 27,360 (Kennedy) Jul 11, 2008
Where oil field workers were killed or injured traveling home from a drilling rig within commuting distance from their homes, the going and coming rule precluded workers’ comp benefits and the traveling employee exception does not apply and neither do other exceptions.
State v. Hill, CA 27,401 (Wechsler) Jul 10, 2008
Issues concerning statutes of limitations in criminal cases may be raised for the first time on appeal; Section 30-1-9(B) is not a limitations period, but a tolling of other limitations periods, and therefore the 15-year statute for first degree felonies applies, not the five year tolling provision for when charges are dismissed, even though the charges were dismissed here; although Chouinard states two remedies for lost evidence (exclusion or admission with full disclosure of the loss), a trial court may apply a remedy of conditional exclusion so that in this case, evidence of Defendant’s confession (the tape of which was lost) would be excluded unless Defendant took the stand, in which case the officer who took the confession could testify to it and there would be full disclosure of the loss of the tape; trial court did not abuse discretion in denying continuance even though he made inappropriate remarks in explaining why he was denying; admission of opinion regarding sexually transmitted diseases was not plain error.
State v. Littlefield, CA 27,504 (Pickard) Jul 3, 2008
When a defendant who was given a medical furlough from jail did not appear back in jail as required by court order, as a result of which his trial date was vacated, and when he was later arrested on a bench warrant four days before the vacated trial date, but the trial was set several months later, beyond the date of a Supreme Court extension of the six-month rule, the rule began anew under a non-technical reading of Rule 5-604(B)(5), which provides that the rule restarts if the defendant is arrested for failure to appear (Kennedy, dissenting on the ground that failure to appear should be read consistently with the criminal offense statute for failure to appear and what defendant did was not failing to appear but rather violating conditions of release).
State v. Gonzales, CA 26,290 (Wechsler) Jul 2, 2008
A cement pad surrounded by four poles with a roof on it that is immediately adjacent to a store and that is surrounded by a locked fence is a sufficient structure for purposes of the burglary statute; sufficient evidence supported Defendant’s conviction for two burglaries and conspiracy to commit burglary of the place when there was surveillance video, although grainy, showing a person police identified as Defendant, along with others, triggering the camera on two separate occasions and taking things that were later found in Defendant’s yard.
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