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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: August 2007 (most
recent cases listed first)
State v. Pacheco, CA 24,154 (Vigil) Aug 30, 2007
It was fundamental error when the prosecutor cross-examined Defendant at length about his failure to call the police officer to whom he gave a statement to tell him that he remembered something not in the statement when Defendant had since hired an attorney who told him not to talk to the police, and then to highlight during closing argument Defendant’s failure to call the police; this was an unmistakable comment on silence and was harmful in this case of credibility.
State v. Walters, CA 24,585, 24,566, 25,110 (Vigil) Apr 27, 2006, rev’d in part SC 29,806 (Maes) Aug 28, 2007
Defendants’ confrontation rights were violated in this child abuse case when the trial court consolidated five defendants for trial and admitted their confessions, sometimes without limiting instructions, and the district attorney used each defendant’s confession against the others; appellate court could not say error was harmless; evidence was sufficient to convict. Rev’d in part as to the father of the child because any statements were harmless as to him because he confessed to most of the serious charges against him and affirmed as to the conspiracy charge because the statements were not harmless as to that charge.
State v. Lopez, SC 29,801 (Maes) Aug 28, 2007
Similar to State v. Walters, above, but this case involved the mother’s brother.
Cummings v. State, SC 30,259 (Chavez) Aug 28, 2007
Court reaffirms that post-conviction remedy statute is procedural and has been supplanted by Supreme Court rules; Court approves of certiorari procedure to put before it what would otherwise be an original habeas petition filed to challenge the denial of a defendant’s habeas petition in district court; on the merits, Court rules that Petitioner’s ineffective assistance claims are without merit and his contention regarding denial of a right to vote, while correct, is not cognizable in habeas proceedings.
State v. Belanger, CA 26,771 (Vigil) Aug 27, 2007
In light of binding NM Supreme Court authority, courts cannot grant witness immunity on a defendant’s application and they cannot force the State to grant immunity by dismissing cases when the State does not see fit to grant the particular witness immunity.
State v. Shirley, CA 26,147 (Pickard) Aug 23, 2007
Where Defendant testifies on a pretrial motion that she got the drugs she sold to the undercover officer from the informant, but her testimony is conflicting and subject to doubt, the trial court was correct in ruling that entrapment as a matter of law is a jury issue; trial court did not err in allowing officer to remain at counsel table during the trial as rule allows investigative agents to remain in the courtroom.
State v. Janzen, CA 27,174 (Pickard) Aug 22, 2007
Trial court’s suppression of evidence based on Georgia v. Randolph (where Supreme Court held that police could not search house of husband and wife where wife consented but husband was present and objected) is upheld as to both husband and wife in this case where State contended that husband’s changing his mind to allow search was binding at least on husband if not on both people; State never called that issue to trial court’s attention, contending only that Randolph should not be applied retroactively; further, other contentions raised for the first time on appeal that required factual development below would not be reached; however, Court acknowledges support for State’s argument that a person who consents might not have standing to raise issue of unreasonable search as to him.
State v. Dominguez, CA 26,628 (Sutin) Aug 21, 2007
Trial court did not err in dismissing criminal case when six-month rule was violated when State filed its petition to extend time a day late because it was waiting for Defendant’s concurrence; State could have filed petition on time and this is not an exceptional circumstance, which is required to allow a late-filed petition for extension.
State v. Nozie, CA 25,481 (Alarid) Aug 7, 2007
Trial court erred in failing to give instructions on ignorance of victim’s status as a police officer and lesser offense of battery when Defendant was charged with aggravated battery on a peace officer but there was evidence from which the jury could have found that Defendant thought that the guy he hit was a private security guard and that Defendant was too intoxicated to form a specific intent; Defendant was not entitled to instructions on self-defense when there was no evidence to support them.
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