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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: September 2007 (most
recent cases listed first)
State v. Ortega, CA 26,533 (Kennedy) Sep 19, 2007
Where a child who disclosed sexual abuse was taken to the hospital a few days later for the purpose of a SANE exam, which was conducted to preserve evidence, and where the child was later examined by a SANE nurse, who took child’s statement, but did not treat child, the statement was testimonial and could not be admitted into evidence without violating the confrontation clause, as it is the primary purpose for which the statement is taken that determines whether it is testimonial or not.
State v. Jose S., CA 24,988 (Fry) Sep 18, 2007
Statute governing disposition of youthful and serious youthful offenders is ambiguous regarding whether predisposition studies are required; court holds that they are based on purpose of children’s code; child does not have to show specific prejudice because the trial court denied him a predisposition report and therefore child has no way of demonstrating that it would have been favorable to him; since child is now 21, court remands for resentencing.
State v. Nash, CA 25,700 (Robinson) Sep 5, 2007
Where a defendant challenges a prior conviction by counsel’s alleging that the facts of the prior offense did not amount to a crime and the State does not controvert those facts, the State cannot claim for the first time on appeal that argument of counsel is not evidence and therefore the defendant did not establish a factual basis for the trial court to rule, as it did, in the defendant’s favor; the fact that the facts of the prior offense did not amount to a crime is something that can be used to collaterally attack the prior conviction and therefore it did not matter that defendant pleaded guilty.
State v. Marquez, CA 25,711 (Fry) Sep 4, 2007
Fresh Pursuit Act requires that officer see Defendant commit an arrestable offense before pursuing Defendant out of the officer’s jurisdiction; violation of city noise ordinance was not proved to be arrestable where city did not prove penalty for it by introducing text of ordinance; officer’s testimony that “any offense can be arrestable” was not sufficient; alternative ground for arrest of exhibition driving was not supported by fact of noisy vehicle; city cited no authority that sheriff could stop for violations of city ordinances.
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