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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: October 2007 (most
recent cases listed first)
State v. Gonzales, SC 29,623 (Chavez) Oct 31, 2007
Because a general verdict cannot be upheld if one of the alternative theories subjects a defendant to double jeopardy, Defendant’s conviction for the underlying felony of the felony murder charge must be vacated although Defendant may have been convicted of the alternative of willful and deliberate murder; Defendant did not establish ineffective counsel on appeal when the complaints raises were inconsistent with an apparent strategy of urging the jury that Defendant was completely innocent, but this does not preclude habeas corpus; when victims were shot when they were driving away in their car, Defendant was not entitled to instructions on self defense or defense of habitation.
State v. Dominguez, SC 29,652 (Bosson) Oct 26, 2007
Where trial court denied severance of felon in possession charge from murder charge and defendant thereafter pleaded to felon in possession charge and did not seek to withdraw the plea, he suffered no prejudice in the murder trial that would lead to reversible error in that case; witness may be examined on prior statements without previously affording the witness the opportunity to look at the statement and explain it as long as the look and explanation are allowed at some point during the examination; trial court did not err in allowing rebuttal witnesses, two of whom were genuine and the third did not prejudice defendant because the testimony was mainly directed toward his codefendant and was properly admissible against her because it corrected a false impression she tried to convey and defense counsel were given the opportunity to interview her.
State v. Glascock, CA 26,337 (Pickard) Oct 25, 2007
Sufficient evidence supported jury’s determination that Defendant was involved in three separate instances of forgery, all on different dates, but did not support that a fourth instance occurred in New Mexico because inferences supporting such were flatly inconsistent with inferences allowing three other convictions without offending unit-of-prosecution branch of double jeopardy doctrine; dual sovereignty doctrine allows both Texas and New Mexico to prosecute for same forgeries and Defendant did not raise state constitutional issue in trial court; evidence of other acts of writing on other checks was relevant to prove conspiracy and was not prohibited by 11-404(B).
State v. Young, SC 29,467 (Chavez) Oct 25, 2007
Amount of funds appropriated to defense of indigents in these death penalty cases is constitutionally inadequate and until the legislature appropriates adequate funds, death penalty is stayed and if speedy trial concerns arise, they can be dealt with on the facts at that time.
State v. Chavez, CA 25,490 (Robinson) Oct 11, 2007
In a case for child abuse resulting in death where the facts were that Defendant (who had methamphetamine in her system and lots of drug paraphernalia about the house) put her infant to bed in a youth bed without rails, swaddled in blankets, and nine inches from a space heater, and the child rolled over and was burned to death, the trial court’s exclusion of a government report detailing instances of infant deaths from space heaters was not error and if error was harmless error where Defendant had not read the report and the contents were irrelevant to the case; the evidence was sufficient to support the conviction; the jury instructions were approved UJIs that incorporated a criminal negligence standard; there was no ineffective assistance of counsel for failure to move to sever the paraphernalia charge or object to the evidence of drug use because these were matters of strategy.
State v. Ervin, CA 25,887 (Kennedy) Oct 10, 2007
Isolated, unsolicited testimony about an enlarged vaginal vault from a SANE nurse in a case involving cunnilingus was not prejudicial; nor was her testimony about what the child told her fundamental error; Defendant did not preserve hearsay issues relating to detective’s testimony about what the child said; testimony by child’s grandmother that Defendant intimidated child was permissible to show why child might succumb to Defendant and was not mere propensity evidence; when State told Defendant before deposition testimony of child that if child established a CSP, the State would move to amend information, and when State did then so move without objection from Defendant who pleaded not guilty to amended information, raising the issue of improper amendment at the end of the trial was too late when Defendant could not establish prejudice; there was no evidence of a lesser included offense as the highest degree of offense committed; Defendant’s argument that he should have been allowed to introduce evidence that child told others that CSP did not happen was without merit when one witness did testify to this and Defendant did not examine other witnesses who could also have testified to it; three counts of CSC for one full body massage violated double jeopardy; there was sufficient evidence to support the number of counts of child pornography for which Defendant was found guilty; no error, no cumulative error.
State v. Maestas, CA 26,206 (Bustamante) Oct 10, 2007
Where the State properly moved to amend from DWI 1st to DWI 2d, as a result of which Defendant was entitled to a jury trial, but Defendant was not ready to try the case to a jury, the time of the continuance granted to Defendant was chargeable to Defendant and there was therefore no violation of the 182 day rule; where a judge has a policy of remanding all people found guilty after a trial to jail to do at least their mandatory time before sentencing, that impermissibly penalizes people who opt for trials and does not necessarily relate to flight risk.
State v. Martinez, CA 25,858 (Castillo) Oct 4, 2007
Due process claims may not be raised for the first time on appeal; double jeopardy claims may be; where instructions on sex crimes were carbon copies, but evidence was detailed as to time and place and circumstances, court could not say that multiple convictions violated double jeopardy; Defendant’s claim of ineffective assistance of counsel from lack of preparation is not apparent from the record and his other claims appear to be strategic decisions.
State v. Carrasco, CA 25,669 (Wechsler) Oct 3, 2007
The jury instruction for attempt, which includes the element that the defendant intended to commit the crime of second degree murder, means that the jury properly found that Defendant did not attempt to commit a non-existent crime (unintentional second degree murder) and therefore fundamental error did not occur when Defendant was convicted for attempted second degree murder by hitting her car with his, causing her to lose control.
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