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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: November 2007 (most
recent cases listed first)
State v. Martinez, CA 26,489 (Sutin) Nov 28, 2007
Court affirms a Franklin/Boyer appeal challenging the sufficiency of the evidence to convict of conspiracy to intimidate a witness when Defendant and another discussed and agreed to the other’s attending a trial to intimidate a witness into not testifying (Robinson, dissenting on the ground that attending a trial is not a crime and is constitutionally protected).
State v. Gutierrez, CA 26,454 (Wechsler) Nov 26, 2007
Where officers saw Defendant and drove their vehicle to the curb to stop him, and where one officer drew his weapon when Defendant stepped backward, and where Defendant was not free to leave, he was seized without reasonable suspicion when all the officers knew was that Defendant was carrying a pair of pants, was surprised by the officers, was nervous, and took a step backward while lowering his hand with the pants.
State v. Gutierrez, CA 26,455 (Wechsler) Nov 26, 2007
When officers take the initiative while helping a bail bondsman recover his principal by going into a third person’s home yelling “police,” the officers are bound by the Fourth Amendment and could not take action without a warrant or exigent circumstances that they testified did not exist in this case; fact based issue of standing cannot be raised for the first time on appeal.
State v. Neal, CA 26,158 (Bustamante) Nov 19, 2007
On State’s appeal of a suppression order, the defendant can raise grounds for affirmance that were ruled against him below to urge affirmance on right for the wrong reason rationale even though the defendant cannot appeal as of right from denial of suppression motion; trial court erred in suppressing statements when Defendant was not in Miranda custody but was instead merely questioned in a bus; however, statements were properly suppressed because they were fruit of unlawful search of a bag that Defendant did not identify as his; the bag was not abandoned because Defendant was not required to talk to the officers and therefore could sit silent when they asked everyone to identify their bags.
State v. Lujan, CA 26,315 (Robinson) Nov 15, 2007
Because NM does not rely on a deterrence rational for its exclusionary rule in established case law, Defendant preserved his NM constitutional issue by mentioning the NM constitution and the trial court erred in refusing to suppress evidence that was the fruit of another search that the trial court had ruled illegal, even if the second search was supported by a warrant, particularly since the State did not appeal the ruling that the first search was illegal.
State v. Sims, CA 26,590 (Castillo) Nov 14, 2007
A person has actual physical control of an automobile when the key is on the passenger seat under the Supreme Court’s case of State v. Johnson, which the Court of Appeals suggests the Supreme Court take another look at (Sutin, dissenting on the ground that Johnson involved a key that was in the ignition and the rule in Johnson should not be expanded any further by the courts).
State v. Olsson, CA 27,028 (Sutin) Nov 14, 2007
Where district court certified question and we accepted interlocutory appeal, Court of Appeals would not apply ripeness doctrine to refuse to answer question of whether unit of prosecution in sexual exploitation by possession of pictures is each individual picture; as a matter of law, the statute does not clearly express a unit of prosecution when it proscribes possession of “any” obscene material involving children; matter of whether Herron factors might counsel in favor of one or several counts must wait for factual development at trial.
State v. Lopez, CA 26,174 (Kennedy) Nov 5, 2007
Where Defendant did not articulate to the trial court the reasons why the search warrant affidavit was insufficient, the issue was not preserved for appeal; where Defendant possessed drugs in her room and drugs on her person, double jeopardy precluded conviction for possession of one set of drugs and possession with intent to sell the other; there was sufficient evidence to support the charges; where Defendant did not make a motion to dismiss for speedy trial violations, she waived that issue too.
State v. Granillo-Macias, CA 26,156 (Sutin) Nov 1, 2007
Officer had probable cause to arrest Defendant when he smelled alcohol, Defendant was unsteady walking to the back of the car, and Defendant did not perform well on field sobriety tests; Defendant’s argument that there was not strict compliance with the NHTSA manual on such tests was not properly preserved because the manual was not presented below and the issues were not argued below and the cases Defendant relies on are unpublished Ohio cases that we don’t use as persuasive authority; Defendant’s issue concerning the SLD certification of the machine which tested his breath is controlled by recent Supreme Court case, including confrontation issue.
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