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State v. Imperial

Court of Appeals of New Mexico

February 14, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
CHRISTINE IMPERIAL, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett R. Loveless, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Sergio Viscoli, Appellate Defender B. Douglas Wood III, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          JAMES J. WECHSLER, Judge

         {1} Defendant Christine Imperial was convicted of three counts of forgery, contrary to NMSA 1978, Section 30-16-10 (2006), and three counts of identity theft, contrary to NMSA 1978, Section 30-16-24.1 (2009). On appeal, Defendant raises two primary claims: (1) that the district court erred in admitting certain testimony and evidence related to the transactions at issue in the case and (2) that the district court erred in admitting surveillance videos from Wal-Mart's security system. Because we conclude that the district court's rulings were not erroneous, we affirm.

         BACKGROUND

         {2} In September 2010, Albuquerque Police Department Detective Tyrone Chambers began investigating allegations of check fraud at a Wal-Mart in Albuquerque, New Mexico. As part of his investigation, Detective Chambers contacted Certegy, a company that performs check verification for retail businesses, including Wal-Mart. Certegy fraud investigator Christopher Jacobson provided Detective Chambers with information related to certain allegedly fraudulent transactions, which Detective Chambers incorporated into his investigation. This information included the dates, times, check numbers, account numbers, routing numbers, social security numbers, names, and store locations associated with the allegedly fraudulent transactions.

         {3} After isolating certain transactions suspected to involve Defendant, Detective Chambers contacted the Wal-Mart located on Wyoming Boulevard in northeast Albuquerque to request surveillance videos taken at the store's money center. Detective Chambers provided dates and times of the allegedly fraudulent transactions to Wal-Mart's loss prevention department. He received surveillance videos depicting transactions on August 27, 2010, August 28, 2010, and September 6, 2010. Detective Chambers identified Defendant in these surveillance videos by reference to a photograph in a police database. Each surveillance video showed Defendant present a check to a Wal-Mart employee. In each instance, the employee attempted to process the transaction and returned the check to Defendant. Each surveillance video also contained a computer-generated graphic indicating the date and time of the transaction.

         {4} Defendant was indicted for forgery and identity theft in December 2010. On May 3, 2011, the State filed a witness list that included Jacobson. On June 25, 2013, the State filed an amended witness list that again included Jacobson.

         {5} In October 2013, the State provided discovery to defense counsel that included Detective Chambers' police report. Detective Chambers' police report contained a thirty-six page spreadsheet created by Jacobson that detailed numerous allegedly fraudulent transactions involving Defendant and other individuals. At trial, defense counsel acknowledged not "understand[ing] the significance" of the spreadsheet.

         {6} On March 17, 2014, the State filed a second amended witness list noticing "Christopher Jacobson/designee, c/o Certegy Check Systems." One week later, Defendant filed a motion for a continuance based on a general lack of preparedness for trial. The district court denied this motion.

         {7} Defendant did not subpoena Jacobson to a pre-trial interview. Nor did Defendant respond to requests for dates for pre-trial interviews. At some unknown date after the March 26, 2014 scheduling conference, Jacobson determined that he would be unavailable to appear at the trial setting. Jacobson did not appear for his scheduled interview on April 4, 2014.

         {8} Due to Jacobson's unavailability, the State substituted another Certegy fraud investigator, Michael Baracz, as a witness the week before trial. The State noticed a pre-trial interview with Baracz and conducted this interview by telephone on April 14, 2014. Defense counsel declined to interview this "new witness[]." During this interview, Baracz informed the State that he had generated a new spreadsheet depicting only transactions appearing to involve Defendant. The State sent this spreadsheet to defense counsel by email the next day.

         {9} On the first day of the trial, April 16, 2014, Defendant filed a motion in limine to exclude: (1) Baracz as a witness, (2) the spreadsheet Baracz generated, and (3) surveillance videos from Wal-Mart. The district court ruled that Baracz was a records custodian and did not need to be specifically disclosed. The district court also stated that Defendant could interview Baracz prior to his scheduled testimony the next day.

         {10} Outside the presence of the jury, Baracz testified as to Certegy's role in verifying checks for Wal-Mart, including a step-by-step description of a transaction and the process by which transactional data is generated. Baracz also testified that he did not consult the spreadsheet originally generated by Jacobson but instead generated a new spreadsheet depicting only transactions appearing to involve Defendant. Baracz's spreadsheet did not contain any new information not included in Jacobson's spreadsheet. This spreadsheet was introduced as State's Exhibit Three and contained thirty-seven transaction records. Baracz also provided a second spreadsheet, State's Exhibit One, which was a redacted version of State's Exhibit Three and contained only six transaction records. Over objection, the district court admitted State's Exhibits One and Three (the Exhibits), ruling that: (1) the information in the spreadsheets "was provided to counsel for the defense in the initial discovery, " (2) the transaction records are business records under Rule 11-803(6) NMRA, and (3) the transaction records are non-testimonial. Only State's Exhibit One was published to the jury.

         {11} Baracz's testimony before the jury centered on the process Certegy undertakes to verify a transaction originating at a Wal-Mart money center. As part of this testimony, Baracz discussed the origin, the data storage process, and the meaning of the data included in the Exhibits.

         {12} Wal-Mart Asset Protection Associate Kesha Pendleton also testified as a foundational witness outside the presence of the jury. The purpose of her testimony was to authenticate the surveillance videos obtained by Detective Chambers. Pendleton testified that (1) the transactions depicted on the surveillance videos at issue occurred at the money center inside the Wal-Mart at which she is employed, (2) the surveillance system operates twenty-four hours a day and cannot be manipulated by local employees, (3) the same surveillance system has been in place for at least five years, (4) the surveillance system allows local employees to download surveillance videos taken at specific dates and times, and (5) the computer-generated graphic indicating the date and time is programmed remotely. Following foundational testimony by Pendleton and Detective Chambers, the district court received the surveillance videos in evidence over Defendant's objection.

         {13} Defendant was convicted on three counts of forgery and three counts of identity theft. This appeal resulted.

         ADMISSIBILITY ...


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