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State v. Jimenez

Court of Appeals of New Mexico

February 14, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
NOE JIMENEZ, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Fernando R. Macias, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Jane A. Bernstein, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Allison H. Jaramillo, Assistant Appellate Defender Santa Fe, NM for Appellant


          J. MILES HANISEE, Judge

         {1} Defendant, a self-represented litigant who was assisted by standby counsel at trial, was charged with and convicted of being a felon in possession of a firearm in violation of NMSA 1978, Section 30-7-16 (2001), and resisting, evading, or obstructing an officer in violation of NMSA 1978, Section 30-22-1(B) (1981). Defendant appeals both convictions and proffers myriad arguments to support reversal. He asserts: (1) his Sixth Amendment right under the United States Constitution to confront witnesses was violated, (2) the State failed to present sufficient evidence to sustain his convictions, (3) the district court committed fundamental error when it failed to properly instruct the jury on the relevant law for constructive possession, (4) the district court erred when it allowed the State to introduce evidence of Defendant's pending civil lawsuit against the City of Las Cruces, and (5) the State committed prosecutorial misconduct. We affirm in part, reverse in part, and remand for resentencing in accordance with this opinion.


         {2} On February 25, 2012, Defendant went to the Arid Club in Las Cruces, New Mexico. The Arid Club is a place where Alcoholics Anonymous and Narcotics Anonymous meetings are held. Defendant was a member of the Arid Club and went to the club that day because he was having a bad day and wanted to talk to someone. Defendant donned a black bandana, a black shirt, Army pants, biker boots, and a bulletproof vest which was worn underneath his shirt. According to Defendant, this was his normal attire except for the bulletproof vest, which he wore that day because he felt his life was in danger. Defendant was also carrying nunchucks.

         {3} Only three people were at the Arid Club when Defendant arrived. One was Brandon Chandler, a volunteer at the club who was running the snack bar that day. Another was someone who identified himself to police as Chandler's case manager. The third person was never identified in the record. At some point after Defendant had entered the Arid Club, the Las Cruces Police Department responded to a call at the club. It is unclear exactly who called the police, what was reported, and to what kind of incident police believed they were responding.

         {4} Wallace Downs, a detective with the Las Cruces Police Department at the time of the incident, testified at trial that he went to the Arid Club in response to a call from another officer, Sergeant Ronnie Navarrete, who had been "flagged down" at the club. After briefly speaking with Sergeant Navarrete, who did not testify at trial, Detective Downs began interviewing people at the scene to try to determine if there were any witnesses who could describe what was going on inside the club. Detective Downs spoke with the person who identified himself as Chandler's case manager. The case manager said he had a phone number for Chandler, with whom Detective Downs was then able to make telephonic contact.

         {5} According to Detective Downs, Chandler "was talking very low as if he were scared or concerned." There was conflicting testimony regarding whether Chandler was being held against his will inside the Arid Club, but Detective Downs testified that Chandler told him that there was a person inside with a gun and that he did not think he could leave. Defendant testified that Chandler was free to leave at any time. Everyone agreed that once Chandler gave Defendant the phone and Detective Downs asked Defendant to let Chandler leave the club, Chandler walked out within minutes.[1]

         {6} Detective Downs spent approximately one hour on the phone with Defendant, first building a rapport with him and then asking that Defendant surrender to police. Defendant stated that he was armed with a gun, did not want to "go on . . . living, " and wanted to have the police shoot him. Detective Downs requested at least three to five times that Defendant put down his weapon and come out with his hands up to surrender to police. Detective Downs recalled that Defendant agreed to surrender a couple of times but never did. Eventually, the call ended because the battery in the phone Defendant was using died.

         {7} Soon after, a tactical team that had assembled on scene, consisting of SWAT officers and a K-9 unit, entered the Arid Club and apprehended Defendant. According to Joshua Savage, an officer assigned to the Las Cruces Police Department's K-9 unit, Defendant did not immediately surrender, and application of force was necessary to bring him into custody.

         {8} Following Defendant's arrest, police searched the Arid Club and obtained a search warrant for the car that Defendant drove there. Inside the club, police recovered a gun that contained six bullets, two of which were live rounds, and a bullet on the floor. Another forty-five rounds of ammunition were located in a bag found inside the vehicle driven by Defendant.

         {9} Defendant appeals both counts of conviction. Additional facts are provided as necessary to our discussion.


         {10} First we take up the ammunition's admissibility, which hinges on Defendant's Confrontation Clause argument, then discuss whether there was sufficient evidence to support Defendant's convictions. Next, we address whether the district court erred in instructing the jury and allowing evidence of Defendant's pending lawsuit against the City of Las Cruces before turning to Defendant's claim of prosecutorial misconduct.

         I. The Trial Court Did Not Violate Defendant's Right of Confrontation When it Admitted Evidence Seized From Defendant's Car Without Defendant Having an Opportunity to Confront the Officers Who Prepared and Executed the Search Warrant

         {11} Defendant argues that his Sixth Amendment right to be confronted with the witnesses against him was violated when the State presented physical evidence seized from his car without calling certain witnesses. The central thrust of Defendant's argument on appeal is that he had the right to confront officers that searched his car and the officer that arrested him. Absent such opportunity, Defendant contends, the district court erred by denying his motion to suppress evidence, including the ammunition recovered from his car. Defendant also makes a perfunctory argument that his right of confrontation was violated because the officer who prepared the search warrant for his car was not present at trial. Defendant misunderstands the scope of the Confrontation Clause, and we take this opportunity to address evidence and testimony to which it does not apply.

         {12} The Sixth Amendment's Confrontation Clause entitles a criminal defendant to "be confronted with the witnesses against him[.]" U.S. Const. amend. VI. Challenges under the Confrontation Clause must be resolved as a matter of law, which we review de novo. See State v. Huettl, 2013-NMCA-038, ¶ 16, 305 P.3d 956. The Confrontation Clause "prohibits the introduction of testimonial hearsay unless the accused has had the opportunity to cross-examine the declarant." State v. Carmona, 2016-NMCA-050, ¶ 15, 371 P.3d 1056 (citing Crawford v. Washington, 541 U.S. 36, 54 (2004)). It "applies to witnesses against the accused who provide testimony for the purpose of establishing or proving some fact." Huettl, 2013-NMCA-038, ¶ 16. "[A] person is a witness for Confrontation Clause purposes when that person's statements go to an issue of guilt or innocence." State v. Aragon, 2010-NMSC-008, ¶ 8, 147 N.M. 474, 225 P.3d 1280, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. "Testimonial statements" include those that convey information about evidence that was gathered after an "emergency has been resolved and the police have turned their attention to collecting evidence for use in a criminal prosecution against a known criminal perpetrator." Carmona, 2016-NMCA-050, ¶¶ 17, 19. "[B]asis evidence, " which includes out-of-court-statements that form the basis for a testifying witness's conclusion, whether expert or lay, is testimonial and "therefore must be subjected to Confrontation Clause scrutiny." Id. ¶ 37; see also State v. Navarette, 2013-NMSC-003, ¶¶ 13-14, 294 P.3d 435 (discussing Williams v. Illinois, __ U.S.__, 132 S.Ct. 2221 (2012)). However, where a witness testifies from personal knowledge and neither makes a statement nor draws a conclusion that is based on hearsay, the Confrontation Clause is not implicated at all. See Crawford, 541 U.S. at 51-52 (holding that the Confrontation Clause is intended to bar the admission of testimonial hearsay); United States v. Ibarra-Diaz, 805 F.3d 908, 919-20 (10th Cir. 2015) (explaining that testimony that communicates no hearsay "is generally of no concern to the Confrontation Clause").

         {13} We apply these principles to Defendant's argument that the district court erred by admitting evidence seized from Defendant's car when Defendant did not have the opportunity to confront particular officers involved in the seizure and his arrest.[2]Atypically given our consideration of the merits of the issue on appeal, Defendant did not contemporaneously object to the admission of either State's Exhibit 34, the forty-five rounds of bullets, or State's Exhibit 35, the black bag in which the ammunition was found. Rather, after the evidence had been admitted and after the State rested, standby counsel moved to suppress Exhibits 34 and 35, arguing that the State had failed to lay the proper foundation for their discovery and seizure. Standby counsel also argued that the State had failed to present evidence regarding the evidence's chain of custody. The district court denied Defendant's motion to suppress, which it considered a right-of-confrontation challenge.[3] The district court relied on State v. Lopez, 2013-NMSC-047, ¶ 26, 314 P.3d 236 (holding that the Sixth Amendment right of confrontation does not apply in pretrial hearings) to reach its decision. While we believe the district court's reliance on Lopez was misplaced, as we explain below, we agree with the conclusion reached and affirm on other grounds. See State v. Ruiz, 2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d 1003 (explaining that as a general rule, we will uphold the decision of a district court if it is right for any reason).

         {14} On appeal, Defendant asserts, without providing support from the record, that the testifying officers "would have had to rely on the out-of-court testimonial hearsay statements of the officer who signed the affidavit and conducted the search and the officer who arrested [Defendant]." Defendant thus appears to argue that the testifying officers offered improper, testimonial "basis evidence" regarding the origin of the ammunition. We disagree.

         {15} In Carmona, this Court held that an expert's testimony stating that the defendant's DNA was found on swabs taken from the victim was inadmissible because it violated the Confrontation Clause. 2016-NMCA-050, ¶ 37. In that case, the state argued that its expert relied on the swabs themselves, not on the unavailable Sexual Assault Nurse Examiner's hearsay statement that the swabs were taken from the victim, to reach her conclusion. We rejected the state's argument, reasoning that the swabs, and particularly the information accompanying them, were utilized to establish or prove facts that "reflect[ed] directly on [the d]efendant's guilt or innocence[, ]" id. ¶ 38 (internal quotation marks, and citation omitted), thus making statements regarding the circumstances of their use testimonial. Because the expert had based her opinion on an unavailable witness's testimonial hearsay (i.e., that the swabs were taken from the victim and from specific locations on her body), we concluded that the defendant's right of confrontation was violated when he was deprived of an opportunity to cross-examine the person who collected the evidence. Id. ¶ 42.

         {16} The pertinent testimony in this case is distinguishable from Carmona. Stella Carbajal, the evidence custodian and crime scene technician with the Las Cruces Police Department who was called to the incident at the Arid Club, was the only witness who testified regarding acquisition of the complained-of evidence. Although not one of the sworn police officers involved in the search, Ms. Carbajal's testimony was eventful: she personally collected evidence from Defendant's vehicle, including State's Exhibits 34 and 35. She likewise testified regarding the procedures used to ensure the evidentiary chain of custody and verified that State's Exhibits 34 and 35 were in the same condition as when she collected the evidence.

         {17} Unlike in Carmona, where the defendant was denied the opportunity to cross-examine the person who collected and documented the DNA swabs from the victim, here, Defendant had, and indeed exercised, the opportunity to confront Ms. Carbajal regarding her collection and handling of the evidence in question. Defendant asked about how and where Ms. Carbajal photographed the black AARP bag that contained the forty-five bullets. He asked whether she moved that evidence. Ms. Carbajal verified for Defendant that the bag containing the ammunition was in the car when the search began and that the 45 bullets were found there. Our review of Ms. Carbajal's testimony reveals that she offered no testimonial hearsay regarding the origin or seizure of the ammunition or any other item of evidence from Defendant's car.

         {18} What Defendant really seems to challenge on appeal is the fact that he did not have an opportunity to confront the additional officers who "conducted the search" of his car in order to explore a speculative theory that the bullets were planted in his car. Insofar as Defendant complains that the chain of custody for admitting the evidence is deficient, which is how he presented his argument to the district court, we reject this argument. "The admission of real or demonstrative evidence does not require the [s]tate to establish the chain of custody in sufficient detail to exclude all possibility of tampering." State v. Rodriguez, 2009-NMCA-090, ¶ 24, 146 N.M. 824, 215 P.3d 762. "Admission of evidence is within the district court's discretion and there is no abuse of discretion when the evidence is shown by a preponderance of the evidence to be what it purports to be." Id. Defendant concedes that Ms. Carbajal "was present and took pictures" of the evidence found in his car but infers that her testimony fails because she "is not a law enforcement officer[, ]" a legal proposition for which he fails to provide authority or support. Defendant's claim that "[t]he trial court admitted evidence seized by officers not present at trial and therefore violated [Defendant's] right to confrontation" ignores the fact that Ms. Carbajal, while not a sworn officer but rather the evidence technician that actually seized the evidence from Defendant's car, was qualified as a fact witness to testify regarding the origin of the evidence. We cannot say that the district court abused its discretion in admitting the bullets and the bag, which contained them, into evidence given that Ms. Carbajal testified and was subjected to cross examination regarding the evidence she collected.

         {19} With respect to the State's other witnesses, Defendant argues that "[t]he two officers who testified at trial did not witness the search and could not have possibly known that the bullets were seized from [Defendant's] car." But Defendant fails to demonstrate that either officer made any statement regarding the ammunition specifically found in Defendant's car. Our review of the record leads us to conclude that Defendant points to no specific examples of testimonial hearsay statements about the complained-of evidence because none exist.

         {20} Officer Savage, the K-9 officer who was involved in the actual apprehension of Defendant, did not testify at all regarding the ammunition found in Defendant's car. And while Detective Downs testified that he assisted with the post-arrest search and in securing evidence, and saw the ammunition that was found in the case, [4] he did not testify that the ammunition was seized from Defendant's car, suggest that he had personal knowledge of that fact, or rely on testimonial hearsay regarding that fact. See Crawford, 541 U.S. at 51-52 (holding that the Confrontation Clause is intended to bar the admission of testimonial hearsay); Ibarra-Diaz, 805 F.3d at 919-20 (explaining that testimony that communicates no hearsay "is generally of no concern to the Confrontation Clause").

         {22} We conclude that Defendant's Sixth Amendment right to confront the witnesses against him was not violated because no witness's testimony included testimonial hearsay. The district court did not err by denying Defendant's motion to suppress State's Exhibits 34 and 35.

         II. Sufficiency of the Evidence to Sustain Defendant's Two Convictions

         {23} Defendant argues that the State failed to present sufficient evidence to sustain his convictions for resisting, evading, or obstructing an officer and for being a felon in possession of a firearm. We agree that there was insufficient evidence to convict Defendant of fleeing, evading, or attempting to evade a peace officer, but we disagree with respect to the felon-in-possession of a firearm charge.

         A. Standard of Review

         {24} "To determine whether the evidence presented was sufficient to sustain the verdict, we must decide whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Brietag, 1989-NMCA-019, ¶ 9, 108 N.M. 368, 772 P.2d 898. We "view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. "We do not reweigh the evidence and may not substitute our judgment for that of the fact finder, so long as there is sufficient evidence to support the verdict." Brietag, 1989-NMCA-019, ¶ 9. "Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [the d]efendant's version of the facts." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

         B. There Was Insufficient Evidence For the Jury to Convict Defendant of Resisting, Evading, or Obstructing an Officer in Violation of Section 30-22-1(B)

         {25} For reasons that are not clear, the State elected to charge, and the grand jury indicted, Defendant under Subsection (B) of Section 30-22-1. Subsection (B) defines "[r]esisting, evading[, ] or obstructing an officer" as consisting of "intentionally fleeing, attempting to evade[, ] or evading an officer of this state when the person committing the act of fleeing, attempting to evade[, ] or evasion has knowledge that the officer is attempting to apprehend or arrest him[.]" Section 30-22-1(B). The State opted not to charge Defendant under Subsection (D), which defines the prohibited conduct as consisting of "resisting or abusing any judge, magistrate[, ] or peace officer in the lawful discharge of his duties." Section 30-22-1(D). As we explain below, our reading of Section 30-22-1 as a whole leads us to conclude that the State lacked sufficient evidence to convict Defendant under Subsection (B).

         {26} Our Legislature chose to differentiate the manner by which a defendant can violate Section 30-22-1 by employing language indicative of action, related to flight from arrest, and separate language that involves immediate interaction between a subject and an arresting officer when the subject is non-compliant with being arrested. Compare § 30-22-1(B), with § 30-22-1(D). Regarding the language chosen by the Legislature, rules of statutory construction require that we "construe the entire statute as a whole so that all the provisions will be considered in relation to one another." Am. Fed'n of State, Cnty. & Mun. Emps. (AFSCME) v. City of Albuquerque, 2013-NMCA-063, ¶ 5, 304 P.3d 443 (internal quotation marks and citation omitted). Furthermore, we construe statutes "so that no part of the statute is rendered surplusage or superfluous[.]" Id. (internal quotation marks and citation omitted). Therefore, the Legislature's use of the term "evading" in the title and body of the statute, as well as its inclusion of a provision that makes "intentionally fleeing, attempting to evade[, ] or evading an officer" a distinguishable crime under Section 30-22-1(B), is significant and, we must assume, not mere surplusage.

         {27} In previously interpreting this statute, we explained that "[t]he crime of resisting, evading[, ] or obstructing an officer as set forth in Section 30-22-1, contains several alternative means by which the offense may be committed." State v. Hamilton, 1988-NMCA-023, ¶ 14, 107 N.M. 186, 754 P.2d 857. "A defendant's act of fleeing, attempting to evade[, ] or evading an officer constitutes one of the alternative methods of committing the offense proscribed under Section 30-22-1." Id.; see ยง ...

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