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State v. Saiz

Court of Appeals of New Mexico

June 28, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
BOBBY SAIZ, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Drew D. Tatum, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM John J. Woykovsky, Assistant Attorney General Albuquerque, NM for Appellee

          Robert E. Tangora, L.L.C. Robert E. Tangora Santa Fe, NM for Appellant

          OPINION

          JONATHAN B. SUTIN, Judge.

         {1} Defendant appeals from the district court's judgment and sentence, convicting him of conspiracy to commit drug trafficking by distribution. Defendant argues: (1) the evidence was insufficient, and (2) the district court improperly admitted a hearsay text message into evidence under the exclusion for statements made by a co-conspirator, pursuant to Rule 11-801(D)(2)(e) NMRA. We must decide whether the State sufficiently proved its theory that Defendant was the middleman in a conspiracy to sell methamphetamine to an undercover agent and a confidential informant, where the drug transaction did not occur, the drugs were never seen, the co-conspirator was never seen or verified, and the bulk of the State's evidence consisted of Defendant's assurances that the transaction would take place. Concerned with the State's heavy reliance on Defendant's extrajudicial statements to prove the conspiracy, we asked the parties to brief the application of the modified trustworthiness rule, New Mexico's modern corpus delicti rule. See State v. Weisser, 2007-NMCA-015, ¶ 16, 141 N.M. 93, 150 P.3d 1043 (stating that the goal of both the corpus delicti rule and the trustworthiness standards is to "ensure that individuals are not convicted of crimes [on the basis of unreliable confessions when those crimes] did not in fact occur"), abrogated on other grounds as recognized by State v. Bregar, 2017-NMCA-028, ¶ 49, 390 P.3d 212.

         {2} We hold that the corroboration requirements of the modified trustworthiness rule do not apply to Defendant's statements made pre-crime and in the course of the crime. Considering Defendant's statements as proof of the conspiracy, we hold that the evidence was sufficient. We also are not persuaded that the text message constituted hearsay offered to prove the truth of any assertion in the statement. We affirm.

         BACKGROUND

         {3} Undercover Officer Waylon Rains testified that he and a confidential informant (CI) arranged to meet with Defendant, who was to act as the middleman to facilitate the purchase of four ounces of methamphetamine for $4, 800. Officer Rains has been in law enforcement for nineteen years, a lieutenant with the Clovis Police Department for eleven years, and was undercover investigating narcotic crimes and a supervisor in a five-county drug task force on the day in question. The CI was qualified as a credible and reliable resource five years before the incident, had been working continuously since then on hundreds of cases, and had never provided law enforcement with wrong information that might have damaged his credibility.

         {4} Officer Rains and the CI were in contact with Defendant for about two weeks leading up to the incident at issue. Previous transactions were scheduled but did not occur because Defendant was not able to convince a third party to broker a transaction in a manner consistent with the drug task force policy. The drug task force refused to "front" the money for a drug purchase before the drugs were present and refused to trust a person to leave from view with the money and return with the drugs. After several failed attempts at brokering the deal, Officer Rains and the CI received multiple phone calls from Defendant, who was contacting them to let them know he had found a third party who was willing to bring the methamphetamine to them and complete the exchange at one location. For this transaction, Defendant asked Officer Rains and the CI to come to his house, bring the money, and then Defendant would call the third party to bring the methamphetamine.

         {5} When Officer Rains and the CI showed up at Defendant's home in an unmarked vehicle, Defendant came out, and they showed him a "flash roll" of cash to demonstrate their ability and willingness to pay for the methamphetamine. Defendant used his cell phone and spoke to someone he referred to as "Gilbert, " who Defendant said was his cousin. He returned to the vehicle and said that Gilbert wanted them to drive to Gilbert's house and complete the transaction there. Because Officer Rains wanted to control as much of the deal as possible to minimize the risk to himself and the CI, he refused to go to a stranger's house. Officer Rains suggested they could complete the transaction in the parking lot of a nearby convenience store because it was close to Defendant's house and Gilbert's house, who was said to have lived in the trailer park behind the convenience store. Defendant got back on his cell phone, walked away, and then returned to the vehicle and reported that the proposed arrangement was not satisfactory to Gilbert. After all negotiations were complete, they finally agreed that Officer Rains and the CI would take Defendant to the trailer park a block or so away from Gilbert's residence; Defendant would go to the residence, get one ounce of meth, and bring it back to the car; the officer would give Defendant the money; then, Defendant would go back to the residence and bring the remaining three ounces to the officer and the CI to complete the transaction.

         {6} Officer Rains, the CI, and Defendant drove together in the vehicle to a side street in the trailer park and parked about a block away from the residence. Defendant left the vehicle, walked to the residence, knocked on the door, and talked to a person who opened the door and whom the officer and the CI could not see or hear. Defendant returned to the vehicle and stated that Gilbert was on his way and that they could complete the deal shortly. In an effort not to give the appearance of an undercover law enforcement operation, Officer Rains told Defendant they had a time limit, they were tired of messing around, and that if the deal was not going to happen, then they would leave and get the drugs elsewhere. Defendant remained outside the vehicle after arriving at the trailer park, walking between the yard of Gilbert's home and the yard next door, and was on and off his cell phone numerous times outside of the officer's hearing range. During the thirty to forty minutes that they were at the trailer park, Defendant told Officer Rains that the reason for the delay was that Gilbert had people in the neighborhood doing countersurveillance to see if there was any law enforcement in the area. Shortly thereafter, a white Ford truck came driving up very slowly from the same direction in which the officer's vehicle was facing, passed the officer's vehicle, continued toward Gilbert's home where Defendant was located, slowed down even more when it came close to Defendant, and then accelerated around the corner. Defendant returned to Officer Rains' vehicle, reported that everything was fine, and that it was Gilbert in the truck that just passed by them. Defendant did not say why Gilbert did not stop or if he would come back.

         {7} Officer Rains testified that he was concerned that something had gone wrong that had aborted the transaction, so he alerted the cover team-stationed throughout the area that had been monitoring his conversations through listening devices-to attempt to stop a white Ford truck in the area. Officer Rains did not catch the license plate, had little description to offer, and could not see anyone in the truck. Within two to three minutes, other agents stopped a white Ford truck in the vicinity, but Officer Rains could not say whether it was the same truck. In the search of the truck that was stopped, no drugs were found, and no one in the truck was named Gilbert.

         {8} Back at the trailer park, Officer Rains told Defendant that he was tired of waiting and asked Defendant if he wanted a ride back to his house. Defendant agreed and asked if they could stop at a store so Defendant could buy some cigarettes. On their way to the store, Defendant received a text message on his cell phone, which had a shattered, unreadable screen and was set to speak the content of text messages as they came in. The voice text said, "You better not be f[ ]ing me over, prim." Officer Rains explained during his testimony that "prim" is short for "primo, " which is Spanish for "cousin."

         {9} Also while on the way to the store, Officer Rains alerted the rest of the team to stop his own undercover vehicle and arrest Defendant for conspiracy. After Officer Rains, the CI, and Defendant pulled into the store's parking lot, Defendant got out, started walking toward the store, and the other agents intercepted Defendant; Officer Rains and the CI left. Among those agents was Sergeant Rafael Aguilar of the Clovis Police Department, who testified that Defendant was confused and agitated by his arrest for conspiracy, continually yelling that there was no conspiracy and that he was there to get methamphetamine for himself and would pay for it later.

         {10} The jury found Defendant guilty of the sole charge of conspiracy to commit trafficking by ...


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