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State v. Miera

Court of Appeals of New Mexico

November 27, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
DENNIS SAMUEL MIERA, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Benjamin Chavez, District Judge

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          Assed & Associates Richard J. Moran Ahmad Assed Albuquerque, NM for Appellant

          OPINION

          JULIE J. VARGAS, Judge

         {1} Defendant appeals his conviction for two counts of criminal sexual penetration of a minor (CSPM) (Child under 13), one count of criminal sexual contact of a minor (CSCM) (Child under 13), and one count of bribery of a witness, claiming that the district court erred when it allowed the State to impeach him with a psychological evaluation prepared as part of plea negotiations, that he was entitled to a new trial because the State suppressed evidence, that his counsel was ineffective, and alternatively, that all of these errors, taken together, denied him of his right to a fair trial. While we conclude that the admission of the psychological evaluation does not rise to the level of plain error, and the district court did not abuse its discretion by denying Defendant's motion for a new trial, the district court did err by allowing the State to impeach Defendant with the evaluation. This error, coupled with numerous errors by defense counsel, denied Defendant a fair trial. We reverse and remand for a new trial.

         I. BACKGROUND

         {2} Defendant Dennis Miera met Margarita Burciaga (Margarita) in 2000. The two began dating, and eventually moved in together. When the relationship ended in the spring of 2003, the couple split amicably, and Defendant continued to babysit Margarita's children. In the summer of 2006, Defendant had agreed to watch G.M., Margarita's eight-year-old daughter. Before the visit took place, however, Margarita's six-year-old son and G.M. both told her that Defendant had sexually molested G.M. during previous visits. Margarita reported her discovery to the police, and G.M. was taken to a safehouse for an interview, where she gave details regarding the alleged sexual abuse. Defendant was arrested and indicted in April 2008. Defendant was initially represented by Joseph Riggs II (Attorney Riggs), who was replaced by Rafael Padilla (Attorney Padilla) in October 2013.

         {3} Prior to trial, Defendant attempted to negotiate a plea agreement with the State. In hopes of negotiating a more favorable plea, Defendant met several times with forensic and clinical psychologist, Dr. William Foote, and underwent an evaluation by Dr. Foote (the evaluation). The results of that evaluation were eventually turned over to the State in furtherance of plea negotiations. The negotiations proved unsuccessful, however, and Defendant's case went to trial in December 2014.

          {4} The jury found Defendant guilty on all counts charged in the indictment. Three months later in March 2015, Defendant filed a motion for new trial alleging a lack of disclosure of material evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The district court denied the motion and sentenced Defendant. Defendant appeals the judgment against him as well as the denial of his motion for new trial. Defendant's appellate counsel submitted this appeal and filed a substitution of counsel later, in April 2015.

         II. DISCUSSION

         A. Plain Error

         {5} Defendant asserts that the district court committed plain error when it allowed the State the evaluation as impeachment evidence because the evaluation was created as part of plea negotiations. While we agree that the district court's ruling allowing the State to impeach Defendant with the evaluation was in error, we cannot conclude that the State's use of the evaluation, alone, raises grave doubts about the validity of the verdict.

         1. Use of Evaluation at Trial

         {6} The record is clear that the parties agreed at trial that the evaluation was created and given to the State as part of plea negotiations. The evaluation is "a psychological evaluation of [Defendant, created] to provide the court information regarding his sentencing relative to charges he is facing" and details Defendant's personal history, past occupations, and relationships.

         {7} The evaluation contains two damaging components to Defendant's defense. First, the evaluation contains a statement indicating that Defendant admitted that he continued to have overnight visits with G.M. and her brother through the date of the offenses, a fact that Defendant claimed he did not remember during direct examination. Further, the evaluation contains a section entitled "Sex Offender Assessment, " in which Dr. Foote appears to recount a series of admissions made by Defendant seeming to admit that he committed the alleged acts and excusing his conduct. Specifically, the evaluation states:

[Defendant] used a number of different excuses to defend against the accusation he committed the sex offense. For example, he responded in the affirmative to responses such as "a little bit of sex play that happened between that person who accused me was because I'm not perfect" and he reported "the sex play that happened between me and the person who accused me was an accident." He also indicated that he believes that the allegations against him have been exaggerated and no one was hurt by what happened. Also, he indicated that this was an accident, that he slipped one time and made a mistake which he regrets.

         {8} After the State rested its case but before Defendant testified, the State notified the district court that it intended to use the evaluation to impeach Defendant, conceding that because it was created to assist with sentencing, "it would be inappropriate" to introduce the evaluation during the State's case in chief. Citing State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169, the State argued that the evaluation was appropriate impeachment evidence. Defense counsel had no immediate response to the State's argument, advising the district court that he had not seen the evaluation.

         {9} Noting the general inadmissibility of plea negotiations and the possibility of a doctor/patient privilege or waiver of the privilege related to the evaluation, the district court gave the parties a brief recess to gather "written authorities for use or nonuse of the material if [D]efendant contradicts those statements [in the evaluation.]" After the recess, defense counsel advised the Court that he had no authority to support the exclusion of the evaluation to impeach Defendant and stipulated to its use for that purpose, stating:

[A]fter reviewing the [evaluation] and also the case that was provided, . . . Watkins, my initial reaction to the [c]ourt was since this was submitted to the State as part of plea negotiations, I would have argued that, you know, since it's part of plea negotiations, that that evidence would not be admissible in the evidence. But given the case, I can see where the State's arguing for its admissibility if it is going to impeach [Defendant] on the statements that are anticipated to be made, so we feel that it's probably going to be, you know, used for impeachment purposes. . . . [G]iven the case of . . . Watkins[, u]nless that case has been reversed, it seems to me that, you know, the statement could be used for impeachment.

         The district court clarified, "so I understand that right now you don't have any authority to support opposition of the use of this information for impeachment purposes, and, therefore, you're submitting none; is that right?" Defense counsel answered in the affirmative, noting that he "had very little knowledge of this report, and [he] certainly didn't have a copy of it[.]" The district court ruled that the evaluation could be used to impeach the Defendant, and offered to "give a limiting instruction, telling the jury that they can only use [the evaluation] for the purposes of credibility and impeachment." Defense counsel never indicated a desire for, nor requested such an instruction.

         {10} Following the district court's ruling that the evaluation could be used to impeach Defendant, Defendant took the stand and testified on direct examination that he had no recollection of the children staying overnight at his home and reiterated that testimony on cross-examination, testifying that he did not recall telling Dr. Foote that the children stayed overnight with him. The State attempted to refresh Defendant's memory during cross-examination by allowing him to review the evaluation. Defense counsel did not object, and after reading the document to himself, Defendant stated, "I saw what I read, but to be honest with you, I don't remember stating that. I mean, it's written there, but that doesn't mean that I said it."

         {11} Defendant testified on cross-examination that he had never admitted the allegations to anyone. Following Defendant's denial, the State questioned Defendant regarding specific responses Dr. Foote reported Defendant had made to a sex offender assessment completed as part of the evaluation. In doing so, the following exchange occurred:

Q: In your meetings with Dr. Foote, did you answer in the affirmative . . . to the following statement: "A little bit of sex play that happened between that person who accused me was because I'm not perfect?"
A: There was a lot more to that statement.
Q: Respectfully, it's a yes or no question. Did you answer[?]
A: Well, then, yes. That wasn't a question, that was an answer.
Q: Did you answer in the affirmative to another-to the next following statement: "The sex play that happened between me and the person who accused me was an accident?"
A: Yes.
Q: Did you respond in the affirmative or otherwise indicate that you believed that the allegations against you ...

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