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State v. Romero

Court of Appeals of New Mexico

November 30, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
RAFAEL ROMERO, JR., Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY James Waylon Counts, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Tonya Noonan Herring, 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



         {1} Defendant, Rafael Romero Jr., appeals his convictions for two counts of distribution of marijuana, pursuant to NMSA 1978, Section 30-31-22(A)(1)(a) (2011). On appeal, Defendant argues that his right to confront one of the State's witnesses was violated when the State's expert witness, the laboratory analyst who reviewed the raw data generated in the lab, testified that there were no discrepancies between his conclusion and that of a prior analyst, which he offered only after testifying to forming his own independent conclusion that the substance tested was marijuana. We assume without deciding that the limited testimony of the expert witness referencing the conclusions of the prior analyst violate the Confrontation Clause and do so because, we hold that even assuming that such an error implicates the Confrontation Clause, the error was harmless beyond a reasonable doubt. See State v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110 (stating that a constitutional error is harmless only "when there is no reasonable possibility it affected the verdict" (emphasis, internal quotation marks, and citation omitted)). Defendant also argues that his convictions violate the Equal Protection Clause. We determine that this argument is underdeveloped and without merit. We therefore affirm Defendant's convictions.


         {2} Defendant was charged by criminal information on April 26, 2013, with two counts of distribution of marijuana, or synthetic cannabinoids, contrary to Section 30-31-22(A)(1)(a), for sales occurring on or about October 4, 2012 and October 9, 2012. On October 4, 2012, Agent Desmond Perry was an undercover agent assigned to the narcotics unit of the Otero County Sheriff's Office when he was contacted by Agent Rodney Scharmack. Agent Scharmack put Agent Perry in contact with a confidential informant (CI). The CI arranged for Agent Perry to buy marijuana from Defendant at a residence in Alamogordo, New Mexico. Defendant sold Agent Perry and the CI "a green leaf-like substance" that was kept in his refrigerator. Agent Perry paid Defendant seventy dollars for approximately three grams of marijuana. After the buy, Agent Perry performed a presumptive field test on the substance and it tested positive for marijuana. On October 9, 2012, Defendant contacted the CI. The CI and Agent Perry again went to the same residence and completed a second transaction with Defendant for roughly six grams of marijuana. Agent Scharmack received the suspected marijuana after it was purchased by Agent Perry and conducted a field test on the substance, testing positive for marijuana.

         {3} During the pretrial proceedings, the State filed a notice regarding the testimony of expert witness. The State's notice sought to advise the district court and Defendant of its intent to "present the testimony of any expert witness who either analyzed the evidence or the raw data its testing generated." On the first day of trial, outside the presence of the jury, Defendant objected to the State's motion, and the district court noted Defendant's objection and overruled it.

         {4} At trial, the State called Richard Barber, a forensic analyst employed with the New Mexico Department of Public Safety Forensic Laboratory in Las Cruces, New Mexico, as one of its witnesses. Mr. Barber was qualified as an expert in chemistry and the analysis of controlled substances. Mr. Barber was called to testify from the raw data generated because the first analyst, who originally tested the substance, was not with the laboratory any longer. Mr. Barber testified that the instrument used to collect data in this case was a gas chromatograph mass spectrometer. The gas chromatograph is an oven that increases the temperature at a standard and reproducible rate, helping to separate the substance. The mass spectrometer blows apart the pieces with ions to identify the substance. Mr. Barber testified that he worked with such analytical tools for a number of years, and based upon his experience, as well as comparisons to standards sold by drug companies, he can determine if the data produced by the instrument is consistent with a certain drug. Mr. Barber testified to using his independent judgement when reviewing the raw data in this case. Mr. Barber concluded that "the print-outs of the data that [he] reviewed" were consistent with tetrahydrocannabinal (THC), the active component in marijuana, for both samples.

         {5} Mr. Barber testified to having reviewed the first forensic analyst's report. Mr. Barber attested to reviewing the case file and the prior analyst's original forensic report only after forming his own conclusions. Mr. Barber explained, "I have to ensure that they're consistent." The State questioned Mr. Barber about any discrepancies between his work and that of the prior analyst:

State: Did you review the original forensic [analyst]'s report in this case?
Mr. Barber: I reviewed that.
State: And . . . did your review of that same raw data lead you to a different, or different, decision . . . [of] the underlying conclusions?
Mr. Barber: Part of our policy would be to report any discrepancies that we find, and I found no discrepancies ...

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