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State v. Flores

Court of Appeals of New Mexico

September 17, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MELISSA RAE FLORES, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Stan Whitaker, District Judge

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

          Bennett J. Baur, Chief Public Defender C. David Henderson, Appellate Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          LINDA M. VANZI, CHIEF JUDGE.

         {¶1} Defendant Melissa Rae Flores appeals her convictions for receiving or transferring a stolen vehicle and possession of burglary tools. She argues that the admission of a codefendant's indictment and plea, along with inadmissible hearsay testimony, denied her a fair trial. Defendant also raises the issue of an erroneous jury instruction and challenges the sufficiency of the evidence to support each of her convictions. Because we conclude that the State used the codefendant's plea agreement and indictment solely for the substantive purpose of proving the elements of receiving or transferring a stolen vehicle against Defendant thus violating her right to a fair trial and to due process under the Sixth and Fourteenth Amendments of the United States Constitution, we reverse and remand.

         BACKGROUND

         Facts Leading to the Charges Against Defendant and Codefendant Scott Veretto

         {¶2} Bernalillo County Sheriffs Department Detective Jerry Koppman was looking for Scott Veretto in August 2013. Koppman had previously arrested Veretto for stealing motorcycles and confirmed on NCIC that Veretto was a wanted fugitive. When Koppman arrived at Veretto's last known address, he saw Veretto leave the residence, get into a Mustang, and drive away. Koppman learned the Mustang was registered to Cameron Ezell, so Koppman went to Ezell's house to speak to him. Ezell told Koppman that he had let Veretto use his car and that Veretto was staying with Defendant, who was Veretto's girlfriend at the time. While at Ezell's residence, Koppman saw a partially disassembled Nissan Murano parked in the backyard. The vehicle identification number (VIN) plate had been removed from the Murano's dashboard, but Koppman found a label with the VIN on the inside of the driver's side door. A National Crime Information Center (NCIC) check established that Defendant's mother owned the vehicle.

         {¶3} Koppman then went to Defendant's mother's home, where Defendant also lived, and located Defendant. There, he saw a different and fully assembled Nissan Murano. The VIN plate on the dashboard of the Murano "appeared to have been tampered with." Defendant gave Koppman access to the inside of the Murano by crawling through the back of the car to unlock the car, and an NCIC search of the VIN from the secondary label confirmed that the vehicle was not owned by Defendant or her mother, but had been reported as stolen. Also, when Defendant opened the Murano for Koppman to examine the secondary VIN, he saw "a little computer" in the back of the vehicle. Defendant explained that she used the computer "to reset her key in order to start the car" using written instructions that Veretto had given to her. Defendant's mother thought that she held legal title to the fully assembled Murano as she had purchased a similar one from a dealership a few years earlier for Defendant to drive.

         {¶4} Based on these facts, Defendant was charged with receiving or transferring a stolen vehicle, conspiracy to receive or transfer a stolen vehicle, possession of burglary tools, and two counts of harboring a felon. On the same date, the State charged Veretto with receiving or transferring a stolen vehicle, conspiracy to receive or transfer a stolen vehicle, possession of burglary tools, and other crimes related to vehicle theft. Veretto subsequently entered into a plea and disposition agreement in which he agreed to plead guilty to receiving or transferring a stolen 2007 white Nissan Murano and conspiracy to commit receiving or transferring a stolen 2007 white Nissan Murano, among other offenses. Defendant's case proceeded to trial.

         The State's Motion in Limine

         {¶5} Prior to trial, the State filed a motion in limine requesting, among other things, to introduce Veretto's plea and disposition agreement in order to "prove elements of the crime against . . . Defendant[, ] . . . [s]pecifically, ... to prove knowledge on behalf of. . . Defendant that Scott Veretto had committed a felony or felonies, and that. . . Defendant had reason to believe that the automobile which is the subject of Counts 1 and 2 was stolen." At a hearing on the motion, the State further explained that it was going to call Veretto to testify at trial and that it wanted to present Veretto's plea agreement as evidence for two reasons: First, "to show ... the amount of motor vehicle thefts that [Veretto] has committed[, ]" which "goes to the' knowledge element . . . that [Defendant] knew that [Veretto] had committed a felony" on "the harboring of the felon" count; and second, "to show, for the receiving ... a stolen motor vehicle [count], . . . that she knew it was stolen" because she "presumably. . . got this motor vehicle from Mr. Veretto. . . . And conspiracy to commit. So that all goes to showing that [Veretto] conspired with [Defendant], which is one of the charges [Defendant is] charged with[.]" The State further said that it intended to admit the plea agreement "as substantive evidence ... to show the knowledge components on [Defendant's] part." Defense counsel responded that he was concerned about the way that the State was trying to use Veretto's guilty plea. Although he acknowledged that the plea agreement could be used to impeach Veretto, defense counsel stated:

I'm still a little concerned about the fact that the State is seeming to argue that this is relevant because he was convicted of a crime. It doesn't show that [Defendant] knew that [Veretto] committed a crime. The crime they're talking about is receiving or transferring a stolen motor vehicle, and the element that he could have pled to was that [Veretto] should have known it was stolen. That doesn't do anything to show [Defendant's] knowledge.

         The district court said that it had "no idea what the testimony is going to be" but that the plea agreement was "usable for purposes of impeachment by [defense counsel], and [the State] can impeach [Veretto] with it as well, if, in fact, his testimony is contrary to what they intend to present here today." The court further stated that

in terms of whether it'll actually be admitted, I don't know. And whether that's going to be enough to show the state of mind of [Defendant] here remains to be seen. So I guess it's really hard for me to say, it's a little premature to make a firm decision about it, until I know what the foundation is going to be for purposes of trying to get it admitted. . . . So . . . let's hold that in abeyance until we hear some testimony.

         As a final matter, the district court rejected Defendant's argument that the use of the plea agreement was "more ...


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