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State v. Salazar

Court of Appeals of New Mexico

November 20, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JOHNNY SALAZAR, Defendant-Appellant.

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

          Hector H. Balderas, Attorney General Emily C. Tyson-Jorgenson, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender Tania Shahani, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          JENNIFER L. ATTREP, JUDGE

         {¶1} Defendant Johnny Salazar appeals his convictions for aggravated driving while intoxicated (DWI), in violation of NMSA 1978, Section 66-8-102(D)(3) (2016), and resisting, evading, or obstructing an officer, in violation of NMSA 1978, Section 30-22-1(B) (1981). Defendant contends no reasonable suspicion supported his detention and the district court thus erred in denying his motion to suppress. Defendant adds that the district court erred in compelling his counsel to return to the State video evidence the State had initially disclosed, and by failing to permit his counsel to withdraw based on a purported conflict. We affirm Defendant's convictions.

         BACKGROUND

         {¶2} In March 2015, a magistrate court jury found Defendant guilty of both aggravated DWI and evading an officer. Defendant appealed his convictions to district court, where he moved to suppress any evidence arising from his detention on the ground that reasonable suspicion was lacking. The district court held a hearing on the motion at which the arresting officer testified. The following recitation of facts is based on the officer's testimony.

         {¶3} On an evening in late April 2014, New Mexico State Police set up a DWI checkpoint on Camino Real Road in Las Cruces, New Mexico. Camino Real Road ran roughly north-south through the checkpoint. Cones and signs indicating the checkpoint's presence and directing drivers to stop were placed both north and south of the checkpoint. Multiple marked police vehicles, including a large state police van displaying the words "state police" in "huge letters" on its sides, were stationed at the checkpoint. At least two of the parked police vehicles were operating their overhead lights continuously. Among the officers on duty was patrolman Oliver Wilson, who was positioned furthest south on Camino Real Road.

         {¶4} Just as the sun was setting, Wilson observed a red or maroon, four-door sedan approach the checkpoint from the south. The car traveled north on Camino Real a short distance past the intersection of Dona Ana School Road, which was visible from the checkpoint. Then, roughly one hundred yards south of where Wilson was stationed, the car pulled completely off the road onto the dirt shoulder "just before the cones" marking the checkpoint. Wilson, with an unobstructed view, noted the car lingered at the side of the road "long enough to be noticeable," before making a U-turn across the double-yellow lines of Camino Real. The car accelerated, turned right on Dona Ana School Road, and drove "rapidly" away from the checkpoint. Wilson's radar, however, was off, and he was unsure whether the car had at any point traveled faster than the posted speed limit or committed any other traffic violation. Even though there were no other vehicles obstructing Wilson's view of the vehicle, he could not make out a license plate or any identifying features of the driver. Wilson could not recall whether the signs announcing the checkpoint would have been viewable from the vehicle at any point. Wilson, however, testified that the stop, pause, U-turn, and departure at a high rate of speed were uncharacteristic of traffic typically approaching the checkpoint-most traffic either turned at the Dona Ana School Road intersection or continued through the checkpoint.

         {¶5} Wilson testified that he "suspected, from [his] experience, that there was someone trying to avoid the checkpoint." Wilson shouted to his fellow officers that he had seen a "turnaround," jumped into his patrol car, activated his emergency lights, and drove off in pursuit. He made the right turn onto Dona Ana School Road and re-established visual contact with the car, which was by then ahead by "quite a distance." The car next turned right on Dona Ana Road. Wilson attempted to close the gap, but he was unsuccessful. As they traveled on Dona Ana Road, Wilson lost sight of the car.

         {¶6} Shortly after losing contact, Wilson came to a four-way stop at the intersection of Dona Ana Road and Thorpe Road. He had not seen the car approach this intersection, and, as a result, he had doubts about where to head next. He made his "best guess" and turned right, heading east along Thorpe Road. After driving in that direction briefly, Wilson noticed in his rearview mirror a maroon car parked in the driveway of a duplex or triplex just east of the Dona Ana-Thorpe intersection. A man stood outside the car. Wilson believed, though he did not know, that this was the "same maroon vehicle" he had been pursuing. Wilson made a U-turn and approached the man standing next to the car. Wilson asked the man whether he had been trying to evade him, and the man conceded that he had. Wilson investigated further, identified the man as Defendant, and conducted field sobriety tests. Defendant performed poorly on the tests and refused to submit to chemical testing. Wilson later arrested Defendant for aggravated DWI (refusal) and evading an officer.

         {¶7} Defense counsel did not present evidence at the suppression hearing but offered to have the district court view the video from Wilson's dashboard video camera, which the court declined. Defendant argued that Wilson could not have developed reasonable suspicion based on his observation of the U-turn at the checkpoint and that, even if there was reasonable suspicion at the checkpoint, Wilson did not have the requisite particularized suspicion as to Defendant on Thorpe Road because Wilson lost contact in pursuit and guessed about Defendant's direction of travel. In ruling on the motion to suppress, the district court adopted much of Wilson's testimony in its oral findings. Specifically, the court found that Defendant had traveled past the Dona Ana School Road intersection on its approach to the checkpoint. Defendant had then paused on the shoulder, before making the observed U-turn on Camino Real and accelerating away to "create distance" from Wilson. The court added that Wilson had pursued and lost sight of Defendant's vehicle briefly, but Wilson eventually reestablished contact with and detained Defendant as described on Thorpe Road. Based on those findings, the district court concluded that Wilson had reasonable suspicion to believe Defendant was or had been driving while under the influence. That suspicion, the district court concluded, supported Wilson's investigative detention, and thus the court denied Defendant's motion to suppress.

         {¶8} Defendant's case was slated to go to trial the week after the suppression hearing. The day before trial, the State realized it had lost or misplaced its only copy of Wilson's dashcam video. Before the magistrate court jury trial, the State had provided defense counsel a copy of the video. Aware that defense counsel had retained the copy, the State requested that defense counsel return to the State a courtesy copy. Defense counsel declined, and the State moved the district court to compel production. On the morning of the first day of trial, the district court granted the State's motion to compel, ordered defense counsel to produce a copy of the video to the State, and briefly adjourned.

         {¶9} Returning from the recess, defense counsel renewed her objection to production, contending the order to produce might give rise to a conflict as she could no longer give her undivided loyalty to Defendant. The district court concluded production would raise no conflict and again ordered counsel to produce a copy of the video. Defense counsel complied and then moved to withdraw from her representation and for a new trial, maintaining that Defendant was entitled to conflict-free counsel. The court denied the motions. After Defendant was convicted of both aggravated DWI and evading an officer, defense counsel renewed in writing her motion for a new trial based on the order compelling ...


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