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State v. Garcia

Court of Appeals of New Mexico

May 23, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
SAMMY GARCIA, Defendant-Appellant.


          Hector H. Balderas, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellee

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



         {¶1} Defendant appeals his convictions for one count each of child abuse, kidnapping, contributing to the delinquency of a minor, and battery against a household member, as well as two counts of bribery of a witness and four counts of conspiracy. Defendant raises five claims of error: (1) that an expert witness's bolstering testimony amounted to plain error; (2) that there was insufficient evidence to support his convictions; (3) that his conspiracy convictions violate his right to be free from double jeopardy; (4) that he was denied his right to a speedy trial; and (5) that the delay in resolving his appeal violated his due process rights. We conclude that the expert witness's bolstering testimony constitutes plain error, that insufficient evidence exists to support one of Defendant's convictions for bribery of a witness, and that three of Defendant's conspiracy convictions violate double jeopardy. We otherwise find the evidence sufficient to support Defendant's remaining convictions. We conclude that Defendant failed to preserve his speedy trial argument for appellate review, and decline to review that claim for fundamental error. Finally, with respect to Defendant's due process argument, an issue of first impression in this state, we hold that New Mexico recognizes a due process right in the timely resolution of an appeal of right, but conclude, on the record before us, that Defendant failed to make the required showing of prejudice to warrant relief on due process grounds.


         {¶2} Victim went to her grandparents' house on Thanksgiving Day in 2003, where many of her family members, including Defendant, Victim's uncle, were gathered. According to Victim's testimony, she was playing outside with a go-cart when a flat tire caused her to enter a shed on the property in search of an air pump. Once inside the shed she encountered Defendant, who grabbed her, threw her onto the floor, held her down, and sexually assaulted her. During the encounter, Defendant's son entered the shed and Defendant held Victim down while Defendant's son sexually assaulted her. Victim was eventually allowed to leave the shed, and subsequently reported the incident to authorities.

         {¶3} Defendant was indicted on twelve counts: one count each of child abuse, kidnapping, contributing to the delinquency of a minor, and battery against a household member, two counts of bribery of a witness, [1] four counts of conspiracy, and two counts of criminal sexual penetration of a minor (CSPM). The jury could not reach a verdict on the CSPM charges, but convicted Defendant of the remaining counts; the district court declared a mistrial on the CSPM charges. The State apparently elected not to retry Defendant on the CSPM charges. Defendant received the basic sentence for each conviction, resulting in a total sentence of thirty-five and one-half years, with seventeen and one-half years suspended.


         {¶4} Defendant's trial counsel timely filed a notice of appeal on October 26, 2005, and a docketing statement on December 27, 2005. The case was assigned to this Court's general calendar on February 9, 2006, but when no brief in chief was filed, this Court, on its own motion and in accordance with the rules of appellate procedure, issued an order on May 23, 2006, dismissing the appeal but giving counsel leave to file a motion for rehearing within fifteen days. No such rehearing motion was ever filed.

         {¶5} Nearly eight years later, on March 11, 2014, Defendant, filed a habeas petition in the state district court, and through appointed counsel, asserted ineffective assistance of counsel on appeal. Defendant's habeas petition requested that he be granted the right to file a new notice of appeal, as well as the right to file the original docketing statement under a new appellate case number, and that the appellate division of the public defender be appointed to represent him on appeal. Defendant did not assert any due process claim in his habeas petition. On September 2, 2015, the habeas court found that Defendant had demonstrated ineffective assistance of appellate counsel and granted Defendant's requested relief. The notice of appeal was filed on October 8, 2015, but apparently due to confusion arising from the habeas court's order, a docketing statement was not filed in this Court until August 16, 2016, along with a motion seeking clarification regarding reinstatement as provided by the habeas court's order. Defense counsel submitted the same docketing statement that was originally submitted with the first notice of appeal; this Court declined to "reinstate" the first appeal, but accepted the original docketing statement under the present case number. After seven extensions of time, Defendant's brief in chief was finally filed on July 21, 2017, and the case was submitted to a panel on May 1, 2018. In November 2018 we requested that our Supreme Court accept certification of this case, given the issue of first impression raised in this appeal. The Supreme Court denied our request in January 2019 and we held oral argument in February 2019. (6} We reserve further discussion of the facts for our analysis below.


         {¶7} Our analysis begins with Defendant's assertion that under the plain error doctrine, he is entitled to a new trial. Because we conclude Defendant is entitled to a new trial on this ground, we consider whether there is sufficient evidence to support Defendant's convictions to determine whether retrial would implicate double jeopardy protections. In the interest of brevity, we combine our analysis of double jeopardy and legal sufficiency with respect to Defendant's conspiracy convictions. Following our sufficiency analysis, we briefly turn to Defendant's speedy trial argument before considering whether appellate delay violates a criminal defendant's right to due process, the parameters of such a due process analysis, and whether Defendant's due process rights were violated in this case.

         A. Improperly Admitted Expert Opinion Testimony Was Not Harmless Error

         {¶8} Defendant argues that testimony presented at trial by Rosalia Vialpando, a registered nurse, improperly bolstered Victim's testimony and vouched for Victim's credibility, resulting in plain error that requires reversal. The State concedes that portions of the nurse's testimony were inadmissible, but argues that the admission of those portions does not constitute plain error. The parties also disagree as to whether Defendant preserved this issue, allowing for a reversible error analysis, or failed to preserve it, requiring a plain error analysis. Because we determine that the admission of Vialpando's testimony rose to the level of plain error requiring reversal, we need not address whether the issue was properly preserved.

         1. The Expert's Testimony

         {¶9} At trial, Vialpando testified on behalf of the State as an "expert family nurse practitioner with a specialty in child sexual abuse." Defense counsel did not object to the qualification of Vialpando as an expert witness. Vialpando testified about Victim's account of sexual assault at length, repeating many of Victim's statements, and further testified that Victim had identified Defendant and Defendant's son as the individuals who committed the assault. Based on Victim's account of events, Vialpando concluded that "the things that [Victim] said had happened to her had, in fact, happened to her" and that Victim's physical examination, which revealed no physical injuries to Victim's genital area, was consistent with her description of the incident. Defense counsel made no objection to Vialpando's testimony. On cross-examination, defense counsel asked Vialpando questions about what Victim told her and raised issues attempting to draw into question Vialpando's conclusion that Victim had been raped. During redirect, Vialpando was asked to explain what aspects of Victim's account were most "compelling." Defense counsel objected to this line of inquiry, arguing it was beyond the scope of cross-examination; counsel's objection was overruled. Vialpando then went on to provide a lengthy explanation of those statements she found most compelling. For instance, Vialpando testified that she found the amount of detail Victim used in describing the assault to be compelling:

She told me ... first of all, that it's on Thanksgiving.... The detail- that they needed the hose for the compressor-why would she come up with something like that? She went to the garage, she walked in, she saw [Defendant].... He grabbed the hose, she tried to run out, ... he grabbed [her] hard by the arm. She doesn't just say he grabbed me or he threw me. [She said, ] "He grabbed me hard by my arm and threw me on the floor." He told [her], "Let's make babies." She heard this. This person didn't say, "I'm going to rape you" or "just lie there," he said, "let's make babies." [S]he says he was holding her down and tried to take his pants off too. You can almost see what this child is talking about. ... I can almost see that whole thing where the child is being held down with one hand and the pants are being taken off with the other hand That's very-detailed She knows what was happening with each of the hands. It's very detailed. Unless you've experienced it, you would not know.

         2. Plain Error Review

         {¶10} We review for plain error in cases raising evidentiary matters in which the asserted error "affected substantial rights," though they were not brought to the attention of the trial judge. See State v. Lucero, 1993-NMSC-064, ¶ 13, 116 N.M. 450, 863 P.2d 1071 (noting that "the very point of the rule is to permit review of grave errors in the admission of evidence which have not been the subject of a ruling by the trial court because no objection was made at trial" (internal quotation marks and citation omitted)). The plain error rule is to be used sparingly as an exception to a preservation rule designed to encourage efficiency and fairness. State v. Paiz, 1999-NMCA-104, ¶ 28, 127 N.M. 776, 987 P.2d 1163. "To find plain error, [we] must be convinced that admission of the testimony constituted an injustice that created grave doubts concerning the validity of the verdict. Further, in determining whether there has been plain error, we must examine the alleged errors in the context of the testimony as a whole." State v. Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056 (alternation, omission, internal quotation marks, and citations omitted).

         {¶11} Our Supreme Court has addressed the applicability of the plain error doctrine to the admission of expert testimony bearing directly on the credibility of an accuser in Lucero. The expert witness in Lucero, a clinical psychologist, recounted statements regarding sexual abuse the accuser made during the evaluation, testified that the accuser had been molested, stated that the defendant was the molester, and opined that the complainant's statements were truthful. 1993-NMSC-064, ¶¶ 5-6, 21. The Lucero Court concluded that the expert's testimony commenting directly upon the credibility of the accuser was "extremely prejudicial[, ]" stating that while "testimony may be offered to show that the victim suffers from symptoms that are consistent with sexual abuse, it may not be offered to establish that the alleged victim is telling the truth[.]" Id. ¶ 15 (internal quotation marks and citation omitted). Concluding that the expert's testimony "naming the perpetrator was tantamount to saying that the complainant was telling the truth[, ]" the Lucero Court found the expert's testimony that the accuser's symptoms were caused by sexual abuse impermissible, as such testimony "vouches too much for the credibility of the victim and encroaches too far upon the province of the jury to determine the truthfulness of the witnesses." Id. ¶¶ 16-18 (internal quotation marks and citation omitted) (noting that "to allow an expert to testify that the complainant's symptoms were in fact caused by sex abuse is tantamount to allowing the expert to indirectly validate the complainant's credibility, and that is improper"). Turning its attention to the impact that the expert's testimony had on the trial itself, our Supreme Court concluded that the prejudicial effect outweighed any probative value that it might have: "Even though possibly admissible, . . . allowing the expert during direct examination to repeat to the jury the [accuser's] statements, made to the expert during her evaluation, is too prejudicial because it amounts to an indirect comment on the alleged victim's credibility." Id. ¶ 19. The admission of the expert's testimony therefore amounted to plain error. See id. ¶ 18 ("Determining the complainant's credibility or truthfulness is not a function for an expert in a trial setting, but rather is an issue reserved for the jury."). Finally, because the expert "repeated so many of the complainant's statements regarding the alleged sexual abuse by the defendant and because [the expert] commented directly and indirectly upon the complainant's truthfulness," the Lucero Court expressed "grave doubts concerning the validity of the verdict and the fairness of the trial" and concluded that the admission of the expert testimony was not harmless error. Id. ¶ 22.

         {¶12}Like the expert in Lucero, Vialpando repeatedly commented, both directly and indirectly, upon Victim's truthfulness, identified Defendant as Victim's molester numerous times based solely on Victim's statement of events, and repeated in detail Victim's statements regarding the sexual abuse. We conclude Lucero applies to this case, and the admission of the expert testimony was in error.

         3. Acquiescence

         {¶13} The State acknowledges the applicability of Lucero to this case, and concedes that the admission of Vialpando's now-challenged testimony on redirect was improper and resulted in error. Nonetheless, the State, relying on State v. Hill, 2008-NMCA-117, 144 N.M. 775, 192 P.3d 770, argues that the doctrine of plain error should not apply to this case because Defendant acquiesced in the admission of Vialpando's testimony by cross-examining the witness.

         {¶14} In Hill, the defendant objected to a single statement made by a lay witness, who testified about nationwide reporting of sexually transmitted diseases. Id. ¶ 22. For the first time on appeal, the defendant argued that the witness "exceeded her personal knowledge of the subject matter and, because the [s]tate did not qualify her as an expert, [the testimony] was improperly admitted." Id. ¶ 20. Assuming without deciding that the statement was improperly admitted, this Court found that the doctrine of plain error did not apply because "[the d]efendant, instead of objecting to [the witness's] testimony on that ground, chose to cross-examine her on the topic." Id. ¶ 22. Under the facts of that case, the Court concluded such a choice constituted waiver of any review of the propriety of the statement on appeal. Id.

         {¶15} The State asks us to extend HilV s reach to the present case-where numerous, impermissible statements were elicited by the State during both direct examination and redirect examination-thereby barring plain error review because Defendant exercised his right to cross-examine Vialpando. We decline to do so. Initially, we note that Hill's limitation of the plain error doctrine has never been cited in a published opinion in the eleven years since Hill, nor has it been extended beyond the facts of that case. Moreover, nothing in Hill`s limited rationale suggests that it should apply in cases such as this, where the State repeatedly elicited prejudicial testimony that amounts to plain error under Lucero. Indeed, as Lucero aptly observed: "The fact that trial counsel did not preserve these errors for appeal by lodging a proper objection does not avoid review of the issue as plain error." 1993-NMSC-064, ¶ 21. Furthermore, the State's reading of Hill would inexplicably pit a defendant's right to cross-examination against his ability to have harmful evidentiary matters reviewed under the plain error rule. See generally State v. Lopez, 1996-NMCA-101, ¶ 14, 122 N.M. 459, 926 P.2d 784 ("The right to cross-examination is viewed as the most important element of the right of confrontation. [It]... is the principal means for testing the truth and credibility of a witness and is considered critical to insure the integrity of the fact-finding process." (internal quotation marks and citations omitted)). For these reasons, we decline to extend the rationale of Hill to this case and instead exercise our discretion to review Vialpando's testimony for plain error. See Rule 12-321(B)(2)(b) NMRA (permitting the appellate court in its discretion to review issues involving plain error). Having already concluded that the admission of Vialpando's testimony was error, we examine whether the error was harmless.

         4. ...

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