1998 -NMCA- 151, State v. Vallejos
| Decision Date | 08 September 1998 |
| Docket Number | No. 19164,19164 |
| Citation | 126 N.M. 161,1998 NMCA 151,967 P.2d 836 |
| Parties | , 1998 -NMCA- 151 STATE of New Mexico, Plaintiff-Appellee, v. Marvin VALLEJOS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
¶1 Defendant was convicted of two counts of distribution of marijuana. On appeal, Defendant argues that (1) the State deprived him of his right to testify before the grand jury by failing to provide him with notice that he was a target witness; (2) the undercover officer who purchased marijuana from Defendant had not complied with law enforcement certification requirements; and (3) the trial court improperly admitted evidence that (a) the undercover officer had purchased drugs from Defendant's girlfriend and (b) "c-scales," which could be used to weigh specific weights, were found at Defendant's residence during a search warrant executed six weeks after the undercover officer purchased marijuana from Defendant. We disagree with each of Defendant's arguments. Accordingly, we affirm.
¶2 On two dates in August 1996, Defendant, while at his residence, sold a "quarter baggie" of marijuana to an Otero County undercover officer. Approximately six weeks after the marijuana was purchased, a search warrant was executed at Defendant's residence. C-scales, used to weigh up to four ounces, were discovered in Defendant's bedroom. On October 4, 1996, Defendant was arrested and charged with two counts of distributing marijuana contrary to NMSA 1978, § 30-31-22(A) (1990).
¶3 Defendant filed several pretrial motions. Defendant challenged the State's failure to inform him of his target status, thus depriving him of the opportunity to testify before the grand jury. The trial court denied the motion as untimely.
¶4 Defendant also moved to dismiss the charges, claiming that the undercover officer did not comply with mandatory state requirements concerning certification and the filing of an oath and appointment to serve as a law enforcement officer. The State responded that the officer was sworn in and signed a commission card, although that card was not filed until September 1996, after Defendant was arrested. The State also argued that the Otero County sheriff believed that the undercover officer was a law enforcement officer and did not file the commission or appointment earlier because he feared jeopardizing the undercover investigation. Additionally, the State contended that dismissal of the case was not an appropriate remedy for failure to comply with the statutory requirements of certification for law enforcement officers. The court found that Defendant had not shown any prejudice and that dismissal was not an appropriate remedy.
¶5 Defendant also alleges error during his trial. In the opening statement, the prosecutor stated that c-scales had been discovered during a search of Defendant's residence. Defendant objected claiming that he had no prior knowledge of the search warrant. The prosecutor responded that the agent who executed the warrant was on the State's witness list and Defendant had interviewed all of the State's witnesses. Also, the prosecutor claimed that a copy of the warrant had been delivered to defense counsel just four days prior to trial. The trial court noted that the evidence of c-scales was prejudicial, but instead of declaring a mistrial, the judge issued a cautionary instruction to the jury to disregard any reference to the c-scales and the warrant.
¶6 The judge, however, also cautioned defense counsel that if he opened the door to the issue, the evidence about the c-scales would be admitted. The judge indicated that if the defense sought to prove that the officer was lying, then the evidence could properly be introduced under Rule 11-404(B) NMRA 1998 to show Defendant's preparation, plan, opportunity, and intent and also to corroborate the officer's testimony.
¶7 During trial, defense counsel questioned witnesses about the undercover officer's bias, whether the undercover officer made accurate reports, whether the drug purchases were recorded, and whether all evidence against Defendant was based solely on the undercover officer's recollection. The State then sought to introduce evidence of the c-scales found at Defendant's residence. The trial court ruled that defense counsel had opened the door by attacking the undercover officer's credibility and that evidence of the c-scales could be introduced to corroborate the officer's testimony.
¶8 Additionally, Defendant claims that error occurred during the direct examination of the undercover officer. During his direct examination, the officer testified that after he purchased marijuana from Defendant, the two of them were drinking beer and Defendant stated that his girlfriend told him that the officer was an undercover agent. The officer denied that he was and advised Defendant to tell his girlfriend to stop spreading that rumor. The officer then stated that he was familiar with Defendant's girlfriend because he had made several drug purchases from her in the past while undercover. Defense counsel did not object. Defendant claims that the court erred in allowing this unfairly prejudicial testimony to be introduced.
¶9 Defendant alleges that the State did not inform him about his target status and deprived him of his right to testify before the grand jury. See NMSA 1978, § 31-6-11(B) (1981). The trial court rejected Defendant's argument as untimely.
¶10 Rule 5-601(D) NMRA 1998 requires that a party in a criminal proceeding must make motions at the time of arraignment or twenty days thereafter unless good cause is shown and the court waives the time requirement. Defendant did not file a motion to dismiss for failure to provide target notice until eight months after he was arraigned, and he did not show any cause below or on appeal for waiving the time limit. Thus, we agree with the trial court that the motion was untimely, and we affirm on this basis.
¶11 Law enforcement officers are required to file an oath and appointment with the county and district court clerks. See NMSA 1978, § 4-41-10 (1983). Additionally, law enforcement officers must comply with certain qualifications for certification. See NMSA 1978, § 29-7-6 (1993). Defendant argues that the undercover officer did not comply with any of these requirements. The State addressed the merits of Defendant's issue and also argued that the statutes in question do not provide a remedy for failure to comply and that dismissal of the charges is unwarranted. We agree with the latter argument.
¶12 We hold that the remedy Defendant was looking for, dismissal, was not appropriate. There is no authority which, under these circumstances, would prevent an undercover officer from testifying because that person is not certified as a law enforcement officer. Rather, the admission of a witness's testimony is governed by Rule 11-602 NMRA 1998, which allows a witness who has personal knowledge of the matters to testify.
¶13 Moreover, as we held in State v. Martinez, 104 N.M. 584, 587, 725 P.2d 263, 266 (Ct.App.1986), the decision to allow the witness to testify about his employment is within the trial court's discretion. In Martinez, the defendant issued a challenge, much like the challenge in this case, to a special deputy's qualifications under Section 4-41-10. See Martinez, 104 N.M. at 586-87, 725 P.2d at 265-66. We agree with the conclusion in Martinez that the admission of evidence is within the trial court's discretion and that no error occurred in allowing the officer to testify. See id. at 587, 725 P.2d at 266.
¶14 In this case, we cannot say that the trial court abused its discretion in allowing the witness to relate his work history and undercover assignments. See State v. Worley, 100 N.M. 720, 723, 676 P.2d 247, 250 (1984) (). Additionally, Defendant has not referred our attention to how he was specifically prejudiced by the officer's lack of certification. Contrary to Defendant's assertions, the undercover officer did not arrest or charge him. Thus, we affirm on this issue.
¶15 Defendant contends that the undercover officer's testimony that he purchased drugs from Defendant's girlfriend was unfairly prejudicial because the jury was more likely to convict Defendant due to his association with drug dealers. Despite Defendant's arguments, we affirm on this issue.
¶16 Defendant did not object to the testimony and has not preserved this issue for appellate review. See State v. Lopez, 105 N.M. 538, 544, 734 P.2d 778, 784 (Ct.App.1986) (). Defense counsel claims that he did not object because he could not anticipate the officer's testimony. Nonetheless, defense counsel heard the testimony in the courtroom and did not object at that time. Nor did defense counsel object when the prosecutor later asked the officer "[a]nd had you made a purchase from [the girlfriend]?" We cannot excuse defense counsel's failure to timely object to either of the two references to Defendant's girlfriend selling drugs to the undercover officer. See State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct.App.1986) ().
¶17 Nor do we find the presence of fundamental error. See State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1...
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...no error in the actions and decisions of the trial court, there is no cumulative error. See State v. Vallejos, 1998-NMCA-151, ¶ 32, 126 N.M. 161, 967 P.2d 836. CONCLUSION {20} For the foregoing reasons, this Court affirms the judgment of the trial {21} IT IS SO ORDERED. M. CHRISTINA ARMIJO,......
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