State v. Jimenez

• Decision Date: 14 February 2017
• Docket Number: NO. 34,375,34,375
• Citation: 392 P.3d 668
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. NOE JIMENEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

392 P.3d 668

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.NOE JIMENEZ, Defendant-Appellant.

NO. 34,375

Court of Appeals of New Mexico.

Filing Date: February 14, 2017

Certiorari Denied April 6, 2017, No. S-1-SC-36346

Hector H. Balderas, Attorney General, Santa Fe, NM, Jane A. Bernstein, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

HANISEE, Judge.

{1} Defendant, a self-represented litigant who was assisted by standby counsel at trial, was charged with and convicted of being a felon in possession of a firearm in violation of NMSA 1978, Section 30-7-16 (2001), and resisting, evading, or obstructing an officer in violation of NMSA 1978, Section 30-22-1(B) (1981). Defendant appeals both convictions and proffers myriad arguments to support reversal. He asserts: (1) his Sixth Amendment right under the United States Constitution to confront witnesses was violated, (2) the State failed to present sufficient evidence to sustain his convictions, (3) the district court committed fundamental error when it failed to properly instruct the jury on the relevant law for constructive possession, (4) the district court erred when it allowed the State to introduce evidence of Defendant's pending civil lawsuit against the City of Las Cruces, and (5) the State committed prosecutorial misconduct. We affirm in part, reverse in part, and remand for resentencing in accordance with this opinion.

BACKGROUND

{2} On February 25, 2012, Defendant went to the Arid Club in Las Cruces, New Mexico. The Arid Club is a place where Alcoholics Anonymous and Narcotics Anonymous meetings are held. Defendant was a member of the Arid Club and went to the club that day because he was having a bad day and wanted to talk to someone. Defendant donned a black bandana, a black shirt, Army pants, biker boots, and a bulletproof vest which was worn underneath his shirt. According to Defendant, this was his normal attire except for the bulletproof vest, which he wore that day because he felt his life was in danger. Defendant was also carrying nunchucks.

{3} Only three people were at the Arid Club when Defendant arrived. One was Brandon Chandler, a volunteer at the club who was running the snack bar that day. Another was someone who identified himself to police as Chandler's case manager. The third person was never identified in the record. At some point after Defendant had entered the Arid Club, the Las Cruces Police Department responded to a call at the club. It is unclear exactly who called the police, what was reported, and to what kind of incident police believed they were responding.

{4} Wallace Downs, a detective with the Las Cruces Police Department at the time of the incident, testified at trial that he went to the Arid Club in response to a call from another officer, Sergeant Ronnie Navarrete, who had been "flagged down" at the club. After briefly speaking with Sergeant Navarrete, who did not testify at trial, Detective Downs began interviewing people at the scene to try to determine if there were any witnesses who could describe what was going on inside the club. Detective Downs spoke with the person who identified himself as Chandler's case manager. The case manager said he had a phone number for Chandler, with whom Detective Downs was then able to make telephonic contact.

{5} According to Detective Downs, Chandler "was talking very low as if he were scared or concerned." There was conflicting testimony regarding whether Chandler was being held against his will inside the Arid Club, but Detective Downs testified that Chandler told him that there was a person inside with a gun and that he did not think he could leave. Defendant testified that Chandler was free to leave at any time. Everyone agreed that once Chandler gave Defendant the phone and Detective Downs asked Defendant to let Chandler leave the club, Chandler walked out within minutes.¹

{6} Detective Downs spent approximately one hour on the phone with Defendant, first building a rapport with him and then asking that Defendant surrender to police. Defendant stated that he was armed with a gun, did not want to "go on ... living," and wanted to have the police shoot him. Detective Downs requested at least three to five times that Defendant put down his weapon and come out with his hands up to surrender to police. Detective Downs recalled that Defendant agreed to surrender a couple of times but never did. Eventually, the call ended because the battery in the phone Defendant was using died.

{7} Soon after, a tactical team that had assembled on scene, consisting of SWAT officers and a K-9 unit, entered the Arid Club and apprehended Defendant. According to Joshua Savage, an officer assigned to the Las Cruces Police Department's K-9 unit, Defendant did not immediately surrender, and application of force was necessary to bring him into custody.

{8} Following Defendant's arrest, police searched the Arid Club and obtained a search warrant for the car that Defendant drove there. Inside the club, police recovered a gun that contained six bullets, two of which were live rounds, and a bullet on the floor. Another forty-five rounds of ammunition were located in a bag found inside the vehicle driven by Defendant.

{9} Defendant appeals both counts of conviction. Additional facts are provided as necessary to our discussion.

DISCUSSION

{10} First we take up the ammunition's admissibility, which hinges on Defendant's Confrontation Clause argument, then discuss whether there was sufficient evidence to support Defendant's convictions. Next, we address whether the district court erred in instructing the jury and allowing evidence of Defendant's pending lawsuit against the City of Las Cruces before turning to Defendant's claim of prosecutorial misconduct.

I. The Trial Court Did Not Violate Defendant's Right of Confrontation When it Admitted Evidence Seized From Defendant's Car Without Defendant Having an Opportunity to Confront the Officers Who Prepared and Executed the Search Warrant

{11} Defendant argues that his Sixth Amendment right to be confronted with the witnesses against him was violated when the State presented physical evidence seized from his car without calling certain witnesses. The central thrust of Defendant's argument on appeal is that he had the right to confront officers that searched his car and the officer that arrested him. Absent such opportunity, Defendant contends, the district court erred by denying his motion to suppress evidence, including the ammunition recovered from his car. Defendant also makes a perfunctory argument that his right of confrontation was violated because the officer who prepared the search warrant for his car was not present at trial. Defendant misunderstands the scope of the Confrontation Clause, and we take this opportunity to address evidence and testimony to which it does not apply.

{12} The Sixth Amendment's Confrontation Clause entitles a criminal defendant to "be confronted with the witnesses against him[.]" U.S. Const. amend. VI. Challenges under the Confrontation Clause must be resolved as a matter of law, which we review de novo. See State v. Huettl , 2013-NMCA-038, ¶ 16, 305 P.3d 956. The Confrontation Clause "prohibits the introduction of testimonial hearsay unless the accused has had the opportunity to cross-examine the declarant." State v. Carmona , 2016-NMCA-050, ¶ 15, 371 P.3d 1056 (citing Crawford v. Washington , 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ). It "applies to witnesses against the accused who provide testimony for the purpose of establishing or proving some fact." Huettl , 2013-NMCA-038, ¶ 16, 305 P.3d 956. "[A] person is a witness for Confrontation Clause purposes when that person's statements go to an issue of guilt or innocence." State v. Aragon , 2010-NMSC-008, ¶ 8, 147 N.M. 474, 225 P.3d 1280, overruled on other grounds by State v. Tollardo , 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. "Testimonial statements" include those that convey information about evidence that was gathered after an "emergency has been resolved and the police have turned their attention to collecting evidence for use in a criminal prosecution against a known criminal perpetrator." Carmona , 2016-NMCA-050, ¶¶ 17, 19, 371 P.3d 1056. "[B]asis evidence," which includes out-of-court-statements that form the basis for a testifying witness's conclusion, whether expert or lay, is testimonial and "therefore must be subjected to Confrontation Clause scrutiny." Id. ¶ 37 ; see also State v. Navarette , 2013-NMSC-003, ¶¶ 13-14, 294 P.3d 435 (discussing Williams v. Illinois , 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012) ). However, where a witness testifies from personal knowledge and neither makes a statement nor draws a conclusion that is based on hearsay, the Confrontation Clause is not implicated at all. See Crawford , 541 U.S. at 51-52, 124 S.Ct. 1354 (holding that the Confrontation Clause is intended to bar the admission of testimonial hearsay); United States v. Ibarra-Diaz , 805 F.3d 908, 919-20 (10th Cir. 2015) (explaining that testimony that communicates no hearsay "is generally of no concern to the Confrontation Clause").

{13} We apply these principles to Defendant's argument that the district court erred by admitting evidence seized from Defendant's car when Defendant did not have the opportunity to confront particular officers involved in the seizure and his arrest.² Atypically given our consideration of the merits of the issue on appeal, Defendant did not contemporaneously object to the admission of either State's Exhibit 34, the forty-five rounds of bullets, or State's Exhibit 35, the black bag in which the ammunition was found. Rather, after the evidence had been admitted and after the State rested, standby counsel moved to suppress Exhibits 34 and 35, arguing that the State had failed to lay the proper foundation for their...