State v. Acosta

• Decision Date: 02 September 2015
• Docket Number: No. 33,473.,33,473.
• Citation: 363 P.3d 1240
• Parties: STATE of New Mexico, Plaintiff–Appellant, v. Juan Carlos ACOSTA, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

363 P.3d 1240

STATE of New Mexico, Plaintiff–Appellant,

v.Juan Carlos ACOSTA, Defendant–Appellee.

No. 33,473.

Court of Appeals of New Mexico.

Sept. 2, 2015.

Hector H. Balderas, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellant.

Jorge A. Alvarado, Chief Public Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

GARCIA, Judge.

{1} The State appeals the district court's order granting Defendant's motion for a new trial. This case presents the following issues: (1) the State's ability to appeal the grant of a new trial based upon an evidentiary ruling, the district court's jurisdiction to grant a motion for a new trial on grounds that were raised sua sponte more than ten days after the verdict, and (3) whether the grant of a new trial was an abuse of discretion under the circumstances of this case. We affirm.

BACKGROUND

{2} Defendant was indicted by a grand jury on June 2, 2011, for trafficking a controlled substance (cocaine) by possession with intent to distribute, child abuse, conspiracy to commit trafficking a controlled substance by possession with intent to distribute, and possession of drug paraphernalia. The indictment stated that the crimes occurred on or about October 19, 2010, the date that the search warrant was executed. As part of the State's investigation, three uncharged controlled buys were executed by officers, with the assistance of a confidential informant (CI), in the weeks prior to the execution of the search warrant.

{3} On August 19, 2013, the day before trial commenced, Defendant filed a motion in limine to exclude "[a]ny information provided by the [CI] to the police officers regarding ... Defendant" on the grounds that it would be "inadmissible hearsay." A hearing was held on the same day, during which defense counsel argued that if the officers testified at trial that a CI told them that Defendant was selling drugs, and the CI was not going to testify at trial, that testimony would present confrontation clause and hearsay problems. Defense counsel noted that he was not concerned with the officers "mentioning that based on their investigation they decided to get a search warrant[.]" The State argued that "the officer has a right to testify that [he] gave a [CI] money, [the CI] met with ... Defendant[,] [m]oney that was provided to the [CI] was gone, and there were drugs in [the CI's] possession, which he observed [as having occurred] hand-to-hand." The district court replied that if the officers personally observed the hand-to-hand exchange during the controlled buys, they could testify as to those observations; however, because the CI was unavailable, the officers could not testify as to what the CI told them. Ultimately, the district court agreed to reserve ruling on the matter.

{4} During the same motion hearing, defense counsel moved to exclude as inadmissible character evidence "any testimony from any detective that [he or she] had previous knowledge of my client[, such as] saying we knew [Defendant], we knew him well and he was up to no good[.]" See Rule 11–404(A) NMRA (providing that evidence of a person's character or character trait is inadmissible to prove conformity therewith on a particular occasion). In response, the prosecutor indicated that "[he did not] anticipate the officers testifying to anything outside of this current investigation[,]" specifically stating that the officers would not testify about Defendant's 1997 arrest for trafficking. The morning of trial, the State again asked the district court whether the officers could testify as to their observations of the CI, and the district court agreed.

{5} Jury trial began on August 20, 2013. The State argued in its opening statement that Sergeant Carpenter of the Albuquerque Police Department would testify that with the assistance of a CI, he observed Defendant take part in three controlled buys. The State explained that after the three controlled buys, a search warrant was obtained for an apartment thought to be Defendant's residence. Sergeant Carpenter subsequently testified about the controlled buys and the events that transpired the day that the search warrant was executed, and the defense did not object to the testimony about the controlled buys. The theory of the defense was that Defendant was not a resident of the apartment, that he happened to be in the area "by chance," and that there was no evidence against him at all.

{6} The jury found Defendant guilty of trafficking a controlled substance by possession with intent to distribute, conspiracy to commit trafficking a controlled substance by possession with intent to distribute, abuse of a child, and possession of drug paraphernalia. Defendant filed a timely motion for a new trial, see Rule 5–614(C) NMRA (providing that a motion for a new trial based upon any grounds other than newly discovered evidence must be made within ten days of the verdict or within the grant of a motion for extension of time by the court within that ten-day period), citing inconsistent witness testimony and improper prosecutorial comment during closing argument.

{7} At the motion hearing, the district court granted Defendant's motion for a new trial, but it did so on new grounds that the court raised sua sponte. First, the indictment stated that the charges stemmed from the execution of a search warrant on October 19, 2010, but the State introduced evidence of previous controlled buys involving Defendant that were conducted in the weeks prior. Second, the defense did not have reasonable notice of the State's intent to introduce this prior bad acts evidence, as required by Rule 11–404(B). Third, this failure to give notice prejudiced Defendant because it was the only evidence tying Defendant to the apartment, to the co-defendant, and to the drugs found on the co-defendant. The instant appeal ensued, with the State challenging the district court's grant of a new trial.

DISCUSSION

A. The State's Ability to Appeal the Order Granting a New Trial

{8} Because it implicates our authority to hear this appeal, we turn first to Defendant's contention that the State may not appeal the district court's order granting a new trial. In support of his contention, Defendant relies upon State v. Griffin, 1994–NMSC–061, ¶ 11, 117 N.M. 745, 877 P.2d 551, for the proposition that the grant of a new trial is appealable by the State only when the district court's ruling is based on a determination of prejudicial legal error. Defendant asserts that the district court's grant of a new trial was premised on the fact-based admission of evidence under Rule 11–404(B)(2), and because an evidentiary ruling is discretionary, the ruling does not present a legal question. We disagree.

{9} In State v. Chavez, our Supreme Court explained that Article VI, Section 2 of the New Mexico Constitution permits the State to appeal an order granting a new trial because the State has a "strong interest in enforcing a lawful jury verdict." 1982–NMSC–108, ¶ 6, 98 N.M. 682, 652 P.2d 232. This holding was later limited by Griffin, which provided that in a criminal case, the State may only appeal "an order in which it is claimed the grant of a new trial was based on an erroneous conclusion that prejudicial legal error occurred during the trial or that newly-discovered evidence warrants a new trial." 1994–NMSC–061, ¶ 11, 117 N.M. 745, 877 P.2d 551.

{10} At the hearing on Defendant's motion for a new trial, the district court noted that even though the indictment charged only conduct that was discovered during the execution of the search warrant, the State introduced evidence at trial of prior uncharged controlled buys involving Defendant that were made in the weeks leading up to the execution of the search warrant. Because uncharged misconduct falls within the ambit of Rule 11–404(B), which requires reasonable notice prior to introduction at trial, the district court found that the State did not provide reasonable notice to Defendant of its intent to use these prior controlled buys. See Rule 11–404(B)(2)(a), (b) (providing that, in a criminal case, evidence of other crimes may be admissible for certain purposes, but the prosecution must give reasonable notice of the general nature of any such evidence before trial, or during trial if the district court excuses the lack of pretrial notice for good cause). The district court further suggested that in any second trial, the State could either amend the indictment to include the prior controlled buys, or file a notice of intent to use Rule 11–404(B) evidence.

{11} Importantly, the district court's ruling was not that the evidence of uncharged controlled buys would or would not have been admissible under Rule 11–404(B). If the prosecution had provided reasonable notice, and if the defense had then objected to the evidence, the district court would have been presented with an opportunity to rule on the admissibility of this evidence. Instead, the district court concluded that under the facts of this case, because the prior controlled buys were uncharged misconduct, the prosecution failed to reasonably notify the defense of its intent to introduce such evidence, which was contrary to Rule 11–404(B) and prejudicial to the defense. Because the district court's ruling hinged upon the interpretation and application of the notice requirement of Rule 11–404(B)(2) to the facts of this case, we hold that the district court's grant of a new trial was based on the conclusion that prejudicial legal error occurred, which the State was permitted to immediately appeal. See Griffin, 1994–NMSC–061, ¶ 14, 117 N.M. 745, 877 P.2d 551 (holding, in a case where the only basis for the grant of a new trial was newly-discovered evidence, that such an order was appealable "because it presents a question of law easily reviewed by an appellate court and not a question of fact as to the correctness of a discretionary ruling"); see...