State v. Alberts

Decision Date01 August 1969
Docket NumberNo. 283,283
Citation80 N.M. 472,457 P.2d 991,1969 NMCA 64
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Cheryl ALBERTS, now Cheryl Miller, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

OMAN, Judge.

Defendant appeals from her conviction of possession of marijuana in violation of § 54--7--13, N.M.S.A.1953 (Repl. Vol. 8 pt. 2). She was tried jointly with the defendant named in State v. Miller, 80 N.M. 227, 453 P.2d 590 (Ct.App.1969), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969). She was the female companion of Mr. Miller referred to in the opinion in that case. They have married since their trial and convictions.

Whenever defendants is used herein, reference is being made to both the defendant in this case and to Mr. Miller. When defendant alone is used, reference is being made to defendant in the present case.

Defendant relies upon four points for reversal. We consider only one of these points, which requires a reversal and remand for a new trial. This point is that:

'The trial court erred in allowing prejudicial testimony into the record concerning hearsay statements that the defendant was engaged in illegal marijuana traffic.'

The first witness called by the State was Officer Sedillo, a narcotics agent and criminal investigator for the New Mexico State Police. After testifying as to his training and experience in the field of law enforcement, and the role he usually assumes as an undercover narcotics agent, he further testified he had acted in an undercover capacity in the Portales, New Mexico area during October 1967. On October 5, 1967, he went to Portales. On October 6, he conversed with the local law enforcement officers, including the County Sheriff, the Assistant Chief of the Portales City Police, and a young man who worked with the local police in an undercover capacity. He testified these officers briefed him as to '* * * names, addresses, (and) locations of people alleged to have been dealing in illegal marijuana traffic.'

The District Attorney then started to ask if the names of Thomas Daniel Miller and Cheryl Lynne Alberts had been called to his attention. As soon as the names were mentioned and before the question was completed, defendant objected on the grounds that the question called for hearsay and was prejudicial. She also moved for a mistrial.

The trial court announced the testimony was admissible as an exception to the hearsay rule, because it was not being offered to prove the truth of any charge pending in the case, but '* * * only to establish the reason for investigation and to show probable cause.'

The witness was then permitted to testify that the defendants were named by the local law enforcement officers; that during the evening of October 6, he took '* * * some other subjects to the residence of the defendant'; that he could not identify either of the defendants as persons he saw there at that time; and that one of the 'subjects' had recognized him as a narcotics agent. Another question was asked concerning this particular subject who had recognized him, but his answer to this question was never concluded.

Defendant moved that the testimony of Officer Sedillo be stricken and that her prior objections thereto be sustained. No ruling was made by the court upon this motion, but the court did thereupon direct the jury to retire from the courtroom.

The remainder of the testimony of Officer Sedillo and the testimony of two other witnesses was presented to the court in the absence of the jury. Apparently the purpose of this inquiry in the absence of the jury was to determine whether the officers had probable cause to believe defendants had committed a felony, and, if so, whether they were therefore justified in arresting defendants without a warrant and in searching the premises incident to the arrests.

The court expressed doubts about the sufficiency of the evidence to establish probable cause for a belief that Defendant Alberts and committed a felony, but ruled that:

'* * * as long as the Officers had probable cause to believe that the defendant Miller had committed a felony they had cause to arrest him without a warrant and to search the premises where he was arrested without a warrant. * * *'

The only testimony of Officer Sedillo, which was presented to the jury, was that portion thereof to which reference is above made as having been presented prior to the retirement of the jury from the courtroom. Thus, his testimony before the jury consisted of his identification of himself by name, place of residence and occupation; his statement as to the nature and extent of his training and experience as a law enforcement officer; his statement as to the role he ordinarily assumes and his manner of operating as an undercover narcotics agent; he fact that he had gone to Protales on October 5 to perform undercover activities; has statement about conferring with and being briefed by local law enforcement officers on October 6 as to the names, addresses and locations of 'people alleged to have been dealing in illegal marijuana traffic'; the naming by the local law enforcement officers of the defendants as two of these people; and the statement concerning the taking of 'subjects' to the residence of defendants. This testimony remained before the jury.

Defendants were not arrested until November 3, 1967, and they were not arrested pursuant to any warrant, or pursuant to any probable cause the officers may have had for believing defendants, or either of them, had committed a felony. Defendants were first arrested for unlawful cohabitation, which, under the circumstances here present, is not even defined as a petty misdemeanor under our statute. See § 40A--10--2, N.M.S.A.1953 (Repl. Vol. 6). Defendants...

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19 cases
  • State v. Aguayo, 12957
    • United States
    • Court of Appeals of New Mexico
    • 17 Abril 1992
    ...the defendant's bad character or disposition to commit the crime charged is clearly inadmissible and prejudicial. State v. Alberts, 80 N.M. 472, 457 P.2d 991 (Ct.App.1969). The courts have recognized this distinction by generally admitting evidence of "battered child syndrome,"5 but uniform......
  • State v. Rosales
    • United States
    • New Mexico Supreme Court
    • 3 Junio 2004
    ...In State v. Johnson, 99 N.M. 682, 687, 662 P.2d 1349, 1354 (1983), we reaffirmed the "longstanding rule" of State v. Alberts, 80 N.M. 472, 474-75, 457 P.2d 991, 993-94 (Ct.App.1969) (emphasis added), where the Court of Appeals Extrajudicial statements or writings may properly be received in......
  • State v. Otto
    • United States
    • New Mexico Supreme Court
    • 23 Febrero 2007
    ...Therefore, we hold that the trial court did not abuse its discretion in admitting these statements. {19} Quoting State v. Alberts, 80 N.M. 472, 457 P.2d 991 (Ct.App.1969), that "evidence must be consistent with a legitimate and have some probative effect upon an issue in the case," the diss......
  • 1998 -NMCA- 107, Silverman v. Progressive Broadcasting, Inc.
    • United States
    • Court of Appeals of New Mexico
    • 8 Julio 1998 to show that she actually did make the logo too small, but rather that Sevieri accused her of this. See State v. Alberts, 80 N.M. 472, 474-75, 457 P.2d 991, 993-94 (Ct.App.1969). We also acknowledge that Plaintiff introduced evidence that the logo matter came up "after the fact" because ......
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