State v. Cerda
| Decision Date | 28 February 2023 |
| Docket Number | A-1-CA-38438 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JAIME CERDA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Steven Blankinship District Court Judge
Raul Torrez, Attorney General Santa Fe, NM Walter Hart, Assistant Attorney General Albuquerque, NM for Appellee
Bennett J. Baur, Chief Public Defender William O'Connell Assistant Appellate Defender Santa Fe, NM for Appellant
{¶1} Defendant Jaime Cerda appeals his convictions for aggravated fleeing a law enforcement officer (NMSA 1978, § 30-22-1.1(A) (2003, amended 2022)); two counts of possession of a controlled substance (marijuana and methamphetamine) (NMSA 1978, § 30-31-23(A) (2011, amended 2021)); two counts of tampering with evidence (marijuana and methamphetamine) (NMSA 1978, § 30-22-5 (2003)); resisting, evading or obstructing an officer (NMSA 1978, § 30-22-1(D) (1981)); and possession of drug paraphernalia (NMSA 1978, § 30-31-25.1(A) (2001, amended 2022)). Defendant raises various claims of error on appeal. We reverse Defendant's tampering with evidence (marijuana) conviction on double jeopardy grounds; unpersuaded by Defendant's remaining claims, we otherwise affirm.
{¶2} The charges in this case arose from Defendant's flight from a police officer and subsequent standoff with law enforcement while Defendant took refuge in his cousin's trailer home. Following a jury trial, Defendant was convicted of the abovereferenced crimes. He raises the following arguments on appeal: (1) the admission of uncharged bad-act evidence constituted plain error; (2) the district court abused its discretion by denying his request to call what he says was a rebuttal witness; (3) the district court's restitution order is invalid; and (4) the two tampering convictions violate the double jeopardy protection against multiple punishments for the same offense. We address these arguments in turn.
{¶3} First, we address Defendant's argument that the district court erred by allowing "the State to present extensive evidence of uncharged misconduct involving damage [Defendant] caused to the trailer" during his standoff with law enforcement. Because Defendant did not object to the introduction of this evidence, our review is for plain error. See State v. Muller, 2022-NMCA-024, ¶ 42, 508 P.3d 960; see also Rule 11-103(E) NMRA ().
{¶4} "The plain-error rule applies only if the alleged error affected the substantial rights of the accused." Muller, 2022-NMCA-024, ¶ 43 (). "Because it is an exception to the preservation requirement, we apply the rule sparingly and only when we have grave doubts about the validity of the verdict, due to an error that infects the fairness or integrity of the judicial proceeding." Id. (internal quotation marks and citation omitted). "Furthermore, a determination of whether reversal is warranted on the ground of plain error ultimately requires an examination of the alleged errors in the context of the testimony as a whole." Id. (internal quotation marks and citation omitted). The burden is on the defendant asserting plain error. See id.; cf. State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 ().
{¶5} Even if we assume that the admission of the evidence at issue was erroneous under Rule 11-404(B) NMRA or Rule 11-403 NMRA, as Defendant contends,[1]Defendant fails to persuade us it rose to the level of plain error. Despite acknowledging that the plain-error standard applies, Defendant does not explain how the standard is met-i.e., how the introduction of the evidence, considered in the context of the evidence as a whole, affected his substantial rights. Nor does Defendant analyze how the purported error infected the fairness or integrity of his trial such that we should have grave doubts about the validity of the verdict. See Muller, 2022-NMCA-024, ¶ 43. Instead, Defendant-citing the nature of the evidence admitted and the State's failure to give notice of an intent to offer the evidence-contends only that the error is "obvious" and prejudice is "inherent." In the absence of a developed plain-error argument, Defendant fails to persuade us he is entitled to reversal on this issue. See id. ¶¶ 43-45 (); see also State v. Flores, 2015-NMCA-002, ¶ 17, 340 P.3d 622 .
{¶6}Next, we address Defendant's argument that the district court abused its discretion by denying his request to call his brother to testify as a rebuttal witness. According to Defendant, this testimony was needed to impeach Defendant's cousin, who testified that he had not been with Defendant at the trailer playing video games on the day of the incident. Defendant's brother purportedly would have testified that, while in North Dakota, he was playing video games online with both Defendant and his cousin that afternoon. The district court agreed with the State that the testimony Defendant sought to introduce was alibi-not rebuttal-evidence, and, as such, should have been, but was not, disclosed before trial pursuant to Rule 5-508 NMRA. Additionally, the court found that Defendant's nondisclosure was not excused by any genuine surprise at trial and that the lack of notice prejudiced the State. The district court accordingly disallowed the testimony.
{¶7} Defendant's argument on this issue is less than clear. He asserts he "does not accept" the State's "characterization" of the brother as an alibi witness, but does not explain why it was error for the district court to determine that the brother was an alibi, as opposed to a rebuttal, witness. We accordingly reject, as undeveloped, Defendant's suggestion that the district court erred in treating the brother's testimony as alibi evidence. See State v. Candelaria, 2019-NMCA-032, ¶ 48, 446 P.3d 1205 (declining to address an undeveloped claim); see also State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (providing that appellate courts are under no obligation to review undeveloped arguments).
{¶8} Anticipating that we might conclude the district court did not err in determining the brother to be an alibi witness, Defendant, relying on McCarty v. State, 1988-NMSC-079, 107 N.M. 651, 763 P.2d 360, argues that the district court nonetheless erred in barring the brother's testimony. We disagree. McCarty observed it was "clear that a trial court [has] the discretion to preclude defense testimony as a sanction for failure to comply with a demand for notice of alibi." Id. ¶ 15. In exercising such discretion, "the trial court should balance the potential for prejudice to the prosecution against the impact on the defense and whether the evidence might have been material to the outcome of the trial." Id. ¶ 10; see also id. ¶ 15 (). Further, "[t]he trial judge should consider whether the noncompliance was a willful attempt to prevent the [s]tate from investigating facts necessary for the preparation of its case." Id. ¶ 16. In light of these considerations, McCarty concluded it was an abuse of discretion to exclude the defendant's alibi witness for failure to provide proper notice, because the state was not prejudiced by the lack of notice, the testimony was critical to the defense, and defense counsel's conduct in not providing notice was deemed not willful. Id. ¶ 17.
{¶9} McCarty does not compel the conclusion that the district court here abused its discretion. Although the State was able to interview the brother during a lunch recess, the State nonetheless was prejudiced by the lack of notice because, as the district court found and Defendant fails to recognize, the prosecution had no opportunity to obtain online or other records confirming or refuting the brother's proffered testimony. This is in contrast to the circumstance in McCarty, where there was no such prejudice. See id. Furthermore, Defendant does not analyze the relative weight of that prejudice against the impact on his defense. This case is thus unlike McCarty, where "the precluded testimony was critical to the defense's ability to impeach the credibility of the [s]tate's key witness." See id. Lastly, the district court here found that defense counsel's nondisclosure was not excused by any genuine surprise in the cousin's testimony-a finding, the State submits, that amounts to a determination that the lack of notice was willful. This again is in contrast to McCarty, where no such willfulness was found. See id. ¶¶ 16-17.
{¶10} Under these circumstances, we reject Defendant's argument that the district court abused its discretion by preventing him from calling his brother as a witness. See State v....
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