State v. Contreras

• Decision Date: 26 February 2007
• Docket Number: No. 25,526.,25,526.
• Citation: 2007 NMCA 045,156 P.3d 725
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard Anthony CONTRERAS, a/k/a Richard A. Contreras, a/k/a/ Richard Contreras, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

156 P.3d 725

2007 NMCA 045

STATE of New Mexico, Plaintiff-Appellee, v. Richard Anthony CONTRERAS, a/k/a Richard A. Contreras, a/k/a/ Richard Contreras, Defendant-Appellant.

No. 25,526.

Court of Appeals of New Mexico.

February 26, 2007.

Certiorari Granted, No. 30,289, April 16, 2007.

Gary K. King, Attorney General Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM for Appellee.

John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate, Defender Santa Fe, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} A jury convicted Richard Anthony Contreras (Defendant) on several drug charges after he sold cocaine to an undercover police officer. Following trial, the district court sentenced Defendant to twenty-six years and six months imprisonment based in part on its finding that Defendant was a habitual offender with three prior felony convictions. Defendant raises several issues on appeal, including his contention that the district court improperly enhanced his sentence based on the 1989 conviction of his brother, Robert Anthony Contreras. We agree with Defendant that the district court erred in this regard. We therefore vacate Defendant's sentence and remand to the district court for resentencing. In all other respects, we affirm.

BACKGROUND

{2} The facts of this case are not in dispute. On July 19, 2001, Defendant met with undercover agents John Vigil and Albert Mora of the New Mexico State Police at a motel in Doña Ana County. After the agents made contact with Defendant through one of Defendant's acquaintances, Defendant introduced himself to the agents and got into their truck. Defendant then directed the agents to a residence. While en route to the residence, Defendant told the agents several things about himself, including that he had recently been released from prison. Upon arrival, Defendant and Agent Mora went into the residence while Agent Vigil remained in the truck. Defendant's supplier arrived at the residence several minutes later.

{3} Defendant left Agent Mora for a minute and then returned. Defendant then asked Agent Mora to follow him into the restroom. Once in the restroom, Defendant showed Agent Mora a clear plastic bag containing what the agent believed to be approximately one-half ounce of cocaine. Defendant dumped the cocaine onto a counter top, separated some of it and placed the separated portion into another plastic bag for Agent Mora. Agent Mora gave Defendant $120 cash in exchange for the cocaine, which Agent Mora believed to weigh slightly over four grams. Defendant kept the remainder of the cocaine.

{4} Once the transaction was complete, Defendant and Agent Mora came out of the residence and got back into the truck where Agent Vigil was waiting. The agents drove Defendant back to the motel where they originally met and dropped him off. Defendant told the agents where they could find him if they needed any more cocaine. The agents later verified that a "Richard Contreras" had recently been released from prison and acquired a mug shot of him from the Corrections Department. A forensic laboratory technician confirmed that the substance Defendant sold to Agent Mora was cocaine.

{5} Defendant was indicted on March 7, 2003, and charged with trafficking cocaine, contrary to NMSA 1978, § 30-31-20(A)(2) (1990) (amended 2006); conspiracy to commit cocaine trafficking, contrary to NMSA 1978, § 30-28-2 (1979) and Section 30-31-20(A)(2); and possession of cocaine, contrary to NMSA 1978, § 30-31-23 (1990) (amended 2005). Several weeks later, Defendant was arraigned and entered a plea of not guilty. On April 14, 2003, Defendant's attorney entered his appearance. The case went to trial on September 22, 2003.

{6} Anticipating a defense of mistaken identity, the State made a pretrial motion to allow the agents to testify regarding their verification of Defendant's comment that he had recently been released from prison. The court indicated that it would be inclined to allow such testimony if Defendant were to assert mistaken identity. Defense counsel noted immediately in his opening statement that "a lot of time had passed" and "a lot of memories have faded" since the alleged drug deal took place. He went on to state that "[t]he agent involved in this case was involved in some 171 cases, there's so many cases that . . . he could have made a mistake. His memory could be faulty and he may not have . . . the right defendant in this case."

{7} Agent Vigil testified at the trial and identified Defendant in the courtroom. On direct examination, Agent Vigil stated that he had been sitting next to Defendant in the truck on the day of the alleged drug deal and that he clearly saw Defendant's face. Shortly thereafter, the following exchange took place between the prosecutor and Agent Vigil:

Q: What did the defendant tell you when you got back to the Townhouse [motel]?

A: I can't really recall the conversation, but we just talked about odd things. He mentioned stuff about himself, him spending time in prison.

Defense counsel objected and the court sustained the objection. However, defense counsel revisited the issue of mistaken identity on cross-examination:

Q: And some two years later you're saying that based on that one time that you saw him that you can identify him, Richard Contreras, as being one in the same [as the] person in the courtroom today?

A: Correct.

Q: Out of 171 people who were arrested, can you point out one individual?

A: Correct.

Q: Quite a memory; isn't it?

A: Well, sir, number one, we've got to do a report as soon as we can get it done. And during our investigation we try [to] obtain all these photos of these individuals.

Defense counsel later asked:

Q: So in the year you had this undercover operation going you only made contact with a Richard Contreras [on] July 19, 2001, and no other time?

A: That is correct.

{8} Following this exchange, the State asked for a bench conference. The State renewed its pretrial motion, arguing that Defense Counsel had raised the issue of mistaken identity, thereby opening the door to introduction of the agents' testimony regarding their verification of Defendant's comments about his release from prison. Defense counsel responded that the court should not allow such testimony because it would be more prejudicial than probative. The district court granted the State's motion, ruling that defense counsel's opening statement and questions on cross-examination clearly put identity at issue.

{9} On redirect examination, the State asked Agent Vigil how he was able to identify Defendant. Agent Vigil testified that his memory of the events of July 19, 2001, was good. He also stated that he was able to identify Defendant because they were sitting next to each other in the truck and they were talking to each other. Additionally, Agent Vigil explained that Defendant had said his name was Richard Contreras and that he had been in prison, which Agent Vigil later verified.

{10} Agent Mora testified following Agent Vigil. On direct examination, Agent Mora explained in further detail how the agents verified Defendant's identity:

Q: How were you able to verify that Mr. Contreras had been in prison?

A: Due to the fact that he provided me his full name, Richard Contreras, and advised me he spent time [in prison]. I had our intelligence center contact Albuquerque and obtain a photograph of Mr. Contreras, an arrest photo, stating his full name and photo out of Albuquerque.

Q: Also, did you see a certified pen packet?

A: Yes, sir, I did.

The State moved to have the pen packet admitted as evidence. Defense counsel objected, arguing that the pen packet was being introduced to show that Defendant had committed prior crimes and that this evidence was more prejudicial than probative. The district court reiterated its prior ruling regarding identity and overruled the objection. The pen packet included a mug shot in which Defendant appears to be wearing a blue prison jumpsuit. Agent Mora told the prosecutor that he used this photograph to confirm Defendant's identity.

{11} Once the State rested and the jury was excused, defense counsel moved for a mistrial, arguing again that the introduction of the prison photo and mention of the pen packet was more prejudicial than probative. The district court denied the motion, stating that the information was properly brought in because identity was at issue. The jury found Defendant guilty on all three charges.

{12} The State filed a supplemental criminal information on October 28, 2003, alleging that Defendant was a habitual offender under NMSA 1978, § 31-18-17 (2002) (amended 2003). The district court held a hearing on the supplemental criminal information on November 26, 2003. At the hearing, the State introduced six exhibits purporting to evidence Defendant's prior felony convictions. Exhibit 1 contains the judgment and sentence, in addition to the above-mentioned pen packet, from Defendant's most recent convictions, matters CR-97-0043 and CR-97-0274. Exhibit 2 is a supplemental information from matter CR-97-0043 and lists Defendant's prior offenses as matters CR-93-1502, CR-89-0157, and CR 46,817, all of which were felony convictions in New Mexico. Exhibits 3 and 4 are the judgment and sentence, and repeat offender plea, respectively, from CR-93-1502. Exhibits 5 and 6 are the repeat offender plea and partially suspended order and commitment, respectively, for CR-89-0157, a matter actually involving Robert Anthony Contreras, Defendant's brother. Apparently unaware of this fact, defense counsel did not object to the introduction of Exhibits 5 and 6. The State did not introduce any documents relating to CR 46,817 because it did not believe that CR 46,817 fell within the ten-year limit under Section 31-18-17(D) (2002).

{13} The State argued that Defendant had three prior convictions, including matter CR-89-0157, that were eligible for sentencing enhancement under Section...