State v. Cortina
| Decision Date | 25 March 2013 |
| Docket Number | No. 30,317,30,317 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOSE LUIS CORTINA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
for Appellee
Bennett J. Baur, Acting Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Convicted after two trials of twelve counts of criminal sexual penetration of a minor and six counts of criminal sexual contact with a minor, Jose Luis Cortina (Defendant) appeals. Defendant alleges a number of errors by the district court, as well as violation of his speedy trial and due process rights, insufficiency of the evidence, and ineffective assistance of counsel. We reverse his convictions for one count of vaginal penetration, one count of anal penetration, and one count of criminal sexual contact. We affirm the remainder of the convictions.
{2} Defendant was indicted in August 2005 on twenty-seven counts, including criminal sexual penetration of a minor (CSPM) and criminal sexual contact with a minor (CSCM). The indictment alleged one act of vaginal penetration, one act of anal penetration, and one act of touching the victim's (Child's) breasts each month from September 2004 to May 2005. After a three-day trial in March 2007, the district court declared a mistrial when the jury could not agree on the verdict. The State filed a nolle prosequi dismissing nine counts of the indictment corresponding to December 2004, January 2005, and February 2005. A second trial on the remaining eighteen counts took place nearly a year later. Defendant was convicted of twelve counts of CSPM and six counts of CSCM. Additional facts are provided hereafter as necessary for our discussion of Defendant's arguments.
{3} Defendant makes nine separate arguments. Four address the district court's denial or grant of motions at trial and are reviewed together for an abuse of discretion. We review a fifth argument related to the district court's denial of Defendant's motion for a mistrial for fundamental error. Next we review Defendant's two constitutional arguments de novo. Finally, we assess whether any rational trier of fact could have convicted Defendant based on the evidence presented and whether Defendant was ineffectively represented at trial.
{4} Defendant alleges that the district court abused its discretion by (1) denying Defendant's motion for an independent psychological evaluation of Child, (2) granting the State's motion to exclude expert testimony on child victims of sexual abuse, (3) granting the State's motion to exclude expert testimony about Defendant's lack of pedophilic tendencies, and (4) denying Defendant's motion for a mistrial after a witness testified that Defendant was incarcerated.
{5} We review the district court's grant or denial of evidentiary motions for an abuse of discretion. State v. Layne, 2008-NMCA-103, ¶ 6, 144 N.M. 574, 189 P.3d 707; see State v. Ruiz, 2001-NMCA-097, ¶¶ 38, 40, 131 N.M. 241, 34 P.3d 630. Similarly, the grant or denial of a motion for mistrial is within the district court's discretion. State v. Ruiz, 2003-NMCA-069, ¶ 6, 133 N.M. 717, 68 P.3d 957. State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citations omitted).
{6} Defendant argues that the district court erred in denying his motion for a forensic psychological evaluation of Child. He contends that the district court's denial "deprived [him] of his constitutional right to confront the [S]tate's evidence in the way necessary to his defense[,]" because an evaluation "could have illustrated ways in which [C]hild's recollection and testimony might have been distorted by . . . [a] suggestive pamphlet and/or interactions with her grandmother, or through coaching." The State responds that "Defendant made no showing . . . that a psychological examination would have led to the discovery of information relevant to the issue of [Child]'s credibility" and that, therefore, "[t]he district court properly exercised its discretion to deny Defendant's proposed fishing expedition into [Child]'s psychology."
{7} When a victim's mental state is an essential element of the crime or placed in issue by the State, it is an abuse of discretion to deny a motion for a psychologicalexamination of the victim. See Ruiz, 2001-NMCA-097, ¶ 38. When this is not the case, a defendant must demonstrate a "compelling need," which exists when "the probative value of the evidence reasonably likely to be obtained from the examination outweighs the prejudicial effect of such evidence and the prosecutrix' right of privacy." Id. ¶ 40 (internal quotation marks and citation omitted). This balancing test is within the discretion of the district court. Id.
At the motion hearing, Defendant argued that Child's lack of detail about the dates of the offenses, inconsistencies in her safe house interview, and irregularities in the safe house interview suggested the need for a psychological examination. He argued that the examination would "determine . . . whether she can differentiate between fact and fantasy, . . . whether she was coached, [and] whether she has a good memory" and thatan examination "would . . . help with the organizational structure of the trial." Defendant does not explain on appeal why investigation and cross-examination were inadequate to explore these issues. Thus, Defendant fails to "show[] a reasonable likelihood that a psychological examination would have produced probative evidence relating to [Child]'s credibility—much less that the probative evidence would have outweighed the prejudicial effect of the evidence and [Child]'s privacy interests." State v. Dombos, 2008-NMCA-035, ¶ 31, 143 N.M. 668, 180 P.3d 675.
{9} To the extent that Defendant asks that we consider a Kansas case that sets out a six-part test for when there is a compelling need for a psychological examination, we decline to do so. See State v. Price, 61 P.3d 676, 681-82 (Kan. 2003). The test in New Mexico has been succinctly stated, and there is no reason for us to turn to other jurisdictions. See Ruiz, 2001-NMCA-097, ¶ 40. We find no error in the district court's denial of Defendant's motion for a psychological examination of Child.
{10} Defendant next argues that the district court erred when it granted the State's motion to exclude testimony by a psychologist whom Defendant asked to provide an "opinion about the evidence obtained during a [s]afe [h]ouse interview of [Child]." He maintains that this Court should order a new trial because exclusion of the expert's testimony prevented him from "demonstrat[ing] that [Child] might have been coachedor at least influenced to make statements against him by her maternal grandmother." The State argues that Defendant's argument is unpreserved either because Defendant failed to provide the district court with enough information on which to rule on the motion or because there was no post-ruling offer of proof in the record from which this Court may assess the excluded evidence.
{11} On appeal, Defendant argues that the expert's "testimony would have laid a necessary predicate and important framework in which the jury might have regarded important issues present in the case concerning the context in which [Child] made statements." Defendant argues that "[t]he defense's strategy in this case was no different from that in [State v.] Campbell," in which this Court held that expert testimony on inaccurate reporting of abuse by children and possible motivations for such reporting should have been admitted when the defense asserted that a child witness had been influenced by family members or other sources. 2007-NMCA-051, ¶ 20, 141 N.M. 543, 157 P.3d 722. At a hearing on the State's motion, however, Defendant did not make these arguments. Instead, he argued that the expert would address "how should . . . a victim of this type with these kinds of allegations, how should she . . . react, what should they expect the emotional impact, what could the absence of—no emotionality suggest." He also suggested that the expert would comment on Child's testimony in court. Because Defendant did not make thisargument to the district court, it is...
To continue reading
Request your trial