State v. Dirickson

• Decision Date: 21 February 2023
• Docket Number: A-1-CA-40036
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL S. DIRICKSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL S. DIRICKSON, Defendant-Appellant.

No. A-1-CA-40036

Court of Appeals of New Mexico

February 21, 2023

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

Raúl Torrez, Attorney General Santa Fe, NM Meryl E Francolini, Assistant Attorney General Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

JENIFFER L. ATTREP, CHIEF JUDGE.

{¶1} Defendant Michael Dirickson appeals his convictions, following a jury trial, for trafficking a controlled substance by possession with intent to distribute (NMSA 1978, § 30-31-20(A)(3) (2006)) and possession of drug paraphernalia (NMSA 1978, § 30-31-25.1(A) (2019, amended 2022)). Defendant contends the district court erred in the admission and exclusion of certain evidence at trial and asserts cumulative error. We affirm.

DISCUSSION

{¶2} The principal witness at Defendant's trial was a sheriff's deputy who recovered evidence, pursuant to a search warrant, from a truck that had been occupied by Defendant but registered to another individual. On appeal Defendant argues: (1) the district court committed plain error by permitting the deputy to provide expert testimony in drug trafficking without being qualified to do so; (2) the district court erred by not permitting Defendant to ask the deputy about the truck owner's criminal history; and (3) if these purported errors do not separately warrant reversal, the cumulative effect of them does. For the reasons discussed below, we are not persuaded by Defendant's arguments.

I. The Admission of the Deputy's Testimony Did Not Constitute Plain Error

{¶3} Defendant first argues that plain error occurred when the deputy provided expert testimony in drug trafficking without being qualified to do so. See Rule 11-702 NMRA ("A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact."); see also State v. Rael-Gallegos, 2013-NMCA-092, ¶ 25, 308 P.3d 1016 (holding it was not error to qualify a law enforcement officer, based on his background, experience, and knowledge, as an expert in differentiating between "possession amounts and trafficking amounts of crack cocaine"). As Defendant acknowledges, our review is for plain error since he failed to object to the deputy's testimony. See State v. Muller, 2022-NMCA-024, ¶ 42, 508 P.3d 960; see also Rule 11-103(E) NMRA ("A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.").

{¶4} "Under the plain error rule, there must be (1) error, that is (2) plain, and (3) that affects substantial rights." State v. Gwynne, 2018-NMCA-033, ¶ 27, 417 P.3d 1157 (internal quotation marks and citation omitted). Because the plain error rule "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." Muller, 2022-NMCA-024, ¶ 43 (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 (stating that the district court's rulings are presumed to be correct and that the burden of demonstrating any claimed error in those rulings is on the appellant).

{¶5} Defendant argues that the deputy's testimony about "the amount [of narcotics] at issue and . . . typical trafficking behavior" was expert opinion testimony and that the admission of such testimony without the deputy being qualified as an expert amounted to plain error. There is no dispute that the challenged testimony constituted expert opinion testimony, which may be offered by a qualified expert. See Rael-Gallegos, 2013-NMCA-092, ¶ 30. The State argues, however, that no plain error occurred because the record contains sufficient foundational evidence establishing that the deputy was qualified to give the expert opinion testimony. Defendant responds by contesting the deputy's qualifications.^[1] Because Defendant does not persuade us that the deputy was unqualified to testify as he did, we conclude no plain error occurred. See State v. Barraza, 1990-NMCA-026, ¶ 18, 110 N.M. 45, 791 P.2d 799 (finding no plain error where, among other things, the witness had adequate expertise to offer the expert opinion testimony at issue).

{¶6} In this case, the deputy testified that he had previously been a patrol deputy for over two years and that during that time, he worked numerous drug cases; that he subsequently joined the narcotics task force and had been with the task force for approximately five years; that his duties on the task force consisted of investigating drug trafficking and possession; and that he had been trained on drug trafficking and investigations by the Drug Enforcement Agency and the Albuquerque Police Department.

{¶7} Defendant does not direct us to authority suggesting that an officer with experience similar to the deputy's would be unqualified to testify as he did. See State v. Casares, 2014-NMCA-024, ¶ 18, 318 P.3d 200 ("[A]bsent cited authority to support an argument, we assume no such authority exists."). Instead, Defendant complains that the deputy did not testify, for example, that he had relevant teaching experience or had ever before been qualified as an expert. Critically, Defendant cites no authority for his unstated presumption that such credentials are necessary prerequisites to qualification as an expert in drug trafficking. See id.; see also State v. McDonald, 1998-NMSC-034, ¶ 19, 126 N.M. 44, 966 P.2d 752 ("[N]o set criteria can be laid down to test an expert's qualifications." (alteration, internal quotation marks, and citation omitted)). Defendant further complains that the deputy "did not discuss his experience with any degree of particularity." But Defendant, having failed to lodge an objection at trial, is at least partly to blame for any such lack of detail in the testimony. See State v. Martinez, 2020-NMCA-043, ¶¶ 45, 47, 472 P.3d 1241 (providing that plain error review may prove "an extremely difficult task" due to the failure to raise the claimed error at trial and the resulting lack of development in the record). Regardless, on the record before us, we cannot say the deputy was clearly unqualified to testify as an expert in drug trafficking. Cf. id. ¶ 47 (providing, based on the limited record available on plain error review, that the Court could not say the expert's methodology was based on mere conjecture).^[2]

{¶8} In sum, Defendant has failed to establish that the admission of the deputy's expert opinion testimony constituted plain error.

II. Whether the District Court Erred by Prohibiting Defendant From Asking About the Truck Owner's Criminal History Was Not Preserved

{¶9} Defendant next argues that the district court erred by prohibiting his trial counsel from questioning the deputy about the truck owner's drug-related convictions. Defendant maintains that this evidence was relevant to his defense that the methamphetamine belonged to the truck owner. The State contends Defendant failed to preserve this issue and, even if it was preserved, the district court did not err. We agree with the State that Defendant failed to preserve this issue.

{¶10} At a bench conference during the State's examination of the deputy, defense counsel made a "preemptive clarification," informing the district court judge that he intended to ask the deputy about the truck owner's drug-related convictions and to refer to the specific case numbers. The prosecutor objected, stating, "I'm not sure the criminal history of somebody who's not even testifying is relevant here." The following exchange then occurred between the district court judge and defense counsel:

Court: With respect to this other individual [the truck owner] and what if any criminal history that this person may or may not have who is not here to testify today, I'm reluctant because I think you might open up a can of worms. If he's a person who is of interest to law enforcement in connection with drug trafficking and conspiring with this individual, since he is in his vehicle with drugs and the like, I just don't know where you're gonna end up getting to. Do you know what he would answer to that?

Defense: Well he does have three convictions . . ., one of which . . . you violated his probation and gave him an unsatisfactory discharge.

Court: Well, I didn't violate anyone's probation.

Defense: You know what I'm saying your honor. But you were the judge who ruled on that. . . . I can refrain from asking those questions, your honor.

Court: Well if you get into that, I'm just saying you're gonna open the door to explaining his criminal history in a way that might involve your client. He's not here, so I guess at this juncture, based on what I've heard, I would disallow you from getting into this person's criminal history. . . . If he was a witness that was subpoenaed by the defense, maybe that door would get open, but he's not here before us today.

The prosecutor then suggested that if the questioning were permitted, it might open the door for the State to explore Defendant's convictions...