State v. Foster, A-1-CA-35887
| Decision Date | 08 January 2019 |
| Docket Number | NO. A-1-CA-35887,A-1-CA-35887 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOSEPH MATTHEW FOSTER, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 CURRY COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Walter M. Hart, III, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Joseph Matthew Foster (Defendant) appeals three convictions: possession of a controlled substance, possession of drug paraphernalia, and possession of a firearm by a felon. On appeal, Defendant argues that (1) the State committed prosecutorial misconduct; (2) the district court erred in admitting police hearsay testimony, thereby violating his right to confront witnesses under the Confrontation Clause; (3) the three convictions were not supported by sufficient evidence; (4) he received ineffective assistance of counsel; and (5) cumulative error warrants reversal. Unpersuaded, we affirm.
{2} Lieutenant Lyndell Max Stansell and another officer responded to a call reporting the admission of a gunshot wound victim to Plains Regional Medical Center in Clovis. The victim, Benardo Baca, although alert and otherwise responsive, was reluctant to speak to Lieutenant Stansell about the shooting incident and unwilling to cooperate with the investigation. Despite Mr. Baca's recalcitrance, Lieutenant Stansell was able to determine that the shooting had taken place at a certain residence in Clovis and involved an individual named "Ace," an alias known by Lieutenant Stansell to be used by Defendant.
{3} Upon arriving at the Clovis residence, Lieutenant Stansell joined other responding officers who had already made contact with the occupants of the house. Lieutenant Stansell observed .25 caliber shell casings in the driveway and detected a "faint odor" of marijuana inside the house. The officers secured the residence and waited for the issuance of a search warrant. In addition to Defendant, also presentin the house were two adult females, at least one of whom was Defendant's daughter,1 six young children, and the boyfriend of one of the adult females. The boyfriend was the only person present who did not permanently reside at the home.2 Lieutenant Stansell conducted a pat-down search of Defendant, who thereafter proceeded to a neighbor's house. When officers later attempted to question Defendant, they learned from neighbors that he had left the area.
{4} Also responding to the scene was Detective Adriana Munoz. Munoz testified that, prior to issuance of the search warrant, she entered the house with the consent of Defendant's adult daughter and ascertained which bedrooms belonged to whom. Soon thereafter, the search warrant was issued and officers searched the residence. In the bedroom that Detective Munoz believed belonged to Defendant, she discovered a chest containing male clothing, a .22 caliber magazine, and boxes of .22 and .25 caliber ammunition, as well as a jewelry box containing a needle filled with liquid, a spoon with a crystal-like substance, a scale used to weigh narcotics, women's jewelry, and tampons. Police later determined that the substance inside the needle and on the spoon was methamphetamine. Detective Munoz alsorecovered a pink firearm in a common area of the residence that could fire .25 caliber bullets.
{5} Defendant was interviewed by a police interrogator several days later and, after being given Miranda warnings, provided several incriminating statements relevant to this appeal. Defendant admitted that he was sick on drugs and a drug addict. Defendant also acknowledged awareness of the pink firearm in the house and, while denying being the shooter, indicated that the police would probably find his fingerprints on the pink gun. As to who shot Mr. Baca, Defendant conceded that he (Defendant) went by the name "Ace," but maintained that his nephew, Shawn Acey, was the shooter and that others often confused him with his nephew.
{6} The State subsequently charged Defendant with aggravated battery based on the shooting of Mr. Baca, possession of a controlled substance, possession of drug paraphernalia, and possession of a firearm by a felon.
{7} At trial, Detective Munoz testified that she "deduced through information" that the bedroom containing the chest and jewelry box belonged to Defendant. When Detective Munoz was asked on direct examination about the search of that bedroom, Defendant's trial counsel objected, arguing during a bench conference that the officer's conclusion that the bedroom was Defendant's was based solely on hearsay. The district court overruled the objection, allowing Defendant to cross-examine Detective Munoz on that issue.
{8} During the ensuing cross-examination, defense counsel asked if it was true that "someone told you that that was [Defendant's] room?" Detective Munoz responded, "Yes." Counsel then asked Detective Munoz whether Defendant had admitted that it was his room. Detective Munoz responded in the negative, adding that she had concluded that Defendant resided in that bedroom because it was the only room in the house that contained male clothing and Defendant was the only adult male known to live in the house.
{9} The State, after resting its case, and despite having represented to the jury in its opening statement that Mr. Baca would testify at trial, voluntarily dismissed the aggravated battery charge against Defendant based on Mr. Baca's failure to appear as a witness. Reprising his previous hearsay objections, Defendant asked the district court to strike Detective Munoz's testimony pertaining to Defendant's occupancy of the bedroom in question and to provide a curative instruction. The district court denied Defendant's request, citing as grounds the record evidence supporting Detective Munoz's assessment that the bedroom belonged to Defendant and noting defense counsel's failure to request a curative instruction at the time the officer testified several hours earlier.
{10} Defendant argues the State committed prosecutorial misconduct when it stated during opening statement that Mr. Baca would testify at trial regarding the aggravated battery count, only to later dismiss the count when Mr. Baca failed to appear for trial. In this regard, Defendant points out that the State was obviously aware of Mr. Baca's lack of cooperation and of the possibility that he might not appear for trial. On another score, Defendant argues that the State misrepresented the nature of the relationship between the shell casings found at the scene and the firearm found in the residence.
{11} We begin by noting that Defendant has raised his claim of prosecutorial misconduct for the first time on appeal. In these circumstances, this Court will review the claim only for fundamental error. See State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728. "Prosecutorial misconduct rises to the level of fundamental error when it is so egregious and had such a persuasive and prejudicial effect on the jury's verdict that the defendant was deprived of a fair trial." State v. Carrillo, 2017-NMSC-023, ¶ 50, 399 P.3d 367 (internal quotation marks and citation omitted).
{12} With respect to Defendant's initial contention that the State committed prosecutorial misconduct by failing to dismiss the aggravated battery charge prior to trial, we observe that Defendant provides no support for his underlying premise that when the state is unaware of whether a witness will testify or unsure of whatthat witness might say in the event he or she testifies, the count or counts at issue must be dismissed. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (). We consider this proposition no further.
{13} Defendant next argues that the State committed prosecutorial misconduct during the opening statement by discussing the aggravated battery charge, and stating that Mr. Baca would testify, despite knowing otherwise. "If the prosecutor, in his opening statement stated facts, having reason to believe such facts could not be proved, that would be evidence of bad faith." State v. Torres, 1970-NMCA-017, ¶ 41, 81 N.M. 521, 469 P.2d 166. But see State v. Fuentes, 1978-NMCA-028, ¶ 17, 91 N.M. 554, 577 P.2d 452 (). However, that is not what occurred in this case. It appears instead that the State believed it could prove the aggravated battery charge with the benefit of Mr. Baca's testimony, and continued its efforts to contact him throughout the trial.3 See State v. Martinez, 1971-NMCA-115, ¶ 9, 83N.M. 9, 487 P.2d 919 (). Further, as trial progressed the State attempted to prove Defendant committed aggravated battery by use of other evidence. For example, Lieutenant Stansell testified that police officers observed Mr. Baca's gunshot wound and were informed that "Ace" might be involved. The State also tried to link the shooting to Defendant by comparing the .25 caliber casings found in the driveway, where the shooting occurred, and the .25 caliber...
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