State v. Gutierrez
| Decision Date | 01 August 2011 |
| Docket Number | No. 28,754.,28,754. |
| Parties | STATE of New Mexico, Plaintiff–Appellee,v.Jose M. GUTIERREZ, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Gary K. King, Attorney General, Farhan Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Appellant.
{1} Defendant Jose Gutierrez's involvement in an April 2005 altercation resulted in two separate grand juries indicting him on a total of ten counts of criminal behavior. The two indictments were joined for trial. The first trial resulted in a conviction on one count, acquittal on two counts, and a hung jury mistrial on the remaining counts. Defendant appealed the conviction. While that appeal was pending, a second trial was conducted on the mistrial counts. The second jury convicted Defendant on all counts submitted to it.
{2} Defendant now appeals from the second verdict and sentence, asserting that the district court (1) was without jurisdiction to try him while his first conviction was on appeal; (2) violated his rights under the Confrontation Clause when it admitted a videotape taken at the scene of the incident; and (3) improperly admitted a 2003 judgment and sentence entered against Defendant for previous crimes, as well as a prior stipulated restraining order against Defendant concerning one of the victims in this case. We affirm.
I. DISCUSSIONA. The District Court Had Jurisdiction to Conduct the Trial
{3} Defendant argues that the district court lacked jurisdiction to conduct the second trial against Defendant while the appeal from his first trial was pending. “We review jurisdictional issues ... under a de novo standard of review.” State v. Heinsen, 2005–NMSC–035, ¶ 6, 138 N.M. 441, 121 P.3d 1040; see State v. Chavarria, 2009–NMSC–020, ¶ 11, 146 N.M. 251, 208 P.3d 896 .
{4} In April 2005, a grand jury indicted Defendant of first-degree murder, conspiracy to commit first-degree murder, two counts of aggravated battery with a deadly weapon, two counts of aggravated assault with a deadly weapon, and aggravated stalking. In February 2006, another grand jury indicted Defendant of additional charges that included aggravated burglary, aggravated battery against a household member, and violation of an order of protection. In May 2006, Defendant was simultaneously tried for all charges.
{5} At his first trial, the jury acquitted Defendant of first-degree murder and battery on a household member and convicted Defendant of violating an order of protection. On the remaining counts, the jury was unable to reach a verdict, and the district court ordered a mistrial on those counts. Defendant then appealed his conviction and sentence for violating the protective order.1 While the appeal was pending, Defendant was retried and convicted of the counts on which the jury was unable to reach a verdict during the first trial and was sentenced by the district court on the other charges for which he was convicted. Defendant now appeals from that case and contends that the district court lacked jurisdiction to retry him on those offenses while his convictions were on appeal to this Court.
{6} In general, “[a] trial court loses jurisdiction of a case upon the filing of the notice of appeal, except for the purposes of perfecting such appeal, or of passing upon a motion directed to the judgment pending at the time.” State v. Roybal, 120 N.M. 507, 512, 903 P.2d 249, 254 (Ct.App.1995) (alteration omitted) (internal quotation marks and citation omitted). Yet, it is established “that a pending appeal does not divest the [district] court of jurisdiction to take further action when the action will not affect the judgment on appeal.” Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 241, 824 P.2d 1033, 1043 (1992). The United States Supreme Court has explained that “[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (emphasis added).
{7} In addition, the State v. Begay, 2010–NMCA–089, ¶ 11, 148 N.M. 685, 241 P.3d 1125 (internal quotation marks and citation omitted). The United States Supreme Court has held that a Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937).
{8} In State v. Lobato, we stated that “an order declaring mistrial simply terminates the trial before a verdict is reached and does not finally determine any issues in the case.” 2006–NMCA–051, ¶ 34, 139 N.M. 431, 134 P.3d 122. There, we held that an “order declaring mistrial was not a final order efendant could appeal as a matter of right.” Id. Thus, any charges resulting in a mistrial or hung jury are not finally determined. In contrast, as in this case, a matter upon which a defendant has been convicted and sentenced and which he has appealed is finally determined and no longer within the district court's jurisdiction. Charges that have not been finally determined properly remain with the district court.
{9} This case presents us with a trial that resulted in part with a conviction and in part with a mistrial. In People v. Schulz, the California Court of Appeals dealt with a similar situation. 5 Cal.App.4th 563, 7 Cal.Rptr.2d 269 (1992). In that case, the defendant argued on appeal that he could not be retried for a great bodily injury enhancement, which the jury had hung on, while he appealed his conviction from that same trial for attempted murder. Id. at 270. The Schulz court “conclude[d that] the [district] court had jurisdiction to retry and sentence the great bodily injury enhancement, since its resolution would have no direct impact on the validity of the guilty verdict and sentence for the attempted murder charge pending on appeal.” Id. at 273.
{10} We apply a similar rationale to this case. Here, Defendant's first trial, from which he appealed, ended in a conviction for a protective order violation, yet, the jury hung on the other charges. Defendant was sentenced only for the protective order violation. As to that charge, the criminal trial process was complete, and the judgment and sentence filed was a final order as to that charge. Defendant thus had an appealable judgment with respect to that conviction and not with respect to the counts that resulted in a mistrial. As a matter of right, Defendant could and did appeal the conviction on that single count, but his appeal was limited to only the conviction for violating the protective order. The district court retained jurisdiction to retry the unresolved charges.
B. The Videotapes Were Properly Admitted
{11} Defendant contends that the district court improperly admitted videotaped statements in violation of his Sixth Amendment right to confront witnesses. Owing to the poor quality of the videotape, only several statements were audible. After hearing arguments and testimony about this issue, the district court redacted two of the statements on the videotape which were made by police officers because the statements were “improper.” The court determined that “[these] other statements [were not] confrontational clause issues,” and the jury heard the following taped statements: (1) “[we] are [the] victims”; (2) “this guy had a restraining order”; (3) “[t]he chick who lives in there, he's her baby daddy, he pulled a knife on her first thing”; and (4) “[t]hey fucking stabbed me, bro[.]” The court identified two speakers who could have made these statements as “Landeros or ... Martinez,” both of whom were victims of Defendant's attack.
{12} We now determine the extent to which the admission of such statements violated the Confrontation Clause. “We apply a de novo standard of review as to the constitutional issues related to efendant's rights under the Confrontation Clause.” State v. Massengill, 2003–NMCA–024, ¶ 5, 133 N.M. 263, 62 P.3d 354; see State v. Soliz, 2009–NMCA–079, ¶ 7, 146 N.M. 616, 213 P.3d 520 (), cert. quashed, 2010–NMCERT–008, 148 N.M. 943, 242 P.3d 1289.
{13} “The Confrontation Clause guarantees the accused in a criminal trial the right to be confronted with the witnesses against him, regardless of how trustworthy the out-of-court statement may appear to be.” State v. Mendez, 2010–NMSC–044, ¶ 28, 148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted). “[T]he Confrontation Clause prohibits the admission of testimonial statements unless the declarant is unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” State v. Bullcoming, 2010–NMSC–007, ¶ 11, 147 N.M. 487, 226 P.3d 1 (internal quotation marks and citation omitted), cert. granted, Bullcoming v. N.M., ––– U.S. ––––, 131 S.Ct. 62, 177 L.Ed.2d 1152 (2010). At issue here is whether the statements made on the videotape were testimonial.
{14} “Statements are non [-] testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” State v. Romero, 2007–NMSC–013, ¶ 7, 141 N.M. 403, ...
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