State v. Harris
| Decision Date | 08 September 1993 |
| Docket Number | No. 14291,14291 |
| Citation | 1993 NMCA 115,861 P.2d 275,116 N.M. 234 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Edward HARRIS, Lesley Harris, and Lewis Toone, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
After a consolidated jury trial, Defendants appeal their convictions for conspiracy and attempt to commit a felony, fraud. The issue before us is whether the evidence of the out-of-court identification and in-court identifications of Defendants, as well as the evidence of Defendants' association, were the tainted result of an illegal stop and therefore inadmissible at trial. Because we hold that the trial court incorrectly applied the "probable cause" standard in determining the stop was illegal, we remand for a redetermination of whether the police officers' stop of Defendants was proper under the "reasonable, articulable suspicion" standard. If, on remand, the trial court determines the stop was lawful, Defendants' convictions are affirmed. On the other hand, if the trial court determines the stop was unlawful, Defendants are entitled to a new trial with the evidence of their out-of-court identification excluded. We also determine that, even if the stop was unlawful, the in-court identifications were properly admitted and would be admissible at a new trial, if one is held.
Chief of Police Marshall Newman of the Hobbs Police Department (Newman), who was driving an unmarked police unit, became suspicious of four persons in a car he observed near the First Interstate Bank (bank) in Hobbs. One of the car's occupants, later identified as Hulsey, exited the car and walked into the bank. Newman parked in a lot on the west side of the bank to observe any activities. After about thirty minutes, Newman observed Hulsey exit the bank and walk past the car. Neither Hulsey nor the car's occupants acknowledged one another. Because Newman suspected a possible bank robbery, he radioed for a marked police unit to stop the car to "find out who the individuals were."
It later developed that, while Hulsey was in the bank, the victim, an elderly man (Victim), was also in the bank. Victim testified that, before he had entered the bank, Defendant Lesley Harris asked Victim for directions in the parking lot of a local store, got into Victim's jeep, and began to talk about a woman. Another passerby, Defendant Toone, who supposedly was not acquainted with Lesley Harris, joined the conversation. Victim, Lesley Harris, and Toone then drove to a McDonald's restaurant in Victim's jeep. At the restaurant, Lesley Harris introduced Victim and Toone to Defendant Edward Harris. The four men began to talk about money. Defendants told Victim that he could double his money if he was able to come up with $28,000. Victim joined in the money-matching "bet."
Victim and Toone then went to Victim's house so that Victim could pick up $30,000 in certificates of deposit. After Victim arranged to meet Toone at a nearby meeting place, he cashed his certificates of deposit at the bank. Bank officials tried to convince Victim not to take the cash from the bank. Unpersuaded, Victim took the cash and told bank officials that he needed the cash for a "good deal." As a result of Victim's withdrawal and Hulsey's presence, concerned bank officials immediately reported the incident to the police. This information was communicated by police radio.
It was during this same period that Newman had called for a marked police unit to have the car stopped. After doing so, he heard the police radio dispatch concerning Victim's withdrawal of money. At that time, he put out a "be-on-the-lookout" bulletin for Hulsey. Newman then spotted Victim in the McDonald's parking lot and stopped to talk to him. Victim informed Newman of the arrangement he had entered into with Defendants. Newman then took Victim to the K-Mart parking lot, where the car had been stopped by other police officers. Another officer picked up Hulsey and brought him to the K-Mart parking lot. Victim identified Defendants in the K-Mart parking lot.
Before trial, Defendants filed motions to dismiss and to suppress all "statements, evidence and material flowing" from the alleged illegal stop. The trial court denied the dismissal motions, but ruled that the stop of the car was made without probable cause and suppressed "all statements and personal property taken from or seized by the Hobbs Police Department...." At trial, Victim and other witnesses made in-court identifications of Defendants. Victim and other witnesses also pointed out Defendants as the individuals identified by Victim at the "show-up" stop in the K-Mart parking lot. Defendants objected to the identification and association evidence obtained at the K-Mart parking lot and to the in-court identification and association evidence. The trial court directed a verdict in favor of Hulsey and he is not a party to this appeal.
At trial, Defendants contended that both the in-court and out-of-court identifications were tainted by the officers' unlawful stop of Defendants at the K-Mart parking lot. We address the evidence of each of the identifications separately. Before doing so, however, we initially address Defendants' contentions questioning the timeliness of the State's argument on appeal that the trial court erred in determining the stop was unlawful.
Defendants contend that any identification evidence is inadmissible because it is tainted by the illegal stop of the car. See Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-417, 9 L.Ed.2d 441 (1963). Although it did not initially appeal the trial court's pre-trial holding that the car stop was unlawful, the State now argues that the trial court's admission of this evidence at trial was proper because the stop was lawful. The State contends the trial court used the wrong standard--probable cause. Thus, the State contends, this Court, by applying the correct standard, can affirm the trial court's at-trial decision under the right-for-any-reason rationale. See State v. Lovato, 112 N.M. 517, 521, 817 P.2d 251, 255 (Ct.App.), cert. denied, 112 N.M. 388, 815 P.2d 1178 (1991). Defendants respond that the State is attempting to de facto appeal the trial court's pre-trial suppression ruling without complying with NMSA 1978, Section 39-3-3(B)(2) (Repl.Pamp.1991). Under Section 39-3-3(B)(2), Defendants claim, the State was required to appeal within ten days of the entry of the trial court's suppression order. Contending the State's request that this Court revisit the trial court's suppression order is thus improper, Defendants rely on Seaboard Fire & Marine Insurance Co. v. Kurth, 96 N.M. 631, 633 P.2d 1229 (Ct.App.1980), and Mabrey v. Mobil Oil Corp., 84 N.M. 272, 502 P.2d 297 (Ct.App.), cert. denied, 83 N.M. 740, 497 P.2d 742 (1972).
We agree with the State's argument on this threshold issue for two reasons. First, the State could not have appealed from the suppression order even if it had so desired. Section 39-3-3(B)(2) provides that the State can appeal "within ten days from a decision or order of a district court suppressing or excluding evidence ..., if the district attorney certifies to the district court ... that the evidence is a substantial proof of a fact material in the proceeding." Because the State did not intend to use at trial any of the physical evidence seized or statements made at the stop in the K-Mart parking lot, the evidence the suppression order expressly referred to, the State would have been unable to certify that the order suppressed evidence that was "a substantial proof of a fact material in the proceeding." See id. In fact, when at trial the State attempted to introduce the identification testimony, the trial court, in its ruling admitting the testimony, affirmed the State's belief that the evidence the State wished to admit was not included in the suppression order. Thus, the terms of Section 39-3-3(B)(2) did not permit the State to appeal the suppression order within ten days after the trial court's ruling.
Second, although the State is challenging the basic premise of the suppression order, that the stop was illegal, the State is not appealing the suppression order. Rather, it is responding to Defendants' argument in their appeal that the stop was unlawful and that, therefore, the trial court erred in deciding at trial to admit the identification evidence. Mabrey and Seaboard Fire & Marine Insurance Co., which concerned attempted post-trial appeals of dispositive pre-trial orders, do not preclude this Court from considering the propriety of the trial court's at-trial decision to admit the identification evidence. Indeed, since the legality of the stop determines whether the trial court properly admitted the out-of-court identification evidence at trial, we necessarily consider the basis of the suppression order.
We agree with the State's contention that the trial court reviewed the stop using the incorrect standard. Although both Defendants and the State argued to the trial court that the appropriate standard was whether the officers had reasonable, articulable suspicion to stop Defendants, the trial court independently determined that the officers lacked probable cause to make the stop. Use of this standard was contrary to the applicable case law. Officers may briefly detain persons for investigatory purposes if the officers have reasonable suspicion based on articulable facts that the person has been or is presently engaged in the commission of a crime. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968); State v. Jones, 114 N.M. 147, 150, 835 P.2d 863, 866 (Ct.App.), cert. denied, 114 N.M. 62, 834 P.2d 939 (1992). The United States Supreme...
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