State v. Johnson

• Citation: 2004 NMCA 58,92 P.3d 13,135 N.M. 567
• Decision Date: 15 March 2004
• Docket Number: No. 22,890.,22,890.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

92 P.3d 13

135 N.M. 567

2004 NMCA 58

STATE of New Mexico, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant.

No. 22,890.

Court of Appeals of New Mexico.

March 15, 2004.

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

CASTILLO, Judge.

{1} Defendant Richard Johnson appeals his conviction of criminal damage to property on two grounds: (1) that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications by two witnesses and (2) that the trial court impermissibly sentenced him to thirty days of jail time for his failure to admit guilt at sentencing. We hold that the trial court improperly denied Defendant's suppression motion. We reverse Defendant's conviction and remand for a new trial. We do not address the merits of the sentencing issue.

I. BACKGROUND

{2} During the early morning of April 30, 2000, while it was dark, Arturo Montano noticed a car stopped in front of his house with two or three people arguing in it; the car then moved farther up the street and parked. The area in front of Montano's house where the car initially stopped was well lit; the area where the car finally parked was not lit as well. Two individuals (perpetrators) got out of the car; Montano saw them shaking spray cans. He returned to his house and alerted his roommate, Michael Flores, that there was some activity going on; Flores joined Montano outside to observe the activity. They saw the two perpetrators across the street and down a couple of houses by the car of a neighbor, Selena Garcia. One perpetrator was standing by a fence, watching while the other was spray-painting Garcia's car; the two perpetrators then exchanged places. According to Montano, the perpetrators were also spray-painting another vehicle next to Garcia's car; he thought the other vehicle might have been a truck. Flores was between 60 and 75 to 80 yards away from the perpetrators; Garcia's car was in an area well lit by streetlights. Montano could see the perpetrators "[p]retty good"; Flores indicated he had no trouble seeing what was going on. He watched the two perpetrators spray-painting for fifteen to twenty minutes; Montano watched for up to forty-five minutes.

{3} At some point, Montano walked within 10 feet of the perpetrators' car so that he could get the license plate number. It is unclear how far away that car was from Garcia's car, but it was "pretty dark" in that area. After getting the license plate number, Montano called the police from a pay phone. At some point, he wrote the number down on a piece of paper as 37566N. The two perpetrators drove off in the car in which they arrived; Flores believed the car was a gold, yellow, or off-tan later model Ford with square lights. Montano did not know the make or model of the car but indicated it was not new, was beige, and had square lights. He noticed the car was damaged toward the front, maybe on the bumper or grill. Flores did not remember any body damage.

{4} That morning, Garcia called the police after finding her car vandalized. A police officer was dispatched to her home. At the request of Garcia, the officer later returned to speak for the first time with the two witnesses, Montano and Flores. Montano gave the officer the license plate number he had written down. Flores told the officer that one of the perpetrators was African-American, between 6 feet and 6 feet 2 inches, with a slim build, and wearing a T-shirt with "an emblem on it that stood out big time." Flores was unable to describe the second perpetrator, whom he had heard but never saw. There is no indication in the record that on April 30, Montano gave the officer any description of either perpetrator.

{5} On May 10, at the request of the police, Montano and Flores went to a business parking lot and were asked to identify the vehicle they had observed on April 30. They were driven around the parking lot in a police car. There were five to eight other vehicles in the lot; only one was brown or beige. Flores immediately spotted a car that was "very similar" to the one he remembered from April 30. It took Montano "a while . . . to figure it out"; he did so when he realized the license plate matched in part the plate number he had written down. He also noticed the car had the square lights he remembered from April 30. The actual number on the license plate was 375GGK; the car was a Pontiac LE owned by Defendant.

{6} Montano and Flores then sat in a police car across the street from Defendant's place of business while police conducted a showup. In the showup, police told the witnesses that an officer was going to bring out an individual; the witnesses were asked to see if they recognized him. According to Flores, the car was about 400 or 500 yards away from the individual. The record does not specify what the witnesses said to the police at the showup; but, evidently, both witnesses indicated they recognized the individual from the scene of the crime.

{7} Defendant subsequently moved to suppress the identification of him made by Montano and Flores. At the motion hearing, Montano testified that he recognized Defendant on May 10 because of his features; his bald head and his ears looked "pretty close" to that of one of the perpetrators Montano saw on April 30. Montano also testified that he did not know whether he could remember the second perpetrator, whom Montano described only as "the white guy or the light Hispanic." Flores, likewise, was unable to describe the second perpetrator. Following the hearing, the trial court denied the motion, based on the totality of the circumstances.

{8} At trial, Flores testified that he observed one perpetrator "very well" on April 30 and that he did not get a good look at the other perpetrator because Flores "was concentrating on the one gentleman that was right there . . . in the street that was very clearly visible." Flores further testified that although he was a good distance away from Defendant's place of business during the showup on May 10, he could see people "very clearly." Flores said he had "[n]ot a question at all" in his mind that it was Defendant he saw on April 30. Montano, other than to say he was able to give the police "somewhat of a description" of one perpetrator, gave no trial testimony as to what he told the police on April 30 about what the perpetrators looked like; he did testify that "[o]ne of them was more distinct" and that one looked African-American, while the other looked like a "light Hispanic or white guy." Montano said he was "100[ ]percent sure" that the car in the photographs submitted as evidence at trial was the same car he saw on April 30.

II. DISCUSSION

{9} Before proceeding with our analysis, we briefly address two matters: whether the trial court mistakenly analyzed the showup identification as a credibility question for the jury, as Defendant asserts, and whether Defendant filed a motion to suppress identification of the car.

{10} The trial court's ruling included the statement "I think it's a matter of credibility of evidence, to the jury, so the motion to suppress is denied." Defendant presents this as evidence of the trial court's refusal to evaluate for itself the reliability of the identification, as required under the totality of the circumstances test. We disagree. The court clearly stated that its decision was based on the totality of the circumstances. Furthermore, once the court made the decision to admit the testimony, the identification was indeed a matter of credibility for the jury. See State v. Cheadle, 101 N.M. 282, 286, 681 P.2d 708, 712 (1983) ("Once a court finds that the evidence is admissible, it becomes a jury determination as to the accuracy of a witness'[s] identification."). There is no indication from the record that the trial court failed to apply the totality of the circumstances test to determine the reliability of the showup identification or that the trial court otherwise "refused [its] function as gatekeeper," as Defendant claimed.

{11} Defendant's counsel suggested at oral argument that a motion to suppress identification of the car was "lumped in together" with the motion to suppress identification of Defendant. We do not interpret the motion submitted to the trial court in such a fashion. Defendant specifically moved the trial court to "[s]uppress the identification of Mr. Johnson." Our opinion, therefore, concerns the suppression of that identification, not of the identification of the car.

A. Standard of Review

{12} The parties disagree as to the standard of review. Defendant, without citing authority, urges de novo review in the reply brief. The State, citing State v. Maes, 100 N.M. 78, 82, 665 P.2d 1169, 1173 (Ct.App. 1983), requests us to review the court's decision for abuse of discretion. We disagree that Maes sets an abuse of discretion standard for suppression of identification testimony. When, as here, the trial court's decision involved factual and legal questions, this Court will defer to the trial court's purely factual assessment; however, we are not bound by the court's application of law to the facts. See State v. Attaway, 117 N.M. 141, 144-46, 870 P.2d 103, 106-08 (1994) (discussing standards of review for fact-finding and for mixed questions of fact and law). This standard is the same as that used in suppression cases where our review is "whether the law was correctly applied to the facts, viewing them in the manner most favorable to the prevailing party[,] and drawing all reasonable inferences in support of the court's decision." State v. Salgado, 1999-NMSC-008, ¶ 16, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted). Because the trial court's ultimate conclusion drawn from the facts was a legal determination, that is,...