State v. Kant

• Decision Date: 17 October 2012
• Docket Number: NO. 30,581,30,581
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JERRY KANT, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JERRY KANT, Defendant-Appellant.

NO. 30,581

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Date: October 17, 2012

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SANDOVAL COUNTY

Louis P. McDonald, District Judge

Gary K. King, Attorney General

Santa Fe, NM

Jacqueline R. Medina, Assistant Attorney General

Albuquerque, NM

for Appellee

Natalie Bruce

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

CASTILLO, Chief Judge.

Defendant appeals from his conviction on two counts of battery with a deadly weapon, stemming from a bloody brawl that broke out in the early morning hours of August 9, 2008, at a home in Rio Rancho, New Mexico. Defendant raises seven issues on appeal. We affirm.

BACKGROUND

Because both parties are familiar with the events in dispute, we review just the basic facts here before proceeding to our discussion. Defendant and three co-defendants were charged with a number of offenses relating to a violent altercation that occurred during a party held in the yard and driveway at the home of Robert Montaño, one of four victims of the altercation. Guests at the party included Steve Jimenez, Carlos Santiago, and Arnold Conejo. The clash started when co-defendant Samuel Urioste and a friend rode up to the home on bicycles, engaged the partygoers in conversation, and were each given a beer. Testimony conflicts as to whether Samuel left and returned or immediately became involved in an altercation with some of the four victims. Within about ten minutes, Samuel's brother, Leondro Urioste, and two friends, including Defendant, drove up to the house, walked up the driveway, and began fighting with the victims. The melee involved the use of a set of brass knuckles, a metal chair, the handle to a sprinkler system, and a gun. Robert's wife, Janet Gonzales, called 911, and she described some of the events to a policedispatcher. Defendant and co-defendants eventually drove off with the seriously injured Samuel in the front seat and their vehicle was stopped less than a half mile from the scene.

Defendant was convicted of two counts of aggravated battery with a deadly weapon, and he was acquitted of conspiracy. He raises seven issues on appeal. He contends that the court erred (1) in admitting photographs of the injured victims, (2) in admitting the recording of a 911 call made by one of the victim's wife, (3) in admitting the brass knuckles allegedly used in the attack into evidence, (4) in rejecting jury instructions on self-defense and the right to not retreat, (5) in denying a motion for directed verdict as to the charge of aggravated battery with a deadly weapon, (6) in denying a motion for directed verdict on the conspiracy charge, and he complains (7) that he received ineffective assistance of counsel for his attorney's failure to file a motion to dismiss based on deficiencies in the police investigation. We address his arguments in order.

DISCUSSION

1. Admission of Photographs

Defendant first argues that the district court erred in allowing photographs of two of the bruised and bloody victims to be admitted into evidence because the photographer, Arnold's girlfriend Arlene, was not called to testify and help lay afoundation for the photos. Preliminary questions on admissibility of evidence are determined by the trial judge. See Rule 11-104(A) NMRA. We review a district court's decision whether to admit or exclude evidence for abuse of discretion. Ruiz v. Vigil-Giron, 2008-NMSC-063, ¶ 7, 145 N.M. 280, 196 P.3d 1286 (per curiam).

"For authentication of still photographs, the required foundation is that the pictures fairly and accurately represent that which is shown by the pictures." State v. Thurman, 84 N.M. 5, 8, 498 P.2d 697, 700 (Ct. App. 1972). Such testimony is sufficient for photographs to be admitted into evidence. See State v. Foster, 82 N.M. 573, 575, 484 P.2d 1283, 1285 (Ct. App. 1971). In Foster, the victim "testif[ied] that each of the photographs fairly and accurately represented the things shown in the photographs and fairly and accurately represented what he had described in his testimony." Id. The victim also did not know who took the photos or when they were taken, and we concluded that testimony from the photographer was not required to admit the photos into evidence. See id. In the case before us, Defendant cites no statute, rule or case law from New Mexico to the contrary. At trial, Robert testified as to the injuries allegedly caused by Defendant, and he identified the photographs introduced into evidence as accurate depictions of the injuries he suffered. Such testimony was sufficient to authenticate the photographs such that the district court did not abuse its discretion in allowing them to be admitted into evidence.

2. Admission of 911 Recording

Defendant also contests the district court's ruling to admit a recording of the 911 emergency call made to police by Robert's wife, Janet, because the police dispatch operator was not called to authenticate the recording. We review for abuse of discretion. Ruiz, 2008-NMSC-063, ¶ 7.

As noted in the previous section, a piece of evidence may be authenticated by witness testimony that identifies the piece of evidence as being what its proponent claims it to be. See Rule 11-901(A) NMRA (stating that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims). An opinion about a voice electronically recorded satisfies the requirement of the rule. See Rule 11-901(B)(5). We have previously stated that the "[i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, can be made by opinion based on hearing the voice at any time under circumstances connecting it with the alleged speaker." State v. Garcia, 110 N.M. 419, 425, 796 P.2d 1115, 1121 (Ct. App. 1990).

In the case before us, Janet testified that she spoke to a 911 dispatch operator during the attack and gave the operator an eyewitness account of what she was seeing, including one co-defendant pointing a gun at her. Gonzales testified that she listenedto the CD recording of that 911 call and that the contents of the CD recording accurately reflected the conversation she had with the police dispatcher during the attack. The district court, citing Garcia, concluded that such testimony was sufficient to satisfy Rule 11-901 because the testimony provided sufficient evidence to support a finding that the recording was of what the State claimed it to be. We interpret Rule 11-901 the same way and cannot say that the district court abused its discretion in admitting the 911 recording.

On appeal, Defendant argues that in order for an audio recording to be admitted, it must be shown that the recording device operated properly, that the operator of the device was competent, and that the recording was not subsequently altered. See State v. Baca, 82 N.M. 144, 146, 477 P.2d 320, 322 (Ct. App. 1970), overruled on other grounds by State v. Jojola, 89 N.M. 489, 490, 553 P.2d 1296, 1297 (Ct. App. 1976). The rule stated in Baca, however, predates by about five years the evidentiary rule governing the authentication and identification of an item of evidence. New Mexico's Rule 11-901 is based on Rule 901 of the Federal Rules of Evidence that was enacted in 1975. See Fed. R. Evid. 901; Estate of Romero ex rel. Romero v. City of Santa Fe, 2006-NMSC-028, ¶ 8, 139 N.M. 671, 137 P.3d 611 (noting that "New Mexico Rules of Evidence generally follow the federal rules of evidence"). Further, the example given at Rule 11-901(B)(9) allowing "[e]vidence describing a process or system andshowing that it produces an accurate result" tracks with the Baca reasoning and merely provides an alternate way of authenticating a recording. The district court's ruling fits comfortably within Rule 11-901 and did not constitute an abuse of discretion.

3. Admission of Brass Knuckles

Defendant next argues that the district court erred in admitting into evidence the brass knuckles allegedly used by Defendant during the altercation. He contends that proper police procedure was not followed, including gaps in the chain of custody. He postulates that the set of brass knuckles presented as evidence may have been different from that found at the scene of the crime or that the evidence might have been tampered with. As above, we review the court's decision whether to admit or exclude evidence for abuse of discretion. Ruiz, 2008-NMSC-063, ¶ 7. We will find no abuse of discretion when the state shows by a preponderance of the evidence that the item of evidence is what it purports to be. See State v. Peters, 1997-NMCA-084, ¶ 26, 123 N.M. 667, 944 P.2d 896.

"In order to admit real or demonstrative evidence at trial, the item of evidence in question must be identified, either visually or by establishing the custody of the object from the time it was seized to the time it is offered in evidence." State v. Chavez, 84 N.M. 760, 761, 508 P.2d 30, 31 (Ct. App. 1973). The state need notestablish the chain of custody with such precision as to exclude all possibility of tampering. See Claridge v. N.M. State Racing Comm'n, 107 N.M. 632, 641, 763 P.2d 66, 75 (Ct. App. 1988). Any questions about a gap in the chain of custody when handling evidence goes to the weight of the evidence and not to its admissibility. Cent. Sec. & Alarm Co. v. Mehler, 1996-NMCA-060, ¶ 30, 121 N.M. 840, 918 P.2d 1340.

Here, a police officer provided both a visual identification of...