State v. Martinez
| Decision Date | 06 September 1996 |
| Docket Number | No. 16331,16331 |
| Citation | 927 P.2d 31,122 N.M. 476,1996 NMCA 109 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Daniel J. MARTINEZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
1. The opinion filed August 6, 1996 is withdrawn and the following substituted therefor.
2. Defendant appeals his convictions for three counts of trafficking in a controlled substance (cocaine) contrary to NMSA 1978, Sections 30-31-20(A)(2), -2(O) (Cum.Supp.1995), and -7(A)(1) (Repl.Pamp.1989). Defendant raises four issues on appeal: (1) whether Defendant's Sixth Amendment right to confront adverse witnesses was violated when he was not permitted to impeach the State's confidential informant who had an alleged motive to fabricate testimony based on the pendency of serious criminal charges; (2) whether the district court had jurisdiction to proceed on a "Superseding Grand Jury Indictment"; (3) whether Defendant was denied effective assistance of counsel; and (4) whether the district court fundamentally erred by failing to instruct on entrapment. Because we agree that Defendant's Sixth Amendment right to confront adverse witnesses was violated, we reverse his conviction on Count I and remand for a new trial. We affirm Defendant's convictions on Counts II and III.
3. For approximately two years before the events leading up to this case, Veronica Mullins (Mullins) worked for the Santa Fe County Sheriff's Office as a paid confidential informant, supplying information to Detective Chris Crespin. In late January 1994 Mullins approached Detective Crespin and advised him that she could make a "controlled buy" from Defendant, with whom Detective Crespin was familiar from a previous incident. An operation was planned wherein Mullins would buy drugs from Defendant on several occasions. According to this plan, other state agents would become increasingly involved until enough evidence against Defendant was obtained to arrest and prosecute him without the State having to expose Mullins. However, the plan was interrupted after only two buys when Defendant was arrested by the City of Santa Fe Police Department.
4. For the first buy, which occurred on January 25, 1994, Mullins went to Defendant's home to purchase cocaine with money supplied by the State. While officers from the sheriff's office observed from a concealed position, Mullins entered the house and returned with cocaine, which she testified she bought from Defendant.
5. Two days later, Mullins returned to Defendant's home to make another purchase, again under surveillance by the sheriff's office. She testified that Defendant had no cocaine, but had agreed to bring some to her home later that day. When Defendant arrived at Mullins' home later that afternoon, Agent Mark Gonzales was present posing as a drug buyer and wearing a voice-activated tape recorder. Other officers were monitoring the activities in and around Mullins' home from vehicles equipped with special surveillance devices. Defendant did not bring any cocaine with him, but agreed to take Mullins to a friend's home to purchase some cocaine with money supplied by Agent Gonzales. Mullins testified that she and Defendant drove around the block and while stopped at a stop sign, Defendant took some cocaine from under his seat; they then returned to Mullins' home without making any other stops. Mullins and Agent Gonzales both testified that Defendant handed the drugs to Agent Gonzales. Agent Gonzales told Defendant that his drug connection had been jailed and that he wanted to set up a new source of drugs. Defendant said that if Agent Gonzales contacted Mullins when he wanted to buy drugs, he would "go down to my buddy's and pick it up right away."
6. Defendant's testimony differed significantly from Mullins'. Defendant testified that when Mullins came to his home on January 25, she took something from the large tool box she kept in his kitchen and left. He testified that when she came to his house two days later, she asked if he would take her to buy a gift for her daughter later that day. When he arrived at Mullins' home, she and a stranger asked him for some cocaine. Although he had no cocaine, he agreed to drive her to her friend's home so she could buy cocaine with money the stranger provided. He testified that he drove her to her friend's house and waited in the car while Mullins went inside. Defendant testified that Mullins delivered the cocaine to Agent Gonzales and that he never touched the drugs.
7. On January 28 the apartment of Defendant's friend, Darlene Fowler (Fowler) was raided by City of Santa Fe police officers. Louie Martinez (Louie), a mutual friend of Defendant and Fowler, was arrested for possessing cocaine. After Louie had been taken to jail but while some officers were still in Fowler's apartment, Defendant knocked on the door. The police instructed Fowler to open the door and invite Defendant in while they hid in a back room. Soon after Defendant entered the apartment, the officers came out of hiding with their guns drawn, secured Defendant, and patted him down. They found a pager and some cocaine in his jacket pocket. Defendant was arrested and charged with possession of cocaine with intent to distribute. Defendant claims the police planted the drugs. After the January 28 arrest, the sheriff's office terminated its undercover operation and proceeded against Defendant.
8. During the pendency of this case, Mullins was arrested and charged with accessory to murder and aggravated battery in an unrelated matter. The charges, originally filed in Torrance County, were dismissed without prejudice due to a venue problem and transferred to the District Attorney's office in Albuquerque. At the time of Defendant's trial, the Albuquerque office had not taken any action on the charges. In pre-trial interviews, both Mullins and Detective Crespin denied that any deal had been made to exchange Mullins' testimony in this case for a dismissal. The district court granted the State's motion in limine to prohibit Defendant from cross-examining witnesses about Mullins' arrest or the charges which had been dismissed.
9. Defendant argues on appeal that he was denied his rights under the Sixth Amendment Confrontation Clause because the district court did not allow him to inquire into the possibility that Mullins was biased or motivated to fabricate testimony against Defendant in exchange for leniency from the State. "The Sixth Amendment to the United States Constitution provides that, in criminal prosecutions, the accused shall have the right to confront the witnesses against him." State v. Casaus, 121 N.M. 481, 487-88, 913 P.2d 669, 675-76 (Ct.App p.1996). The Confrontation Clause is applicable to the states through the Fourteenth Amendment. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974).
10. Initially, we address the State's contention that Defendant failed to preserve his Sixth Amendment Confrontation Clause claim. The State bases its argument on Defendant's failure to expressly mention the Confrontation Clause or his constitutional right to confront the witnesses at the motion hearing.
11. Our Appellate Rules state that "[t]o preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked." NMRA 1996, 12-216(A). This Court recently ruled that a defendant's Confrontation Clause claim was preserved when the defendant neither expressly cited the Confrontation Clause nor used the phrase " 'motive to lie' " as a basis for his argument, but had presented arguments that "were adequate to alert the trial court to the basis for Defendant's proffer." State v. Johnson, 121 N.M. 77, 80, 908 P.2d 770, 773 (Ct.App.), cert. granted, 120 N.M. 828, 907 P.2d 1009 (1995); cf. United States v. Nez, 661 F.2d 1203, 1206 (10th Cir.1981) ().
12. Defendant's theory of admissibility tendered at the motion hearing was that Mullins had a motive to lie "because these cases ... could still be pending or refiled." We find that Defendant adequately alerted the district court to the asserted error and invoked an intelligent ruling, thereby preserving his Confrontation Clause claim for appeal. See State v. Flanagan, 111 N.M. 93, 98, 801 P.2d 675, 680 (Ct.App.) (purpose of rule "is to apprise the trial court of the nature of the error and invoke an intelligent ruling on the issue"), cert. denied, 111 N.M. 77, 801 P.2d 659 (1990).
13. The State also urges us to disregard Defendant's Confrontation Clause claim because he failed to set forth in his brief-in-chief how the issue was preserved, as required by NMRA 1996, 12-213(A)(3). NMRA 12-213, however, does not require this Court to disregard an issue when an appellant fails to comply with its provisions. Cf. State v. Goss, 111 N.M. 530, 533, 807 P.2d 228, 231 (Ct.App.) (where defendant fails to comply with NMRA 12-213, "appellate court may decline to address such contention"), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991) (emphasis added). Moreover, in his reply brief Defendant set out how the issue was preserved. In sum, this issue deals with a fundamental right and having found that the issue was properly preserved, we address the issue on its merits.
14. When cross-examination is unduly restricted, a constitutional error results. Davis, 415 U.S. at 318, 94 S.Ct. at 1111. Therefore, we must determine whether the district court's ruling amounted to an undue restriction on Defendant's right to cross-examine adverse witnesses. While the scope of cross-examination...
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