State v. Morales, 21,324.

• Decision Date: 21 March 2002
• Docket Number: No. 21,324.,21,324.
• Citation: 45 P.3d 406,132 N.M. 146,2002 NMCA 52
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Mitchell MORALES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

45 P.3d 406

132 N.M. 146

2002 NMCA 52

STATE of New Mexico, Plaintiff-Appellee, v. Mitchell MORALES, Defendant-Appellant.

No. 21,324.

Court of Appeals of New Mexico.

March 21, 2002.

Certiorari Denied April 24, 2002.

Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.

Liane E. Kerr, Albuquerque, NM, for Appellant.

Certiorari Denied, No. 27,452, April 24, 2002.

OPINION

BOSSON, Chief Judge.

{1} In this case we decide, as an issue of first impression, that the State must prove the scientific reliability of a drug field test in a manner consistent with the Daubert/Alberico standard, if it wishes to use the results of that test at trial to identify a controlled substance. Because the State offered no such foundation, we reverse Defendant's conviction for possession of heroin and remand for a new trial on that charge. We affirm Defendant's remaining convictions for aggravated assault (deadly weapon) and aggravated battery on a peace officer (deadly weapon).

BACKGROUND

{2} On appeal, we view the evidence in the light most favorable to the verdict below. When the facts are disputed below, we resolve conflicting versions of an event in a manner that supports the verdict. State v. Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994).

{3} Defendant is a long-distance truck driver. When he is not on the road, he lives with his parents in Anthony, New Mexico. On October 8, 1998, he borrowed his father's car. At about 1:00 p.m., Defendant met his cousin, an acknowledged heroin addict, who had just gotten out of jail that day. At about 3:00 p.m., they drove to El Paso so the cousin could visit his girlfriend, and the three of them drove back to Anthony where they went to the cousin's house for a time, and then drove around Anthony. At about 9:30 that evening, Defendant decided he wanted to go home. He testified that he and his cousin were going to give his cousin's girlfriend a ride to her mother's house. On the way, Defendant pulled into a vacant lot. As he was about to get out of the car, he saw a man on a bicycle pedaling up to the car. The man was going very fast and looked mad. Defendant testified that his cousin looked back, saw the man, and shouted "go, go!" Defendant got scared and started to drive away.

{4} The man on the bicycle was Deputy Ordonez of the sheriff's department, who was on bike patrol that evening. Deputy Ordonez testified that when he was alongside the car, he identified himself as a deputy sheriff and told Defendant to stop the car. Instead of stopping, the driver accelerated, drove to the end of the vacant lot, did a U-turn, and came back toward Deputy Ordonez. Deputy Ordonez got off his bicycle to wave the car down. However, instead of slowing down, the car came straight at him. Afraid that he would be hit, Deputy Ordonez pulled his duty weapon and pointed it at the car. When the car still did not slow down, Deputy Ordonez began to spin away so he would not be hit, but the car hit his left knee as it went by, throwing him up on the vehicle. Deputy Ordonez landed on his feet, again identified himself as an officer, and ordered Defendant to stop the vehicle. Instead of stopping, the car accelerated away from Deputy Ordonez, and he fell to the ground.

{5} Deputy Ordonez had called for backup before he approached Defendant's car in the vacant lot. As he was lying on the ground, he saw Deputy Luevano approach the vacant lot in his sheriff's vehicle. Deputy Luevano had already engaged his emergency equipment, which included flashing lights, both white and colored. As he pulled into the vacant lot, Deputy Luevano turned on his spotlight and aimed it at the car as it approached him. Deputy Luevano got out of his vehicle, pulled out his weapon and yelled "Sheriff's Department, stop!" The car did not stop. Deputy Luevano testified that he thought the car was going to hit him, and he could feel the car brush his clothes as it went by. The vehicle left the vacant lot and drove away. As Deputy Luevano pursued, the car turned into an apartment complex next to the vacant lot and came to a stop. Defendant was arrested and his car impounded. Defendant was charged with various offenses arising from this encounter.

{6} The next day, deputies from the sheriff's department searched the car. Defendant does not argue that the search was unlawful. Initially, the deputies used a narcotics dog to sniff the vehicle. Based on the dog's reaction, the deputies searched the interior of the car on the driver's side and found a substance wrapped in foil under the floor mat on the driver's side. Deputy Gonzales performed a drug field test on the substance.

{7} At trial, Deputy Gonzales testified about the results of the drug field test and that the substance tested positive for heroin. Based upon that testimony, the substance was admitted into evidence. For reasons not clear from the record, the State did not present any evidence from a state crime laboratory to identify the substance as heroin. Defendant was convicted of possession of heroin.

DISCUSSION

Whether the Results of the Drug Field Test Should Have Been Admitted

{8} The issue before us is whether the drug field test had to satisfy the criteria for admission of scientific evidence established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). The State responds on appeal that Defendant failed to preserve this issue for review. On the merits of the question, the State argues in the alternative that the drug field test was not scientific evidence, and that, even if it was scientific evidence, the court properly admitted it under the Daubert/Alberico standard.

{9} Testimony on this issue was presented by two different sheriff's deputies, Gonzales and Wright. Deputy Gonzales is the K 9 handler for the sheriff's department. During his initial testimony, he testified about the search of the vehicle and the use of the narcotics dog as part of the search. During the course of his testimony, Deputy Gonzales described the drug field test and indicated (twice) that it had "flashed" positive for heroin. Deputy Gonzales was not shown the substance found in the vehicle, nor was he asked to identify it. Defendant did not object at this time to Deputy Gonzales' testimony about the field test. {10} After Deputy Gonzales finished testifying, the State called Investigator Wright, who had actually found the substance under the floor mat on the driver's side of the car, and he identified State's exhibit 15 as that same substance. When the State moved to admit exhibit 15 into evidence, Defendant objected, arguing that there was no proper foundation for identifying the substance as heroin, and Defendant specifically referred to the field test. Later, out of the presence of the jury, Defendant expanded his objection to include a citation to State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20. Defendant argued that the foundation required of the field test was similar to the foundation our Supreme Court required of the HGN test for intoxication in Torres. Defendant argued that if the State was going to rely on the results of the field test to admit exhibit 15, then it must produce an expert to testify about the scientific principles implicit in the field test and the scientific reliability of those results.

{11} The State responded that it did not need to provide scientific evidence. The State relied instead upon circumstantial evidence that the substance was heroin, including: (1) the testimony of the two deputies who were experienced in narcotics investigations and identified the substance by appearance as heroin; (2) concealment of the substance under the carpet; and (3) the K-9 response to the substance. In addition, the State argued that the testimony was admissible as lay opinion. However, as the trial court pointed out, the dog was trained to alert to a number of controlled substances, and therefore its reaction did not identify the substance as heroin as opposed to some other controlled substance. Although the trial court acknowledged the probative value of circumstantial evidence, in the court's opinion the foundation for exhibit 15 "boil[ed] down" to the field test.

{12} Ultimately, Deputy Gonzales was again called as a witness and questioned in greater detail by both sides concerning the field test. Deputy Gonzales testified that he had been trained in the administration of field tests and had been using them and teaching others how to use them for ten years. In addition, he testified that, based on his experience, the substance removed from Defendant's car had the color, texture, and aroma of black tar heroin. He chose this specific field test because he thought it would test as heroin. He demonstrated the use of the field test for the jury. As we understand the testimony, it is a relatively simple test. A small piece of the suspect substance is put in a vial with the test chemical. The vial is shaken and a chemical reaction takes place that "flashes" a color. The color of the flash varies depending on the nature of the substance. Light purple indicates heroin; dark purple indicates codeine, and orange or brown indicates methamphetamine. Other field test kits are used for other substances such as cocaine, marijuana, and hashish.

{13} By a note to the judge, the jury asked about the accuracy of the field test in percentage terms. Deputy Gonzales responded that he did not know the percentage or statistic, but that based on his experience the test was very accurate and very reliable. The deputy could not explain the chemical reaction that made the test function because he was not a chemist or toxicologist. Essentially, he just knew how to use the kit. Over Defendant's renewed objection, the trial court admitted exhibit 15 into evidence.

Preservation

{14} The State emphasizes that Defen...