State v. Nysus

• Decision Date: 24 September 2001
• Docket Number: No. 20,185.,20,185.
• Citation: 131 N.M. 338,35 P.3d 993
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Myrvin NYSUS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

35 P.3d 993

131 N.M. 338

STATE of New Mexico, Plaintiff-Appellee, v. Myrvin NYSUS, Defendant-Appellant.

No. 20,185.

Court of Appeals of New Mexico.

September 24, 2001.

Certiorari Denied November 19, 2001.

Patricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Carolyn R. Glick, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 27,173, November 19, 2001.

OPINION

ARMIJO, Judge.

{1} Myrvin Nysus (Defendant) appeals his conviction for aggravated stalking. Defendant asserts on appeal that his Motion to Dismiss and/or Suppress Evidence Due to Illegal Arrest should have been granted because (1) the University of New Mexico (UNM) campus police officer who arrested him did not have jurisdiction to arrest him; (2) the inventory search was invalid as to the items that were seized, but not inventoried in the vehicle tow report; and (3) admission of the illegally-seized evidence was not harmless error. Defendant also claims ineffective assistance of counsel. We affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND

{2} Defendant was convicted of aggravated stalking of his ex-wife, Jennifer Nysus (Victim). Defendant and Victim were divorced in February 1995 from a troubled marriage of twenty-three years. After the divorce, Victim obtained a series of temporary restraining orders (TRO) against Defendant. The record includes restraining orders issued in 1994, 1996, and 1997. The most recent TRO was in effect from October 21, 1997 to October 21, 1998, during which time the alleged aggravated stalking occurred. This order instructed Defendant not to abuse Victim, including harassing, restraining, assaulting, swearing at, threatening, destroying property, throwing things at, following, making harassing telephone calls, causing physical injury to, battering in any manner, or stalking. It further provided that he must not come within 100 yards of where she works or lives. Victim testified that she did not want to put her home or work address on the order because she was afraid that Defendant would carry out the threats he made on her life.

{3} Victim's daughter, Mercedes (Daughter), also had a restraining order issued against Defendant, her father, in 1997. She testified that she was afraid of Defendant and sought a restraining order because "he would follow my mom and me wherever we went." She testified that Defendant had a bad temper and that she was afraid for Victim's safety.

{4} Victim testified that Defendant followed her on two occasions in early 1998. On March 30, 1998, Victim observed Defendant following her in a Volvo as she drove through the streets of Albuquerque. He followed her as she drove to a McDonald's drive-thru window and continued after she left McDonald's until she was able to locate a police officer. After this incident, Victim became fearful that Defendant would find her and hurt her.

{5} On April 2, 1998, Victim left work early and took a different route home in an attempt to avoid another encounter with Defendant. While driving southbound on Carlisle Boulevard, she saw Defendant drive past her in the same Volvo, heading north. In her rearview mirror, she observed him turn around in the middle of the road and begin to follow her again. She proceeded to drive to a police substation located near Girard Boulevard and Central Avenue. When an officer came out to look for Defendant, he was gone. After both of these incidents, Victim filed reports with the police.

{6} The following day, on April 3, 1998, Victim and Daughter, who worked in the same building, went out to the parking lot after work and found a piece of paper underneath a windshield wiper of Victim's car. The paper was a copy of an advertisement from the March 15, 1998 edition of the Albuquerque Journal that stated, "Anyone knowing the whereabouts in [Albuquerque] of Monique, Mikhail, Mercedes & Jennifer Nysus, please call ... 892-8997." The ad was highlighted in pink and a message was written on the side of the ad, "Thanks to Hagars [sic]." Victim was terrified that Defendant had located her and that "Thanks to Hagars" was his way of telling her that he learned of her whereabouts from her friends, Carol and Yaqui Haagar. The telephone number in the ad was the number for the address where Defendant lived. Monique, Mikhail, and Mercedes are Defendant's and Victim's three children. Victim called the district attorney's office and the University of New Mexico Police Department immediately after finding the ad on her windshield.

{7} At the time of the stalking incidents, Victim worked for the University of New Mexico, Center for Development and Disabilities. Her office was located at 2300 Menaul Boulevard and was off campus, but on UNM property. Detective Merges, a UNM police officer, responded to her call regarding the April 3 incident. At the time he responded to the call, he had previously investigated incidents and was aware of the restraining orders issued against Defendant. He had previously been contacted by the district attorney's office and had also been involved in assuring Daughter's safety while she was on campus. On April 3, the detective was concerned for the women's safety and took them to a "safe house." The following day, he went to Defendant's home and observed Defendant driving a maroon or brown Volvo matching the description of the car given by Victim.

I. The Arrest and Search

{8} Another stalking incident, which led to the filing of charges against Defendant, occurred on April 7, 1998. On that afternoon, Detective Merges was patrolling in an unmarked police car in the parking lot outside Victim's workplace. He testified that he was surveilling the parking lot when he saw what looked like Defendant's car drive into the parking lot. He further testified that he approached the car and observed that Defendant was driving. He called dispatch and requested backup. He then proceeded to follow Defendant out of the parking lot and onto Menaul Boulevard. He followed Defendant westbound on Menaul and then north on Broadway Avenue. Defendant turned east onto Candelaria Road. According to Detective Merges, Defendant stopped at the intersection of Candelaria and the entrance to Interstate 25 and made a left-hand turn onto the highway. The detective followed Defendant as he drove northbound on Interstate 25, west on Tramway Boulevard, north on Highway 313, into the Town of Bernalillo, west on Calle de Bosque, and finally north on Avenida San Ysidro in Bernalillo. During the chase, Detective Merges and Defendant drove through Sandia Pueblo and through Bernalillo. Throughout this time, Detective Merges was in contact with dispatch concerning his whereabouts.

{9} Once in Bernalillo, the vehicles approached an intersection where a school bus was stopped. Defendant stopped. Detective Merges pulled over to the right-hand side of Defendant's car. Officer Bello, a UNM police officer who responded to the dispatch call for backup, and Officer Armijo of the Sandia Pueblo Police Department, stopped behind Defendant. Officer Bello was in uniform and in a marked police car. At some point, two officers from the Bernalillo Police Department arrived.

{10} Officer Armijo ordered Defendant to shut off the engine and get out of the car. Defendant initially refused to get out of the car. The officers pulled him out of the vehicle. Officer Bello handcuffed Defendant, put him in the back of his police car, and read him his Miranda rights.

{11} Chief Camponozzi of the Sandia Pueblo Police Department handed Detective Merges three pieces of paper that allegedly fell out of Defendant's pockets while being arrested. One piece of paper was a Bank of America Versateller receipt and the other two were two halves of a ripped postcard.

II. The Inventory Search

{12} An inventory search was conducted of Defendant's car. Officer Bello filled out a standard "Tow-in-Report" form before having Defendant's car towed. He listed the following items under "Inventory of Vehicle" on the form: "1 Swiss Gear Pocket Knife[,] 1 set of Cuff Links [and] Tie Tack (inexpensive)[,] 1 Hand Held Light[,] 1 Electric Razor." These items were found in the main compartment of the car. In addition to the items listed on the tow sheet, the officers found a copy of the ad asking for the whereabouts of Victim attached to the driver's side visor and a gray fanny pack.

{13} The trunk of Defendant's car was opened, either by using Defendant's keys or the trunk lever inside the car. The officers noticed a briefcase inside the trunk. Defendant and Detective Merges testified that the briefcase was closed with the combination set in the open position. Detective Merges looked inside the briefcase during the inventory search. Among the papers found in the briefcase was a copy of the ad asking for Victim's whereabouts and a pink highlighter.

{14} The items discovered during the inventory search were left in the trunk of the car with the exception of the ad found on the driver's seat visor and the gray fanny pack, which were taken into police custody. After securing a search warrant for Defendant's car and briefcase, Detective Merges searched the car at the tow company premises. During this search, he found store receipts and a bank Versateller machine receipt. These items were placed in police custody.

III. Motion to Dismiss Based on Jurisdictional Grounds

{15} Defense counsel moved to dismiss on the ground that Officer Bello lacked jurisdiction to arrest Defendant. Defendant argued that the officer lacked jurisdiction because the arrest took place outside of university property. The State responded that Detective Merges had authority to arrest Defendant under the fresh pursuit doctrine because Defendant was observed by university police personnel to have committed a felony on university property. The felony was identified as aggravated stalking—a...