State v. Paiz

• Citation: 149 P.3d 579,2006 NMCA 144
• Decision Date: 21 September 2006
• Docket Number: No. 25,013.,25,013.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Peter Rudy PAIZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 579

149 P.3d 579

2006 NMCA 144

STATE of New Mexico, Plaintiff-Appellee, v. Peter Rudy PAIZ, Defendant-Appellant.

No. 25,013.

Court of Appeals of New Mexico.

September 21, 2006.

Certiorari Denied, No. 30,052, November 29, 2006.

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COPYRIGHT MATERIAL OMITTED

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

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

OPINION

SUTIN, Judge.

{1} Defendant was convicted of multiple counts of criminal sexual contact of a minor (CSCM) in the third degree, multiple counts of criminal sexual penetration (CSP) in the first degree (child under thirteen), and two counts of bribery or intimidation of a witness, as well as a single count of attempted CSP in the first degree (child under thirteen). On appeal, Defendant raises the following issues: (1) whether the district court erred in denying a motion to compel the victims to submit to psychological evaluations, (2) whether the victims' medical records should have been provided in discovery, (3) whether the district court erred in admitting testimony on post-traumatic stress disorder (PTSD), (4) whether examinations of the victims should have been excluded, (5) whether lesser-included offense instructions should have been given, and (6) whether prosecutorial misconduct effectively denied Defendant a fair trial. Because we determine that no error occurred, we affirm Defendant's convictions.

BACKGROUND

{2} Defendant's convictions stem from events that occurred between 1991 and 1996, when the victims, A.D. and J.D., were between the ages of three and eleven. During that period of time Defendant lived with the victims and their mother in a single household.

{3} A.D. and J.D. testified that after Defendant moved into their home, he began sexually abusing them. Although they reported Defendant's conduct to their mother, she did not protect them. In August 1996, J.D. called her grandmother for help. The grandmother immediately took J.D. and her brother from the house; A.D. was spending the night with a friend. The grandmother and her sister later obtained legal custody of the victims and their brother.

{4} Roughly a month after A.D. and J.D. left their mother's household, their grandmother took them to a counselor, Daniel Blackwood, to seek help with behavioral issues. Mr. Blackwood diagnosed the victims with a number of disorders, including PTSD. Approximately six months later, the victims were taken to Adrienne Larkin, a clinical psychologist who specialized in individual psychotherapy. She also diagnosed A.D. and J.D. with PTSD and confirmed that their symptoms were consistent with sexual abuse. In addition to seeing Mr. Blackwood and Dr. Larkin, A.D. received counseling from Clair Neilsen at Hogares, a treatment facility for children and adolescents. Ms. Neilsen similarly concluded that A.D. suffered from PTSD, consistent with sexual abuse.

{5} The sexual abuse was not immediately reported to the police. Rather, the victims' grandmother elected to wait until guardianship proceedings had been concluded, which resulted in a lapse of approximately one year from when the children were removed from their mother's household. In August 1997, the authorities were notified and Safehouse interviews were conducted to facilitate the criminal investigation. In October 1997, A.D. and J.D. were taken to a medical doctor, Dr. Renee Ornelas, for physical examinations. Dr. Ornelas observed no abnormalities, but opined at trial that the victims' conditions were consistent with the reported sexual abuse.

{6} The defense was based on the theory that the allegations of abuse were fabricated by the victims, because they did not like Defendant and they wanted him to leave their household. Primarily, as developed through the testimony of the defense expert, the defense characterized the victims' PTSD as consistent with other traumas in their lives. Defendant also took the stand, denying that any improper contact had occurred.

{7} The jury rejected Defendant's theory, returning guilty verdicts on three counts of CSCM in the third degree, three counts of CSP in the first degree, one count of attempted CSP in the first degree, and two counts of bribery or intimidation of a witness. Defendant was sentenced to forty-five years, with nine years suspended, for an actual sentence of thirty-six years of imprisonment. This appeal followed.

DISCUSSION

A. Psychological Evaluations of the Victims

{8} Shortly before trial, Defendant filed a motion to allow his defense expert to conduct forensic psychological evaluations of the victims. The district court denied the motion on grounds of timeliness and relevancy. Defendant challenges these determinations on appeal.

{9} We will begin with the timeliness of the motion. Following an earlier appeal to this Court, this case was remanded on September 12, 2002, for retrial. Defendant did not file the motion until September 17, 2003, twelve days before the second trial. Because of the short time frame, the district court was unable to schedule a hearing on the motion before trial. The motion was heard and denied on the opening day of trial. Under such circumstances, we believe the district court could reasonably have denied the motion because it was untimely. Cf. State v. Aragon, 1997-NMCA-087, ¶ 22, 123 N.M. 803, 945 P.2d 1021 (stating that, "as a general rule, a motion for a continuance filed at the last minute is not favored"); State v. Robertson, 90 N.M. 382, 383, 563 P.2d 1175, 1176 (Ct.App.1977) (upholding the denial of a motion for a continuance in order to obtain a polygraph examination, where the motion was filed immediately before trial despite earlier opportunity to resolve the matter).

{10} Even if the motion had been timely, Defendant made an inadequate showing of support. At a minimum, the movant must demonstrate a specific basis or a compelling need for a psychological evaluation of a victim. See State v. Ruiz, 2001-NMCA-097, ¶¶ 39-40, 131 N.M. 241, 34 P.3d 630 (observing that either a "specific basis" or a "compelling need" is required in this context). Defendant sought forensic psychological examinations of A.D. and J.D., either by his own expert or by an expert appointed by the court, in order to confront the State's experts' non-forensic diagnoses of PTSD and their opinions that the PTSD was consistent with sexual abuse. Defendant contends that forensic examinations were necessary because the State's experts' diagnoses were "treatment diagnoses" and were therefore "problematically unscientific," and also that the testimony of a forensic expert would "confront the State's evidence." As shown later in this opinion, we reject Defendant's argument that the testimony of the State's experts was "problematically unscientific." We therefore see no support for Defendant's motion on that ground. The motion was not viable for other reasons as well.

{11} Defendant's expert and the State's experts and other witnesses testified at length about other traumatic events with which the victims' PTSD was or may have been consistent and to which their PTSD could have been related. In addition, Defendant did not satisfy his burden to show by an offer of proof or otherwise how a present evaluation for PTSD could be relevant in regard to whether the PTSD suffered years back would be consistent with traumatic events other than or in addition to sexual abuse. See State v. Slayton, 52 N.M. 239, 243, 196 P.2d 734, 736 (1948) (holding that the district court did not err in excluding evidence where the defendant failed to disclose a purpose to show specific acts of violence and failed to make an offer of proof); State v. Fernandez, 117 N.M. 673, 681, 875 P.2d 1104, 1112 (Ct.App.1994) (holding it was not error to reject "[a]n offer of proof stated in mere conclusory terms" and that fails to "clearly identify the relevance of the evidence"). We fail to see any support for Defendant's motion and we see no prejudice from its denial. It is unclear what, if anything, could have been gained from the requested psychological evaluations.

{12} Defendant nevertheless argues that evaluations were required in order to establish the onset of the victims' PTSD, thereby potentially rebutting the State's assertion that the victims' psychological disorders were temporally related to the alleged sexual abuse. We see no support in the record that reliable information about the onset of the victims' PTSD could have been gathered so many years after all of the suggested triggering events occurred. In light of Defendant's burden as movant, Ruiz, 2001-NMCA-097, ¶¶ 39-40, 131 N.M. 241, 34 P.3d 630, this, too, is a critical omission. Further, besides being unsupported by evidence or an offer of proof to support this as a specific basis for the evaluation or to show a compelling need, this argument was not advanced below. We are therefore not inclined to consider it. See, e.g., State v. Lente, 2005-NMCA-111, ¶¶ 10-11, 138 N.M. 312, 119 P.3d 737 (declining to consider an appellate argument that was not articulated for the benefit of the district court).

{13} Finally, Defendant argues that the examinations should have been granted as a matter of fundamental fairness because the State was permitted to impeach his expert with the lack of opportunity to evaluate the victims on a first-hand basis. Our review of the transcript reveals that the district court offered to prohibit the State from pursuing this line of questioning. Defendant rejected that offer; instead, he specifically sought permission to introduce evidence about the lack of opportunity to conduct evaluations of the victims. This was clearly a tactical decision, which cannot provide a basis for relief on appeal. See, e.g., State v. Bonham, 1998-NMCA-178, ¶ 12, 126 N.M. 382, 970 P.2d 154 (observing that a defendant will not be heard to...