State v. Pedroncelli

• Decision Date: 01 December 1981
• Docket Number: No. 5331,5331
• Citation: 1981 NMCA 142,637 P.2d 1245,97 N.M. 190
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Janet PEDRONCELLI, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1245

637 P.2d 1245

97 N.M. 190

STATE of New Mexico, Plaintiff-Appellant, v. Janet PEDRONCELLI, Defendant-Appellee.

No. 5331.

Court of Appeals of New Mexico.

Dec. 1, 1981.

Jeff Bingaman, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Scott McCarty and Catherine Stetson, D'Angelo, McCarty & Vigil, Albuquerque, for defendant-appellee.

OPINION

WOOD, Judge.

The information charged defendant with embezzlement in excess of $2,500.00. Section 30-16-8, N.M.S.A.1978. The testimony of two witnesses at the preliminary examination was not recorded because of equipment failure. Prior to trial, defendant moved for dismissal of the information; the motion was granted. The State appealed; we reverse.

The stipulated facts, adopted by the trial court, are:

1. The Defendant requested that a record be made pursuant to Rule 20, New Mexico Rules of Criminal Procedure, at the Preliminary Hearing held on April 22 and April 23, 1981.

2. The testimony of two witnesses, Barbara Chavez and Juliette A. Hice, at the Preliminary Hearing was not recorded due to inadvertent failure of electronic recording equipment on April 22 and April 23, 1981.

3. The nature of the testimony of both of the above-noted witnesses consisted of foundation testimony relating to the introduction of credit union financial transactions.

4. None of the parties can reconstruct verbatim testimony of these two witnesses.

5. The Defendant did not make a showing of particular prejudice due to the faulty recording.

6. The State has offered the defense the opportunity to depose the witnesses in question.

Defendant's requested conclusions, also adopted by the trial court, are:

1. A preliminary hearing is a critical stage of a criminal prosecution. State v. Burke, (sic) 82 N.M. 466 (483 P.2d 940) (1971).

2. Rule 20, New Mexico Rules of Criminal Procedure, requires that, upon request, a record be kept of the proceedings at a preliminary hearing.

3. Should the testimony so recorded be destroyed for any reason the defendant is denied certain rights guaranteed to her by the 6th Amendment of the Constitution of the United States.

4. Defendant is prohibited from adequately exercising her right of cross examination by the inadvertent destruction of the evidence.

Relying on civil cases involving findings of fact and conclusions of law, defendant contends the findings and conclusions are to be presumed correct and are to be upheld absent an abuse of discretion. We disagree. If civil rules apply to the findings and conclusions in this criminal case, the applicable rules are:

1. The findings of fact, not being challenged, are the facts on appeal. Perez v. Gallegos, 87 N.M. 161, 530 P.2d 1155 (1974).

2. The question on appeal is whether the trial court's legal conclusions were a proper application of the law. Esquibel v. Hallmark, 92 N.M. 254, 586 P.2d 1083 (1978); see State v. Herrera, 92 N.M. 7, 582 P.2d 384 (Ct.App.1978).

3. The trial court's judgment of dismissal cannot be sustained unless the conclusions on which it rests have support in the findings of fact. Watson Land Company v. Lucero, 85 N.M. 776, 517 P.2d 1302 (1974); House of Carpets, Inc. v. Mortgage Investment Co., 85 N.M. 560, 514 P.2d 611 (1973).

The trial court concluded that if testimony is destroyed "for any reason" the defendant is denied rights guaranteed by the Sixth Amendment to the United States Constitution. This is legally incorrect. Whether there has been a Sixth Amendment violation depends upon the facts of the particular case. When a violation has been established as a fact, the remedy also depends upon the facts.

United States v. Morrison, 449 U.S. 361, 66 L.Ed.2d 564, 101 S.Ct. 665 (1981), states:

Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation ....

Our approach has thus been to identify and then neutralize the taint by tailoring suitable relief appropriate in the circumstances ....

More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.

State v. Chouinard, 96 N.M. 658, 634 P.2d 680 (1981), also holds that dismissal is inappropriate. Where, as here,

the loss is known prior to trial, there are two alternatives: Exclusion of all evidence which the lost evidence might have impeached, or admission with full disclosure of the loss and its relevance and import. The choice between these alternatives must be made by the trial court, depending on its assessment of materiality and prejudice. The fundamental interest at stake is assurance that justice is done, both to the defendant and the public. (Our emphasis.)

Chouinard, supra, requires the defendant to show prejudice. The discussion in ...