State v. Penman
| Decision Date | 23 June 2022 |
| Docket Number | A-1-CA-39025 |
| Citation | 521 P.3d 96 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Kentoine Jwayne PENMAN, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee
Kennedy Kennedy & Ives, Joseph P. Kennedy, Laura Schauer Ives, Albuquerque, NM, for Appellant
{1} Defendant Kentoine Penman entered a conditional plea of no contest to two counts of possession of a controlled substance ( NMSA 1978, § 30-31-23(A) (2011, amended 2021) ); one count of battery upon a peace officer ( NMSA 1978, § 30-22-24 (1971) ); one count of assault on a peace officer ( NMSA 1978, § 30-22-21(A)(1) (1971) ); one count of resisting, evading or obstructing an officer ( NMSA 1978, § 30-22-1(D) (1981) ); one count of pedestrians on roadways ( NMSA 1978, § 66-7-339 (1978, amended 2018) ); and one count of possession of marijuana ( Section 30-31-23(B)(1) ). Defendant reserved the right to appeal the denial of two pretrial motions (1) to dismiss the criminal information, pursuant to State v. Foulenfont , 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329 ( Foulentfont Motion ), and to suppress all evidence and statements obtained as a result of an unlawful seizure; and (2) to suppress all evidence and testimony obtained in violation of the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution, pursuant to State v. Ochoa , 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143 ( Ochoa Motion ). We reverse the denial of the motion to dismiss as to the count of the pedestrians on roadways charge, but affirm the denial of the counts of battery, assault, and resisting, evading or obstructing an officer charges. We also affirm the district court's denial of Defendant's Ochoa Motion, holding that under the new crime exception, evidence of the battery; assault; resisting, evading or obstructing an officer; controlled substances; and marijuana charges are admissible.
{2} The following facts are based on testimony presented during an evidentiary hearing on Defendant's State v. Ware , 1994-NMSC-091, 118 N.M. 319, 881 P.2d 679 ( Ware Motion ), and Foulenfont motions, and the statement of probable cause supporting the criminal complaint. On an evening in June 2018 following completion of a traffic stop in a residential neighborhood, Hobbs Police Department Officers Jaimes, Martinez, and Gastelum drove further down the street from that traffic stop with their emergency lights activated, in order to detain and question two men, one of whom was Defendant, who were standing in the middle of the street. As the officers approached in their vehicles, the two men walked back toward the sidewalk. Once there, Officer Jaimes questioned Defendant on the sidewalk near where he was standing in the road.
{3} Although Officer Jaimes had not seen the men walking on or along the road, he testified that he had "reasonable suspicion to believe that at some point [the two men] walked and got in the middle of the road" and that "[s]tanding in the middle of the road was good enough" to detain and investigate the two men for violating the pedestrians on roadways statute. See § 66-7-339(A) ().1
{4} Officer Jaimes asked Defendant for his identification during the stop and then communicated with a dispatch officer in order to ascertain whether Defendant had any outstanding warrants. Officer Jaimes explained that his standard operating procedure is to not cite individuals for violating Section 66-7-339 if they are "polite," but he will cite them if he discovers they have previously been warned. While Officer Jaimes spoke with Defendant, Officer Martinez interacted with a group of people who were standing nearby, and Officer Gastelum investigated the second man who was seen standing in the middle of the street for a violation of Section 66-7-339.
{5} Shamus Wright, an onlooker (and the defendant in a related case, City of Hobbs v. Wright , A-1-CA-39028, mem. op., 2022 WL 473701 (N.M. Ct. App. Feb. 16, 2022) (nonprecedential)), verbally objected to Officer Jaimes's investigation of Defendant, causing Officers Martinez and Gastelum to focus on Mr. Wright. Soon thereafter, Officer Jaimes told Defendant to "hang on," and walked away from Defendant to assist in the arrest of Mr. Wright. Officer Jaimes did not recall if he had given Defendant his identification back when he left to assist in the arrest.
{6} Defendant did not remain where Officer Jaimes left him, but instead walked toward the officers and began filming the arrest of Mr. Wright on his phone. Defendant was standing less than two to three feet away from the officers when Officer Jaimes ordered Defendant to step back in order to increase the space between Defendant and Officer Martinez. Although not immediately, Defendant ultimately complied with the order, but then circled around Officer Jaimes and continued filming as Officer Martinez placed Mr. Wright in his patrol vehicle. At this time, Defendant was approximately four to five feet behind Officer Martinez. Officer Martinez told Defendant that he was placing him under arrest because "he was already told once to back away."
{7} Officer Martinez attempted to grab Defendant by the wrist to arrest him, but Defendant pushed Officer Martinez away and fled. Officer Martinez chased Defendant and physically forced Defendant to stop. Interpreting Defendant's stance as an act of aggression, Officer Martinez tackled Defendant to the ground and placed him under arrest.
{8} A baggy containing a white powdery substance was found where Defendant was arrested, and baggies containing a green leafy substance and a white crystalline substance were found in the patrol vehicle where Defendant was placed. The contents of the baggies tested positive for cocaine, marijuana, and methamphetamine, respectively. Defendant admitted the cocaine and marijuana were his, but denied possession of the methamphetamine.
{9} Defendant was charged with two counts of possession of a controlled substance; one count of battery upon a peace officer; one count of assault upon a peace officer; one count of resisting, evading or obstructing an officer; one count of pedestrians on roadways; and one count of possession of marijuana.
{10} Defendant moved to dismiss the criminal information, in which he argued that the pedestrians on roadways; battery upon a peace officer; assault upon a peace officer; and resisting, evading or obstructing an officer charges were subject to dismissal under Foulenfont . Defendant additionally argued that all evidence and statements flowing from the stop should be suppressed because Officer Jaimes lacked reasonable suspicion to investigate him for violating Section 66-7-339. Defendant also moved to suppress all evidence under Ware because of the lack of lapel camera footage. The State responded that dismissal under Foulenfont would be inappropriate because the evaluation of the stop was not a purely legal question, but instead involved questions of fact. The State argued in addition that the investigatory stop was supported by reasonable suspicion, and if not, given "Defendant's use of force against [Officer Martinez]," evidence of Defendant's drug offenses, battery, assault, and resisting, evading or obstructing an officer charges were admissible under the new crime exception to the exclusionary rule citing State v. Tapia , 2018-NMSC-017, ¶ 50, 414 P.3d 332. Defendant did not file a written reply responding to the State's new crime exception argument.
{11} The district court held an evidentiary hearing on the Foulenfont and Ware motions. At the close of evidence, Defendant argued that the officers were not acting in the lawful discharge of their duties because they lacked reasonable suspicion to believe Defendant violated Section 66-7-339. The State argued the officers had reasonable suspicion and reiterated that if the court found the officers lacked reasonable suspicion, the evidence of Defendant's crimes, not including pedestrians on roadways, should be admitted under the new crime exception because the facts of the case were sufficient to satisfy the attenuation doctrine factors. Defendant did not address the State's new crime exception argument. The district court announced that it would deny the Ware and Foulenfont motions and set a deadline for the parties to file requested findings of fact and conclusions of law. Although the State timely filed requested findings of fact and conclusions of law as to both motions, Defendant did not do so. The district court then entered findings of fact and conclusions of law for Defendant's Foulenfont and Ware motions. The following day Defendant untimely filed proposed findings of facts and conclusions of law.
{12} Defendant next moved to suppress all evidence under Ochoa , arguing that the initial stop was pretextual. Defendant argued first that Officer Jaimes lacked reasonable suspicion to stop Defendant; and second that the stop was pretextual because (1) the purpose of the stop was "to run random wants and warrants checks on people living in the area"; (2) Defendant was ultimately charged with offenses unrelated to the stop; (3) the officers failed to follow proper body camera procedures; and (4) there was no actual threat to traffic safety. The district court summarily denied Defendant's Ochoa Motion, finding that the motion was "not well taken and should be denied." Five months after the denial of Defendant's Ochoa Motion, Defendant filed an offer of evidentiary proof regarding racial demographics and pedestrians on roadways stops over a two-year period in Hobbs, as well as excerpts from a deposition taken of a fellow Hobbs police officer regarding Officer Jaimes's police practices. With his offer of proof, De...
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