State v. Roybal

• Decision Date: 14 October 1992
• Docket Number: No. 13094,13094
• Citation: 846 P.2d 333,115 N.M. 27,1992 NMCA 114
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jose ROYBAL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 333

846 P.2d 333

115 N.M. 27

STATE of New Mexico, Plaintiff-Appellee, v. Jose ROYBAL, Defendant-Appellant.

No. 13094.

Court of Appeals of New Mexico.

Oct. 14, 1992.

Certiorari Denied Dec. 30, 1992.

Tom Udall, Atty. Gen., Ann M. Harvey, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Hilary Lamberton, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant appeals from his convictions for possession of a controlled substance, child abuse, and tampering with evidence as a result of an incident in which three undercover police officers observed him and two others engaged in what they perceived to be a drug transaction at a park. The three co-defendants were tried together. The charges against one co-defendant were dismissed at trial for insufficient evidence; the other co-defendant, Robert Baca, was convicted for trafficking in a controlled substance by distribution. On appeal to this court, his conviction was affirmed by memorandum opinion. See State v. Baca, Ct.App. No. 13,072 (filed June 22, 1992), cert. denied, 114 N.M. 227, 836 P.2d 1248 (1992).

In this appeal, Defendant raises six issues: (1) failure to prove probable cause to arrest; (2) denial of due process by the state's failure to examine the testifying officers' internal affairs records and the trial court's denial of a defense motion for in camera inspection of those records; (3) error in denial of a motion to sever; (4) the tampering with evidence statute is overbroad and vague; (5) there was insufficient evidence to establish the requisite intent for tampering with evidence; and (6) there was insufficient evidence to establish proof of child abuse. We discuss the facts, where relevant in connection with an issue, when we discuss that issue.

We reverse Defendant's convictions for tampering and child abuse for insufficient evidence to satisfy Defendant's right to due process. We affirm Defendant's conviction for possession, notwithstanding the fact that we conclude the trial court erred in denying Defendant's motion to sever because we conclude the error in denying the motion was harmless.

Probable Cause

Defendant argues on appeal, as did his co-defendant, that the trial court erred in determining that the police officers had probable cause to arrest him. Therefore, he contends, the trial court erred in denying his motion to suppress. We conclude that the trial court's decision on the motion to suppress was proper.

"Probable cause [to arrest] exists when the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient to warrant a man of reasonable caution to believe that an offense has been, or is being, committed." State v. Copeland, 105 N.M. 27, 31, 727 P.2d 1342, 1346 (Ct.App.1986). On appeal, the trial court's denial of a motion to suppress will not be disturbed if it is supported by substantial evidence. The facts are viewed in a manner most favorable to the state, all reasonable inferences in support of the trial court's decision are indulged in, and all inferences to the contrary are disregarded. Resolution of factual conflicts, credibility, and weight is the task of the trial court. State v. Boeglin, 100 N.M. 127, 666 P.2d 1274 (Ct.App.), rev'd on other grounds, 100 N.M. 470, 672 P.2d 643 (1983).

Defendant contends that evidence that an informant telephoned the police with information concerning activity at 2249 Lilac, that co-defendant Baca was present at a previous drug crime scene, and that he was known to the police as a heroin dealer, are each independently insufficient to establish probable cause to arrest. We assume but need not decide that the informant's tip by itself would not have established probable cause. See State v. Therrien, 110 N.M. 261, 794 P.2d 735 (Ct.App.1990). However, we review all the evidentiary facts to determine whether the evidence was sufficient, not each piece of evidence on its own. See Boeglin, 100 N.M. at 132, 666 P.2d at 1279.

Officers Garcia and Gandara had extensive experience in observing narcotics transactions. Gandara knew the co-defendant to be a heroin user and dealer. Shortly before the arrest, the officers saw a green Volkswagen at the Lilac address, where heroin had been found during the execution of a search warrant several months previously. The co-defendant was seen in that same vehicle in Duranes Park. He had been present at the Lilac address when the earlier warrant was executed and had been suspected of swallowing heroin on that occasion. From a distance of five to ten feet from the Volkswagen, Garcia saw Defendant hand the co-defendant currency and receive some small items in return. The three officers announced that they were police officers and Defendant dropped some items from his hand to the ground. The foregoing was evidence from which the trial court could have determined that the police officers could have believed that Defendant was engaging in a narcotics transaction. See Copeland, 105 N.M. at 31-32, 727 P.2d at 1346-47; Boeglin, 100 N.M. at 132, 666 P.2d at 1279.

Defendant argues that the inconsistency between Gandara's testimony that she observed the transaction through binoculars and Garcia's testimony that he saw the transaction from a few feet away precludes the establishment of probable cause because it is inherently improbable that the officers could have been in two places at once. We understand that the officers' testimony refers to one transaction. The testimony of neither officer, independent of the other's, was inherently improbable. See State v. Soliz, 80 N.M. 297, 454 P.2d 779 (Ct.App.1969) (testimony of single witness was not inherently improbable where it appeared that what was related could have occurred under the circumstances described).

It was for the trial court as fact-finder to resolve any conflict in the testimony of the witnesses and to determine where the weight and credibility lay. State v. Frazier, 17 N.M. 535, 131 P. 502 (1913). Here, the trial court determined that Garcia was the most credible of the witnesses who testified at the suppression hearing. The testimony of Garcia alone was sufficient to enable the trial court judge to infer that Garcia observed Defendant engage in a suspicious transaction. See Soliz, 80 N.M. at 298, 454 P.2d at 780 (testimony of a single witness is sufficient for a conviction).

Inspection of Internal Affairs Records

Although Defendant contends that the trial court abused its discretion in refusing to conduct an in camera inspection of the files of Officers Gandara, Salazar, and Garcia, at trial he only moved for in camera inspection of Garcia's files. He cannot claim that the trial court erred in failing to inspect the files of Gandara and Salazar since he did not seek that review below. See State v. Martinez, 97 N.M. 316, 639 P.2d 603 (Ct.App.1982). In addition, we note that Defendant's motion for in camera inspection of Garcia's files was made pursuant to State v. Pohl, 89 N.M. 523, 554 P.2d 984 (Ct.App.1976). Pohl held that it was error to refuse to conduct an in camera inspection of the internal affairs file on an arresting officer where the defendant was charged with battery on a police officer and had shown two prior instances of the officer's alleged misconduct; the defendant showed as specific a need as could be expected under the circumstances of the case. In contrast with the showing made in Pohl, Defendant did not make any showing that the internal affairs files contained information material to the preparation of his defense. The newspaper article on which defendant relied, for example, does not cast any doubt on Garcia's credibility. Rather, it asserts that Salazar's affidavit contained false information. Defendant's other appellate arguments regarding disclosure are made for the first time on appeal. As a result, there is no basis for appellate review of these claims. See State v. Baca, 111 N.M. 270, 804 P.2d 1089 (Ct.App.1990) (this court reviews the trial court's ruling for reversible error on the grounds on which defendant based his objection at trial).

Motion to Sever

The co-defendants advised the trial court that they would seek to have Defendant's suppression hearing testimony admitted at trial as the prior testimony of an unavailable witness. The suppression hearing testimony was offered to prove that the police officers attempted to persuade Defendant to testify against his co-defendants. As the court summarized the tender, at least one of the police officers told Defendant: " 'If you turn an informant, then we won't press charges against you, and you and your family can go[.]' "

Initially, Defendant did not object to the admission of his prior testimony. However, as soon as the trial court ruled that the state could introduce evidence of Defendant's prior convictions to impeach that testimony, Defendant objected and moved to sever his trial. Defendant's motion to sever is inconsistent with the notion that he waived any objection to admission of his prior testimony; the very purpose of the motion was to avoid admission of the prior testimony. We conclude he preserved the issue he argues on appeal because he alerted the trial court to his objections as soon as they arose. See State v. Montoya, 80 N.M. 64, 451 P.2d 557 (Ct.App.1968).

The standard of review for denial of a motion to sever is abuse of discretion. State v. Montoya, 114 N.M. 221, 836 P.2d 667 (Ct.App.1992); State v. Pacheco, 110 N.M. 599, 798 P.2d 200 (Ct.App.1990). To succeed in proving error, the defendant must make a showing that he suffered prejudice by the joinder. Id. Further, "[e]ven when inadmissible evidence is introduced in a joint trial, reversal of a denial of severance is not automatic." Montoya, 114 N.M. at 224, 836 P.2d at 670.

We note that the language of the relevant rule has changed since this court's decision in State v. Volkman, 86 N.M....