State v. Ryan
| Decision Date | 16 February 2006 |
| Docket Number | No. 24,013.,24,013. |
| Citation | 132 P.3d 1040,2006 NMCA 044 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Patrick RYAN, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellee.
John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} A jury found Defendant guilty of twenty counts of criminal sexual penetration in the second degree in violation of NMSA 1978, § 30-9-11(D) (1995) (amended 2003), nine counts of criminal sexual contact in violation of NMSA 1978, § 30-9-12(D) (1993), one count of aggravated battery in violation of NMSA 1978, § 30-3-5(C) (1969), two counts of aggravated battery in violation of Section 30-3-5(B), three counts of kidnapping in violation of NMSA 1978, § 30-4-1 (1995) (amended 2003), and one count of attempted criminal sexual penetration in violation of NMSA 1978, § 30-28-1 (1963), and Section 30-9-11(D). Defendant raises three issues that we consider on appeal. First and foremost, Defendant challenges the admission of evidence obtained in the course of several warrantless searches of the building in which he lived and worked. We conclude that Defendant had no standing to challenge two of the searches and that police obtained valid consent from third parties prior to the other two searches. Second, Defendant argues that the State's lead investigative agent should not have been allowed to sit at counsel table after the rule of exclusion had been invoked. We disagree, and apply the exception for lead investigative agents. Finally, Defendant contends that the district court erred in admitting evidence of certain statements that he made to a physician, in violation of New Mexico's doctor-patient privilege. We conclude that the statements at issue were not privileged because they were made for the purpose of treating the Victim rather than Defendant. We affirm.
{2} Defendant also raises three arguments that we will not consider because we determine that they were not preserved in the district court. First, he contends that the district court erred in refusing to allow evidence that the searches were illegal. Second, Defendant argues that he was unfairly denied the opportunity to interview the State's medical expert prior to trial. Third, Defendant challenges the exclusion of his expert medical witness.
{3} Finally, Defendant raises two issues that we do not consider on appeal because he failed to properly support his arguments. Without explanation or citation to authority, he suggests that the jury may have been improperly influenced by the investigator's presence at counsel table and claims that the district court erred in excluding evidence of his poor health. We will not consider arguments not supported by authority. Lee v. Lee (In re Adoption of Doe), 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).
{4} The events at issue in this case took place over a period of several months, from the fall of 1996 through the spring of 1997. Both Defendant and Jennifer Lisignoli (formerly Cashman) (the Victim) worked as biologists for the Hornocker Wildlife Institute, studying black bears in a rural area near Reserve, New Mexico. They worked in a trailer or "bunkhouse" owned by Hornocker. Both the Victim and Defendant stayed overnight in the bunkhouse frequently, although Defendant maintained a home in Gallup throughout the charged period.
{5} In late 1996, the Victim began to experience serious medical problems. She suffered a number of symptoms, including amnesia, blurred vision, exhaustion, fevers, hallucinations, headaches, insomnia, light sensitivity, nausea, respiratory dysfunction, ringing in the ears, slurred speech, tremors, and vertigo, among other ailments. The Victim's illness persisted throughout the following months, despite periodic medical treatment. She was hospitalized on several occasions. The first such event took place on December 17, 1996, after the Victim fell unconscious. At that time, she was treated for suspected carbon monoxide poisoning. She collapsed again on March 23, 1997; a friend, Margaret Kirkeminde, found her at the bunkhouse with Defendant and called an ambulance over his objection. The Victim was briefly hospitalized and then released, on the theory that she had suffered a relapse relating to an earlier carbon monoxide poisoning event.
{6} The situation became even more critical on March 26, 1997, when the officers with the Sheriff's Department discovered the Victim lying incoherent in the back of a truck. She remarked, The officers were aware of the apparent carbon monoxide problem at the Hornocker trailer, so they traveled to the bunkhouse to search for anyone else who might require medical assistance. They did not find anyone in the trailer.
{7} The Victim was briefly treated at the hospital in Silver City and then airlifted to Presbyterian Hospital in Albuquerque. Her condition was regarded as very serious, and there was concern that she might not survive. She remained at Presbyterian Hospital for more than two weeks, suffering a serious relapse during that time, while doctors struggled to diagnose her illness and treat it. Doctors were able to rule out carbon monoxide poisoning, but could not determine the cause of her symptoms. They suspected that some other environmental toxin, a rare disorder, or a recreational drug might be at fault.
{8} Officers Tom Ennist and Nick Smith, from the Forest Service and the Department of Fish and Game respectively, were both on friendly terms with Defendant and the Victim. Nick Smith's wife, Margaret Kirkeminde, was a close friend of the Victim and had previously worked for Hornocker. Nick Smith had a key to the bunkhouse, and Defendant had pointed out the location of a hidden key to both Nick Smith and Tom Ennist, a close neighbor. Defendant had invited both officers to use the bunkhouse whenever they liked. Around March 28, 1997, Tom Ennist went to the bunkhouse to feed Defendant's dog; Nick Smith accompanied him and looked around for toxins while he was there. The officers found no environmental toxins, but Nick Smith saw a drug vial in Defendant's room.
{9} After seeing the vial on March 28, Nick Smith became suspicious that Defendant might be the cause of the Victim's illness. Nick Smith expressed his suspicion to fellow law enforcement officers at a local café. His wife, Margaret Kirkeminde, who was frequently at the Victim's bedside, asked an Albuquerque doctor about the possibility that someone had drugged the Victim with bear sedatives. When hospital tests failed to reveal any evidence of bear sedatives in the Victim's system, Nick Smith assumed he had been mistaken about the drugs, but remained suspicious that something odd was going on.
{10} On April 10, 1997, at around noon, an Albuquerque doctor telephoned several local officials and Margaret Kirkeminde to report that Defendant was in distress and needed assistance. Emergency services were dispatched to the Hornocker trailer, and Tom Ennist also responded. They searched for Defendant without success. Having failed to locate Defendant in the trailer, the officers began searching the surrounding area, until they received word that Defendant was being transported to the hospital in Albuquerque.
{11} Later that day, Nick Smith and Tom Ennist searched the trailer for sources of toxins. They checked the vents for carbon monoxide emissions and the cabinets for pesticides. While looking for the vents in the room in which Defendant slept, Tom Ennist saw three videotapes laying outside of a garbage bag. He noticed that the label of one of the tapes indicated that it contained home improvement footage. He believed that the tape might show whether or how the environmental toxins were being introduced. The officers took the home improvement tape and two others, labeled "XXO" and "XXX," to the Sheriff's Office for the purpose of viewing them on video equipment that was available there.
{12} The first few minutes of the home improvement videotape showed the Victim, Defendant, and Margaret Kirkeminde working on the bunkhouse. Then the angle changed, such that the image appeared from the vantage point of a floor vent in the bathroom. The footage showed the Victim getting out of the shower. At this point, the officers suspected that Defendant was involved in misdemeanor, peeping-tom-type activity.
{13} The officers contacted a Hornocker supervisor, Cecile Costello, and obtained permission to search the common areas of the bunkhouse. They returned to the bunkhouse shortly before dark. Tom Ennist climbed under the trailer and found the place the video camera had been mounted to the floor joists, below the bathroom vent.
{14} The officers next contacted the Victim in the hospital to request permission to search the trailer in its entirety. She gave them broad consent: The officers returned to the bunkhouse around midnight and, after a very thorough search that began in the Victim's room, seized the remaining videotapes. When they watched these tapes, the officers saw footage of Defendant engaging in sex acts with the Victim, who appeared to be cataleptic or unconscious. Sophisticated techniques were eventually developed to test the Victim's hair, which revealed traces of several powerful animal sedatives and an anesthetic known as Ketamine that were consistent with her symptomatology. Defendant's trial and convictions followed.
{15} Defendant contends that the district court erred in denying his motion to suppress the evidence obtained as a...
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