State v. Salas, 34,146

Docket Nº34,381
Citation400 P.3d 251
Case DateApril 20, 2017
CourtCourt of Appeals of New Mexico

400 P.3d 251

STATE of New Mexico, Plaintiff-Appellee/Cross-Appellant,
v.
Lorenzo SALAS, Defendant-Appellant/Cross-Appellee.

34,146
34,381
34,875
34,876 (consolidated)

Court of Appeals of New Mexico.

Filing Date: April 20, 2017
Certiorari Denied, May 31, 2017, No.
S-1-SC-36443


Hector H. Balderas, Attorney General, Santa Fe, NM, Elizabeth Ashton, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Sergio J. Viscoli, Appellate Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

JAMES J. WECHSLER, Judge

{1} Defendant Lorenzo Salas appeals from his conviction for battery on a peace officer, contrary to NMSA 1978, Section 30-22-24 (1971). Defendant raises numerous alleged errors arising from his trial, probation revocation hearing, and sentencing as a habitual offender.

{2} As to his trial, Defendant argues that the district court erred by denying his (1) motion to dismiss due to the State's failure to collect potentially exculpatory evidence, (2) request for a mistrial due to alleged witness tampering, (3) request to poll the jury for evidence of juror misconduct, and (4) request for a mistrial due to prosecutorial misconduct. Defendant also argues that (1) the district court issued an impermissible shotgun jury instruction and (2) substantial evidence does not support a finding of guilt as to each element of the charged offense. As to his probation revocation hearing, Defendant argues that the district court violated his procedural due process rights. Finally, as to his habitual offender hearings (sentencing hearings), Defendant argues that the district court erred by conducting a subsequent sentencing hearing (1) in violation of his right to be free from double jeopardy and (2) in violation of his right to due process. Defendant also argues that (1) he received ineffective assistance of counsel and (2) substantial evidence does not support a finding that he was the person convicted of the prior felonies as alleged in the supplemental criminal information.

{3} The State filed a cross-appeal arguing that the district court erred in finding that the State did not meet its burden to prove that Defendant was the individual identified in the supplemental criminal information at Defendant's initial sentencing hearing. The State did not brief this argument on appeal, and it is, therefore, abandoned. See State v. White , 1994-NMCA-084, ¶ 1, 118 N.M. 225, 880 P.2d 322 ("Issues raised at earlier stages of the appeal but not briefed are deemed abandoned.").

{4} For the reasons discussed herein, we conclude that each of Defendant's arguments is without merit. We therefore affirm the district court.

BACKGROUND

{5} On October 24, 2011, Defendant reported to the Bernalillo County Metropolitan Detention Center (MDC) to serve a twenty-four hour remand sentence. During booking, Defendant verbally abused booking technician Jessica Alvarez and threw a pen at her. The pen struck Alvarez in the chest. Alvarez reported Defendant's conduct to her immediate supervisor and to corrections officer Kavin Woodard. Woodard sought out Defendant in the men's general holding cell (Cell Five). Woodard found Defendant lying on a concrete

400 P.3d 256

bench. Defendant rose and approached Woodard in an aggressive manner, which led Woodard to remove Defendant from Cell Five and to place him in a solitary cell (Cell One). During the walk between the cells, Woodard held both Defendant's hands behind his back. Woodard released one of Defendant's hands from his grasp after entering Cell One, at which point Defendant head-butted Woodard in the mouth. The force of the blow chipped one of Woodard's teeth and lacerated his lip. Corrections officers, including Woodard, Christina Garcia, Larry Smith, and Brian Romm, regained control of Defendant and placed him in restraints. Both Defendant and Woodard received medical attention.

{6} MDC personnel filed a report with the Bernalillo County Sheriff's Office (BCSO). Deputy Phillip Gonzales of the BCSO reviewed the report, including the victim statement and photographs attached to the report. Deputy Gonzales then filed a criminal complaint against Defendant for aggravated battery on a peace officer.

{7} Defendant's trial occurred in January 2014. Witnesses for the State included Alvarez, Woodard, Garcia, Romm, and Deputy Gonzales. Defendant testified on his own behalf. The jury found Defendant guilty of battery on a peace officer. The district court sentenced Defendant to eighteen months incarceration but gave him credit for time served and ordered probation for the remaining time. The State filed a supplemental criminal information, alleging that Defendant was a habitual offender under NMSA 1978, Section 31-18-17 (2003), and seeking enhancement of Defendant's sentence.

{8} On December 5, 2014, the district court conducted Defendant's initial sentencing hearing. The State's evidence included "case information pages," which contained inconsistent identifying information about Defendant and certified copies of fingerprint cards from 2004 and 2008 arrests. The evidence did not, however, include a certified copy of Defendant's fingerprint card from the current case. The district court ruled that the State's evidence was not sufficient to prove that Defendant was the person convicted of the prior felonies as alleged in the supplemental criminal information and denied the State's request for sentencing enhancement.

{9} At Defendant's December 16, 2014 probation violation hearing, the State requested a subsequent sentencing hearing. Defendant objected, arguing that double jeopardy prohibited retrial of his habitual offender status.1 The district court scheduled concurrent hearings to address Defendant's alleged probation violation and sentencing as a habitual offender for January 20, 2015. The scheduled hearings ultimately occurred on February 11, 2015 and February 18, 2015. The district court ruled that Defendant violated his probation and sentenced him to one hundred forty-five days incarceration. The district court then ruled that Defendant was a habitual offender and enhanced his sentence by four years as required under Section 31-18-17.

{10} Both the State and Defendant appealed issues arising from Defendant's trial, his probation revocation hearing, and his sentencing hearings. This Court consolidated these issues on appeal. In lieu of a comprehensive recitation of every event that occurred during Defendant's trial and subsequent hearings, we discuss events relevant to Defendant's appellate arguments as necessary below.

THE TRIAL

{11} As to his trial, Defendant argues that any of five alleged errors by the district court requires reversal of his conviction. We review four of these alleged errors for abuse of discretion and the fifth for fundamental error. Defendant additionally argues that substantial evidence did not support his conviction. A district court abuses its discretion if its ruling is "clearly against the logic and effect of the facts and circumstances before

400 P.3d 257

the court." State v. Lucero , 1999-NMCA-102, ¶ 32, 127 N.M. 672, 986 P.2d 468 (internal quotation marks and citation omitted). "Parties alleging fundamental error must demonstrate the existence of circumstances that shock the conscience or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked." State v. Cunningham , 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted).

Lost or Destroyed Evidence

{12} Defendant argues that the district court erred in denying his motion to dismiss due to lost or destroyed evidence. "The denial of a motion to sanction by dismissal or suppression of evidence is reviewed for abuse of discretion." State v. Duarte , 2007-NMCA-012, ¶ 3, 140 N.M. 930, 149 P.3d 1027.

{13} Although alternate tests apply under circumstances in which collected evidence is "lost, destroyed, or inadequately preserved," State v. Ware articulates the New Mexico test for cases in which the evidence at issue is never collected. 1994-NMSC-091, ¶ 11, 118 N.M. 319, 881 P.2d 679. This test first requires that "the evidence that the [s]tate failed to gather from the crime scene must be material to the defendant's defense." Id. ¶ 25. If the evidence is material, the district court must determine whether "the failure to collect the evidence was done in bad faith, [or] in an attempt to prejudice the defendant's case[.]" Id. ¶ 26. Such a finding may result in suppression of the evidence. Id.

{14} The booking area of MDC is equipped with a video surveillance system, which records with cameras that continuously pan the area. There are no cameras inside either Cell One or Cell Five. Neither MDC personnel nor Deputy Gonzales requested that any potential recording of the incident at issue be reviewed or preserved, and the video surveillance system automatically deleted any relevant recording after six months. Defendant filed a pretrial motion to dismiss the charge against him due to the State's "destruction of exculpatory evidence." The district court denied the motion, ruling that the State's failure to...

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10 practice notes
  • State v. Grubb, No. A-1-CA-35499
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 26, 2019
    ...which are usually accompanied by testimony matching fingerprints from prior cases to current ones, see State v. Salas, 2017-NMCA-057, ¶ 8, 400 P.3d 251 (affirming the district court's determination that evidence was insufficient where the state provided fingerprints for prior convictions bu......
  • State v. Valdez, No. S-19-475.
    • United States
    • Supreme Court of Nebraska
    • April 3, 2020
    ...92 L. Ed. 1683 (1948).18 Monge , supra note 16.19 See, Scott v. State , 454 Md. 146, 164 A.3d 177 (2017) ; State v. Salas , 2017 NMCA 057, 400 P.3d 251 (2017) ; People v. Porter , 348 P.3d 922 (Colo. 2015) ; State v. Collins , 985 So. 2d 985 (Fla. 2008) ; State v. Eggleston , 164 Wash. 2d 6......
  • State v. Costillo, No. A-1-CA-36032
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 26, 2019
    ...to double jeopardy protections are reviewed de novo and may be raised for the first time on appeal." State v. Salas, 2017-NMCA-057, ¶ 46, 400 P.3d 251.{23} Here, R.S. testified that in addition to the first incident of CSPM in August 2008, all of the incidents of CSPM happened the same way,......
  • State v. Rodriguez, No. A-1-CA-34825
    • United States
    • New Mexico Court of Appeals of New Mexico
    • August 5, 2019
    ...by counsel concerning how their testimony may have been tainted, and permitting argument by counsel." State v. Salas, 2017-NMCA-057, ¶ 20, 400 P.3d 251 (internal quotation marks and citation omitted). "Generally, it is unnecessary to prohibit the tainted witness from testifying." Reynolds, ......
  • Request a trial to view additional results
10 cases
  • State v. Grubb, No. A-1-CA-35499
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 26, 2019
    ...which are usually accompanied by testimony matching fingerprints from prior cases to current ones, see State v. Salas, 2017-NMCA-057, ¶ 8, 400 P.3d 251 (affirming the district court's determination that evidence was insufficient where the state provided fingerprints for prior convictions bu......
  • State v. Valdez, No. S-19-475.
    • United States
    • Supreme Court of Nebraska
    • April 3, 2020
    ...92 L. Ed. 1683 (1948).18 Monge , supra note 16.19 See, Scott v. State , 454 Md. 146, 164 A.3d 177 (2017) ; State v. Salas , 2017 NMCA 057, 400 P.3d 251 (2017) ; People v. Porter , 348 P.3d 922 (Colo. 2015) ; State v. Collins , 985 So. 2d 985 (Fla. 2008) ; State v. Eggleston , 164 Wash. 2d 6......
  • State v. Costillo, No. A-1-CA-36032
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 26, 2019
    ...to double jeopardy protections are reviewed de novo and may be raised for the first time on appeal." State v. Salas, 2017-NMCA-057, ¶ 46, 400 P.3d 251.{23} Here, R.S. testified that in addition to the first incident of CSPM in August 2008, all of the incidents of CSPM happened the same way,......
  • State v. Rodriguez, No. A-1-CA-34825
    • United States
    • New Mexico Court of Appeals of New Mexico
    • August 5, 2019
    ...by counsel concerning how their testimony may have been tainted, and permitting argument by counsel." State v. Salas, 2017-NMCA-057, ¶ 20, 400 P.3d 251 (internal quotation marks and citation omitted). "Generally, it is unnecessary to prohibit the tainted witness from testifying." Reynolds, ......
  • Request a trial to view additional results

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