State v. Vargas
| Decision Date | 12 January 2016 |
| Docket Number | No. 33,247.,33,247. |
| Citation | 368 P.3d 1232 |
| Parties | STATE of New Mexico, Plaintiff–Appellee, v. Michael VARGAS, Sr., Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Appellee.
Jorge A. Alvarado, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{¶ 1} Defendant Michael Vargas, Sr. appeals his convictions on each of twenty-four counts of intentional child abuse by torture, contrary to NMSA 1978, Section 30–6–1(D)(2) (2009). Defendant raises numerous issues on appeal, including (1) violations of his rights to due process and to be free from double jeopardy, (2) the insufficiency of the evidence to support his convictions, (3) prosecutorial misconduct, (4) improper admission of opinion testimony by a non-expert witness, (5) erroneous jury instructions, and (6) sentencing error. We are persuaded that expert testimony related to stun gun technology and the victim's injuries was improperly admitted through an unqualified lay witness. The admission of this testimony was not harmless and requires reversal of Defendant's convictions on all counts. Because of this ruling, Defendant's arguments related to erroneous jury instructions and sentencing decisions are moot.
{¶ 2} With respect to additional issues raised, our ruling affects Defendant's request for reversal due to prosecutorial misconduct. However, while prosecutorial misconduct may be so unfairly prejudicial that it bars retrial, Defendant does not request this remedy or develop such an argument on appeal. Because a finding in Defendant's favor would reduce the number or charges on retrial, we reach Defendant's sufficiency of the evidence argument and conclude that it lacks merit. Finally, we hold that the twenty-four identical counts contained in the indictment lack the required specificity and constitute a violation of Defendant's rights to due process and to be free from double jeopardy. Because the evidentiary issue requires reversal of all convictions, we remand for a new trial with instructions designed to cure the due process and double jeopardy problems.
{¶ 3} This case arose from allegations of child abuse by D.L. against Defendant, who was his foster father. The Children Youth and Families Department (CYFD) placed D.L. and his older sister L.L. with Defendant and his family in Clovis, New Mexico after the children were removed from their biological mother in Arizona. The children's biological mother was related to Defendant's wife. In late July or early August 2010, Defendant purchased a stun gun online that was delivered to the family's home.1 In mid-October 2010, D.L. first reported to a school counselor that he was being abused at home. After consulting her supervisor and meeting with D.L. again on October 29, 2010, the counselor reported the allegations to CYFD. CYFD conducted its own investigation and removed both children from the home the same day.
{¶ 4} Accounts of the use of the stun gun on D.L. between early August and October 29, 2010 vary. Testimony by D.L. indicated that he was stunned repeatedly by Defendant and Defendant's sons Mikey and Brandon over the course of three months. When asked on direct examination specifically how many times he was stunned, D.L. did not know. He did testify, however, that (1) Defendant stunned him more than 24 times, (2) Mikey stunned him approximately fifteen times, and (3) Brandon stunned him approximately three times. D.L. then testified on cross-examination that he counted to himself each time he was stunned, but he stopped counting at twenty-four times even though he was stunned more than twenty-four times. He further testified that Defendant personally stunned him less than twenty-four times.
{¶ 5} D.L.'s testimony indicated that the incidents took place both at Defendant's home, where most of the family members resided, and at Mikey's home. D.L. testified about two specific incidents, including one when he was stunned on the arm by Mikey on the day the stun gun arrived in the mail and another when Defendant stunned D.L. while the family was visiting at Mikey's house. He testified that he asked Defendant and Mikey not to stun him and that Defendant would laugh when Mikey stunned him. D.L. also testified that most of the marks on his body during his police interview were the result of mosquito bites, although certain specific marks were from the stun gun.
{¶ 6} Testifying on behalf of the State, L.L's testimony generally corroborated the pattern of abuse against D.L. by Defendant and his sons, although there were significant inconsistencies between her direct and cross-examination testimony. L.L. initially stated that she first saw D.L. stunned by Mikey at the family's house on the day the device arrived. On cross-examination, L.L. first testified that D.L. was stunned on two different days in October: once by Mikey in the kitchen of the family's house and once by Mikey at Mikey's house when the family went over for a visit. L.L. then testified that Defendant first stunned D.L. while sitting on the couch on the day the device arrived in the mail. After a brief recess, defense counsel again attempted to establish the sequence of events. At this point, L.L. stated simply that she could not remember all the specific incidents, that there were many incidents, and that they happened very fast. L.L. consistently testified that she saw D.L. get stunned by either Defendant or his sons between ten and fifteen times.
{¶ 7} The State's final witness was Detective Rick Smith. Detective Smith stated that he had been a police officer for twenty-nine years, including as an investigator specializing in sexual assault and child abuse cases with the Clovis Police Department since 2007. Detective Smith also testified as to his experience with stun guns similar to the one described by D.L. and L.L. Detective Smith was not offered or qualified as an expert witness on the topic of stun guns or the injurious effects of stun guns to humans. Detective Smith offered substantial testimony related to the operation of stun guns, the types of injuries they create, and the manner in which those injuries heal.2
{¶ 8} Defendant testified that he purchased the stun gun online, gave it to his son Mikey, and never saw it again. Defendant also testified that he never stunned D.L. and was unaware if, or that, his sons were doing so.
{¶ 9} Following a jury trial, Defendant was convicted of twenty-four counts of child abuse by torture.
{¶ 10} Defendant claims that the district court improperly admitted expert opinions offered by Detective Smith as lay witness testimony under Rule 11–701 NMRA. Appellate courts review the admission of evidence for an abuse of discretion. State v. Flores, 2010–NMSC–002, ¶ 25, 147 N.M. 542, 226 P.3d 641. A court abuses its discretion when its evidentiary rulings indicate a misapprehension of the law. State v. Elinski, 1997–NMCA–117, ¶ 8, 124 N.M. 261, 948 P.2d 1209, overruled on other grounds by State v. Tollardo, 2012–NMSC–008, 275 P.3d 110. If Detective Smith's testimony was improperly admitted under Rule 11–701, that admission would indicate a misapprehension of our law and constitute an abuse of discretion by the district court.
{¶ 11} To preserve evidentiary objections, a defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon. State v. Varela, 1999–NMSC–045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. Defendant objected to Detective Smith being allowed to testify in an expert capacity without qualification. Defendant's objection specifically stated that Detective Smith lacked medical training necessary to opine as to the cause of D.L.'s injuries. This objection was sufficient to put the district court on notice as to Defendant's assertion that Detective Smith was offering opinions that exceeded the scope of lay testimony.
{¶ 12} Our rules of evidence create a distinction between opinion testimony offered by an observer and expert witness testimony offered based upon expertise in the relevant subject matter area. Compare Rule 11–701, with Rule 11–702 NMRA. Rule 701 states:
In contrast, Rule 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
{¶ 13} In federal courts, Federal Rule of Evidence 701 (Rule 701 ) governs lay opinion testimony and was amended in the year 2000 in order to Rule 701 advisory comm. notes, 2000 amends. The rule "does not distinguish between expert and lay witnesses, but rather between expert and lay testimony. " Id. Under Rule 701, it "is possible for the same witness to provide both lay and expert testimony in a single case," but "any part of a witness's testimony that is based upon scientific, technical, or other specialized knowledge ... is governed by the standards of [Rule] 702." Id.
{¶ 14} New Mexico's Rule 11–701 is modeled upon Rule 701 and was amended in 2006 to guarantee application consistent with...
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