State v. Werkmeister
| Decision Date | 24 July 2013 |
| Docket Number | NO. 31,533,31,533 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. SUSAN J. WERKMEISTER, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Gary K. King, Attorney General
Ralph E. Trujillo
Albuquerque, NM
for Appellee
Bennett J. Baur, Acting Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant was convicted of possession of a dangerous drug, driving while intoxicated (DWI), and possession of drug paraphernalia. She raises six issues on appeal, contending that: (1) the district court improperly excluded telephonic testimony and an affidavit from her doctor; (2) the State presented insufficient evidence to support her convictions; (3) the burden-shifting approach taken with respect to the offense of possession of a dangerous drug was unconstitutional; (4) a lab report was improperly admitted in violation of her right to confrontation; (5) she was denied a fair trial and due process as a consequence of various rulings by the district court; and (6) the State presented inadequate proof in support of the habitual offender sentence enhancement. For the reasons that follow, we affirm.
{2} At approximately 2:00 in the afternoon on November 7, 2009, Officer Joe Dan Green, a senior patrolman with the New Mexico State Police, was called out to mile marker 135 on U.S. Highway 285, roughly eighty miles south of Vaughn, to assist another officer with a possible DWI. At the scene, he observed Defendant's vehicle facing northbound on the southbound lanes, partially parked on the shoulder but with the passenger side tires on the traveled portion of the road. Defendant exhibited a variety of signs of impairment, and based on his training and experience, Officer Green believed that she was not entirely in control of her faculties. Defendant indicated that she was driving from Vaughn, but she could not explain how or why hervehicle was facing northbound. Defendant denied drinking but stated that she had taken some prescription medication when she left Vaughn at about 1:00 that afternoon. Officer Green administered a number of field sobriety tests on which Defendant performed poorly. In light of his observations, Officer Green determined that Defendant was too impaired to drive.
{3} Defendant was arrested, and in the course of the ensuing search of the vehicle, a number of small bottles containing medications were found. Officer Green testified that he identified them using a Physician's Desk Reference as Oxycodone, Cyclobenzaprine, Gabapentin, Lisinopril, and Naproxen. Officer Green explained that these are all "controlled substances" that cannot be obtained without a prescription. One of the bottles reflected that the Oxycodone had been prescribed to Defendant. The other bottles contained no labeling. Officer Green testified that nothing else was found to show that the other drugs had been prescribed to Defendant, and Defendant was unable to produce any other prescriptions.
{4} Defendant consented to a blood draw, the results of which were set forth in a laboratory report. Dr. Hwang, a forensic toxicologist and the chief of the Toxicology Bureau of the Scientific Laboratory Division of the New Mexico Department of Health, explained that he had signed the report after having overseen the procedures utilized by staff to analyze Defendant's blood samples. The report was admitted without objection. Dr. Hwang then testified that five different drug compounds werepresent, including amphetamine, methamphetamine, oxycodone, morphine, and alprazolam. He further explained that these are prescription drugs that would have a cumulative depressant effect on the central nervous system, causing sedation and disorientation, as well as distorted perception, poor coordination, and other effects, such as the various indicia of impairment observed by Officer Green.
{5} After the State rested, Defendant moved for a directed verdict, arguing that the evidence was insufficient to establish that she had driven while impaired. The district court denied the motion.
{6} Defendant subsequently presented evidence in her own defense. First, Defendant called William Schweder, who testified that he had taken Defendant to get her vehicle on November 9, 2009. He explained that Defendant's purse was inside the vehicle and that he had seen Defendant's prescriptions in her purse at that time. Next, Defendant testified in her own defense. She explained that she had prescriptions for a number of different medications, and she presented bottles and a copy of a prescription (dated 9/3/2010) for Naproxen. She testified that she also had prescriptions for Lisinopril and Gabapentin, but she did not have those prescriptions with her on the day of trial. She additionally testified that her husband had prescriptions for Cyclobenzaprine and Clonazepam and presented supporting documents.
{7} Prior to trial, Defendant had sought permission to present the telephonic testimony of her doctor. The district court denied the request. Relatedly, the court instructed Defendant to disclose medical evidence to the State and later recommended a video deposition of the doctor. Defendant made no such arrangements, and the prosecutor's independent efforts to obtain pertinent medical information and to secure an interview with Defendant's doctor were unsuccessful. When the doctor ultimately failed to appear at trial, Defendant sought to present an affidavit in which the doctor indicated that he had prescribed a variety of medications to Defendant. On the State's objection, the affidavit was excluded as inadmissible hearsay. No further witnesses were called, and the defense rested.
{8} The jury ultimately returned guilty verdicts on all counts. The State subsequently filed a supplemental criminal information, presented certified copies of judgments from Colorado, and sought a four-year sentence enhancement. Defendant challenged the sufficiency of the State's evidence to support the requested sentence enhancement. After conducting a hearing on the matter, the district court concluded that the documents were sufficient to meet the State's burden of proof.
{9} The district court postponed sentencing to allow newly-appointed counsel to review the trial record. Counsel subsequently moved for a judgment notwithstanding the verdict, arguing that the State had failed to prove that Defendant did not have a prescription, and to the extent that Defendant was required to prove that she had aprescription, this was unconstitutional. The district court denied the motion. Defendant was then sentenced to four years imprisonment based upon her status as a habitual offender with the remainder of her sentence suspended. This appeal followed.
{10} Defendant contends that the district court erred in excluding her doctor's affidavit and denying her request to present his testimony telephonically.
{11} In the affidavit, Defendant's doctor stated that he had prescribed Defendant medications including Naproxen, Lisinopril, Gabapentin, and Cyclobenzaprine "at various dates prior to November 7, 2009." The doctor also stated that he had personal knowledge that Defendant's husband had been prescribed Clonazepam by other doctors in the past and that Defendant sometimes picked up her husband's medications.
{12} The district court excluded the affidavit on the ground that it constituted inadmissible hearsay. Insofar as the affidavit constitutes an out-of-court statement offered as proof of the matter asserted, this was an appropriate determination. See Rule 11-801(C) NMRA (); Rule 11-802 NMRA(providing that hearsay is inadmissible unless a valid exception applies). Nevertheless, Defendant contends that the affidavit should have been admitted under the catch-all or residual exception for statements not specifically covered by any of the other hearsay exceptions but with equivalent circumstantial guarantees of trustworthiness. See Rule 11-807(1) NMRA.
{13} We note that Defendant did not specifically argue below that the affidavit should be admitted pursuant to the catch-all exception. Nevertheless, because the district court does not appear to have been disposed to entertain arguments on the subject, we will proceed to address the merits. We review for abuse of discretion only. See State v. Lopez, 2011-NMSC-035, ¶ 4, 150 N.M. 179, 258 P.3d 458 ().
{14} The catch-all exception may apply if a hearsay statement: (1) has particular guarantees of trustworthiness; (2) is offered as a material fact; (3) is more probative than other evidence for the point offered; and (4) serves the purposes of these rules and the interests of justice, and is not covered by another exception. See Rule 11-807(A). "This exception is to be used sparingly, however, especially in criminal cases." State v. Leyba, 2012-NMSC-037, ¶ 20, 289 P.3d 1215.
{15} Defendant contends that insofar as the affidavit is duly sworn and notarized, it has particularized guarantees of trustworthiness. Defendant cites no authority insupport of this proposition. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (...
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