Albuquerque Criminal Lawyer Blog

Earlier this month, the New Mexico Court of Appeals clarified several issues regarding the 6th Amendment confrontation clause in State v. Patrice Chung. In New Mexico, a large number of criminal cases are dismissed for violations of the 6th Amendment confrontation clause.

The 6th Amendment of the US Constitution reads, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The specific boundaries of this protection are continually being defined and clarified by the United States Supreme Court as well as New Mexico state courts.

In State v. Chung, the Defendant was charged with distribution of marijuana. Before trial, the State filed a motion to allow an analyst from the New Mexico Scientific Laboratories Division (SLD) to testify via video conference that the substance was indeed marijuana, an element that was necessary to the charge.

The Defendant opposed the motion arguing that testimony through video conferencing violated his 6th Amendment right to confront a witness. Even though the court's own rules and the Rules of Criminal Procedure afforded the Defendant 15 days to respond to the motion, the trial court granted the State's motion the day after it was filed, without giving the Defendant a chance to respond.

At trial, the witness testified via video conference over the Defendant's objection and motion to strike the testimony. The objection and motion were denied two days after the trial. The trial court gave two reasons for the denial of both the objections and motion. According to the court, the Defendant's right to confrontation was not violated because (1) the analyst's testimony was observed by the jury as if the analyst would have personally testified at trial; and (2) the analyst would have had to travel six hours to attend the trial, and given the budget crisis currently facing the state, video conferencing saved money.

The New Mexico Court of Appeals disagreed and reversed the conviction on the grounds that the Defendant's 6th Amendment right to confrontation was violated. In reversing the Court of Appeals referred to a previous case--State v. Almanza. In that decision the New Mexico Court of Appeals did not allow a chemist from the New Mexico State Crime lab to testify over the telephone without a compelling need or reason that the chemist could not testify at trial.

In Chung, the State argued that testimony through video conferencing did not violate the confrontation clause, because unlike telephonic testimony, video conference allowed everyone in the court room to observe the witness while testifying, as well as allowing the witness to observe the Defendant and counsel.

The Court of Appeals disagreed. First of all, in a hearing conducted after the analyst from SLD testified at the trial, the analyst affirmed that during his testimony he was not able to see the Defendant, judge, or jury, and only saw defense counsel at certain times, which was contrary to the depiction given by the State in its argument to allow the testimony. The Court of Appeals reinforced the idea that every element of face-to-face confrontation is important to the right to confront witnesses, including the effect that seeing the Defendant, defense counsel, judge, and jury may have on a witness.

Second, the Court discussed the possible exceptions to face-to-face confrontation. Relying on a previous Supreme Court case discussed in Almanza, the Court of Appeals emphasized that that exceptions to face-to-face confrontation should be "narrowly tailored" and "necessary to further an important public policy." The Court found that avoiding a long trip, trial scheduling problems, and inconvenience to the witness are simply not sufficient to justify an exception to the confrontation clause on the basis of a public policy need.

It seems that in the age of Skype and Facebook, there is still no replacement for face time when it comes to the 6th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals decision in State v. William Sharp clarified the 2008 amendments to Rule 6-506 NMRA, also known as "the six-month rule," and the standard for its review by a district court. The "six month rule" is a shorthand term which generally refers to a criminal defendant's right to a speedy trial under the 6th Amendment --within six months of his or her arraignment. This latest decision may have an impact on the number of cases dismissed on the basis of the six-moth rule.

In State v. Sharp, the defendant was charged with aggravated DWI in March of 2009. The defendant waived his arraignment on March 23, 2009, which triggered the six-month rule. Under Rule 6-506, a defendant's trial must begin within 182 days of arraignment or waiver of arraignment. A court may extend the 182 days if it believes that there are circumstances beyond its control that prevent the trial from beginning within the allowed period. The extension may not exceed 60 days. Pursuant to the rule, defendant's trial had to begin by September 21, 2009. Trial was set for August 4, 2009.

However, six weeks before his trial, the defendant filed a motion to suppress evidence, and four days before his trial was set to start, the defendant requested a continuance. The continuance was granted and the trial was rescheduled for October 2nd. On the day of the hearing on the defendant's motion to suppress, the defendant sought to dismiss the entire case based on violation of the six-month rule. In a written order, the magistrate court denied the motion to dismiss. The defendant was subsequently found guilty in a jury trial on October 28th.

The defendant then appealed to the district court and filed another motion to dismiss based on violation of the six-month rule. The district court overruled the magistrate court and dismissed the case. In so doing it asserted that the State failed to file a written response to the motion to dismiss in magistrate court and that the magistrate court was required to state on record the extraordinary circumstances requiring an extension to the six-month rule.

Last week, the New Mexico Court of Appeals reversed the decision of the district court, remanding the case for a determination of whether, under the particular facts, the violation of the six-month rule warranted a dismissal of the case. The appellate court reversed on two main grounds: (1) the district court's improper standard of review; (2) the district court's misconstruing of the amended six-month rule.

The Court of Appeals began its discussion by explaining the difference between the old six-month rule and the amended six-month rule. While the old rule made it mandatory for courts to dismiss a case for non-compliance with the 182-day period, the current six-month rule gives courts discretion to decide whether to dismiss or impose other more suitable sanctions in accordance with the specific facts of each case.

In addition, the appellate court found that the district court erred in the way that it reviewed the magistrate court decision. The district court based its decision on appellate review of the magistrate court's actions rather than de novo review of whether the particular facts of the case warranted dismissal for violation of the six-month rule. Appellate review gives deference to the lower court's decision, while in a de novo review the district court is in no way bound by the lower court proceedings.

In New Mexico, speedy trial rule violations are perhaps the most common basis for dismissal, particularly at the misdemeanor level. Most of New Mexico's magistrate, municipal and metropolitan level courts are fairly strict in the enforcement of the 182 day (speedy trial) rule. It remains to be seen how this ruling will affect future court practices and how this will impact the rights of criminal defendants in New Mexico. Arguably, it should not because typically there will be no extraordinary circumstances present to justify a violation of the U.S. Constitution.

Collins & Collins, P.C.
Albuquerque Attorneys