Albuquerque Criminal Lawyer Blog

The New Mexico Court of Appeals recently held in State v. Gonzales that the State can call a forensic pathologist as a medical expert to testify about circumstances of death even if that expert took no part in the autopsy performed on the victim. This is true even if the autopsy is ruled inadmissible and the expert relies on the autopsy to reach his or her conclusions regarding the cause of death.

State v. Gonzales involved an interlocutory appeal from a district court. An interlocutory appeal is one where the appeal is ruled on before the trial ends. The Defendant was charged with second-degree murder. A forensic pathology fellow at the Office of Medical Investigator (OMI) performed the autopsy on the victim, but by the time of the trial had moved to Washington. The prosecution decided to avoid expenses and logistical difficulties by electing not to bring him back to New Mexico to testify at Defendant's trial.

At trial, the prosecution did not introduce the autopsy report into evidence, but included another forensic pathologist from OMI on its witness list. Defendant moved to exclude the forensic pathologist as a witness on the grounds that it violated his Sixth Amendment right to confrontation of witnesses. The lower court granted the motion. This appeal followed and the New Mexico Court of Appeals held that the lower court erred in completely excluding the witness and ordered a new trial.

Both the Confrontation Clause of the Sixth Amendment of the U.S. Constitution and the New Mexico Constitution guarantee the right of a criminal defendant to confront witnesses. To this end, testimonial evidence is inadmissible in court against a defendant unless the defendant has a chance to cross-examine the witness giving the testimony. An autopsy report is considered testimonial when it is performed as part of a police investigation and therefore is inadmissible unless the person who prepared the report is available in court for cross-examination by the defense. Additionally, another individual cannot simply attest to or confirm the findings of an autopsy report prepared by another person as a way to admit the report into evidence if it is otherwise inadmissible as testimonial hearsay.

In this case, the autopsy report was not introduced into evidence, but the state's expert witness would rely on the report to give an opinion on the victim's cause of death. The Court found that expert testimony would be admissible if (1) the report itself is not admitted into evidence (2) the expert's testimony will be offered through their role as an expert and not a surrogate to introduce the inadmissible report, and (3) the expert will not repeat the findings of the report's author but will reach her own opinions and conclusions as to the cause of death.

Further, the expert would be able to rely on the data and other information found in the autopsy report, even though it is inadmissible if experts customarily rely on that type of evidence in the practice of their profession. In this case, forensic pathologists often rely on the raw data, pictures, and tests found in an autopsy report to determine cause of death. The Court found that the expert could therefore rely on the information found in the autopsy report but that the reviewing court would have to be vigilant as to the degree to which the expert repeats the findings of the report.

This recent holding may seems to open the door for prosecutors to try to include otherwise inadmissible evidence. It seems to go against the grain of recent decisions such as Bullcoming and Melendez Diaz. Courts and criminal defense attorneys must be vigilant of prosecutors attempting to use witnesses as surrogates for inadmissible hearsay. It takes little imagination to envision abusive and unconstitutional tactics in attempts to circumvent 6th Amendment Rights.

Related Reading:
In An Increasingly Technical Age, There Is Still No Substitute for Face-to-face Confrontation of Witnesses
Defendants Have the Right to Pretrial Interview of State's Expert Witnesses But...
Forensic Testimony in New Mexico Drug Prosecutions

Collins & Collins, P.C.
Albuquerque Attorneys

The recent case of State v. Leticia T. before the New Mexico Court of Appeals revealed a serious gap in the protections afforded to youthful offenders under New Mexico law. This was likely an unintended consequence of the New Mexico Supreme Court's ruling regarding speedy trial limits in a previous case, State v. Savedra.

In State v. Leticia T., the State sought an adult sentence for a sixteen-year-old Child who was charged with assault and battery of a police officer. After the incident, the Defendant Child was arrested and taken into custody. The Defendant remained in detention until her trial, which was held over six months after her detention hearing.

Under Children's Court Rule 10-101 (A)(2)(b), unless specifically provided in other Children's Court Rules, the Rules of Criminal Procedure govern all proceedings in Children's Court when there is a notice to seek adult charges. When the New Mexico Supreme Court adopted this rule, the Rules of Criminal Procedure contained old Rule 5-604, commonly known as the six-month rule. Under the former six-month rule, a trial on the merits of the case had to be held within six months of certain triggering events.

Because of the additional protections afforded by Rule 5-604 including the right to bail, the right to three telephone calls within 20 minutes of detention, the right to a timely determination of probable cause, and the right to obtain a copy of the criminal complaint before being transferred to detention in a warrantless arrest and detention case, the Court of Appeals had ruled in 1998 that the former Rule 5-604 applied to youthful offenders. This was true even though the analogous Children's Court Rule, 10-243, provides shorter time limits for adjudicatory hearings. However, in 1998 under the old Rule 5-604, the Court felt that it was a justified trade-off for the additional protections provided by the Rules of Criminal Procedure. (Children's Court Rule 10-243 provides that an adjudicatory hearing must begin within 30 days for a child in detention and 120 days for a child not in detention, and also grants the court permission to dismiss the case with prejudice if the time limits are not complied with.)

However, important Supreme Court amendments to the six-month provision in Rule 5-604 have made the Court reconsider whether forfeiting the protections of the Children's Rules in favor of Rule 5-604 is still justified. The 2011 amendment to the six-month rule has changed the remedy available to a defendant if time limits are violated. While the former rule made it mandatory for courts to dismiss a case for non-compliance with the six month limit, current Rule 5-604 gives courts discretion to decide whether to dismiss or impose other more suitable sanctions in accordance with the specific facts of each case.

The current state of New Mexico law regarding youthful offenders leaves this more vulnerable sector of the population with few remedies remedy for violations of speedy trial rights. Despite a call to action by both the New Mexico Supreme Court and the Court of Appeals, there has been no change in the Children's Court Rules; youthful offenders in New Mexico are not being afforded the right to a speedy trial and in theory they may be detained indefinitely until their case is adjudicated.

Timely Preliminary Hearings for Juveniles Facing Adult Charges in New Mexico

Do Minors Have Broader Rights Under the 4th Amendment Than Adults?

Collins & Collins, P.C.
Albuquerque Attorneys

According to a study by the New Mexico Department of Transportation, there were 2,599 alcohol-related automobile crashes in New Mexico in 2008. Of these, 765 involved serious injuries, and 143 fatalities. These numbers were all higher than the national average.

DWI is clearly a very serious problem in New Mexico. Perhaps for this reason, DWI is generally a strict liability crime in New Mexico and elsewhere, which means that it need not be proven that the defendant intentionally drove drunk. Proof of intent in these situations would be quite challenging to say the least largely defeating the goal of eradicating DWI in the state.

Strict liability crimes differ from specific intent crimes. Specific intent crimes require the perpetrator to have some kind of intent to perform a further act or accomplish a certain goal. A criminal prosecutor must prove that a person acted knowingly and purposefully to achieve a certain goal--murder someone, injure someone, take someone's money--in order to obtain a conviction for a specific intent crime.

In contrast, strict liability crimes do not require proof of a specific intent on the part of the defendant. A person may be found guilty of a strict liability crime even if they did not intend the outcome of their actions. DWI in New Mexico is a strict liability crime in that even though the prosecution will have to prove the elements of the offense under NMSA § 66-8-102, there is no additional requirement to prove specific intent by the defendant to drive while intoxicated.

In New Mexico, the prosecutor must show that the defendant was under the influence of either intoxicating liquor or drugs while driving a vehicle within the state. A prosecutor will have to prove all of these elements beyond a reasonable doubt to obtain a DWI conviction against a defendant. However, there is no requirement to prove any intent to drive under the influence of either drugs or alcohol.

In recent years New Mexico courts have made a clear distinction regarding strict liability DWI depending on whether the vehicle is in motion or not. If the vehicle is in motion, DWI is a strict liability crime where the prosecution is not required to prove specific intent by the defendant to drive while intoxicated.

However, after the State v. Sims (NMSC-2010-027) opinion, if an officer comes upon a vehicle that is not in motion, the prosecution may have to prove intent to drive while intoxicated. This can be the case when a person is sleeping or resting in their car in an attempt to sober up, keep warm, or "sleep it off." The New Mexico Supreme Court ruled that when a vehicle is stationary, the prosecution will have to prove either a general intent to drive or circumstantial evidence of past driving.

"General intent" means that the prosecution will have to prove that an act was committed deliberately and not by accident. The prosecution does not have to prove that the defendant intended the exact harm that occurred. In the context of proving DWI when a vehicle was not moving, the state will have to prove that, beyond having actual control of the automobile--say, by sitting in the driver's seat--the prosecution must prove that the defendant intended to actually drive the car while impaired a was not just sitting in the driver's seat to keep warm or sober up.
Circumstantial evidence of past driving can be shown by the defendant's own admissions, the position of the defendant in the vehicle, the position of the keys, the location of the vehicle next to the highway or road, other witness accounts, and similar information.

If you are charged with a DWI, it is advisable to seek the guidance of an experienced DWI attorney.

Related Reading:
Sleeping While Intoxicated No Longer a Crime in New Mexico!
Proposed New Jury Instruction to Address Sleeping While Intoxicated
DWI Without Driving: Passenger Liability for DWI!

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Department of Justice, 94% of state convictions and 98% of federal convictions are the result of guilty pleas. A large number of these guilty pleas arise from plea bargains and negotiations between the prosecution and defendants. As such, plea negotiations have become a fundamental part of the criminal justice system in the U.S. Recognizing this, the U.S. Supreme Court has sought to expand Sixth Amendment rights to protect defendants in this crucial part of a criminal case.

The Sixth Amendment to the U.S. Constitution guarantees the accused in all criminal trials the right to effective assistance of counsel. In March of this year, the Supreme Court issued an opinion in Missouri v. Frye, which addressed the question of whether this constitutional right extends to plea offers that are rejected or lapse.

In Missouri v. Frye a defendant was charged with driving with a revoked license. Since he had three prior convictions of driving with a revoked license, the defendant was charged with a class D felony under Missouri law, which has a four-year maximum sentence. Before trial, the prosecutor wrote a letter to Defendant's counsel that contained two offers, one of which reduced the charge to a misdemeanor and recommended a 90-day sentence in exchange for a guilty plea. A misdemeanor charge in this case carries a maximum sentence of up to one year in jail. The letter stated an expiration date for the offers. The offers expired and Defendant claims that his attorney did not inform him of either offer.

The Defendant was then arrested once again for driving with a revoked license less than a week before his preliminary hearing on the previous charge. The Defendant then waived his right to a preliminary hearing on the previous charge and subsequently pleaded guilty at arraignment without an underlying plea agreement. He was sentenced to three years in jail. Seeking post conviction relief, the Defendant alleged that he was denied effective assistance of counsel because his attorney failed to inform him of the expired plea offer.

The Sixth Amendment right to assistance of counsel applies to all "critical stages" in a criminal proceeding. The Supreme Court has held that critical stages include arraignment, post indictment line-ups, post indictment interrogation, and entering a plea of guilty. The Court held that defense attorneys have a duty to communicate plea offers from the prosecution under the Sixth Amendment.

However, the defendant must prove that prejudice resulted from this failure to communicate the plea offer for it to rise to the level of a constitutional violation. To show prejudice in cases like this, the Court set out a new two-part test. To prove prejudice the defendant must demonstrate a reasonable probability that (1) he or she would have taken the offer had it been communicated, and (2) the prosecution would not have canceled the plea or the court would have rejected it, if they have the power to do so.

In this case, the defendant showed a reasonable probability that he would have taken the plea because he pled guilty to a charge that carried a longer sentence. However, in light of his arrest for the same crime less than a week before his preliminary hearing, the Supreme Court held that he did not show a reasonable probability that the prosecution would not have canceled the plea or that the court would not have rejected it.

Additional Reading:
Supreme Court Extends Sixth Amendment Protection to Rejected Plea Offers
Sentencing in Violation of a Court Approved Plea Agreement Not Allowed in New Mexico
The Law of Contracts and Criminal Plea Agreements in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals recently issued an opinion that clarified what punishment applies to ATV drivers who are intoxicated and who cause an accident resulting in injury or another person's death. Under State v. Natoni, off-highway vehicle drivers who are intoxicated will be punished under the more strict New Mexico DWI statute though also governed by the Off-Highway Motor Vehicle Act (OHMVA).

In the Natoni case, the Court held that the relatively lenient penalty scheme in the OHMVA excluded violations where the accident resulted in a person's injury or death. Additionally, the Court held that the penalties for driving an ATV while intoxicated were the same under the New Mexico DWI statute and the OHMVA.

The facts of the case involve the Defendant crashing his ATV into a telephone pole on a public road while under the influence of alcohol. The Defendant's passenger was injured in the accident. Defendant was found guilty and sentenced under New Mexico's DWI statute. His sentence was ultimately reduced to 90 days in jail and a $250 fine. The Defendant challenged his sentencing under the DWI statute on appeal, arguing that he should have been sentenced under the OHMVA and received a $10 fine. The Court of appeals disagreed and affirmed the sentence and fine.

The Court clarified that the OHMVA involves the operation of off-highway vehicles, but it specifically excludes violations that "caused or contributed to the cause of an accident resulting in injury or death to a person." Since the accident resulted in the injury of the Defendant's passenger, Defendant could not be sentenced under the OHMVA.

The Court then went on to explain why the penalty for DWI under the OHMVA is the same as under the DWI statute. The OHMVA includes driving under the influence as one of the 12 prohibited actions while operating an off-highway vehicle. However, the OHMVA does not address the punishment for this specific violation in its sentencing scheme.

The Court reasoned that the punishment for driving a while intoxicated was the same as under the DWI statute for 2 reasons: (1) the section that prohibits driving while intoxicated in the OHMVA makes a reference to the DWI statute and (2) the DWI statute applies to an ATV because an ATV is a "vehicle" for the purposes of the statute.

Section 66-3-1010.3(A)(2) of the OHMVA prohibits operating an off-highway vehicle "while under the influence of intoxicating liquor or drugs as provided by Section 66-8-102 (the New Mexico DWI Statute)." However, DWI is the only violation not included in the OHMVA penalty scheme.

Even though the wording of Section 66-3-1010.3(A)(2) could have been more clear, (1) the fact that it specifically refers to the DWI statute, (2) does not include DWI in the OHMVA penalty scheme, and (3) in light of other legislative actions punishing DWI more severely, the Court concluded that the New Mexico Legislature meant to punish DWI under the OHMVA the same way as other DWI offenses.

If you are charged with a DWI while ATV'ing, you should contact an experienced criminal defense attorney immediately. The recreational character of your drinking and driving make it no less serious under the DWI laws of New Mexico.

Collins & Collins, P.C.
Albuquerque Attorneys