Albuquerque Criminal Lawyer Blog

The Confrontation Clause of the Sixth Amendment of the U.S. Constitution guarantees the right of a criminal defendant to confront witnesses. As such, testimonial evidence is inadmissible in court against a defendant unless the defendant has a chance to cross-examine the witness who's statements are admitted into evidence.

In State of New Mexico v. Tollardo, the issue came up in the context of the state attempting to admit into evidence the guilty plea of a co-defendant. The facts of State v. Tollardo involved a murder in which Defendant allegedly took part. During the Defendant's trial, the prosecutor asked a police witness whether he knew if certain co-defendants had been convicted for the Victim's death. Neither co-defendant was present or a witness at Defendant's trial.

Even though the police witness was not allowed to answer the question in the presence of the jury, the court took judicial notice of the co-defendants' pleas and informed the jury of them after the State rested its case. The jury subsequently convicted the Defendant. The Defendant appealed his conviction arguing that the introduction of the co-conspirator convictions violated his right to confront witnesses against him under the Sixth Amendment.

The Confrontation Clause applies to witnesses against a criminal defendant who "bear testimony." Since pleas must be made in open court before a judge where the judge ascertains whether the defendant understands the meaning and consequences of the plea, the Court held that pleas of this kind are testimonial. As testimonial evidence, pleas and convictions of co-conspirators are inadmissible in court against a defendant to prove facts of the case unless the defendant has a chance to cross-examine the co-defendant about the plea or conviction in court.

On the other hand, if the co-defendant is available for cross examination, the co-defendant may be questioned about the plea to determine the co-defendant's credibility and possible reasons for pleading guilty. In fact, there are many reasons for taking a plea other than guilt and this is something a jury is entitled to hear.

This brought the court to a the issue of harmless error. Once a Defendant has proven a violation of the Confrontation Clause, the prosecution must prove that the error was harmless. If the prosecution cannot prove that the error was harmless, the proper remedy is a new trial. Before this case, New Mexico used a three-part test announced in the 1980 case State v. Moore to analyze whether an error was harmless. In its current opinion, however, the Court overruled the Moore test and all of the cases that applied Moore to resolve harmless error questions on the basis that the Moore test misapplied the law.

In its place, the Court held that when reviewing a harmless error question, courts should only consider an error harmless when there is no reasonable possibility that the error affected the verdict for constitutional errors, and when there is no reasonable probability that the error affected the verdict for non-constitutional errors. The Court explained the different standards for constitutional and non-constitutional errors arguing that the burden of proof should be higher when it involves a constitutional right.

The Court enumerated some factors that courts should consider when evaluating whether there was a reasonable possibility or probability that the error affected the verdict. However, the Court refused to set out a new test and instead encouraged courts to examine every case individually and make an educated judgment call as to whether the error influenced the verdict.

First off, the Court stated that a judge should weigh all of the circumstances relating to the error, including an examination of the error itself, its source, and the emphasis placed on it during trial. Courts should also look at how important the error was to the prosecution's argument, whether it bolstered facts already introduced through other evidence, or whether it presented new facts.

While this seems beneficial to defendants in that it eliminates the rigid Moore test, the real effects of this opinion remain to be seen. In any event, is it definitely a step in the right direction.

Additional Reading on the Right to Confrontation of Witnesses:
Prosecution Medical Experts and the Confrontation Clause in New Mexico
In An Increasingly Technical Age, There Is Still No Substitute for Face-to-face Confrontation of Witnesses
6th Amendment Confrontation Rights Take a Blow in the 10th Circuit

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

A recent case before the New Mexico Court of Appeals clarified whether a court could sentence an individual to more time than agreed to in a plea agreement if a portion of that sentence was suspended. In State v. Miller, the Court held that the suspended portion of the sentence counted as part of the sentence and therefore courts could not sentence a defendant for more time than agreed to under the plea agreement, regardless of whether a portion of the sentence is suspended or not.

A plea agreement is an agreement between a defendant and the prosecutor where a defendant pleads guilty to a charge in exchange for certain concessions like a reduced sentence, dismissal of other charges or other recommendations to the court favorable to the defendant. The agreement is then presented to the court, which must accept or deny it. Once the court accepts the agreement, it is binding on all parties, including the court itself.

In State v. Miller, the defendant entered into a plea agreement whereby he would receive a sentence of no less than ten and no more than forty years in prison. After the agreement was accepted by the district court judge, the court sentenced him to forty-two years imprisonment with a suspension of nine years, for a total initial sentence of thirty-three years. The defendant appealed, arguing that the forty-two year sentence violated the plea agreement. The New Mexico Court of Appeals agreed.

At the appeal, the State argued that a forty-two year sentence was consistent with the plea agreement because the plea agreement stipulated that the Defendant would not be given more than 40 years "at initial sentencing." The state argued that the forty-year limitation in the agreement referred to the initial period of incarceration, and not the sentence itself. Since Defendant's initial period of incarceration was thirty-three years, the State argued, the agreement was not violated when the Defendant was sentenced to forty-two years with a nine-year suspension. The New Mexico Court of Appeals disagreed.

The Court Appeals held that under New Mexico case law, courts construe plea agreements according to the Defendant's reasonable understanding of the plea. It is also settled in New Mexico that any part of a sentence that is initially suspended is counted as part of the sentence.

The Court of Appeals made clear that the fact that a sentence is suspended does not change the length of a sentence. For example, a court may not sentence a defendant to 500 years with a suspension of 498 years without violating a plea agreement for a maximum sentence of two years. Once a court accepts a plea agreement, it may not sentence a defendant to more time than agreed to, regardless of whether a portion of the sentence is suspended.

In this case, the Court found that it was reasonable for the Defendant to understand that his total sentence, and not just the initial period of incarceration, would be no longer than forty years. The Court also noted that if the State wanted to make sure that the Defendant served a certain period of time, it could have easily made it clear in the plea agreement. Then of course, the district court could have refused the plea agreement completely since this is generally within the discretion of the judge.

Related Reading:

• The Law of Contracts and Criminal Plea Agreements in New Mexico


• Supreme Court Extends Sixth Amendment Protection to Rejected Plea Offers

Collins & Collins, P.C.
Albuquerque Attorneys

The U.S. criminal system has largely become a system of pleas. According to the Department of Justice, 98% of federal convictions and 94% of state convictions are the result of guilty pleas, with a large part of these arising from plea bargains between the prosecution and defendant. Consequently, the Supreme Court of the U.S. has extended the Sixth Amendment right to counsel to the plea bargain process. In a recent case, Lafler v. Cooper, the Court addressed the right to counsel in the context of pleas that are rejected by a defendant on the mistaken advice of their attorney.

The Defendant in Lafler v. Cooper was charged with assault with the intent to murder and three additional offenses. In exchange for a guilty plea, the prosecution offered to recommend a 51-to-85 month sentence for two of the charges and dismiss the other two. The defendant rejected the offer on the advice of his attorney that the State would not be able to establish his intent to murder the Victim because Defendant shot the Victim below the waist. The Defendant was subsequently found guilty and sentenced to a mandatory minimum of 185-to-360 months.

The Sixth Amendment to the U.S. Constitution guarantees the accused in all criminal trials the effective assistance of counsel. The right to effective assistance of counsel applies to all "critical stages" in a criminal proceeding. Critical stages include arraignment, post indictment line-ups, post indictment interrogation, entering a plea of guilty, and the plea bargaining process.

To analyze whether the ineffective assistance rises to a Sixth Amendment violation, courts must follow a two-part test set out in Strickland v. Washington. Under the Strickland test, a defendant must show that (1) counsel's advice fell below an objective standard of reasonableness, and (2) but for counsel's ineffective advice, the outcome of the case would have been different.

Adapting the Strickland standard to cases in which an offer is rejected due to ineffective advice, the Court announced a new test to prove the second Strickland prong. In cases like this one, once the defendant has proved that counsel offered ineffective advice, a defendant must also prove that but for the advice there is a reasonable probability that (1) the plea offer would have been presented to the court, (2) that the court would have accepted the terms, and (3) that the sentence, conviction, or both would have been less severe under the offer's terms than under the actual judgment or sentence that resulted.

Having established both parts of the Strickland test as modified in this case, the Court went on to address the type of remedy that should be available to a defendant. The Court stated that while the remedy "must neutralize the taint" of the Sixth Amendment violation, it must not give the defendant a bonus or waste the resources invested by the state in prosecuting the case.

To this end, the Court announced that in cases like this, there are several remedies that a court may choose from depending on the particular facts. If the only difference between having accepted and rejected the plea involves sentencing, the court must have an evidentiary hearing where it is determined whether there is a reasonable probability that defendant would have accepted the plea offer. If the court finds the defendant would have taken the plea, it can decide whether to grant the terms of the plea, the sentencing at trial, or a different sentence.

On the other hand, there may be other instances where this remedy would not be sufficient. In cases where the plea offer dismissed counts for which the defendant was later convicted at trial or where there are mandatory sentencing guidelines, the Court held that the remedy might require the prosecution to reoffer the plea. Once the plea is offered again, the court may choose to accept the plea and vacate the conviction, or leave the conviction as-is.

As such, the outcome will depend on the circumstance of each case, and may in large part be dependent upon the particular trial judge. The dissent argued that the case would open a floodgate of challenges. This remains to be seen but rest assured the latitude left the judge in deciding what to do with the defective plea leaves open enormous room for further dispute.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent case from the New Mexico Court of Appeals points out the intersection of contract law and criminal law. Specifically, the New Mexico Court of Appeals held that criminal plea agreements are enforceable just as other contracts. In so doing, the Court also set forth some unique principles that apply to plea agreements that in most cases would not hold in a standard contract dispute.

The facts of State v. Gomez are interesting in their own right but need not be discussed in great depth here. In a nutshell, the defendant entered into a series of 3 plea agreements. Under the agreements, it was agreed by the State that he would be exposed to a maximum of 9 years on the 3 pleas agreements that were to run concurrently. The district court judge misconstrued the pleas to allow up to 21 years in prison. Based upon the misconstruction of the plea and a violation of probation, the court sentenced the defendant to 21 years, 16 years of which were suspended, for a total of 5 years of incarceration.

The defendant appealed and the Court of Appeals reversed the sentence sending it back to district court for sentencing consistent with the written plea agreements. In doing so, the Court made some interesting findings regarding the application of contract law to plea agreements.

The court began by recognizing that a plea agreement is a form of contract and should be treated as such by the court. The law of contract suggests that ambiguities in language should be construed against the draftsman. In case of criminal plea agreements, ambiguity according to the Court of Appeals should be construed against the State and in favor of the defendant. In so doing, the Court must determine the reasonable understanding of the defendant as to the terms of the plea.

The Court set forth exceptions to this rule that would not otherwise apply to contracts. The Court stated that if the plea is ambiguous, the district court judge may resolve ambiguities on the record. With general contract law, agreements or understandings outside the contract itself are typically not admissible to change the terms of the written contract. With criminal plea agreements, unlike the typical contract dispute, the court record if any serves to amend the terms of the plea.

This issue will be most interesting in magistrate and municipal court proceedings throughout New Mexico that are non-record cases, meaning that they are not recorded. This will pose some interesting issues in case of misconstruction of pleas in these non-record courts.

Having said all this regarding construction and interpretation of plea agreements in the face of ambiguous terms, the Court of Appeals stated that there was no such ambiguity present in the plea agreements at hand. The court found that the plea agreements were clear and that the sentencing judge had done nothing, though he had full authority to do so, to amend the plea agreements on the record.

Finally, because the Court found that the plea agreements were unambiguous and that the plea agreements would stand as written, the defendant was entitled to specific performance of the agreements. Again, specific enforcement is drawn from the law of contracts which allows the non-breaching party to enforce the agreements as written.

It was found that the defendant did not wish to withdraw his plea which he might have done in case the district court had refused to accept the plea at the outset. Instead, the defendant chose to enforce the pleas as written through specific performance. As such, the Court of Appeals returned the case to the district court for sentencing in line of the written agreements.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent case from the New Mexico Court of Appeals addressed the validity of the consent to a search under the 4th Amendment. The case of State v. Norman Davis involved the search of an individual's property for marijuana.

In a joint operation, the New Mexico State Police, the New Mexico National Guard and officers from a number of other law enforcement agencies entered Mr. Davis' property to investigate the presence of marijuana. The numerous officers were heavily armed with handguns and AR-15 semi-automatic weapons. In addition, the operation included two Army National Guard helicopters which were hovering over the residence at the time that contact was made with Mr. Davis.

Mr. Davis had a greenhouse on his property. The investigation began as a result of helicopter surveillance that suggested the presence of marijuana in the greenhouse. The greenhouse had an opaque finish so it was not possible to view its contents from outside the greenhouse which raises some questions regarding the validity of the initial suspicion.

Against this backdrop, Mr. Davis was asked for consent to search his greenhouse. Mr. Davis asked the officer if he had to consent to which the officer responded "No", but it would take less than 30 minutes to obtain a warrant during which time Mr. Davis' property would be secured. During this conversation, the many other officers were scattered across Mr. Davis property to which Mr. Davis commented that it looked like they were already searching anyway.

Mr. Davis moved for suppression of the evidence arguing that the consent was invalid because it was not voluntary. His motion was denied. As a result, Mr. David entered a conditional plea reserving the right to appeal the illegal search and seizure question.
The New Mexico Court of Appeals found that there was no voluntary consent to the search. The Court laid out three requirements for voluntary consent to a search:

"First, the consent must be unequivocal and specific, second, the consent must be given without duress or coercion, and third, the first two factors must be viewed with a presumption against the waiver of constitutional rights."

The Court found that the first requirement of a specific and unequivocal consent had been met. However, the Court determined that the second had not. Instead, the Court found that the consent had been given under duress and coercion. In holding that the consent was given under duress, the court cited the helicopters, the numerous armed law enforcement, the suggestion that refusal was futile, and the fact that from the defendant's perspective, the search was already under way.

Perhaps a more subtle approach would have been warranted under the circumstances given the fact that it was a greenhouse, not a mobile meth lab, and it was Norman Davis, not Tony Montana. In any event, a softer approach would have avoided the suppression of evidence and dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

It is well established in New Mexico that a law enforcement officer cannot extend the scope of a traffic stop beyond the initial basis for the stop in the absence of fairly restrictive circumstances. However, the issue of a passenger's right to challenge the scope of the ensuing investigation had not been specifically addressed until the recent New Mexico Court of Appeals case of State v. Portillo.

Portillo involved a routine traffic stop. The defendant, Portillo, was a passenger in the car. The officer went through the standard procedure of requesting the driver's license, insurance and registration. As he was conducting the investigation, the officer noticed that the defendant passenger "remained looking straight ahead with his hands in his lap, avoiding eye contact with Officer Thatcher and only glancing furtively at him once when Officer Thatcher moved." The officer found this behavior suspicious thereby expanding the scope of the traffic stop asking the driver and later the passenger whether there were drugs or weapons in the car and for consent to search the vehicle.

Both the driver and the defendant denied the presence of drugs or weapons but both consented to the search. Naturally, drugs were found and the defendant was charged with possession of narcotics. The defendant entered a conditional plea reserving his right to appeal the constitutionality of the search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution.

There were a number of interesting points addressed in the case. First, the Court noted that the alleged suspicious behavior was insufficient basis for expanding the investigation beyond the speeding investigation. The court noted a number of cases in New Mexico that clearly state that nervous behavior alone does not give rise to the reasonable suspicion necessary to expand the scope of a traffic stop.

Second, the Court addressed the defendant's standing to challenge the search of the vehicle. It is well established that a passenger has no legal standing to challenge the search of a vehicle. In short, the passenger has no expectation of privacy in this situation. However, the passenger can challenge both the stop and the subsequent expansion of the investigation beyond the scope of the stop since it effectively results in a seizure of the passenger by law enforcement. The passenger has an equal right to be free of illegal search and seizure as does the driver.

The Court noted that Article II, Section 10 provide greater protection than the 4th Amendment under federal law. Under federal case-law including United States Supreme Court precedent, law enforcement is given significantly greater latitude in extending the length and scope of a traffic stop. The officer may extend the scope of the investigation if reasonable suspicion of other crimes surfaces during the routine traffic investigation. The Court noted that under Fourth Amendment analysis, the scope of investigation and questioning may be expanded so along as the length of the stop is no longer than "the time required to conduct a reasonable investigation into the initial justification for the stop". In other words, under the 4th Amendment, the officer is given significant leeway in the scope of his "traffic" investigation.

As in many situations, the New Mexico Constitution provides greater protection that does the 4th Amendment. Under Article II, Section 10, there is no such latitude defined by the amount of time or inconvenience to the defendant which is inherently vague and susceptible to abuse. Unrelated questions beyond the scope of the traffic stop may be asked only when there is independent reasonable suspicion for the questioning, issues of officer safety suggest further questioning, or where the interaction has developed into a consensual encounter. Again, nervous behavior is not enough. Nor was there any reasonable basis for believing there were weapons or threats to officer safety. Finally, the defendant was already seized and therefore the encounter could not by definition be consensual since there was nothing suggesting that he was free to leave.

Collins & Collins, P.C.
Albuquerque Attorneys

A deferred sentence in a first time DWI in New Mexico is pretty common in most courts around the state. A deferred sentence eventually results in a dismissal of the charges. However, the dismissal does not have the effect that most DWI offenders would wish it to have.

A deferred sentence in any case, including a first time DWI, requires a plea of guilty or no-contest. The deferred sentence does result in a finding of guilt. As such, even though the charges are eventually dismissed, the deferred sentence has important consequences for the DWI offender.

First and foremost, much to the chagrin of many repeat DWI offenders, the first time DWI counts as a prior despite the fact that there was a deferred sentence and the charges were eventually dismissed. As a result, even though the first time DWI is dismissed on the deferred sentence, a subsequent DWI comes with all the disastrous consequences associated with repeat DWI offenses. The most notable consequences of repeat DWI offenses are mandatory jail time and much stricter levels of probation.

Unfortunately, the deferred sentence is the best possible plea in most first time DWI cases. Gone are the days when the prosecutors offered pleas to lessor offenses. Neither will prosecutors any longer agree to conditional discharges on first time DWI. The conditional discharge to the lay observer would appear to be identical to a deferred sentence. However, there is one very big difference. Despite the typical requirement of a plea of guilty or no-contest for court approval of the conditional discharge, there is no adjudication of guilt.

Due to the seriousness and often tragic consequences associated with DWI in New Mexico, neither judges nor prosecutors will allow any disposition of even a first time DWI that will not later count as a prior for a subsequent DWI. In fact, there is mandatory DWI sentencing dictated by statute that disallows such an outcome.

If you are charged with a first time DWI, you should understand all the possible consequences including mandatory sentencing. Because of the seriousness of a DWI conviction, it is wise to speak with an experienced New Mexico DWI attorney. If you cannot afford a private attorney, there are many very experienced and capable public defenders, one of whom will be appointed to assist you.

Collins & Collins, P.C.
Albuquerque Attorneys