Albuquerque Criminal Lawyer Blog

During the course of a legal case, whether criminal or civil, the law imposes certain deadlines. Generally, if those deadlines are not met the party failing to meet the deadline will be subject to penalties. These penalties may include having their case dismissed or having a judgment entered against them.

Recently, in New Mexico v. Leon, the New Mexico Court of Appeals dealt with a situation where the defendant missed the deadline to file an appeal on his criminal conviction. In cases where an appeal is not timely filed, an ineffective assistance of counsel may be presumed. This case held consistently with this position despite the state's argument that there was no 6th Amendment right to counsel in this case since it involved probation violations as opposed to original criminal charges.

The defendant was convicted of one count of contributing to the delinquency of a minor and one count of selling or giving alcoholic beverages to a minor, and he was sentenced to three years of incarceration followed by one year of parole. The court partially suspended his sentence and ordered him placed in supervised probation. The defendant also had a prior felony conviction for a sex offense, for which he is required to register as a sex offender. As a condition of the defendant's probation, he was not permitted to drink or possess alcohol, he was required to receive permission from his probation officer for missing any counseling sessions and he was required to get written permission from his probation officer before having unsupervised contact with children under eighteen years of age.

The defendant's probation officer filed four probation violation reports based on possession of alcohol, failing to register as a sex offender and missing two counseling sessions. As a result, the State sought to revoke the defendant's probation based on the violations. In addition, the State filed a supplemental criminal information requesting that the defendant's sentence be enhanced due to his habitual offender status. The court reviewed the evidence and revoked the defendant's probation, sentencing the defendant to five years of incarceration followed by a period of supervised probation.

Despite the fact that New Mexico law requires an appeal to a court's decision to be filed within thirty days of the final decision, the defendant did not file his appeal until sixty-two days after the final decision was entered. While the trial court may have granted the defendant an extension to file his appeal, he did not file the request for an extension until more than sixty days after the final decision as well. By that time, the trial court could not rule on any matters pertaining to the case, because it no longer had jurisdiction.

The defendant argued that his counsel's failure to file the appeal on time was ineffective assistance of counsel. Ineffective assistance of counsel is a claim raised when a criminal defendant believes their attorney's performance was so ineffective that it deprived them of their constitutional right to an attorney. In the past, New Mexico courts have presumed ineffective assistance of counsel where an appeal is not filed before the deadline passes, in which case the court will then review the defendant's case. However, this case differed slightly from the normal untimely appeal cases, because it deals with revocation of probation.

The State argued that in an appeal from a revocation of probation, the defendant had no right to counsel. However, the defendant's probation revocation hearing involved contested evidence, legal issues and complicated legal arguments, which most certainly require the assistance of an attorney. Additionally, the defendant had the right to appeal the revocation of his probation. Due to the significant effect a revocation of probation would have on the defendant's liberty, he should not have his right to appeal taken away due to his lawyer's mistake. Therefore, the defendant was permitted to appeal his probation revocation, despite missing the filing deadline.

Related Reading:
Sliding Scales of Due Process in New Mexico Probation Violation Hearings
4th Amendment Rights Limited for Probationers and Parolees
You Can Run but ...: Tolling of Probation and Jurisdiction in New Mexico Criminal Cases

Collins & Collins, P.C.
Albuquerque Attorneys

The 2011 New Mexico Supreme Court decision in State v. Williams addressed the legality of an under-clothing search incident to arrest. The Court found the search under the crimustances of the case reasonable under the 4th Amendment's and related cases on search and seizure.

This case involved a traffic stop. When the officer approached the stopped vehicle he saw through the window that the Defendant was "fumbling around" with an object. Based on the officer's training and experience he concluded that these actions were consistent with attempting to conceal contraband or searching for a weapon. When the Defendant exited the car his pants were unzipped and his belt was unbuckled.

Because the Defendant had an outstanding warrant the officer placed him under arrest and handcuffed him. The Defendant was placed between two police cars parked bumper to bumper on the side of the road. The arresting officer patted the Defendant down and shook the waistband of the Defendant's pants. The officer also pulled the waistband of his pants out about six inches and looked down and saw a plastic bag underneath the Defendant's underpants. With a gloved hand the officer reached down and removed the bag, the contents of the bag latter tested positive for illegal drugs.

The Defendant challenged the search as an illegal search and seizure under the 4th Amendment. The Court found that the search was not illegal and was warranted under the circumstances.

To determine the reasonableness of the officer's underclothing search the Court applied the factors previously set forth by the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979).

These factors require the Court to determine whether the justification, scope, manner and place of the search were reasonable in the context of the totality of the circumstances surrounding the underclothing roadside search.

In this case the Court concluded that each of these factors was met:

1. The search was justified because the officer reasonably suspected that the Defendant was hiding a weapon or drugs in his underpants based on Defendant's movements within the vehicle and exiting the car with his pants unzipped and belt unbuckled.


2. The scope of the search was narrowly tailored as the officer limited his underclothing search to the area in which he suspected the weapon or drugs to be hidden.


3. The manner of the search was appropriate as only the Defendant and searching officer were able to see underneath the Defendant's clothing.


4. The location of the search on the side of the road was appropriate as the Defendant was protected from public view by the police cars and the officers on the scene.

After concluding that the Bell factors supported the arresting officer's search the Court's final step was a balance of the public and private interests at stake. The Court concluded that the underclothing search protected the public interest in safety without unreasonably violating Defendant's privacy expectations under the Fourth Amendment.

While the Court found the undergarment search in this case to be reasonable the Court was careful to point out that invasive underclothing searches remain the exception. The opinion in this case is not to be construed as a blanket approval of underclothing searches as part of the typical search performed incident to arrest.

If you are charged with a crime, search and seizure issues are extremely important to your defense. Illegally seized evidence will not be allowed into court. The suppression of illegally obtained evidence is often the best line of defense. It is important to discuss these matters with an attorney experienced in search and seizure issues.

Related Reading:
Unlawful Search & Seizure Under the 4th Amendment
New Mexico Provides Greater Protection from Illegal Search & Seizure than Federal Law
Evidence Seized Under the Pretext of a Traffic Stop is Inadmissible
Courts Continue Assault on the Rights Against Unlawful Search & Seizure

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment of the U.S. Constitution and Article II, Section 10 of the New Mexico State Constitution protect us against unreasonable searches and seizures. This means that law enforcement are required to first get a search warrant before going into someone's house or car to seize evidence. A search warrant is issued by a judge and is a court order that authorizes law enforcement officers to conduct a search of a person or a location for evidence of criminal activity and to seize that evidence.

The U.S Constitution and the New Mexico State Constitution require that searches be reasonable and specific. Therefore, a search warrant must specifically state the exact place and object that may be searched. A warrantless search, therefore, is presumed to be unreasonable. There are, however, a few recognized exceptions that make warrantless searches reasonable and permissible. These include exigent circumstances, searches incident to arrest, inventory searches, consent, hot pursuit, open field, and plain view. When law enforcement conducts a warrantless search, it is the responsibility of the state to prove that the warrantless search was reasonable. This can be done by proving that the warrantless search fits into one of the recognized exceptions to the warrant requirement listed above.

The Plain View Doctrine

One of the exceptions frequently relied upon by law enforcement when a warrantless search is conducted is what is commonly referred to as the plain view doctrine. This exception allows a police officer to seize something that is illegal or suspicious if it is in the plain view of the officer. Two requirements must be met in order for the plain view exception to apply. First the officer must be legitimately present at the searched location and second, the incriminating nature of the evidence seized must be immediately apparent giving the officer probable cause to believe that the item seized is evidence of a crime.

For example, if a police officer has a warrant to search someone's home for a stolen T.V. and while searching the home for the T.V. the police happen to see drugs laying on a coffee table in the living room, the police may seize the drugs under the plain view doctrine. The seizure of the drugs is reasonable and not a Fourth Amendment violation even though the warrant that allowed the police to search the home for the stolen T.V. did not also specifically state that the officer may search the home for drugs.

The plain view doctrine applies because the police were legitimately present at the searched location pursuant to the search warrant for the T.V. and the drugs were in the plain view of the police. In this same scenario, the plain view doctrine would not apply if the drugs were hidden in a drawer of the coffee table instead because they would no longer be in plain view.

If you are facing criminal charges it is wise to discuss your case with an experienced criminal law attorney. A criminal law attorney will review the details of your case with you to determine whether you have been subject to an unlawful search and seizure. If your attorney determines that your Fourth Amendment Rights have been violated he or she can file a motion to suppress the evidence obtained through the unlawful search and seizure.

Related Reading:
4th Amendment and the Plain View Doctrine
Pat-Down Search in New Mexico is a Protective Search for Officer Safety Not a Search for Evidence
The 4th Amendment and Police Questioning Beyond Scope of Traffic Stop in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Under the Fourth Amendment of the U.S. Constitution, individuals are protected from unreasonable searches and seizures that are not accompanied by a warrant or supported by probable cause. There are a small number of exceptions to the warrant requirement when police can conduct a search and seizure. A 2011 Supreme Court case, Kentucky v. King, explained the limits of the exigent circumstances exception to the warrant requirement when officers search a private residence.

In Kentucky v. King, police officers followed a suspected drug dealer to an apartment complex where they smelled marijuana coming from one of the apartment doors. Officers knocked on the door and announced their presence. Officers at the scene testified that when they began knocking they could hear movement within the apartment that sounded like the occupants were destroying evidence. Law enforcement officers kicked the door in and found marijuana and cocaine in plain view during a protective sweep of the apartment.

The Defendant claimed that the warrantless entry and search of the apartment was in violation of the Fourth Amendment and that the exigent circumstances exception did not apply because police created the exigency. Essentially, the defendant argued that by loudly knocking on the door, police created a situation where there was a danger of destruction of evidence. The Supreme Court disagreed.

A warrantless search of a private residence is generally considered unreasonable and therefore prohibited by the Fourth Amendment. However, law enforcement officers may enter and search a private home without a warrant if there are exigent circumstances present. Exigent circumstances are present when there is an eminent danger of harm to an individual, a suspect is escaping, or evidence may be destroyed.

Under the "police-created exigency" rule, the exigent circumstances exception does not apply if law enforcement officers "manufactured" or created the exigency. However, lower courts have come up with different tests to determine whether an exigency was created by police officers. The Supreme Court in Kentucky v. King announced the correct test to determine whether the exigency was "police-created."

Under this ruling, police create an exigency only when they "engage or threaten to engage in conduct violating the Fourth Amendment." Simply put, the exigent circumstances exception to the warrant requirement applies even if the police officers' actions caused the exigency, as long as the officers were acting lawfully and reasonably.

In this case, police knocked loudly and announced their presence. Neither knocking nor announcing the presence of law enforcement, according to the Court, is in violation of a residence's occupants' Fourth Amendment rights. According to the majority, police may need to knock forcefully and announce themselves loudly in order to let a residence's occupants know that they are at the door. In this case, officers did not enter the apartment or make any demands to enter the apartment or otherwise suggest an eminent search. They entered he residence only once they heard people moving inside and feared that evidence would be destroyed.

Therefore, even when police create a situation where a suspect may destroy evidence by knocking at their door, as long as police are acting reasonably and lawfully, they may enter the residence without a warrant. Of course, the officers must have a legitimate and lawful reason to knock on the door to begin with. Likewise, there must be an exigency meriting a warrantless entry. For this determination, the Supreme Court send the case back to the Kentucky courts.

Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The police are not permitted to simply search anyone for any reason. Their powers to search people are limited by the Fourth Amendment to the U.S. Constitution, preventing unreasonable searches and seizures. In most cases, the police must acquire a warrant in order to search a person. A number of exceptions do exist that allow police to forgo a warrant, but those exceptions are limited.

Earlier this year, the New Mexico Court of Appeals examined the use of "pat-down searches" to acquire evidence in New Mexico v. Almanzar. In this case, two police officers were dispatched to investigate a domestic violence incident. By the time the police arrived, the defendant and his girlfriend left the scene of the alleged domestic violence. Both had gone their separate ways and were at different locations when the officers made contact.

When the officers approached the defendant, the defendant allegedly put his hands in his front pockets and refused to remove them. While neither officer believed the defendant was armed, they handcuffed him and conducted a pat-down search for weapons.

During the pat-down search, the officer felt a hard "golf ball-size thing" in the defendant's pocket, which he then removed, despite the fact that he knew it was not a knife or gun. The officers believed the object was powdered cocaine.

The defendant was arrested for possession of cocaine with intent to distribute. The defendant, believing that the police search violated his constitutional rights, sought to have the evidence suppressed so that it could not be used against him at trial. The trial court allowed the evidence. The defendant then entered a conditional plea to trafficking cocaine reserving on the issue of the search and seizure question.

Officers are permitted to pat-down or frisk suspects only for the purpose of officer safety. Specifically, they are allowed to search for weapons. In fact, an officer may only conduct a pat-down search if he or she believes that the suspect is armed and presently dangerous.

The search itself must be limited to what the officer needs to do in order to locate any weapons. If the officer detects something that reasonably may be a weapon, then the officer may remove it.

The courts will generally defer to an officer's judgment when determining if a pat-down search is required. In this case, the defendant's behavior, including putting his hands in his pockets and refusing to remove them, provided a basis for the pat-down search. However, in order to remove the object from the defendant's pocket, the officers were required to believe that it could be a weapon.

A pat-down search is not a search for evidence. It is strictly for the protection of the officer. In this case, the officer testified that he did not believe the object was a weapon. As such, removal of the object was not necessary for officer safety. At that point it became an evidentiary search and was therefore an illegal search under the 4th Amendment.

There is a further exception to the limited scope of the pat-down search. If the evidence would have been discovered anyway, then it may still be admissible under the "inevitable discovery doctrine." Here the police argued that it would have been discovered anyway due to a search incident to arrest on domestic violence.

The New Mexico Court of Appeals disagreed. In fact, the Court reiterated the misdemeanor arrest rule in New Mexico which requires that an officer be present at the scene of the crime to make an arrest. This rule applies equally to domestic violence and has in fact been codified in NMSA 31-1-7(A) as follows:

Notwithstanding the provisions of any other law to the contrary, a peace officer may arrest a person and take that person into custody without a warrant when the officer is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or a battery upon a household member.

The State took a broad view of "at the scene" arguing that it meant in the vicinity. The Court of Appeals again disagreed using the plain meaning of the words despite some agile arguments made by the State attempting to equate it to related DWI rules.

In short, a pat-down search is limited to officer safety. It is not a basis for a full search for evidence. Naturally, this will not be the end of it as it will often come down to what the officer believed. And this is obviously open to interpretation.

Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant

Collins & Collins, P.C.
Albuquerque Attorneys

Police officers often collect evidence used in later criminal prosecutions after using search warrants to examine various places, like homes and cars. However, there are specific rules about when it is proper for officers to obtain those warrants from a judge. If a warrant is obtained without sufficient probable cause than the search is improper and the evidence found via the search cannot be used in a trial.

Earlier this year the New Mexico Supreme Court ruled in State v. Haidle held that multiple levels of hearsay are not sufficient to support a constitutionally valid search warrant. Therefore, any evidence obtained using that search warrant could not be used.

In this case the decomposed body of a woman was found in a remote area with signs that she had been killed by blunt-force trauma to the head. Over ten months later, the police received tips from a confidential source and two concerned citizens that the defendant admitted to at least one person that he killed the woman.

The police obtained a search warrant for the man's home and truck. They found a bloody t-shirt that was too small for him and a piece of living room carpet containing bloodstains that had apparently been cleaned. Using this evidence, the police then obtained a warrant for the defendant's DNA. After the blood on the carpet matched the victim's, he was arrested and charged with first-degree murder.

Before trial, the defendant sought to suppress all the evidence obtained as a result of the search of his home. He argued that the police failed to obtain probable cause for the warrant. The district court agreed that the police did not have probable cause, but allowed the evidence because it would inevitably be discovered anyway. The defendant appealed this determination, and the issue went to the New Mexico Supreme Court.

The New Mexico Supreme Court determined that the affidavit used to support the warrant included both hearsay information from unnamed informants and nonhearsay evidence gathered independently by the police. New Mexico Rules of Criminal Procedure address the use of hearsay for a basis of probable cause for a warrant. The Court in Haidle quoted those rules stating:

Rule 5-211(E) NMRA provides that when a showing of probable cause depends in whole or in part on hearsay information, the affidavit must show "a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished."

The court found that the hearsay information did not provide any evidence of truthfulness because there was no indication that the sources had provided reliable information in the past or made statements against their own interest. In short, there was no basis for the court to find unnamed sources reliable and trustworthy.

The Supreme Court then had to address whether the evidence would have inevitably been discovered, even without the warrant. First, the court rejected what it termed the "we-could-have-done-it-lawfully-so-it-doesn't-matter-that-we-didn't view." The court found that there was nothing in the record that would indicate the bloody carpet would have been discovered without the warrant. Furthermore, allowing the police to use the inevitable discovery doctrine would make the probable cause requirement meaningless.

The court then concluded that the inevitable discovery doctrine would not apply in this case. The Court's language seemed to go further though it did not outright state that the inevitable discovery rule did not apply in New Mexico.

The Court anticipated the sour feeling one might have after reading the Court's opinion. It appears that justice was denied. And many will use cases like this to attack the courts, the rules of evidence, the exclusionary rule, and of course, criminal defense attorney. However, keep in mind the words from the U.S. Supreme Court case of Mapp v. Ohio as quoted by the Court in Haidle, "[n]othing can destroy a government more quickly than its failure to observe its own laws..."

Related Reading:
Expansion of Police Investigation Under the 4th Amendment in New Mexico
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Passenger Rights Against Illegal Search & Seizure in Routine Traffic Stops

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment of the Constitution protects people against warrantless searches of their persons, papers and homes. The law requires police to possess a valid warrant when searching a home for evidence, unless they act within one of the exceptions created by the courts. In order for the police to obtain a valid warrant, the police must have probable cause and specifically describe the place to be searched and items they want to seize.

The New Mexico Court of Appeals found a search invalid where the police failed to properly describe the area where they seized evidence in the search warrant. In New Mexico v. Hamilton, the police obtained a warrant to search the defendant's home. The warrant described the place to be searched as "a residence," more specifically as "a red stucco single level home with turquoise trim."

The police executed the warrant, and soon witnessed the defendant and his brother exiting a detached guesthouse located in the backyard area of the main house. The defendant and his brother were detained while drug-sniffing dogs searched both the main house and the guesthouse. The dogs alerted the police during the sniff of the guesthouse. The police then searched the guesthouse leading them to evidence upon which the defendant was charged.

The Fourth Amendment exists to prevent the police from searching people and places without cause. The courts have limited the police's authority to search, which ensures that the search will be carefully tailored and will not be a general search that the Constitution prohibits.

The area encompassing the "home" may extend beyond the walls of the home, and is sometimes referred to as the "curtilage." The Fourth Amendment does extend to protect the curtilage. There is no set definition of curtilage, but several factors are considered by the courts. However, it is clear that where the police want to search two houses, they are required to provide probable cause to each, and specifically describe the residences and things they wish to seize.

In the Hamilton case, the warrant did not mention the separate guesthouse. The main house and guesthouse were owned as a common unit, but the defendant used the guesthouse as a separate residence. In addition, the guesthouse had been rented out to tenants in the past, and it formerly had a different address.

The State argued that the guesthouse was part of the main house, due to its close proximity. However, the evidence showed that the guesthouse was, in fact, a separate residence. As a separate residence, it cannot be considered as part of the main house because it contains the intimate activities of its own respective occupants. The simple fact that an adult child lives closely to his parents, even when they are both allowed access to both homes, does not make the two residences one.

The contents of a warrant are very important. A defective warrant will result in the suppression of evidence. If this is the only evidence of a crime, then the prosecutor would have a difficult time at best moving forward. It is important to discuss these matters with your criminal defense attorney. Evidentiary suppression issues are often the best line of defense against criminal charges.

Related Reading:
4th Amendment and the Plain View Doctrine
The 4th Amendment and Police Questioning Beyond Scope of Traffic Stop in New Mexico
Protective Sweep Searches in New Mexico Fairly Limited Under 4th Amendment

Collins & Collins, P.C.
Albuquerque Attorneys

In State v. Olson, the New Mexico Supreme Court recently reversed a Court of Appeals decision, addressing a police officer's authority to question a person about unrelated crimes after pulling him over for a traffic violation.

An officer filling out paperwork noticed Defendant driving suspiciously. After following the defendant, the officer noticed that the car's temporary tags were expired and pulled him over. When he approached the vehicle, the officer recognized the passenger in the front seat as a prostitute. The officer then asked Defendant to step out of the car. Defendant was holding a fanny pack and the officer asked him to place it on the hood of car, as a safety precaution. When asked for identification, Defendant reached for his fanny pack. The officer asked to look inside the fanny pack, to make sure no weapons were inside and the defendant agreed.

Inside the fanny pack the officer discovered three crack pipes. Defendant then admitted that he used the pipes to smoke cocaine. The officer arrested and handcuffed Defendant, asking him where the cocaine was located, and he directed the officer to five crack rocks in his front pocket.

Defendant was charged with possession of a controlled substance. He moved to suppress the evidence as an unlawful search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The 4th Amendment and Article II, Section 10 of the New Mexico Constitution are intended to prevent the police from engaging in unreasonable searches and seizures. An automobile stop, with detention of its occupants, is considered a seizure under the law. Under New Mexico law the officer must have a valid reason for the traffic stop, and any questions asked during the stop must be reasonably related to the reason for the stop. However, the officer may expand the questioning where he has reasonable suspicion that other criminal activity has been or is occurring.

After a suppression hearing, the district court denied the motion to suppress. The Court of Appeals then reversed on the grounds that the officer could not expand the traffic stop into an investigation of prostitution solicitation, tainting the fanny pack search.

The NM Supreme Court noted that normally the mere presence of a suspected prostitute would not be enough to allow the officer to expand his questioning beyond the traffic search. However, in this case, the officer described several specific instances of Defendant's suspicious behavior. The Court elected to defer to the training and experience of the officer with regard to what constituted suspicious behavior. While recognizing that police officers should not be permitted to stop and harass individuals just because they associate with known criminals, the Court determined that was not the case here because the officer properly pulled Defendant over for the expired tags.

The defense of criminal charges often turns on the admission of evidence. Often the best defense is a good offense in seeking to have the evidence suppressed under illegal search and seizure grounds. It is important to discuss these matters with an experienced criminal defense attorney as this is often the best line of defense.

Related Reading:
4th Amendment and the Plain View Doctrine
Police in New Mexico Have Wide Latitude in Questioning During Traffic Stops
Protective Sweep Searches in New Mexico Fairly Limited Under 4th Amendment

Collins & Collins, P.C.
Albuquerque Attorneys

In a decision earlier this year, the New Mexico Court of Appeals held in State v. Montoya that a defendant's Confrontation Clause rights were not violated when the lower court prevented him from questioning the victim about their prior sexual history together.

State v. Montoya presented an interesting set of undisputed facts. The defendant and the victim were in an altercation that turned physical. He was subsequently convicted of several charges including kidnapping and aggravated battery. The only dispute in the case was over the defendant's intent. The defendant claimed his actions were not intended to harm the victim but to initiate "make-up sex" which the couple often engaged in after an argument.

During the trial, the defendant tried to introduce evidence of their sexual relationship--including their tendency to use sexual relations as a dispute resolution technique--to show its influence on his state of mind at the time of the incident. Relying on New Mexico's Rape Shield Rule, the court denied his motion to introduce the evidence.

Enacted by the New Mexico Legislature in 1975, the Rape Shield Rule prevents the admission of opinion or reputation evidence regarding the victim's past sexual conduct. The Rule only permits admission in cases where the evidence is material to the case and where its prejudicial nature does not outweigh its probative value. This is a crucial evidentiary distinction that hinges on the discretion of the judge.

Although the defendant was unable to introduce this specific evidence, he was able to introduce evidence supporting his theory. In fact, the victim confirmed that she was not in fear during the encounter and explained that the defendant's action were an attempt to get her to consent to sex. Regardless of the introduction of this evidence, the defendant claimed the court violated his right to confront the witness.

In a criminal prosecution, the Sixth Amendment to the United States Constitution--and a similar provision in the New Mexico Constitution--guarantees the accused the right "to be confronted with the witnesses against him." These Confrontation Clause protections, however, are not absolute. Instead, trial courts retain wide discretion to impose reasonable limits on cross-examination to prevent harassment, confusion, or repetition.

The court in Montoya examined a number of factors to determine if the exclusion in this case was within the acceptable parameters. Based largely on the fact that the victim had introduced similar evidence, the court determined that the probative value of the new evidence had substantially diminished and would have been inflammatory and repetitive. In other words, the court determined that the value of the information to the jury in reaching a verdict was not nearly as strong as the information's potential to mislead them.

Accordingly, this recent holding by the New Mexico Appeals Court serves to further outline what protections are--and are not--required by the Confrontation Clause in light of what has come to be known as the Rape Shield Rule.

The admission and/or suppression of evidence in a case is critical to the defense of criminal charges. It is important to discuss these matters with your criminal defense attorney.

Related Reading:
Confrontation And Victim Identifications
6th Amendment Confrontation Rights in New Mexico Domestic Violence Cases

Collins & Collins, P.C.
Albuquerque Attorneys

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 that offer testimony against them. In accordance with the Confrontation Clause, testimonial evidence is inadmissible in court against a defendant unless the defendant is able to cross-examine the witness giving the testimony. However, a recent U.S. Supreme Court case and a subsequent New Mexico Supreme Court case have both held that an identification of the perpetrator by a mortally-wounded shooting victim close to the time of the shooting is not testimonial evidence and therefore not in violation of the Confrontation Clause.

In Michigan v. Bryant police called to a gas station found the Victim mortally shot. The Victim identified the Defendant as his shooter before he died. At the Defendant's trial, police officers at the scene testified about the Victim's statements identifying the Defendant as his shooter. The Defendant was found guilty of second-degree murder, but the Supreme Court of Michigan reversed the conviction on the grounds that the officer's testimony of what the Victim said violated the Defendant's rights under the Confrontation Clause of the Sixth Amendment. The U.S. Supreme Court reversed.

The Supreme Court in Michigan v. Bryant held that the Victim's description and identification of the shooter were not testimonial evidence and therefore not in violation of the Confrontation Clause. The Court stated that police interrogations are testimonial if there was no ongoing emergency and the primary purpose of the interrogation was to determine or establish previous events with the objective of later using those statements in a criminal prosecution. However, police interrogation is not testimonial if the primary purpose for the interrogation is to facilitate police response to an ongoing emergency.

The Court stated that to evaluate the primary purpose of a police interrogation, courts must evaluate (1) the circumstances of the encounter between the police and individual that gave a statement, including the existence of an ongoing emergency, and (2) the statements and actions of both the individual and police.

For the first part of the inquiry, where the questioning took place and whether it occurred during or after the emergency are relevant. If the emergency is ongoing, it is likely that the primary purpose of an inquiry is to put an end to a dangerous or threatening situation; if the inquiry occurs after the danger is eliminated, it is more likely that the purpose of the interrogation is to establish past facts in preparation for criminal prosecution. The formality of the questioning may also be telling. While formality may indicate that the emergency is not ongoing, informality does not always, but may, indicate that the emergency is ongoing.

In Michigan v. Bryant the Court found that the Victim's identification was not testimonial because its primary purpose was to meet an ongoing threat to police and the public. Earlier this year, the New Mexico Supreme Court came to the same conclusion in a similar case in State of New Mexico v. Largo.

In State v. Largo, the victim was allegedly shot by her ex-husband. A neighbor responded and called 911. Through the neighbor, the victim identified her ex-husband as the shooter to the 911 operator and later to a police officer who responded to the scene. Both the 911 recording and the officer's testimony of what the victim said were admitted as evidence and the Defendant was convicted of murder.

On appeal, the Defendant argued that the 911 call and the officer's testimony violated his rights under the Confrontation Clause. For the same reasons as the Supreme Court in Bryant, the New Mexico Supreme Court found that since the Defendant was armed and at large, the victim's statements were not testimonial and obtained instead to meet an ongoing emergency. For this reason, the statements were allowed into evidence and the conviction was upheld.

If you are faced with criminal charges, it is important to understand your rights and defenses. Understanding issues such as the confrontation clause is very important to your defense. These issues are can be quite complicated depending on the circumstances. As such, it is highly advisable that you seek the guidance of a criminal defense attorney as soon as possible.

Related Reading:
Pleas of Co-Defendants: Admissability and Harmless Error in New Mexico
Defendants Have the Right to Pretrial Interview of State's Expert Witnesses But...
6th Amendment Confrontation Rights in New Mexico Domestic Violence Cases

Collins & Collins, P.C.
Albuquerque Attorneys

A U.S. Supreme Court case earlier this year, Rehberg v. Paulk, extended the immunity given to witnesses against liability for testimony given at trial to witnesses testifying before a grand jury. Rehberg v. Paulk additionally held that there is no difference between a law enforcement officer and a civilian witness for purposes of this immunity. In practice this means that an individual cannot sue a law enforcement officer for their grand jury testimony even if the officer lied or the testimony was malicious.

Rehberg v. Paulk involved a 42 U.S.C.§ 1983 action against a district attorney's chief investigator. The investigator testified before a grand jury in three separate indictments against the petitioner, all of which were subsequently dismissed due to insufficient evidence. The petitioner then filed a § 1983 claim charging the investigator with presenting false testimony to a grand jury and conspiracy to present false testimony to a grand jury.

42 U.S.C.§ 1983 actions entail violations of an individual's constitutional rights, immunities, and privileges by persons acting "under color of state law." §1983 allows an individual to sue any government official who uses his or her position to deprive that individual of constitutional or legal rights. However, certain government officials are immune from §1983 actions when performing duties within the scope of their authority.

The U.S. Supreme Court has long recognized that some functions carried out by government officials require absolute immunity from the threat of civil liability to ensure that those functions and duties are performed independently and objectively. The Court has recognized this absolute immunity for actions by government officials within the scope of their authority, including legislators, judges, prosecutors, and witnesses testifying at trial.

Witnesses testifying at a trial have long enjoyed absolute immunity from slander, libel and any other claims based on their testimony, even when their testimony was malicious and/or false. The Court reasoned that without this absolute immunity, witnesses would not be inclined to tell the truth for fear of subsequent civil claims against them. The Court also reasoned that this immunity would not make witnesses more likely to lie while on the witness stand because the possibility of criminal perjury charges acts as a significant deterrent.

In extending this immunity to grand jury witnesses, the Court stated that the same factors that justify immunity for trial witnesses apply to grand jury witnesses. Moreover, allowing § 1983 actions against grand jury witnesses would compromise the secrecy of grand jury proceedings, which is vital to their proper functioning.

The Court also held that there was no reason to distinguish law enforcement witnesses from lay witnesses, because if anything, the court reasoned that law enforcement officials face more severe sanctions for perjury than do lay witnesses. Sanctions can include the loss of employment and other employment -related penalties. Additionally, since prosecutors are immune from §1983 actions, it would be inconsistent to allow suits against law enforcement grand jury witnesses for malicious prosecution, because it is the prosecutor and not the officer who makes the decision on whether or not to prosecute.

In the end, the Court held that the absolute immunity granted to trial witnesses extends to grand jury witnesses, even if the grand jury witness is a law enforcement officer, and even if the officer lied under oath.

Related Reading:
Defendant's Rights to Present Evidence at Grand Jury Extremely Limited
Grand Jury Investigations: Ham Sandwiches Beware!
Felony Criminal Process: Pre-Indictment

Collins & Collins, P.C.
Albuquerque Attorneys

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

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.

Related Reading: Second Chance for First Time Juvenile Criminal Offenders

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 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