1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,732
10 STEVEN BAUER,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Carl J. Butkus, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Jacqueline R. Medina, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Lisa A. Torraco 20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION
23 CASTILLO, Chief Judge. 1 Defendant appeals from the district court’s decision following an on-record
2 review of his convictions for driving while intoxicated (DWI) and careless driving.
3 On appeal, Defendant contends that the State violated its duty to provide discovery of
4 the gas chromatography document with regard to the blood test, and the trial court
5 erred in denying Defendant’s motion for a new trial. We affirm.
6 I. FACTUAL BACKGROUND
7 On September 11, 2005, Defendant was involved in a single car, roll-over crash.
8 The responding officer followed the ambulance to the hospital and met with
9 Defendant at the hospital while he was waiting to be treated, at which time, the officer
10 noticed “heavy signs of intoxication” and was told by Defendant that he had
11 consumed two beers and two margaritas. Defendant performed poorly on field
12 sobriety tests, and blood test results showed an alcohol level above the legal limit.
13 At a pretrial hearing on June 14, 2007, Kelly Gomez, a chemist, referred to and
14 produced a “standard packet” that contained the chromatogram1 for the test on
15 Defendant’s blood. Defense counsel2 claimed surprise and moved to suppress the
1 16 Counsel uses the term chromatogram and chromatograph interchangeably. 17 We take this opportunity to clarify that a chromatograph is the actual instrument used 18 to carry out the chromatographic separations while a chromatogram is the recording 19 containing the graph of the result. 2 20 Two attorneys represented Defendant in the proceedings below. The 21 attorneys are both referred to as defense counsel in this opinion.
2 1 evidence based on discovery violation. The motion was denied, and the case
2 proceeded to trial on June 15, 2007. On the morning of trial, defense counsel
3 informed the trial court that the chromatogram had been faxed to one out-of-state
4 expert and one in-state expert, and both found problems with the gas chromatogram.
5 In response to defense counsel’s request to call the experts if the blood chromatogram
6 were to be admitted, the trial court reserved ruling until after the police officers
7 testified. Following testimony by the officers, the trial court granted Defendant’s
8 motion to suppress the chromatogram, not based on problems with discovery, but
9 because the State had not established the time of the accident. However, the trial court
10 ruled that the State would be permitted to ask its witness whether or not the blood test
11 performed on Defendant’s blood showed the presence of alcohol. Before the expert
12 witness testified, defense counsel suggested that the parties might be able to stipulate
13 that the blood showed the presence of alcohol and thereby avoid calling the State’s
14 expert to testify. The parties agreed and tendered a stipulation to the court.
15 Both parties then rested their cases. Defendant was found guilty of DWI based
16 on impairment to the slightest degree and careless driving. After the trial was over,
17 Defendant received a letter from his out-of-state expert stating that “[t]he lab failed
18 to provide evidence of performance monitoring and other essential criteria regarding
19 the quality of their procedures and techniques.” The letter included an opinion by the
3 1 expert that, “to a reasonable degree of scientific certainty,” the blood alcohol test
2 “lacks basic scientific accuracy and reliability for consideration as a valid test result
3 for evidential purposes.” Based on the letter, Defendant filed a motion for a new trial,
4 which was denied by the trial court. On appeal to the district court, the judgment and
5 sentence was affirmed in a memorandum opinion. Defendant appealed that decision
6 to this Court.
7 II. DISCUSSION
8 Defendant frames his issues as involving error by the State for failing to timely
9 disclose the blood test chromatogram and error by the trial court for failing to grant
10 a new trial in order to allow Defendant to present expert testimony about the
11 chromatogram. We address the issues under the two sections below. In composing
12 his brief, Defendant included various other claims regarding the proceedings below.
13 We briefly address those claims at the end of each section.
14 We note that in Defendant’s brief, he refers to some portions of the record
15 proper, some general date citations to the trial court proceedings, and some more
16 specific citations to the proceedings below. However, for a number of Defendant’s
17 assertions, he provides no citation to the record. We will not search the record to find
18 support for Defendant’s contentions. See Ross v. City of Las Cruces,
19 2010-NMCA-015, ¶ 18, 148 N.M. 81, 229 P.3d 1253; see also State v. Hunter, 2001-
4 1 NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296 (“Matters not of record present no issue
2 for review.”); State v. Jensen, 1998-NMCA-034, ¶ 18, 124 N.M. 726, 955 P.2d 195
3 (“When a case is assigned to a general calendar, the factual basis for the issues must
4 be contained in the record of proceedings made below.”). The State’s brief provides
5 more information regarding the portions of the record cited to by Defendant, and
6 Defendant did not file a reply brief or otherwise challenge the State’s statement of
7 facts. Therefore, to the extent that Defendant did not provide appropriate citations to
8 the record and would now argue that the State’s rendition of the facts is incorrect, we
9 point out that this Court indulges every presumption in favor of the “correctness and
10 regularity” of the trial court’s decision. State v. Rojo, 1999-NMSC-001, ¶ 53, 126
11 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).
12 A. Discovery of Blood Test Chromatography Report
13 Defendant contends that the State violated its duty to provide discovery when
14 Defendant did not receive the document showing the results of the gas
15 chromatography test on Defendant’s blood. At a pretrial motions hearing, the State’s
16 expert testified that the chromatogram was raw data and stated that the document had
17 not been provided to the prosecutor. Defendant asked for the evidence during the
18 pretrial proceedings, and the trial court granted the request.
5 1 Rule 7-504(A) NMRA governs discovery in the metropolitan court. The
2 portion of that rule that pertains to the State provides:
3 Disclosure by prosecution. Unless a different period of time is ordered 4 by the trial court, within thirty (30) days after arraignment or the date of 5 filing of a waiver of arraignment, the prosecution shall disclose and 6 make available to the defendant for inspection, copying and 7 photographing any records, papers, documents and statements made by 8 witnesses or other tangible evidence in its possession, custody and 9 control that are material to the preparation of the defense or are intended 10 for use by the prosecution at the trial or were obtained from or belong to 11 the defendant. Such disclosure shall include a written list of the names 12 and addresses of all witnesses whom the prosecution intends to call at the 13 trial, together with any statement made by the witness and any record of 14 any prior convictions of any such witness that is within the knowledge 15 of the prosecution. In cases involving charges of domestic violence, the 16 prosecution may use the district attorney’s office as the address for the 17 alleged victim.
18 Rule 7-504(H) provides:
19 Failure to comply. If at any time during the course of the proceedings 20 it is brought to the attention of the court that a party has failed to comply 21 with this rule or with an order issued pursuant to this rule, the court may 22 order such party to permit the discovery or inspection of materials, grant 23 a continuance, or prohibit the party from calling a witness, or prohibit the 24 party from introducing in evidence the material, or it may enter such 25 other order as it deems appropriate under the circumstances, including 26 but not limited to holding an attorney, party or witness in contempt of 27 court.
28 In response to Defendant’s claim that the State violated the discovery rule and
29 to his motion to suppress the evidence, the trial court stated that, based on its notes
30 and memory of the previous hearings, Defendant had been repeatedly told to bring
6 1 discovery problems to the court’s attention. As noted by the State and not disputed
2 by Defendant, during various proceedings leading up to the trial, defense counsel
3 conceded that the blood test materials had not been requested as the laboratory
4 witnesses had not yet been interviewed and told the judge that a subpoena or other
5 request for materials would be served on the laboratory. At the third pretrial hearing,
6 defense counsel agreed that discovery had been provided in the past week and stated
7 that he had not had a chance to review initial discovery, but assured the trial court that
8 “if there are any problems at all, [he would] file a supplementary discovery pleading.”
9 In addition, according to the State’s expert, defense counsel told the expert that he
10 wanted to view the blood kit, but after the expert stated that she would have to speak
11 to her supervisor about it, defense counsel stated that he would check with the
12 supervisor himself.
13 The trial judge pointed out that (1) the chromatogram was never requested by
14 defense counsel, (2) Defendant did not exercise due diligence in securing the
15 chromatogram, and (3) the State was not required to obtain the evidence for Defendant
16 as it was not exculpatory. Cf. State v. Laney, 2003-NMCA-144, ¶ 28, 134 N.M. 648,
17 81 P.3d 591 (explaining that a defendant is required to make an effort to discover or
18 obtain, for his or her defense, evidence that he or she is aware of or should be aware
19 of). Defendant did not challenge the trial court’s statement that the evidence was not
7 1 exculpatory. The trial court denied Defendant’s motion to suppress the
2 chromatography evidence.
3 On the day of trial, after the police officers testified, the trial judge ruled that,
4 because the time of the accident had not been established by the testimony, the actual
5 blood result document would be suppressed, but the State could ask its expert witness
6 if the test showed the presence of alcohol in Defendant’s blood. Defendant did not
7 object to the ruling. Instead, as we discussed earlier, before the proceedings
8 continued, defense counsel made a suggestion that the parties might be able to
9 stipulate to the presence of alcohol and avoid calling the State’s expert witness. The
10 parties discussed and agreed to the following stipulation:
11 The blood sample that was taken from [Defendant] was processed and 12 tested by Kelly Gomez, an Albuquerque Police Department expert in 13 toxicology and blood analysis, consistent with valid Albuquerque Police 14 Department standard procedures, and Ms. Gomez’s analysis confirmed 15 the presence of alcohol in the blood sample.
16 For claims regarding failure to disclose evidence, we look at whether (1) the
17 State breached its duty or intentionally withheld evidence from Defendant, (2) the
18 evidence was material, (3) Defendant was prejudiced by non-disclosure of the
19 evidence, and (4) the trial court provided a cure. See State v. McDaniel, 2004-
20 NMCA-022, ¶ 8, 135 N.M. 84, 84 P.3d 701. Based on the trial court’s rulings, the
21 State did not breach its duty or intentionally withhold the evidence. See id. Even if
8 1 the chromatogram was material to the defense, however, given the other evidence to
2 support Defendant’s conviction, there was no reasonable probability that the result at
3 trial would have been different if Defendant had the evidence before trial. See id. ¶
4 11. Because the gas chromatogram was not admitted into evidence, the jury was not
5 provided with the documentary results of the blood test performed on Defendant, and
6 the State’s expert did not testify about the specific result of the blood test, Defendant
7 did not suffer prejudice. Cf. State v. Montoya, 2005-NMCA-078, ¶¶ 21-22, 137 N.M.
8 713, 114 P.3d 393 (stating that exclusion of evidence of actual result of alcohol test
9 based on the time of the accident while allowing relevant testimony that alcohol was
10 present in defendant’s system was not prejudicial to the defendant). Finally, even
11 though the trial court did not agree that the State had violated its obligation to provide
12 discovery, the trial court granted defense counsel’s request for the discovery and,
13 ultimately, did not allow the chromatogram to be admitted into evidence, both of
14 which are options for relief under Rule 7-504(H). We hold that the trial court did not
15 err in denying Defendant’s motion to suppress the chromatogram. See McDaniel,
16 2004-NMCA-022, ¶ 8.
17 Defendant next claims that he was denied the right to present his defense.
18 Defendant argues that the only evidence of intoxication was the results of the blood
19 test and, therefore, a review of the chromatogram by an expert witness was critical to
9 1 his defense. Defendant also claims that evidence of other indications of intoxication
2 presented at trial was observed only after Defendant was transported to the hospital
3 and “presumably medicated.” Defendant presented no evidence to support his claim
4 that he was “presumably medicated.” In addition, besides the stipulation that alcohol
5 was present in Defendant’s blood, the jury was presented with evidence that
6 Defendant had slurred speech, bloodshot watery eyes, performed poorly on field
7 sobriety tests, and admitted to consuming alcohol. We reject Defendant’s claim that
8 he was deprived of his right to present a defense.
9 Defendant also argues that the “true accuser” was the machine that detected
10 alcohol in Defendant’s blood and generated a printout of the results. Defendant
11 claims that the State was required to “provide ‘the accuser’” at trial, by disclosing the
12 information generated by the machine. As discussed earlier in this opinion, the
13 chromatogram generated at the laboratory was not admitted into evidence. When the
14 trial court ruled that it was not admissible, it also ruled that the State’s expert could
15 be asked whether the testing revealed the presence of alcohol in Defendant’s blood.
16 Defendant did not object to the ruling, but instead volunteered a suggestion that the
17 parties stipulate to that information and avoid calling the expert to the stand.
18 Therefore, by way of Defendant’s offer of a stipulation, the information from the “true
19 accuser” chromatography record, about which the expert would have been allowed to
10 1 testify, was voluntarily bypassed when Defendant agreed to have the jury hear that
2 there was alcohol present in his blood.
3 Defendant asserts that the “mere technicality of a stipulation” does not negate
4 the State’s failure to disclose the chromatogram. We do not agree with Defendant’s
5 characterization of a stipulation to facts as a “mere technicality.” Cf. Lea Cnty. Good
6 Samaritan Vill. v. Wojcik, 108 N.M. 76, 83, 766 P.2d 920, 927 (Ct. App. 1988)
7 (discussing conclusive and binding nature of stipulations). Moreover, as we have
8 pointed out, the trial court disagreed with Defendant’s argument that the State
9 committed a discovery violation and ruled that the chromatogram would not be shown
10 to the jury. Defendant has not demonstrated that the court abused its discretion on that
11 issue.
12 Defendant also claims that the chromatogram was exculpatory evidence and,
13 therefore, the State violated Rule 7-504, as well as Rule 16-308 NMRA, regarding
14 professional conduct. In support of his claim, Defendant refers to his expert’s letter
15 regarding the chromatogram, which he did not receive until after trial. This letter
16 indicated the laboratory had not provided information on performance monitoring as
17 well as procedures and techniques utilized by the laboratory. Defendant does not
18 clearly explain how the chromatogram qualifies as exculpatory evidence. He merely
19 refers to general principles of law that evidence that is material to guilt or punishment
11 1 is exculpatory and that withholding exculpatory evidence constitutes a violation by
2 the State and claims that his expert’s letter “states” that the evidence is exculpatory,
3 even though no such statement is included in that letter.
4 To show that the State failed to provide exculpatory evidence, Defendant was
5 required to show that the State suppressed the evidence, and the evidence was
6 favorable to Defendant and material to the defense. See Case v. Hatch,
7 2008-NMSC-024, ¶ 44, 144 N.M. 20, 183 P.3d 905. As noted above, Defendant did
8 not challenge the trial court’s statement that the evidence was not exculpatory. In
9 addition, the trial court ruled that the State had not violated its duty to provide
10 evidence. The letter relied on by Defendant does not support his claim that the
11 evidence was exculpatory and was not admitted into evidence. The chromatogram
12 that was the subject of the letter was not admitted into evidence, and testimony about
13 the specific results from the chromatogram was excluded. Since the test results were
14 not admitted into evidence, we fail to see how the allegedly deficient chromatogram
15 would be exculpatory. Finally, given the evidence presented to show that Defendant
16 was impaired to the slightest degree, and the stipulation of the parties that alcohol was
17 present in Defendant’s blood, the actual chromatogram would not qualify as
18 exculpatory evidence because it was not favorable to Defendant or material to his
19 defense. See id.
12 1 Defendant also suggests that he would not have agreed to a stipulation if he had
2 been able to consult an expert before trial and that the only reason he entered into a
3 stipulation was because he was unable to obtain an expert “to rebut [the] gas
4 chromatogra[m] at the onset of trial.” Defendant states that “[t]he stipulation was in
5 lieu of [D]efendant’s right to put forth a defense.” Contrary to Defendant’s claims,
6 Defendant had, in fact, sent the chromatogram to two experts before the onset of trial,
7 both of whom indicated that they found problems with the document. Despite that
8 knowledge, Defendant did not attempt to get a continuance, but instead proposed and
9 agreed to the stipulation. Cf. State v. Campos, 1996-NMSC-043, ¶ 47, 122 N.M. 148,
10 921 P.2d 1266 (holding that fundamental error will not be found where defendant
11 invited mistakes by voluntarily abandoning cross-examination and agreeing to
12 admission of evidence).
13 As a final matter, Defendant mentions ineffective assistance of counsel.
14 However, he provides no facts or argument to indicate that he intended to include that
15 claim as an issue on appeal. To the extent that Defendant intended to claim that his
16 counsel was ineffective, we observe that there is nothing to support the contention.
17 Consequently, we decline to address that claim. Cf. Muse v. Muse, 2009-NMCA-003,
18 ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record for facts,
19 arguments, and rulings in order to support generalized arguments.”).
13 1 B. Motion for New Trial
2 On June 25, 2007, after receiving the letter from his expert, Defendant filed a
3 motion for new trial based on newly-discovered evidence. In the motion, Defendant
4 claimed that he asked the trial court for a continuance in order to obtain an expert to
5 look at the chromatogram. As discussed earlier in this opinion, the record does not
6 support Defendant’s claim regarding a request for continuance. During the discussion
7 before the trial court, Defendant made a request that, in the event that the blood
8 evidence was admitted, he should be permitted to call witnesses that he had retained.
9 Defendant told the trial court that he could not get his out-of-state witness to the court
10 “today,” but he never requested a continuance. See State v. Barraza, 110 N.M. 45,
11 48-49, 791 P.2d 799, 802-03 (Ct. App. 1990) (holding that the defendant waived any
12 claim of prejudice from late disclosure of evidence by not requesting a continuance).
13 A new trial on the basis of newly-discovered evidence is warranted if Defendant
14 shows that the evidence (1) was discovered since trial; (2) could not have been
15 discovered before trial by exercise of due diligence; (3) is not merely cumulative; (4)
16 is not merely impeaching or contradictory; and (5) would likely change the result.
17 State v. Moreland, 2008-NMSC-031, ¶ 17, 144 N.M. 192, 185 P.3d 363. First, the
18 chromatogram was discovered before trial, and an initial assessment of the
19 chromatogram by Defendant’s two experts was discovered before trial. The only
14 1 information discovered after trial were the contents of the opinion letter from one of
2 Defendant’s experts. Second, the trial judge, referring to her notes and her memory,
3 stated that discovery issues had been repeatedly discussed and Defendant had been
4 told to bring any discovery problems to her attention. With respect to discovery,
5 defense counsel assured the trial judge that he would file a supplementary discovery
6 pleading if he found any problems and, when looking for blood evidence from the
7 laboratory, defense counsel stated that he would contact the laboratory supervisor
8 himself about the matter. Defendant actually received two initial assessments of the
9 chromatogram indicating problems with the document. Therefore, both the
10 chromatogram and an expert opinion based on the chromatogram could have been
11 discovered before trial through the exercise of due diligence.
12 It is not necessary to inquire into whether the chromatogram evidence was
13 merely cumulative, impeaching, or contradictory because no evidence with respect to
14 the specific results of the blood test was admitted at trial. Finally, because the
15 chromatogram and its contents were never admitted at trial, it is unlikely that the result
16 at trial would have been different if Defendant had the evidence before trial. The trial
17 court properly denied Defendant’s motion for new trial.
18 III. CONCLUSION
19 Based on our discussion, we affirm Defendant’s convictions.
15 1 IT IS SO ORDERED.
2 ____________________________________ 3 CELIA FOY CASTILLO, Chief Judge 4 WE CONCUR:
5 ______________________________ 6 JAMES J. WECHSLER, Judge
7 ______________________________ 8 LINDA M. VANZI, Judge