State v. Crumbo

• Court: New Mexico Court of Appeals
• Decided: May 16, 2013
• Docket: 32,699
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 32,699

5 WOODROW CRUMBO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Ted Baca, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Vicki W. Zelle, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 WECHSLER, Judge. 1 {1} Defendant, Woodrow Crumbo, appeals from the district court’s judgment

2 affirming Defendant’s conviction for driving while intoxicated (DWI) in an on-record

3 appeal from metropolitan court. [DS 1, RP 88] We issued a notice proposing to

4 summarily affirm, and Defendant filed a memorandum in opposition. We remain

5 unpersuaded by Defendant’s arguments and affirm.

6 BACKGROUND

7 {2} On April 23, 2009, Defendant was stopped at a DWI checkpoint at 3200

8 Broadway SE in Albuquerque. [DS 1, RP 8] He was arrested and charged by

9 criminal complaint with DWI, no insurance, and expired registration. [DS 8, RP 60]

10 At the beginning of Defendant’s trial, the metropolitan court heard testimony and

11 argument regarding the constitutionality of the checkpoint. Deputy Lance Longhi, the

12 designated checkpoint supervisor, testified, but Sergeant Torres, who was also

13 involved in the checkpoint at a supervisory level, did not testify. [RP 60] The

14 metropolitan court ruled the checkpoint was constitutional pursuant to City of Las

15 Cruces v. Betancourt, 105 N.M. 655, 657, 735 P.2d 1161, 1163 (Ct. App. 1987). [RP

16 65] Defendant then entered a conditional plea of guilty to DWI, a first offense,

17 reserving his right to appeal the constitutionality of the checkpoint. [RP 41, 43]

18 Defendant appealed to the district court. [RP 1, 52]

19 {3} In the district court, Defendant argued his conviction should be reversed

2 1 because: (1) his right to confrontation was violated because he was not able to

2 question Sergeant Torres regarding his role in the DWI checkpoint; and (2) the

3 evidence presented in the metropolitan court did not establish that the location of the

4 DWI checkpoint was reasonable. [RP 60, 79] The district court issued a thorough

5 and well-reasoned opinion affirming the metropolitan court’s ruling. [RP 79] With

6 respect to Defendant’s first issue, the district court held that Defendant was not

7 entitled to relief because the right to confrontation does not extend to suppression

8 hearings pursuant to State v. Rivera, 2008-NMSC-056, ¶ 1, 144 N.M. 836, 192 P.3d

9 1213. [RP 83] With respect to Defendant’s second issue, the district court held that

10 Defendant was not entitled to relief because the DWI checkpoint was reasonable and

11 constitutional. [RP 84] Defendant appeals from the district court’s judgment

12 affirming his conviction. [RP 88]

13 DISCUSSION

14 {4} In our notice, we proposed to affirm the district court’s ruling that the DWI

15 checkpoint was reasonable and constitutional and that Defendant’s right to

16 confrontation was not violated in the metropolitan court because the right to

17 confrontation does not extend to suppression hearings. In his memorandum in

18 opposition, Defendant continues to challenge the constitutionality of the DWI

19 checkpoint. [MIO 1, 7] He does not address our proposed affirmance with respect

3 1 to the confrontation issue, and we thus consider this issue abandoned. See State v.

2 Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App.1988) (noting an issue is

3 deemed abandoned when a party fails to respond to our proposed disposition with

4 respect to the issue).

5 {5} In Betancourt, this Court presented eight factors that courts are to consider in

6 determining whether a checkpoint is reasonable: (1) role of supervisory personnel; (2)

7 restrictions on discretion of field officers; (3) safety; (4) reasonable location; (5) time

8 and duration; (6) indicia of official nature of the checkpoint; (7) length and nature of

9 detention; and (8) advance publicity. 105 N.M. at 658-59, 735 P.2d at 1164-65; see

10 also State v. Madalena, 121 N.M. 63, 69, 908 P.2d 756, 762 (Ct. App. 1995) (holding

11 “a sobriety checkpoint conducted in substantial compliance with the eight Betancourt

12 factors is constitutional under the New Mexico Constitution”).

13 {6} “In determining the reasonableness of a roadblock, all the factors must be

14 considered, and none is dispositive but the role of supervisory personnel and the

15 restrictions on discretion of field officers.” State v. Bates, 120 N.M. 457, 463, 902

16 P.2d 1060, 1066 (Ct. App. 1995). “The ultimate question [on appeal] is whether the

17 facts and inferences before the trial court support its conclusion that the roadblock was

18 reasonable.” Id. at 462, 902 P.2d at 1065. In considering this question, we “review

19 the evidence presented, giving deference to the facts found by the trial court, and then

4 1 determine whether those facts are legally sufficient to make the roadblock

2 reasonable.” Id.

3 {7} Defendant does not challenge the location of the checkpoint; nor does he

4 contend that the media failed to receive advance notice of the checkpoint. Instead, he

5 argues only that Deputy Longhi gave conflicting testimony about his role in

6 determining the location of the checkpoint and faxing the media release. [MIO 1, 7,

7 11] The district court found that “[t]he officers in the field exercised no discretion

8 related to the selection of the checkpoint location, and Deputy Longhi’s testimony

9 sufficiently outlined legitimate bases for the site selection, taking into account

10 previous alcohol-related incidents and arrests in the area.” [RP 86-87] Considering

11 all the Betancourt factors, we agree with the district court’s conclusion that the

12 checkpoint was reasonable and constitutional.

13 CONCLUSION

14 {8} For the reasons discussed above and in our previous notice, we affirm

15 Defendant’s conviction for DWI.

16 {9} IT IS SO ORDERED

17 _______________________________ 18 JAMES J. WECHSLER, Judge

5 1 WE CONCUR:

2 _________________________________ 3 MICHAEL D. BUSTAMANTE, Judge

4 _________________________________ 5 TIMOTHY L. GARCIA, Judge