State v. Gerald B.

2006 NMCA 022, 129 P.3d 149, 139 N.M. 113
CourtNew Mexico Court of Appeals
DecidedJanuary 5, 2006
DocketNo. 24,538
StatusPublished
Cited by22 cases

This text of 2006 NMCA 022 (State v. Gerald B.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gerald B., 2006 NMCA 022, 129 P.3d 149, 139 N.M. 113 (N.M. Ct. App. 2006).

Opinion

OPINION

ROBINSON, Judge.

{1} Child appeals his adjudication as a delinquent for possession of one ounce or less of marijuana contrary to NMSA 1978, § 30-31 — 23(B)(1) (2005). On appeal, Child makes three arguments: (1) the trial court erred in refusing to suppress statements and evidence because he was not advised of his rights, pursuant to NMSA 1978, § 32A-2-14 (2005), prior to questioning before a pat-down search; (2) insufficient evidence exists to convict him of possession of marijuana; and (3) the prosecutor exercised a peremptory challenge during jury selection in a racially discriminatory manner.

{2} We hold that (1) Section 32A-2-14 does not require police officers to issue warnings to juveniles, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before asking about needles or weapons prior to conducting a valid pat-down search; (2) sufficient evidence exists to support the conviction for possession of marijuana; and (3) the claim of racial discrimination fails under the analysis in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We, therefore, affirm Child’s adjudication of delinquency.

I. BACKGROUND AND FACTS

{3} At approximately 11:00 a.m., on December 1, 2002, police officers arrived at the Santa Fe Plaza to investigate a citizen’s complaint about individuals selling drugs in the area. According to his testimony, Officer Worth approached seventeen-year-old Child and nineteen-year-old Adam Stewart because they matched the descriptions in the complaint. Child and Stewart appeared very nervous and were wearing heavy clothing that could have concealed weapons. The officer told Stewart that he was going to conduct a pat-down search for weapons, but first asked if Stewart had any syringes with needles. Officer Worth testified that he always asked about needles to avoid getting pricked. Stewart produced a syringe, which he admitted he had used to inject cocaine. Officer Worth patted down Stewart, then arrested him for possession of drug paraphernalia.

{4} Officer Worth testified that, during the search of Stewart, Child kept turning his body sideways as if preparing to attack. Concerned for his safety, the officer decided to perform a pat-down search of Child. He first asked if Child had any syringes with needles. Child said he did not have any needles, but that he did have some marijuana, and handed the officer a small plastic sandwich bag from his pocket. Another officer performed the pat-down search, but did not find any additional contraband. Officer Worth then asked if Child had any more marijuana. Child reached into his jacket and produced eight more sandwich bags. Child was arrested, handcuffed, and placed in the police car. Only then was Child advised of his Miranda rights.

A. Motion to Suppress Statements and Marijuana

{5} The State filed an amended petition in district court, charging Child with possession of one ounce or more of marijuana, contrary to NMSA 1978, § 30-31-23(B)(2) (2005); distribution of marijuana, contrary to NMSA 1978, § 30-31-22 (2005); and conspiracy to distribute marijuana, contrary to Section 30-31-22 and NMSA 1978, § 30-28-2 (1979). Child filed a motion to suppress all evidence of marijuana and accompanying statements. Child argued that he should have been given Miranda warnings, as required by Section 32A-2-14 and State v. Javier M., 2001-NMSC-030, 131 N.M. 1, 33 P.3d 1, before the officer asked about needles because Child was being held in an investigatory detention. Child also filed a motion to suppress all statements made to the arresting officer following his arrest. After a hearing, the district court denied both motions to suppress. The court concluded that the officer initially had reasonable suspicion to approach Child and Stewart and that it was proper for the officer to conduct a pat-down search for officer safety, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court concluded that the question regarding syringes prior to the pat-down search was an administrative question, which does not require a previous advisement of rights under Javier M.

B. Sufficiency of the Evidence

{6} The nine plastic bags police took from Child were introduced into evidence and viewed by the jury. Lab tests on the marijuana were excluded because the State disclosed the results on the morning of the trial. Officer Worth, who had worked as a narcotics agent and had handled marijuana numerous times in his eighteen years in law enforcement, testified that, in his opinion, the bags contained marijuana. No expert witnesses testified.

{7} At the close of the State’s case, Child moved for a directed verdict on all counts, which the court granted on the conspiracy charge, but denied on the marijuana charges.

C. Jury Selection

{8} Following voir dire, the State exercised its first of two peremptory challenges to remove a prospective juror named David Grayson. Previously, the State had requested Grayson’s removal for cause because he was an attorney, which the court ruled was not a sufficient reason. Defense counsel did not object to the first peremptory strike. The State used its second peremptory challenge to remove a prospective juror named Michael Begay. Defense counsel objected, alleging racial bias, because Begay was the only Native American on the panel, and requested a non-racial reason for the peremptory strike.

{9} Although the district court did not rule that defense counsel had made a prima facie showing of discriminatory intent, the prosecutor denied that the peremptory strike was racially motivated. The prosecutor said she wanted Begay excused because he did not appear to be listening. The court allowed the peremptory challenge. Defense counsel subsequently stated that she thought the prospective juror was paying attention. The prosecutor responded that there was no showing that Begay was the only Native American on the panel and again denied that she wanted to strike Begay due to racial reasons. She added that Begay appeared to be closing his eyes and falling asleep. Defense counsel suggested that the prosecutor point out anyone else she thought was Native American. The State objected to defense counsel basing its claim on Begay’s appearance and also argued that a person’s name does not necessarily indicate his ethnicity.

{10} The district court allowed the peremptory challenge for the reasons given by the prosecutor stating that “[Child] to my knowledge is not Native American and I do not believe that that’s the reason that the State is exercising its peremptory ... excusal for ... this particular juror.” Defense counsel stated that Child was Hispanic. The final panel apparently included three jurors with Hispanic surnames and three jurors with Anglo surnames. There is nothing in the record regarding the ethnicity of the potential jury members other than surnames. However, from the record, it appears defense counsel based her Batson claim, not on surnames, but on the appearance of the prospective jurors.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 NMCA 022, 129 P.3d 149, 139 N.M. 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gerald-b-nmctapp-2006.