State v. Herrera

• Court: New Mexico Court of Appeals
• Decided: February 9, 2011
• Docket: 30,677
• Status: Unpublished

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 30,677

10 HECTOR HERRERA,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 13 Gary L. Clingman, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Kathleen T. Baldridge, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 KENNEDY, Judge.

23 Defendant appeals his conviction for trafficking cocaine. In this Court’s notice

24 of proposed summary disposition, we proposed to affirm. Defendant has responded 1 with a memorandum in opposition and a motion to amend the docketing statement to

2 add an additional issue. As we are not persuaded by Defendant’s arguments, we deny

3 the motion to amend and we affirm.

4 Confrontation Clause

5 Defendant contends that the district court erred in admitting Officer

6 Dominguez’s testimony that Officer Gunter packaged the substance that was later

7 determined to be cocaine, prepared the state lab request form, and placed the

8 substance in evidence at the police department. [DS unnumbered page 2] In this

9 Court’s notice of proposed summary disposition, we proposed to hold that the

10 admission of this testimony did not violate Defendant’s right to confront the witnesses

11 against him.

12 In Defendant’s memorandum in opposition, Defendant asserts that Officer

13 Gunter’s conduct of placing the substance into evidence “shows non-verbal assertive

14 conduct and requires the declarant of that testimonial conduct to be available and the

15 defendant an opportunity to confront and cross-examine the declarant.” [MIO 6] It

16 is not clear what Defendant believes that the conduct asserted, other than that the

17 substance was sufficiently relevant to the case to be preserved for testing. In support

18 of his argument, Defendant cites to a United States Supreme Court case discussing

19 whether certain written statements that the government sought to require a suspect to

2 1 make would be testimonial for the purpose of the Fifth Amendment privilege against

2 self-incrimination. We are not at all persuaded that this case has any bearing on the

3 claim of a Sixth Amendment Confrontation Clause violation that is at issue in this

4 case. As Defendant has cited no authority that would support his argument that

5 Officer Gunter’s acts of packaging a substance, preparing a state lab request form, and

6 placing the substance in evidence at the police department would constitute

7 testimonial evidence as that term is defined for purposes of the Confrontation Clause,

8 we assume that there is none. See In re Adoption of Doe, 100 N.M. 764, 765, 676

9 P.2d 1329, 1330 (1984).

10 In addition, this Court has previously stated that “it is not the case, that anyone

11 whose testimony may be relevant in establishing the chain of custody, authenticity of

12 [a] sample, or accuracy of [a] testing device, must appear in person as part of the

13 prosecution’s case.” State v. Nez, 2010-NMCA-092, ¶ 8, 148 N.M. 914, 242 P.3d

14 753, (internal quotation marks omitted), cert. denied 2010-NMCERT-9, 149 N.M. 49,

15 243 P.3d 481. Here, Officer Dominguez’s testimony regarding Officer Gunter’s

16 conduct simply established the chain of custody. The admission of this testimony did

17 not violate Defendant’s rights under the Confrontation Clause.

18 Motion to Amend

19 Defendant moves to amend the docketing statement to add a claim that the

3 1 district court abused its discretion in denying Defendant’s motion for reconsideration

4 1 of his sentence. [MIO 6-8] However, Defendant concedes that his sentence was legal

2 and notes that the majority of his prison time was suspended. See State v. Cumpton,

3 2000-NMCA-033, ¶ 10, 129 N.M. 47, 1 P.3d 429 (indicating that the imposition of

4 a sentence authorized by statute is not an abuse of discretion). As Defendant cites no

5 authority to support his argument that the district court’s refusal to grant even greater

6 leniency than it granted was an abuse of discretion, we conclude that this issue is not

7 viable and we deny Defendant’s motion to amend. See State v. Sommer, 118 N.M. 58,

8 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying the defendant’s motion to amend

9 the docketing statement when the argument offered in support the issue to be raised

10 was not viable).

11 Therefore, for the reasons stated in this opinion and in our notice of proposed

12 summary disposition, we affirm.

13 IT IS SO ORDERED.

14 __________________________________ 15 RODERICK T. KENNEDY, Judge

5 1 WE CONCUR:

2 _________________________________ 3 CELIA FOY CASTILLO, Chief Judge

4 _________________________________ 5 ROBERT E. ROBLES, Judge