State v. K Zemariam

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 28,810 5 KIFLOM ZEMARIAM, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 8 Louis E. DePauli, Jr., District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender 13 Eleanor Brogan, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Chief Judge. 18 Defendant appeals his conviction for distribution of marijuana (over one 19 hundred pounds). [RP 126] He contends that a mistrial should have been granted 20 after comments on his silence, that the evidence was insufficient, and that evidentiary 21 error requires reversal. Our first notice proposed to reverse on Defendant’s claim that

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1 there were inappropriate comments on his silence because it appeared that the 2 comments were that Defendant refused to provide or was unwilling to provide an 3 interview. [DS 4] The State responded with a memorandum in opposition, and we 4 then issued a second notice proposing to affirm. Defendant has responded with a 5 memorandum in opposition. We have considered Defendant’s arguments, and we are 6 unpersuaded. We affirm. 7 DISCUSSION 8 A. Comments on Silence 9 Defendant contends that Agent Acevedo’s and Officer Zunie’s comments on 10 his unwillingness to provide an interview constituted impermissible comments on 11 silence. [DS 4-5, Defendant’s MIO 5-6] The issue, as raised by Defendant, is 12 whether the court should have granted a mistrial. We review a court’s decision on a 13 motion for mistrial for an abuse of discretion. Where the facts are undisputed, we 14 review de novo a constitutional claim that an impermissible comment on silence was 15 made. State v. Gutierrez, 2007-NMSC-033, ¶ 22, 142 N.M. 1, 162 P.3d 156. 16 The general rule is that the prosecutor may not comment on a defendant’s 17 silence or introduce evidence of silence. See id. ¶ 11. The rationale for this rule is that 18 reference to a defendant’s silence lacks significant probative value and has an

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1 intolerable prejudicial effect. See State v. Lara, 88 N.M. 233, 235, 539 P.2d 623, 625 2 (Ct. App. 1975). “We evaluate the statements in context to determine the manifest 3 intention that prompted the remarks[,]” as well as the impact on the jury. State v. 4 DeGraff, 2006-NMSC-011, ¶ 8, 139 N.M. 211, 131 P.3d 61 (internal quotation marks 5 and citation omitted). Indirect comments, including those that are ambiguous and 6 those that are inadvertently elicited by the prosecutor, are less likely to call the jury’s 7 attention to the defendant’s exercise of his rights. Id. We have also distinguished 8 between inadvertent remarks and those that are intentionally solicited by the 9 prosecutor. See State v. Wildgrube, 2003-NMCA-108, ¶ 23, 134 N.M. 262, 75 P.3d 10 862. 11 We first consider Officer Zunie’s comment. According to the State [State’s 12 MIO 5], Officer Zunie testified that Agent Acevedo arrived on the scene after the 13 arrest. The prosecutor asked, “What did he do?” Officer Zunie answered, “[h]e tried 14 to interview the Defendant.” At that point, defense counsel objected and a bench 15 conference was held. After the bench conference there was no further mention of the 16 interview. The topic turned to whether Agent Acevedo examined the packages 17 containing marijuana. [State’s MIO 5]

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1 Viewing the comment in context, we hold that it does not require reversal. 2 There is a reference to an attempt to interview Defendant, but no mention that 3 Defendant either refused or acceded. Consequently, the jury did not hear that 4 Defendant refused to be interviewed. The comment is innocuous. It does not make 5 the prohibited suggestion that Defendant exercised his right to remain silent, that he 6 refused to answer, and that therefore Defendant is guilty. See DeGraff, 2006-NMSC- 7 011, ¶ 8 (requiring us to view the comments in context to determine their impact on 8 the jury). 9 We next consider Agent Acevedo’s comment. According to the State [State’s 10 MIO 6], during cross-examination by Defendant, Defendant asked the agent if he had 11 interviewed the owner of the truck. The agent responded, “No, we just attempted to 12 interview the driver.” A bench conference immediately followed and Defendant asked 13 for a mistrial. [State’s MIO 6] The judge noted that the reference was only to an 14 attempt and gave no additional information. Defense counsel requested a curative 15 instruction, which was given. The court informed the jury that a person was not 16 required to give an interview, that the jury should not speculate about whether an 17 interview was or was not given and that the jury should not hold anything against 18 Defendant. [State’s MIO 6]

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1 We hold that Agent Acevedo’s comment does not require reversal either. Like 2 Officer Zunie’s comment, it refers only to an attempt to interview Defendant, nothing 3 more. It is innocuous, does not inform the jury that Defendant refused to be 4 interviewed, and does not make the prohibited suggestion that Defendant exercised 5 his right to remain silent. Additionally, this comment is different from Officer 6 Zunie’s because the prosecutor did not elicit the comment; defense counsel did. See 7 Wildgrube, 2003-NMCA-108, ¶ 23 (noting that we distinguish between inadvertent 8 remarks and those that are intentionally elicited by the prosecutor). Consequently, we 9 hold that Defendant has not demonstrated reversible error. See DeGraff, 2006- 10 NMSC-011, ¶ 8. 11 Finally, a curative instruction was given at Defendant’s request. This additional 12 fact further undermines Defendant’s claim that his trial was unfair. We recognize that 13 in some circumstances a curative instruction is not sufficient to cure prejudice. See 14 Gutierrez, 2007-NMSC-033, ¶ 23. As discussed in Gutierrez, a curative instruction 15 is often insufficient because it cannot unring the bell. Id. However, as in the present 16 case, where the comments innocuously refer to an attempt to interview, provide no 17 information about whether Defendant refused to be interviewed, and one of the 18 comments was elicited during defense counsel’s examination, the bell was never rung.

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1 We believe that the curative instruction adequately ensured that no prejudice resulted 2 to Defendant. Cf. State v. La Madrid, 1997-NMCA-057, ¶ 12, 123 N.M. 463, 943 3 P.2d 110 (holding that a proper instruction from the court can cure any potential harm 4 that might have arisen from a prosecutor’s single comment on the defendant’s failure 5 to testify). 6 B. Sufficiency of Evidence 7 Defendant contends that the evidence was insufficient to support his conviction. 8 [Defendant’s MIO 8-12] We review the evidence to determine whether any rational 9 jury could find each element of the offense to be established beyond a reasonable 10 doubt. See State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992). 11 The elements of possession of marijuana with intent to distribute are that 12 Defendant had marijuana in his possession, that he knew it was marijuana, and that 13 he intended to transfer it to another. See UJI 14-3111 NMRA. “A person is in 14 possession of [a substance] when he knows it is on his person or in his presence, and 15 he exercises control over it.” UJI 14-3130 NMRA; State v. Garcia, 2005-NMSC-017, 16 ¶ 13, 138 N.M. 1, 116 P.3d 72 (stating that for constructive possession, the 17 prosecution must prove both that the defendant knew the illegal item was present in 18 the vehicle and exercised control over it).

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1 Defendant argues that there was insufficient evidence to establish that he had 2 knowledge and therefore possession of the marijuana. [MIO 12] We disagree. Proof 3 of possession may be established by the conduct of a defendant and by circumstantial 4 evidence. State v. Donaldson, 100 N.M. 111, 119, 666 P.2d 1258, 1266 (Ct. App. 5 1983). Knowledge is seldom proved by direct evidence. See State v. Smith, 100 N.M. 6 352, 354, 670 P.2d 963, 965 (Ct. App. 1983), abrogation on other grounds recognized 7 by State v. Watkins, 2008-NMCA-060, ¶ 1, 144 N.M. 66, 183 P.3d 951. Knowledge 8 may be proved by circumstantial evidence and inferred from all of the surrounding 9 circumstances. Smith, 100 N.M. at 354, 670 P.2d at 965. 10 There was evidence that Defendant was driving a truck pulling a trailer that 11 contained one hundred twenty-five pounds of marijuana. [RP 91] Defendant was 12 alone in the truck. [MIO 2-3] There was evidence that the load matched the bill of 13 lading when Defendant picked up his load. [RP 81-83] There was evidence that the 14 man that prepared the bill of lading was having difficulty getting Defendant to sign 15 it. [RP 82] At the McKinley County Port of Entry, an officer noticed that the seal 16 placed on the load had been broken. [RP 85] The evidence indicates that Defendant 17 claimed that there was no seal on the load. [RP 85; DS 3] However, the evidence also 18 indicates that Defendant also claimed that he did not know the seal had been broken.

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1 [RP 85] If that evidence was before the jury, the jury could consider Defendant’s 2 arguably inconsistent statements in determining his knowledge and guilt. Three boxes 3 containing marijuana were found in the load that did not match the boxes in the rest 4 of the load and were not listed in the bill of lading. [RP 86] We hold that the 5 circumstantial evidence was sufficient to support a finding that Defendant had 6 knowledge. See State v. Hernandez, 1998-NMCA-082, ¶¶ 9-16, 125 N.M. 661, 964 7 P.2d 825 (holding that the evidence was sufficient to support a finding that the 8 defendant had knowledge that marijuana was hidden in the truck where the defendant 9 was alone in the truck, there was evidence that the truck had been altered, and the 10 defendant had lied). 11 C. Evidentiary Error 12 Defendant contends that the court erred in allowing Agent Acevedo’s opinion 13 testimony regarding the methods truck drivers use to move drugs. [DS 5, Defendant’s 14 MIO 6-8] Defendant’s specific contention is that the agent should not have been 15 qualified as an expert. [MIO 8] We review this issue for an abuse of discretion. See 16 State v. McDonald, 1998-NMSC-034, ¶ 19, 126 N.M. 44, 966 P.2d 752 (stating that 17 a ruling on an expert’s qualifications is reviewed for an abuse of discretion).

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1 We conclude that Defendant has not demonstrated any abuse of discretion. 2 According to the State, the agent was a member of the State Police Narcotics Section. 3 [State’s MIO 5] He testified that drug-running typically occurs from west to east and 4 that drugs are usually packaged with cellophane and either grease or soap. [State’s 5 MIO 5] We are not persuaded that the court abused its discretion in allowing a 6 member of the State Police Narcotics Section to testify to these very general facts. See 7 State v. Gerald B., 2006-NMCA-022, ¶ 23, 139 N.M. 113, 129 P.3d 149 (noting that 8 an officer with many years of experience in narcotics and drug investigations was 9 qualified to give his opinion that the substance was marijuana); Doe v. State, 88 N.M. 10 347, 351, 540 P.2d 827, 831 (Ct. App. 1975) (holding that a state police narcotics 11 agent was sufficiently qualified by training and experience to identify the substance 12 as marijuana). We conclude that no abuse of discretion has been shown. 13 Defendant contends that the admission of the bill of lading violated his right to 14 confront witnesses, contrary to Crawford v. Washington, 541 U.S. 36 (2004). 15 [Defendant’s MIO 12-14] We disagree. Our notice expressed doubt whether this 16 issue was raised below, but Defendant has explained that, according to trial counsel, 17 it was preserved with an objection based on violation of the right to confrontation. 18 [Defendant’s MIO 13]

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1 We accept that the issue was preserved, but we are not persuaded that error 2 occurred. The bill of lading is not testimonial evidence. See State v. Lopez, 2007- 3 NMSC-037, ¶ 19, 142 N.M. 138, 164 P.3d 19 (describing testimonial evidence as 4 including statements of witnesses made at a preliminary hearing, at grand jury, or 5 during police interrogations); State v. Dedman, 2004-NMSC-037, ¶ 30, 136 N.M. 561, 6 102 P.3d 628 (holding that a blood-alcohol report is not testimonial evidence). 7 Therefore, Crawford does not apply. The bill of lading appears to be a regularly kept 8 business record and would be admissible under Rule 11-803(F) NMRA. See id. ¶¶ 32- 9 37 (noting that non-testimonial evidence is still reviewed under the standards, existing 10 before Crawford, to determine whether the evidence is reliable and that reliability is 11 established when the evidence meets a firmly rooted exception to the hearsay rule). 12 For the foregoing reasons, we affirm. 13 IT IS SO ORDERED.

14 __________________________________ 15 JONATHAN B. SUTIN, Chief Judge

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1 WE CONCUR:

2 ______________________________________ 3 CYNTHIA A. FRY, Judge

4 ______________________________________ 5 MICHAEL E. VIGIL, Judge