State v. Neswood

2002 NMCA 081, 51 P.3d 1159, 132 N.M. 505
CourtNew Mexico Court of Appeals
DecidedApril 9, 2002
Docket20,920
StatusPublished
Cited by24 cases

This text of 2002 NMCA 081 (State v. Neswood) 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. Neswood, 2002 NMCA 081, 51 P.3d 1159, 132 N.M. 505 (N.M. Ct. App. 2002).

Opinion

OPINION

CASTILLO, Judge.

{1} Nolando Neswood (Defendant) appeals his conviction of four counts of criminal sexual contact of a minor contrary to NMSA 1978, § 30-9-13 (2001). He raises three issues arguing that the trial court erred (1) in allowing social workers to testify about his confession in violation of the social worker-client privilege, (2) in allowing the State’s expert to testify without properly establishing the scientific reliability of her testimony, and (3) in allowing the expert to comment on the child’s veracity thus invading the province of the jury. Defendant failed to preserve his first two arguments. As to the third argument, we affirm the trial court and hold that the State’s expert testimony did not invade the province of the jury.

BACKGROUND

{2} Child lived with her three siblings, her Mother, and her stepfather, Defendant. In late July 1997, Child, who was twelve, attempted suicide by taking an overdose of Tylenol. She was taken to the emergency room where she told three paramedics, a nurse, a social worker, and an investigator from the district attorney’s office that she tried to kill herself because Defendant had been molesting her. In a videotaped interview with a criminal investigator from the district attorney’s office, Child described the abuse. It began on a Sunday morning when she was eleven years old and Defendant touched her breasts and vaginal area when he was waking her up for church. Subsequent touching of her breasts and vaginal area occurred when Defendant came into her bedroom on the pretense of putting covers over her when she was already asleep. Child complained to Mother who spoke to Defendant; the molestation ceased briefly only to start up again. The last event occurred on the Sunday before Child attempted suicide when Defendant again touched her breasts while waking her up for church.

{3} Mother told the criminal investigator that Child had complained to her about Defendant’s sexual abuse and that Mother had told Defendant to stop and had suggested counseling. She thought the abuse had ceased. Mother stated that she was shocked when her daughter told her that the abuse had resumed.

{4} The family was immediately referred to Children, Youth and Families Department (CYFD). A few days after the suicide attempt, Defendant walked into the CYFD office unscheduled and without an appointment. He told social worker, Jennifer McGill (McGill) and social worker supervisor, Rita Galindo-Noriega (Galindo-Noriega), that he was attracted to his stepdaughter and had molested her. He asked for help.

{5} Defendant filed a motion to suppress any statements he made to the social workers claiming the statements were privileged under Rule 11-509 NMRA 2002. In its response, the State argued that the statements were not confidential because the social workers told Defendant that his statements would be given to the district attorney’s office and, further, that the statements did not take place during a preliminary inquiry as required by Rule 11-509. The trial court denied Defendant’s motion to suppress.

{6} At trial, Child recanted her prior statements and explained that she had accused Defendant of molesting her because she was angry with him, she did not like him, and she wanted him to live somewhere else. Pauline Lucero Esquibel (Esquibel) testified as the State’s expert witness in child abuse and explained generally how and why recantation occurs. Defendant made no objection to the State’s offering Esquibel as an expert in child abuse under Rule 11-702 NMRA 2002. Later, after Esquibel had testified about recantation in child abuse cases, Defendant objected arguing that she was not qualified to testify as an expert in this area. The trial court overruled Defendant’s objection.

I. Social Worker Privilege

{7} On appeal, Defendant argues that the statements he made to the social workers are privileged relying on NMSA 1978, § 61 — 31— 24 (1989) and Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). The State contends that neither argument was made to the trial court. We agree.

{8} In response to the State’s argument that Defendant made no reference to Section 61-31-24 at the trial court level, Defendant points to the discourse that took place before the social workers testified. Galindo-Noriega told the trial court that, according to an attorney for CYFD, the social workers in this case could not testify unless so ordered by the trial court and, if so ordered, the courtroom had to be cleared because of the confidentiality of the information. Defendant then renewed his objection to the testimony of the social workers. Although he did not specifically cite to Rule 11-509, the context of the argument indicates that he was relying on Rule 11-509. The trial court asked for a statutory citation in support of Galindo-Noriega’s position; she could not cite to a specific statute and neither the State nor Defendant provided any assistance. The trial court asked Galindo-Noriega if she wanted to contact the CYFD attorney. Once the trial court indicated that it was ordering the social workers to testify but would not clear the courtroom, Galindo-Noriega testified; she did not follow up on the trial court’s offer to allow her to call the CYFD attorney. It is clear that the trial court was not alerted to Section 61-31-24. Neither the motion to suppress nor the order denying the motion makes any reference to this Section. Because Defendant failed to preserve the issue of a social worker-client privilege under Section 61-31-24, Defendant cannot now argue this error. State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct.App.1986) (stating that an objection below must be made to invoke an intelligent ruling by the court for an issue to be preserved).

{9} Similarly, Defendant did not cite to Jajfee at trial, in his motion to suppress, or in the order denying the motion. Consequently, we decline to address this argument on appeal because it was not preserved below. Lucero, 104 N.M. at 590, 725 P.2d at 269.

{10} While Defendant argued Rule 11-509 as the basis for the social worker-client privilege at trial, he abandoned this argument on appeal. In Defendant’s brief in chief, Rule 11-509 is mentioned in the statement of facts and then cited only in a footnote. The footnote sets out the text of Rule 11-509 as amended after Defendant’s trial; the rule in effect at the time of Defendant’s trial is not contained in the brief. This footnote cite is the only legal reference to Rule 11-509 that is made in the entire appellate brief and there is no actual argument with regard to how it applies to this case. Defendant has therefore waived his appeal on the denial of the motion to suppress by not arguing Rule 11-509 on appeal. C & H Constr. & Paving Co. v. Citizens Bank, 93 N.M. 150, 167, 597 P.2d 1190, 1207 (Ct.App.1979) (failing to argue that the trial court erred in denying motion, plaintiff-appellant “is deemed to have abandoned its attack on the trial court’s ruling concerning these issues”).

II. Expert Witness Testimony

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Cite This Page — Counsel Stack

Bluebook (online)
2002 NMCA 081, 51 P.3d 1159, 132 N.M. 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neswood-nmctapp-2002.