State v. Perea

• Court: New Mexico Court of Appeals
• Decided: June 15, 2011
• Docket: 31,122
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 31,122

10 LARRY PEREA,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Denise Barela Shepherd, District Judge

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

16 for Appellee

17 Jacqueline Cooper, Acting Chief Public Defender 18 B. Douglas Wood III, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VANZI, Judge. 1 Defendant-Appellant Larry Perea (Defendant) appeals his convictions for

2 voluntary manslaughter and possession of a controlled substance. We issued a notice

3 of proposed summary disposition, proposing to uphold the convictions. Defendant

4 has filed a memorandum in opposition. After due consideration, we remain

5 unpersuaded. We therefore affirm.

6 Defendant has raised two issues. First, he contends that certain evidence

7 relating to a storage unit was improperly admitted. [MIO 4-7] As we previously

8 acknowledged, it appears in hindsight that the evidence in question should have been

9 excluded. However, once it became clear that the State was unable to establish

10 Defendant’s connection to the storage unit, the district court issued a curative

11 instruction. We previously posited that this rectified the situation. See State v.

12 Flanagan, 111 N.M. 93, 95, 801 P.2d 675, 677 (Ct. App. 1990) (“The general rule in

13 New Mexico is that error in admission of evidence is cured by striking the evidence

14 and admonishing the jury to disregard it.”); State v. Newman, 109 N.M. 263, 267, 784

15 P.2d 1006, 1010 (Ct. App. 1989) (“Generally, a prompt admonition from the court to

16 the jury to disregard and not consider inadmissible evidence sufficiently cures any

17 prejudicial effect which might otherwise result.”); State v. Vialpando, 93 N.M. 289,

18 296-97, 599 P.2d 1086, 1093-94 (Ct. App. 1979) (“New Mexico has frequently held

2 1 that a prompt admonition from the court to the jury to disregard and not consider

2 inadmissible evidence sufficiently cures any prejudicial effect which otherwise might

3 result.”) Similarly, we opined that nothing so extraordinary as the sua sponte

4 declaration of a mistrial was required under the circumstances. See generally

5 Newman, 109 N.M. at 267, 784 P.2d at 1010 (arriving at a similar conclusion).

6 In his memorandum in opposition Defendant contends that the evidence in

7 question, involving the presence of ammunition in the storage unit, was so prejudicial

8 that the curative instruction should not be regarded as an adequate response. [MIO 5-

9 6] We disagree. The jury is presumed to have followed the district court’s

10 instructions. See State v. Sellers, 117 N.M. 644, 650, 875 P.2d 400, 406 (Ct. App.

11 1994) (stating that “[t]here is a presumption that the jury follows the instructions they

12 are given”). We do not regard the evidence at issue as so prejudicial as to render this

13 presumption inapplicable.

14 In his memorandum in opposition Defendant further suggests that the curative

15 instruction was inadequate because it was not given immediately after the evidence

16 was admitted. [MIO 5] Although we agree that such instructions should be promptly

17 given, we disagree that such immediacy is required. Insofar as the district court

3 1 instructed the jury once it became apparent that the State was unable to make the

2 requisite foundational showing, [DS 5] the admonition was sufficiently prompt.

3 Second, Defendant renews his contention that the charges should have been

4 dismissed on grounds that Rule 5-604 NMRA (the six-month rule) was violated. [MIO

5 7-8] However, as we previously observed, Rule 5-604 has been withdrawn, such that

6 the six-month rule became inapplicable to all cases pending as of May 12, 2010. State

7 v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20. Insofar as this case

8 was pending in district court on that date, dismissal of the proceedings pursuant to

9 Rule 5-604 would have been improper.

10 Accordingly, for the reasons previously stated, we affirm.

11 IT IS SO ORDERED.

12 __________________________________ 13 LINDA M. VANZI, Judge

14 WE CONCUR:

15 _________________________________ 16 CYNTHIA A. FRY, Judge

4 1 _________________________________ 2 MICHAEL E. VIGIL, Judge