State v. Segura

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 28,527 10 EVENTYR SEGURA, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Ross C. Sanchez, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Margaret E. McLean, Assistant Attorney General 17 Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender 20 Carlos Ruiz de la Torre, Assistant Appellate Defender 21 Santa Fe, NM

22 for Appellant 23 MEMORANDUM OPINION 24 WECHSLER, Judge.

1 Defendant, Eventyr Segura, appeals her convictions for trafficking by 2 possession with intent to distribute methamphetamine and heroin and possession of 3 drug paraphernalia, contrary to NMSA 1978, Sections 30-31-20(A) (2006) and 30-31- 4 25.1(A) (2001). Defendant argues that (1) the district court erred in denying her 5 Daubert motion to exclude the State’s expert testimony of Officer Andrea Taylor and 6 Officer Herman Martinez, who opined that the quantity of drugs possessed by 7 Defendant were consistent with drug trafficking, (2) there was insufficient evidence 8 to support Defendant’s convictions, and (3) her convictions should be reversed due 9 to ineffective assistance of counsel. We affirm. 10 BACKGROUND 11 Defendant was arrested for trafficking methamphetamine and heroin by 12 possession with intent to distribute, possessing drug paraphernalia, and tampering with 13 evidence. Prior to the arrest, a confidential informant made three drug purchases from 14 two different individuals at a residence in Albuquerque. A search warrant was issued 15 and executed on the residence where the drug sales occurred. Defendant and three 16 other individuals were found inside the residence at the time of the search. Officer 17 Martinez found a plastic bag on the floor of a bedroom that was later determined to 18 contain 1.45 grams of heroin. Defendant told Officer Martinez that the plastic bag 19 belonged to her, that she had thrown it on the floor, and that she placed $400 of cash

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1 under a bed. Defendant also told Officer Martinez that a purse containing a digital 2 scale and plastic jewelry bags belonged to her. Officer Holly Stephenson 3 subsequently searched Defendant and found two plastic bags containing 3.5 grams 4 of methamphetamine, and Defendant admitted that the substance was 5 methamphetamine and that it belonged to her. Officer Martinez then placed 6 Defendant under arrest. 7 Defendant filed a pre-trial motion to exclude the testimony of the State’s 8 proposed expert on narcotics trafficking, Officer Taylor, who opined that possession 9 of 1.45 grams of heroin and 3.5 grams of methamphetamine was consistent with drug 10 trafficking as opposed to personal use. The district court denied the motion, finding 11 that the testimony was not scientific in nature and instead was based on Officer 12 Taylor’s “‘specialized knowledge and based on her technical knowledge.’” 13 In addition to Officer Taylor’s testimony, Officer Martinez testified to 14 “essentially the same opinions that Officer Taylor testified to.” Indeed, Officer 15 Martinez testified that “based on the amount of heroin found within the room that she 16 indicated was hers and the methamphetamine found on her person by Officer 17 Stephenson, along with the packaging material and scale, I determined based on my 18 training and experience that that was far in excess of user amounts and was typical of 19 low to midlevel dealer.”

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1 EXPERT TESTIMONY 2 Defendant argues that Officer Taylor was not qualified as an expert witness 3 under Rule 11-702 NMRA because she lacked experience in observing purchase 4 habits of drug users who live in rural areas with no mode of transportation, that she 5 lacked experience to state opinions regarding to purity or concentration levels of 6 drugs, and that she lacked sufficient training and experience as a narcotics detective 7 to offer the testimony. 8 We review the admission of evidence for abuse of discretion. State v. Flores, 9 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. “An abuse of discretion occurs 10 when the ruling is clearly against the logic and effect of the facts and circumstances 11 of the case. We cannot say the trial court abused its discretion by its ruling unless we 12 can characterize it as clearly untenable or not justified by reason.” Id. (internal 13 quotation marks and citation omitted). 14 Rule 11-702 states that “[i]f scientific, technical or other specialized knowledge 15 will assist the trier of fact to understand the evidence or to determine a fact in issue, 16 a witness qualified as an expert by knowledge, skill, experience, training or education 17 may testify thereto in the form of an opinion or otherwise.” Thus, Rule 11-702 18 provides three prerequisites for admissibility: (1) experts must be qualified; (2) their 19 testimony must assist the trier of fact; and (3) their testimony must be limited to the

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1 area of scientific, technical, or other specialized knowledge in which they are 2 qualified. State v. Alberico, 116 N.M. 156, 166, 861 P.2d 192, 202 (1993). 3 With regard to her qualifications, Officer Taylor testified that she was a 4 detective with the Bernalillo County Sheriff’s Department and had been assigned to 5 the narcotics unit for three years. Prior to joining the narcotics division, she worked 6 in the field services division, which involved “calls for service also traffic 7 enforcements and proactive community policing.” In this capacity, she estimated that 8 she made 75 to 100 narcotic related arrests, half that were for possession offenses and 9 half that were for trafficking offenses. She testified that she has logged 360 hours of 10 “advanced narcotics training,” including training that deals with “typical quantit[ies] 11 of narcotics.” In addition, she had taught classes on narcotics at the regional sheriff’s 12 academy, including training on common practices of drug traffickers and recognizing 13 “user quantity” as opposed to quantities consistent with trafficking. She further 14 testified that she was versed in determining user quantities versus trafficking 15 quantities for all drugs, including heroin and methamphetamine, and that, in addition 16 to her training, she gained this expertise from experience. Based on this testimony, 17 the district court determined that Officer Taylor was qualified as an expert based on 18 her “specialized knowledge and based on her technical knowledge.” Considering 19 these qualifications, we cannot say that the district court abused its discretion in

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1 finding that Officer Taylor was qualified as an expert on narcotics trafficking. See 2 State v. Torrez, 2009-NMSC-029, ¶¶ 16-18, 146 N.M. 331, 210 P.3d 228 (upholding 3 expert testimony on gang culture and gang-related law enforcement from a detective 4 based on his experience as an officer in gang units, his experience teaching other law 5 enforcement personnel about gang culture and investigation, and his authoring of 6 training programs on gang culture). 7 Further, Defendant argues that, even assuming Officer Taylor was qualified to 8 testify about drug quantities consistent with personal use versus quantities consistent 9 with trafficking in Albuquerque, she was still unqualified in the present case because 10 she had no experience or knowledge regarding individuals such as Defendant, who 11 lived in a rural area, did not drive, and thus did not have the means to travel regularly 12 to Albuquerque to purchase drugs. However, even assuming that Defendant is correct 13 in asserting that Officer Taylor had limited experience and knowledge with 14 individuals with characteristics identical to Defendant, we view this limitation of her 15 experience as bearing on the weight of the testimony as opposed to its admissibility. 16 See id. ¶ 18 (noting that after determining that witness had sufficient qualifications as 17 an expert on gang culture and behavior of gang members, any further “perceived 18 deficiencies in his qualifications were relevant to the weight accorded by the jury . . . 19 and not to the testimony’s admissibility” and that the jury was free to weigh every

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1 aspect of the expert’s qualifications (internal quotation marks and citation omitted)). 2 Defendant additionally argues that Officer Taylor’s opinion and theories 3 underlying her testimony are unreliable because they are not subject to peer review, 4 there has been no suitable substance abuse education or publication review, there is 5 no data to corroborate the potential rate of error, and there is no technique to prove 6 them. Defendant maintains that Officer Taylor’s testimony therefore fails the 7 requisite reliability assurances of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 8 U.S. 579, 592-94 (1993) (adopting non-exclusive four-factor test in determining the 9 reliability of testimony based on scientific knowledge) and Kumho Tire Co. v. 10 Carmichael, 526 U.S. 137, 158 (1999) (holding that the Daubert standard applies to 11 all expert testimony, even expert testimony not based on scientific knowledge). 12 However, Defendant concedes that New Mexico courts have not expressly adopted 13 Daubert for non-scientific expert testimony. Torrez, 2009-NMSC-029, ¶ 21. Instead 14 of applying Daubert, we must determine the “reliability of non-scientific expert 15 testimony” by “evaluat[ing] [the] expert’s personal knowledge and experience to 16 determine whether the expert’s conclusions on a given subject may be trusted.” 17 Torrez, 2009-NMSC-029, ¶ 21. This evaluation requires that, in addition to 18 determining the qualifications of the expert, we must determine whether the opinions 19 “prove what they purport to prove” by looking at the fit between the expert’s

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1 qualifications and the testimony offered. Id. ¶ 22. Defendant makes no argument, 2 outside of Daubert-based assertions that Officer Taylor’s opinions could not be 3 trusted or were unreliable. Further, Officer Taylor’s opinion that the amount of 4 methamphetamine and heroin possessed by Defendant was consistent with drug 5 trafficking were consistent with Officer Taylor’s qualifications as an expert on 6 narcotics trafficking and therefore “proved what it was offered to prove.” See Torrez, 7 2009-NMSC-029, ¶ 23 (holding that it was permissible for an expert qualified to 8 testify on gang behavior to testify as to his opinion on the motives of individual gang 9 members). 10 Defendant similarly argues that the district court impermissibly admitted the 11 expert testimony of Officer Martinez regarding his opinion that the quantity of drugs 12 seized from Defendant was consistent with a low to mid-level drug trafficker as 13 opposed to personal use. However, the State did not offer Officer Martinez as an 14 expert witness. He was the officer who arrested Defendant and testified as a lay 15 witness under Rule 11-701 NMRA. The State did not elicit his testimony that the 16 amounts of heroin and methamphetamine possessed by Defendant was consistent with 17 drug trafficking. Instead, the testimony was an unsolicited response to an appropriate 18 question by the State as to whether Defendant was “under arrest for trafficking at that 19 point,” to which Defendant did not object. Additionally, Defense counsel acquiesced

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1 to this testimony by cross-examining Officer Martinez on the subject, therefore 2 waiving her argument on appeal. See State v. Hill, 2008-NMCA-117, ¶ 22, 144 N.M. 3 775, 192 P.3d 770 (holding that the defendant waived “any argument contesting the 4 propriety of the admission of [witness’s] testimony on appeal” by failing to object and 5 choosing to cross-examine the witness on the topic). 6 SUFFICIENCY OF THE EVIDENCE 7 Defendant next argues that evidence presented by the State was insufficient as 8 a matter of law to support Defendant’s conviction for drug trafficking. We review the 9 sufficiency of the evidence pursuant to a substantial evidence standard. State v. 10 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). “[T]he relevant question 11 is whether, after viewing the evidence in the light most favorable to the prosecution, 12 any rational trier of fact could have found the essential elements of the crime beyond 13 a reasonable doubt.” State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) 14 (alteration in original) (internal quotation marks and citation omitted). This Court 15 evaluates the sufficiency of the evidence in a criminal case by viewing the evidence 16 in the light most favorable to the verdict, resolving all conflicts and indulging all 17 permissible inferences in favor of upholding the conviction, and disregarding all 18 evidence and inferences to the contrary. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 19 N.M. 438, 971 P.2d 829. We will not substitute our judgment for that of the

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1 factfinder, nor will we reweigh the evidence. State v. Hernandez, 115 N.M. 6, 26, 846 2 P.2d 312, 332 (1993). 3 In order to prove that Defendant was guilty of drug trafficking, the State was 4 required to prove beyond a reasonable doubt that (1) Defendant possessed 5 methamphetamine or heroin, (2) Defendant knew it was methamphetamine or heroin, 6 and (3) Defendant intended to transfer it to another. Defendant concedes that there 7 was sufficient evidence as to elements one and two, but argues that there was 8 insufficient evidence as to the third element, intent to distribute. 9 To prove possession with intent to distribute, the State must prove specific 10 intent, which may be inferred from the surrounding facts and circumstances. State v. 11 Muniz, 110 N.M. 799, 800, 800 P.2d 734, 735 (Ct. App. 1990). Viewing the evidence 12 in the light most favorable to the jury verdict, the circumstantial evidence supports a 13 reasonable jury finding that Defendant had specific intent to distribute the drugs in her 14 possession. Defendant admitted to possessing 1.5 grams of heroin and 3.5 grams of 15 methamphetamine. Officer Taylor, the State’s expert on narcotics trafficking, testified 16 that these amounts were consistent with trafficking as opposed to personal use and that 17 typically heroin and methamphetamine users do not use interchangeably, making it 18 atypical that someone possessing for personal use would possess both drugs. Further, 19 Officer Taylor testified that drug users, specifically heroin users, typically do not buy

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1 drugs in large quantities and “they’ll usually just have one dose, which would be a 2 10th of a gram or 20th of a gram.” Further, Officer Martinez, the arresting officer, 3 testified that the amount of drugs possessed by Defendant “was typical of low to 4 midlevel dealer.” In addition, Defendant’s purse contained plastic jewelry bags and 5 a digital scale, and she admitted to hiding $400 of cash under a mattress because she 6 was scared. Both Officer Taylor and Officer Martinez testified that the plastic bags 7 and scale were typical materials possessed by a drug trafficker. 8 Defendant attempts to rely on State v. Becerra, 112 N.M. 604, 817 P.2d 1246 9 (Ct. App. 1991) for the proposition that testimony on weights of seized narcotics is 10 insufficient to infer intent to distribute. Becerra, however, is distinguishable. In 11 Becerra, the only evidence the State presented as to intent was testimony that officers 12 seized 55.53 grams of cocaine and testimony of a chemist that the “most typical 13 amount tested is a gram or less.” Id. at 606, 817 P.2d at 1248. This Court held that 14 allowing a jury to infer intent based on the amount and ‘“common knowledge’” was 15 insufficient to support a jury verdict. Id. at 608, 817 P.2d at 1250. In this case, the 16 jury was presented with more evidence than the mere amount of narcotics, including 17 the testimony of Officer Taylor and Officer Martinez that the amounts were consistent 18 with trafficking, especially when coupled with the plastic bags and digital scale seized 19 from Defendant’s purse.

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1 Defendant also argues that there was evidence contrary to the jury verdict. 2 Specifically, Defendant argues that Officer Taylor and Officer Martinez testified that 3 the amount of heroin seized “may” have also been consistent with personal use for a 4 heavy user and that the amount of methamphetamine seized only had a value of $420. 5 As a consequence, Defendant contends that it was not unreasonable for the jury to 6 conclude that the drugs were for personal use considering that Defendant lived in a 7 rural area and did not drive and therefore may have bought enough to last for a 8 significant period. Further, Defendant argues that she makes a living selling jewelry 9 and that she possessed the plastic jewelry bags and digital scale for use in her 10 business. While Defendant’s arguments, if believed, may provide a basis for acquittal, 11 the jury was free to reject Defendant’s version of the events. See State v. Mireles, 12 119 N.M. 595, 597, 893 P.2d 491, 493 (Ct. App. 1995). Having previously 13 determined that sufficient evidence supported Defendant’s convictions, we decline to 14 reweigh the evidence and substitute our judgment for that of the factfinder. 15 Hernandez, 115 N.M. at 26, 846 P.2d at 332. 16 INEFFECTIVE ASSISTANCE OF COUNSEL 17 Defendant argues that her defense counsel was ineffective because counsel (1) 18 failed to present available testimony, namely witness testimony of a police officer who 19 saw jewelry while helping execute the search warrant that led to Defendant’s arrest,

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1 and failed to adequately investigate and photograph Defendant’s storage site that 2 would have corroborated her defense that the digital scale and plastic bags were used 3 in her jewelry business, (2) failed to request a mistrial after becoming aware, after the 4 verdict, that a juror had experience in jewelry making and expressed an opinion that 5 digital scales were not used in jewelry making, (3) requested too many continuances, 6 (4) advised her not to attend or testify at the grand jury, and (5) did not allow her to 7 be present at pretrial hearings. 8 A defendant has the burden of establishing a prima facie case of ineffective 9 assistance of counsel by showing that (1) “counsel’s performance fell below that of 10 a reasonably competent attorney,” and (2) “the deficient performance prejudiced the 11 defense.” State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729 12 (internal quotation marks and citation omitted). The defendant must show that, as a 13 result of counsel’s errors, the trial was not fair in that the results are not reliable. 14 Strickland v. Washington, 466 U.S. 668, 687 (1984). In conducting our review, we 15 strongly presume that counsel has “rendered adequate assistance and made all 16 significant decisions in the exercise of reasonable professional judgment.” Id. at 690. 17 We “will not second guess the trial strategy and tactics” of counsel. State v. Gonzales, 18 113 N.M. 221, 230, 824 P.2d 1023, 1032 (1992). 19 With regard to Defendant’s arguments that counsel requested too many

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1 continuances, advised her not to testify before the grand jury, and did not allow her 2 to be present at pretrial hearings, Defendant fails to argue how counsel’s actions 3 prejudiced her defense. Defendant therefore fails to establish a prima facie case as to 4 those claims. See State v. Richardson, 114 N.M. 725, 727, 845 P.2d 819, 821 (Ct. 5 App. 1992) (“The defendant on appeal bears the burden of proving both incompetence 6 of his attorney and prejudice to his defense.”). 7 As to Defendant’s argument that defense counsel was ineffective because 8 counsel failed to properly investigate the storage site and present testimony of an 9 arresting officer that would have corroborated her defense that the plastic bags and 10 scale in her possession were for use in her jewelry business, Defendant fails to show 11 that the performance of counsel fell below that of a reasonably competent attorney. 12 Defendant fails to contend that counsel was made aware of the existence of the 13 corroborating officer or that counsel was aware of the storage site containing the 14 jewelry. We therefore cannot say that counsel’s performance was deficient. See 15 Strickland, 466 U.S. at 691 (“The reasonableness of counsel’s actions may be 16 determined or substantially influenced by the defendant’s own statements or actions. 17 Counsel’s actions are usually based, quite properly, on informed strategic choices 18 made by the defendant and on information supplied by the defendant. In particular, 19 what investigation decisions are reasonable depends critically on such information.”).

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1 Defendant also fails to make a showing that counsel’s performance fell below 2 that of a reasonably competent attorney by failing to request a mistrial after being told 3 by a juror after the verdict that she had experience in jewelry making and gave an 4 opinion, during deliberations, that digital scales are not used in jewelry making. Rule 5 11-606(B) NMRA states that “a juror may not testify as to any matter or statement 6 occurring during the course of the jury’s deliberations or to the effect of anything 7 upon that or any other juror’s mind or emotions as influencing the juror to assent to 8 or dissent from the verdict or indictment or concerning the juror’s mental processes 9 in connection therewith.” See also State v. Mann, 2002-NMSC-001, ¶ 27, 131 N.M. 10 459, 39 P.3d 124 (stating that “jurors may properly rely on their background, 11 including professional and educational experience, in order to inform their 12 deliberations”). The statement by the juror would therefore be inadmissible evidence, 13 and absent a showing that the juror influenced deliberations, we cannot say that 14 counsel’s performance was deficient for not bringing the juror’s statements to the 15 attention of the district court and moving for a mistrial. 16 Although we determine that Defendant has failed to make a prima facie case of 17 ineffective assistance of counsel, Defendant is not precluded from pursuing her 18 ineffective assistance of counsel claim through habeas corpus proceedings. See State 19 v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845.

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1 CONCLUSION 2 For the foregoing reasons, we affirm. 3 IT IS SO ORDERED.

4 _______________________________ 5 JAMES J. WECHSLER, Judge

6 I CONCUR:

7 _________________________________ 8 TIMOTHY L. GARCIA, Judge

9 RODERICK T. KENNEDY, Judge (Specially concurring)

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1 KENNEDY, Judge (specially concurring). 2 I concur, but write separately to point out the instability of the evidence for 3 believing Defendant possessed drugs for sale. Our affirmance of the admission of 4 testimony from Detective Martinez and Detective Taylor in this case has little to do 5 with ensuring proper judicial concern for the reliability of their testimony. The basis 6 for testimony resting on “specialized and technical knowledge” should not pass un- 7 scrutinized just because it is not scientific. “Non-scientific” is not a mantra for 8 “anything goes.” Evidence should still be relevant to the case at hand. That a non- 9 expert and an expert in this case gave virtually identical testimony on the ultimate 10 issue—quantity of drugs supporting personal use versus possession for 11 sale—underscores this problem and is the reason I write separately. 12 The testimony of Detective Martinez far exceeded the scope of lay testimony 13 permitted under Rule 11-701. Martinez was never offered nor accepted as an expert. 14 Yet, he testified that based on his training and experience the very appearance of 15 Defendant’s packet of heroin instantly informed him that the amount in the packet was 16 consistent with trafficking, the crime for which he arrested Defendant. The problem 17 with Detective Martinez’s testimony is evident in its self-containment. Testimony 18 about how Martinez’s “training and experience” informed this decision was never 19 elicited to show any external information from which the officer might have a basis

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1 to opine in support of his conclusion. 2 As he was cross-examined, Martinez stated that in his experience a typical 3 heroin user would go through a gram or more of heroin a day. A readily-available 4 Fact Sheet on Morphine and Heroin, succinctly states that “Recreationally, daily 5 heroin doses of 5-1500 mg [0.005-1.5 g] have been reported, with an average daily 6 dose of 300-500 mg.[0.3-0.5 g].” Fiona J. Couper & Barry K. Logan, Nat’l Highway 7 Traffic Safety Admin., Drugs and Human Performance Fact Sheets 73 (June 2004).1 8 That a consensus of toxicologists, Couper & Logan, supra, at 3, might demonstrate 9 a range in daily dosage from one twentieth of Martinez’s guess to a little more than 10 the total amount of heroin obtained from Defendant, demonstrates the need for 11 additional information to establish the relevance of Detective Martinez’s opinion in 12 the context of his “training and expertise”. No one asked Detective Martinez to state 13 the source of his numbers or any demonstrable basis for his opinion, nor did anyone 14 at trial ask whether it was based upon any externally available information. Accepting 15 such testimony without scrutiny allows for the admission of an officer’s ipse dixit as 16 seemingly expert evidence, where its admission is not otherwise warranted. 17 Nonetheless, Martinez’s testimony instructed the factfinder on the very subject the

1 18 This document is cited only as an example of a type of information that could 19 bear on such testimony.

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1 State later required specific expertise in the form of Detective Taylor’s testimony. 2 Both sides and the bench in this case allowed Martinez to proceed without objection 3 or judicial intervention. 4 The State next created a smoke-screen of qualifications for Detective Taylor, 5 most of which described her education in fields unrelated to her actual testimony, 6 namely that she had an opinion about how to assess if evidence of items possessed by 7 a subject at the time of their arrest support a conclusion that a person is trafficking in 8 drugs. Taylor has learned to cook methamphetamine, to run confidential informants, 9 to have a consensual encounter, to set up investigations in hotels, to deal with the life 10 changes occasioned by going undercover, to “sit still in your car for six hours at a 11 time,” and to shoot in tactical situations. The district judge finally cut this carousel 12 of qualifications short, telling the prosecutor that the State was “going far beyond 13 what is necessary for [her] to be an expert in this case.” 14 While on the stand, Taylor apparently found residue of something on the scale 15 taken from Defendant, unlike Detective Martinez who said he had never looked. 16 Without saying how she knew, Taylor testified that “packaging which is commonly 17 used for jewelry is more commonly used for packaging narcotics after it’s weighed 18 out.” Yet, the size and number of bags taken from Defendant were different than her 19 recollection, and there was no residue on the baggies. Moreover, Detective Taylor,

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1 testifying as an “expert,” stated that the user who does a 10th of a gram of heroin in 2 the morning and a 20th of a gram in the evening, has ingested a 30th of a gram of 3 heroin for the day. In addition, she blithely stated that a 20th of a gram is double a 4 10th of a gram. All of these numbers are at great variance with Detective Martinez’s 5 “gram a day” opinion, as well as arithmetic principles. 6 State v. Torrez invites no external controls or judicial scrutiny to be imposed 7 on the information coming out of the experiential expert’s mouth and glorifies ipse 8 dixit as expert opinion. 2009-NMSC-029, ¶ 21. This is dangerous and encourages 9 what may amount to an excuse for judges to abdicate assessing the overall relevance 10 and reliability of testimony that is presented to a jury. If our Supreme Court does not 11 directly instruct us to apply predictable objective methods of evaluation to the proffers 12 of non-scientific testimony, judges should nonetheless not be absolved from guarding 13 against testimony and witnesses who would overly tax the factfinder’s credulity. See 14 State v. Torres, 1999-NMSC-010, ¶¶ 43-44, 127 N.M. 20, 976 P.2d 20 (stating that 15 criteria similar to those employed by Daubert, 509 U.S. at 579, would not be 16 employed in New Mexico to evaluate non-scientific evidence). 17 I concur in the majority’s opinion because it is not our job on appeal to quibble 18 with the weight of the evidence, particularly in the absence of anyone’s quibble at 19 trial. Yet, I write separately to iterate the problem with experiential evidence

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1 presented in this case. If Officer Martinez testified to his opinions as a lay witness, 2 his testimony must be reasonably based on his perceptions, and that opinion must be 3 one within the ken of the lay juror. If Officer Martinez testifies to the same thing as 4 the expert Officer Taylor, either Officer Taylor is not an expert or Officer Martinez 5 should have been. Both should have had to demonstrate that their experience had 6 some basis in objective information received in their training. In the passive 7 exonerative tense, “mistakes were made.” However, having reviewed the evidence, 8 I cannot say that the mistakes resulted in a conviction that is unsafe—hence, my 9 concurrence.

10 ____________________________________ 11 RODERICK T. KENNEDY, Judge