This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,472
5 LATISHA SHIPLEY,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 8 Donna J. Mowrer, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Sri Mullis, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Jorge A. Alvarado, Chief Public Defender 15 Santa Fe, NM 16 Vicki W. Zelle, Assistant Appellate Public Defender 17 Albuquerque, NM
18 for Appellant
19 MEMORANDUM OPINION
20 VANZI, Judge. 1 {1} Defendant Latisha Shipley appeals her conviction for trafficking
2 methamphetamine, contrary to NMSA 1978, Section 30-31-20 (2006). She argues that
3 (1) the district court abrogated its gatekeeping function under Rule 11-702 NMRA by
4 qualifying Officer Aguilar as an expert; (2) the State’s failure to notify the defense of
5 its intent to call the officer as an expert was fundamentally unfair; (3) the State failed
6 to establish the corpus delicti of intent to distribute by sufficient independent
7 evidence; and (4) there was insufficient evidence that Defendant intended to transfer
8 the drugs in her possession. We conclude that Defendant’s conviction was supported
9 by sufficient evidence and did not violate the corpus delicti rule. However, we agree
10 with Defendant that the district court erred in permitting Officer Aguilar to testify as
11 an expert and that the error was not harmless. As such, we reverse Defendant’s
12 conviction and remand for a new trial. We do not consider Defendant’s remaining
13 argument concerning notification of intent to call the officer as an expert.
14 BACKGROUND
15 {2} After the Roosevelt County magistrate court issued a warrant for Defendant’s
16 arrest based on a probation violation for DWI, three police officers—Officer Nate
17 Hyde of the Portales Police Department, Officer J.R. Aguilar of the Clovis Police
18 Department, and Officer Gary Ford of the Eastern New Mexico University (ENMU)
19 Police—went to Defendant’s classroom at ENMU and removed her from her class.
20 Once she was outside and in the hallway, Officer Hyde told Defendant that there was
2 1 an active warrant for her arrest and advised Defendant of her Miranda rights. After
2 Defendant responded that she understood her rights, Officer Hyde asked whether
3 Defendant knew why the officers wanted to speak to her. Defendant said that the
4 reason had to do “with meth.”
5 {3} Upon questioning by Officer Hyde, Defendant admitted to possessing
6 methamphetamine and gave the officers two small bags—one from her bra and one
7 from her underwear area—weighing a total of 1.7 grams. Lab tests confirmed that the
8 bags contained methamphetamine, the value of which was about one hundred dollars.
9 {4} Defendant was arrested and charged with trafficking controlled substances,
10 contrary to Section 30-31-20(A)(2), (B)(1). After a jury trial, Defendant was found
11 guilty of trafficking methamphetamine. The district court sentenced Defendant to a
12 prison term of two years followed by five years of supervised probation. Defendant
13 timely appealed her conviction. We reserve further discussion of the pertinent facts
14 for our analysis.
15 DISCUSSION
16 The District Court Erred in Qualifying Officer Aguilar as an Expert Witness
17 {5} Defendant first argues that the district court erred in permitting Officer Aguilar
18 to testify as an expert in the absence of foundational testimony establishing the
19 reliability of his opinion that Defendant was a narcotics dealer. We agree and reverse.
3 1 {6} While we review the district court’s admission of expert testimony for abuse
2 of discretion, “our role is not to simply ‘rubber stamp’ the trial court’s determination.”
3 State v. Torrez, 2009-NMSC-029, ¶ 9, 146 N.M. 331, 210 P.3d 228. “The abuse of
4 discretion standard should not prevent an appellate court from conducting a
5 meaningful analysis of the admission of scientific testimony to ensure that the trial
6 judge’s decision was in accordance with the Rules of Evidence and the evidence in the
7 case.” Id. (alteration, internal quotation marks, and citation omitted).
8 {7} In this case, the State called Officer Aguilar to the stand but did not initially
9 attempt to qualify him as an expert. At some point during his testimony, the
10 prosecutor tried four times to ask Officer Aguilar questions implying that Defendant
11 was a dealer because of the amount of drugs she had. The prosecutor asked: (1)
12 “Would State’s exhibit number two be a seller’s amount then?”; (2) “What type of
13 dealer is [Defendant]?”; (3) “What type of drugs does she sell?”; and (4) “In your
14 opinion, . . . what type of amounts would [Defendant] be selling?” After each
15 question, defense counsel objected, and the district court told the prosecutor to
16 rephrase the question. After the fourth such instance, the prosecutor changed tack and
17 argued that Officer Aguilar could answer these questions as an expert, based on
18 specialized knowledge, experience, and training. In an exchange that took place in
19 front of the jury, defense counsel objected, and the district court overruled the
20 objection, whereupon the prosecutor asked Officer Aguilar “what level of drugs would
4 1 a dealer like [Defendant] sell?” Officer Aguilar replied, “Based on what I found on
2 her, it’s gonna be your bottom lower-tier of narcotic dealing.”
3 {8} Our case law establishes different prerequisites for expert testimony based on
4 scientific knowledge and expert testimony based on specialized knowledge. Torrez,
5 2009-NMSC-029, ¶ 21. Where, as here, the alleged expert’s opinion is based on
6 specialized knowledge, “the court must evaluate a non-scientific expert’s personal
7 knowledge and experience to determine whether the expert’s conclusions on a given
8 subject may be trusted.” Id. The court does this by assessing the expert’s “skills,
9 experience, training, or education . . . to test the validity of the expert’s conclusions.”
10 Id. ¶ 22.
11 {9} Officer Aguilar’s testimony about his qualifications shed no light on his ability
12 to determine whether an accused is a dealer based on the amount of drugs found in the
13 accused’s possession. He testified that he had attended an 80-hour school in Florida,
14 a 40-hour class in Albuquerque, and “a couple” of classes in Santa Fe, all of which
15 were “in reference to narcotics.” When asked to be more specific, Officer Aguilar
16 testified that the classes involved “task force investigations into narcotics,
17 concealment[] of narcotics,” and “some training in . . . reference to drug recognition
18 of narcotics.” As far as his experience, Officer Aguilar testified that he “worked
19 undercover, . . . spoke[] with people who deal in narcotics, [and] . . . purchased
20 drugs.”
5 1 {10} Notably, Officer Aguilar did not specify any training or experience in how to
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,472
5 LATISHA SHIPLEY,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 8 Donna J. Mowrer, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Sri Mullis, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Jorge A. Alvarado, Chief Public Defender 15 Santa Fe, NM 16 Vicki W. Zelle, Assistant Appellate Public Defender 17 Albuquerque, NM
18 for Appellant
19 MEMORANDUM OPINION
20 VANZI, Judge. 1 {1} Defendant Latisha Shipley appeals her conviction for trafficking
2 methamphetamine, contrary to NMSA 1978, Section 30-31-20 (2006). She argues that
3 (1) the district court abrogated its gatekeeping function under Rule 11-702 NMRA by
4 qualifying Officer Aguilar as an expert; (2) the State’s failure to notify the defense of
5 its intent to call the officer as an expert was fundamentally unfair; (3) the State failed
6 to establish the corpus delicti of intent to distribute by sufficient independent
7 evidence; and (4) there was insufficient evidence that Defendant intended to transfer
8 the drugs in her possession. We conclude that Defendant’s conviction was supported
9 by sufficient evidence and did not violate the corpus delicti rule. However, we agree
10 with Defendant that the district court erred in permitting Officer Aguilar to testify as
11 an expert and that the error was not harmless. As such, we reverse Defendant’s
12 conviction and remand for a new trial. We do not consider Defendant’s remaining
13 argument concerning notification of intent to call the officer as an expert.
14 BACKGROUND
15 {2} After the Roosevelt County magistrate court issued a warrant for Defendant’s
16 arrest based on a probation violation for DWI, three police officers—Officer Nate
17 Hyde of the Portales Police Department, Officer J.R. Aguilar of the Clovis Police
18 Department, and Officer Gary Ford of the Eastern New Mexico University (ENMU)
19 Police—went to Defendant’s classroom at ENMU and removed her from her class.
20 Once she was outside and in the hallway, Officer Hyde told Defendant that there was
2 1 an active warrant for her arrest and advised Defendant of her Miranda rights. After
2 Defendant responded that she understood her rights, Officer Hyde asked whether
3 Defendant knew why the officers wanted to speak to her. Defendant said that the
4 reason had to do “with meth.”
5 {3} Upon questioning by Officer Hyde, Defendant admitted to possessing
6 methamphetamine and gave the officers two small bags—one from her bra and one
7 from her underwear area—weighing a total of 1.7 grams. Lab tests confirmed that the
8 bags contained methamphetamine, the value of which was about one hundred dollars.
9 {4} Defendant was arrested and charged with trafficking controlled substances,
10 contrary to Section 30-31-20(A)(2), (B)(1). After a jury trial, Defendant was found
11 guilty of trafficking methamphetamine. The district court sentenced Defendant to a
12 prison term of two years followed by five years of supervised probation. Defendant
13 timely appealed her conviction. We reserve further discussion of the pertinent facts
14 for our analysis.
15 DISCUSSION
16 The District Court Erred in Qualifying Officer Aguilar as an Expert Witness
17 {5} Defendant first argues that the district court erred in permitting Officer Aguilar
18 to testify as an expert in the absence of foundational testimony establishing the
19 reliability of his opinion that Defendant was a narcotics dealer. We agree and reverse.
3 1 {6} While we review the district court’s admission of expert testimony for abuse
2 of discretion, “our role is not to simply ‘rubber stamp’ the trial court’s determination.”
3 State v. Torrez, 2009-NMSC-029, ¶ 9, 146 N.M. 331, 210 P.3d 228. “The abuse of
4 discretion standard should not prevent an appellate court from conducting a
5 meaningful analysis of the admission of scientific testimony to ensure that the trial
6 judge’s decision was in accordance with the Rules of Evidence and the evidence in the
7 case.” Id. (alteration, internal quotation marks, and citation omitted).
8 {7} In this case, the State called Officer Aguilar to the stand but did not initially
9 attempt to qualify him as an expert. At some point during his testimony, the
10 prosecutor tried four times to ask Officer Aguilar questions implying that Defendant
11 was a dealer because of the amount of drugs she had. The prosecutor asked: (1)
12 “Would State’s exhibit number two be a seller’s amount then?”; (2) “What type of
13 dealer is [Defendant]?”; (3) “What type of drugs does she sell?”; and (4) “In your
14 opinion, . . . what type of amounts would [Defendant] be selling?” After each
15 question, defense counsel objected, and the district court told the prosecutor to
16 rephrase the question. After the fourth such instance, the prosecutor changed tack and
17 argued that Officer Aguilar could answer these questions as an expert, based on
18 specialized knowledge, experience, and training. In an exchange that took place in
19 front of the jury, defense counsel objected, and the district court overruled the
20 objection, whereupon the prosecutor asked Officer Aguilar “what level of drugs would
4 1 a dealer like [Defendant] sell?” Officer Aguilar replied, “Based on what I found on
2 her, it’s gonna be your bottom lower-tier of narcotic dealing.”
3 {8} Our case law establishes different prerequisites for expert testimony based on
4 scientific knowledge and expert testimony based on specialized knowledge. Torrez,
5 2009-NMSC-029, ¶ 21. Where, as here, the alleged expert’s opinion is based on
6 specialized knowledge, “the court must evaluate a non-scientific expert’s personal
7 knowledge and experience to determine whether the expert’s conclusions on a given
8 subject may be trusted.” Id. The court does this by assessing the expert’s “skills,
9 experience, training, or education . . . to test the validity of the expert’s conclusions.”
10 Id. ¶ 22.
11 {9} Officer Aguilar’s testimony about his qualifications shed no light on his ability
12 to determine whether an accused is a dealer based on the amount of drugs found in the
13 accused’s possession. He testified that he had attended an 80-hour school in Florida,
14 a 40-hour class in Albuquerque, and “a couple” of classes in Santa Fe, all of which
15 were “in reference to narcotics.” When asked to be more specific, Officer Aguilar
16 testified that the classes involved “task force investigations into narcotics,
17 concealment[] of narcotics,” and “some training in . . . reference to drug recognition
18 of narcotics.” As far as his experience, Officer Aguilar testified that he “worked
19 undercover, . . . spoke[] with people who deal in narcotics, [and] . . . purchased
20 drugs.”
5 1 {10} Notably, Officer Aguilar did not specify any training or experience in how to
2 determine dealer amounts of narcotics versus user amounts. As a result, there was no
3 evidence a fact finder could use to determine the reliability of Officer Aguilar’s
4 opinion that Defendant was a dealer due to the amount of methamphetamine on her
5 person at the time of her encounter with police at the university.
6 {11} Officer Aguilar’s testimony concerning his training and experience is in sharp
7 contrast to the training and experience of the testifying officer in State v. Rael-
8 Gallegos, where this Court affirmed the district court’s admission of the officer’s
9 opinion that the defendant was engaged in trafficking cocaine. 2013-NMCA-092,
10 ¶¶ 17, 36, 308 P.3d 1016. In that case, the officer testified that she was a lead
11 instructor at a law enforcement academy where her course included “a segment on
12 what are trafficking amounts, and what are possession amounts” and that she had
13 taught the district attorney’s office “narcotics awareness, trafficking versus possession
14 amounts and other things of that nature.” Id. ¶ 24 (alteration, internal quotation marks,
15 and citation omitted). In the present case, Officer Aguilar did not testify about any
16 similar training or experience.
17 {12} We conclude that the district court abused its discretion in permitting Officer
18 Aguilar to offer an opinion that Defendant was a “bottom lower-tier” dealer based on
19 the amount of methamphetamine on her person. We further conclude that the error in
20 admitting this testimony was not harmless error.
6 1 {13} “To determine whether a non-constitutional error was harmless, we must assess
2 whether there is no reasonable probability that the error affected the verdict.” Torrez,
3 2009-NMSC-029, ¶ 33. Here, Officer Aguilar offered an opinion on one of the
4 ultimate facts to be determined by the jury, which was whether Defendant intended
5 to transfer the methamphetamine on her person to another. While experts are
6 permitted to offer opinions on ultimate facts, see Rael-Gallegos, 2013-NMCA-092,
7 ¶ 33, the jury was not given UJI 14-118 NMRA, which explains that the jury “may
8 reject an opinion entirely if [it] conclude[s] that it is unsound.” Indeed, the district
9 court unduly emphasized Officer Aguilar’s opinion by permitting the prosecutor to
10 argue Officer Aguilar’s qualifications in the presence of the jury and then overruling
11 the defense objection to the prosecutor’s tender of Officer Aguilar as an expert.
12 Because the court explicitly accepted Officer Aguilar as an “expert” in the jury’s
13 presence and yet failed to instruct the jury that it could reject his opinion, we cannot
14 say that there is no reasonable probability that his testimony contributed to
15 Defendant’s conviction. As was the case in Torrez, Officer Aguilar’s testimony was
16 the linchpin in the State’s evidence that Defendant intended to transfer her drugs to
17 another. See 2009-NMSC-029, ¶¶ 31, 33 (holding that admission of the police
18 officer’s testimony about the defendant’s purported gang motive was more prejudicial
19 than probative in the absence of evidence that the defendant belonged to a gang at the
20 relevant time and that the officer’s testimony to this effect was not harmless error
7 1 because it “was the linchpin in the [s]tate’s evidence rebutting [the d]efendant’s claim
2 of self-defense”). Therefore, the district court’s error in admitting Officer Aguilar’s
3 opinion testimony was not harmless.
4 The Corpus Delicti Rule and Substantial Evidence
5 {14} Defendant contends that the State failed to establish the corpus delicti of intent
6 to distribute by sufficient evidence nor did the evidence establish the trustworthiness
7 of her statements. Additionally, she argues that there was insufficient evidence to
8 establish that she intended to transfer the methamphetamine in her possession to
9 another. We disagree.
10 {15} It is well established that the corpus delicti rule in New Mexico is a modified
11 trustworthiness rule. Thus, “an extrajudicial statement may be used to establish the
12 corpus delicti where the statement is shown to be trustworthy and where there is some
13 independent evidence to confirm the existence of the alleged loss or injury.” State v.
14 Weisser, 2007-NMCA-015, ¶ 18, 141 N.M. 93, 150 P.3d 1043. In other words, a
15 confession can be used to sustain a conviction if there is sufficient independent
16 evidence to support the corpus delicti. Id. ¶ 12. In sum, “Defendant’s contention that
17 her admission was untrustworthy is a challenge to the sufficiency of the evidence
18 based on the corpus delicti or trustworthiness rule.” State v. Owelicio, 2011-NMCA-
19 091, ¶ 15, 150 N.M. 528, 263 P.3d 305.
8 1 {16} In reviewing a challenge to the sufficiency of the evidence, “[w]e view the
2 [direct and circumstantial] evidence in the light most favorable to the verdict,
3 resolving all conflicts and indulging all permissible inferences to uphold the
4 conviction, and disregarding all evidence and inferences to the contrary.” State v.
5 McGee, 2002-NMCA-090, ¶ 20, 132 N.M. 537, 51 P.3d 1191. We will not substitute
6 our judgment for that of the fact finder, nor will we re-weigh the evidence. Id.
7 {17} The jury was instructed that, to find Defendant guilty of trafficking, the State
8 was required to prove that Defendant had methamphetamine in her possession, knew
9 or believed it to be methamphetamine, and intended to transfer it to another. See UJI
10 14-3111 NMRA (listing elements of trafficking by possession with intent to
11 distribute). Defendant does not dispute that, on the day of her arrest, she was in
12 possession of methamphetamine. Rather, her corpus delicti and sufficiency of the
13 evidence attacks are limited to the third element—that she intended to transfer the
14 methamphetamine to another.
15 {18} The testimony at trial established the following. Portales Police Officer Hyde
16 testified that as part of his experience he had purchased narcotics two times while
17 working undercover. He said that when he questioned Defendant about whether she
18 had methamphetamine in her possession, Defendant first pulled out a small, tightly
19 bound, clear plastic bag from her bra, which Officer Hyde recognized as a “corner
20 baggie.” Defendant admitted to Officer Hyde that she sells “twenties to thirties here
9 1 and there when people ask.” “Twenties to thirties” refers to the amount and price of
2 a narcotic, and the amount pulled from Defendant’s bra could have been prepackaged
3 for sale or personal use. Officer Hyde testified that Defendant then pulled a larger
4 Ziploc baggie from her underwear area that contained “a significantly larger amount”
5 of methamphetamine. Based on the weight of the baggie, he said that the second
6 package was more likely a seller’s amount, and that the value in Defendant’s
7 possession was about one hundred dollars.
8 {19} Officer Aguilar then took the stand. He told the jury that he had been employed
9 as a Clovis police officer for nine years, about three-and-one-half years of which were
10 with the Drug Task Force, where his primary duty is narcotics investigations. Officer
11 Aguilar testified that, in his opinion, Defendant was a low-level narcotics dealer. He
12 also testified about two chains of text messages that he had downloaded from
13 Defendant’s phone, which were admitted into evidence. With respect to the first text
14 chain, Officer Aguilar testified that the text messages indicated a drug deal. In that
15 chain, an incoming text to Defendant asked “Do u got a dubski[?]” which Officer
16 Aguilar told the jury was street lingo referring to twenty dollars worth of narcotics.
17 The second text chain was from an individual who was identified as Defendant’s drug
18 dealer although that chain indicated Defendant was buying—not selling—
19 methamphetamine. Officer Aguilar then testified that one final coded text chain was
20 a drug deal. According to Officer Aguilar, the incoming message to Defendant, which
10 1 read, “Hey tish i dont know if ur n school if so im sorry but do u have a 50 if not
2 please let me know,” referred to fifty dollars worth of narcotics. In his opinion, the
3 various text messages established that Defendant’s cell phone was being used for the
4 sale of narcotics.
5 {20} The above evidence, coupled with Defendant’s admission that she “sold twenty
6 here, twenty there” and that she was “a street level dealer,” gives rise to the reasonable
7 inference that Defendant committed the crime of intent to transfer methamphetamine
8 to another. Additionally, we recognize that the primary function of the corpus delicti
9 rule is to reduce the risk of convicting a defendant based on her confession for a crime
10 that did not occur. However, in this case, the State presented sufficient corroborating
11 evidence to establish the trustworthiness of Defendant’s statements that she sold small
12 amounts of methamphetamine to support her habit and independent proof that she
13 intended to transfer the methamphetamine on her person to another. We therefore
14 conclude that sufficient evidence supported the requisite third element set forth above
15 and that the State sufficiently proved corpus delicti.
16 CONCLUSION
17 {21} We reverse Defendant’s conviction for trafficking methamphetamine and
18 remand to the district court for a new trial.
19 {22} IT IS SO ORDERED.
11 1 __________________________________ 2 LINDA M. VANZI, Judge
3 WE CONCUR:
4 _________________________________ 5 JAMES J. WECHSLER, Judge
6 _________________________________ 7 TIMOTHY L. GARCIA, Judge