State v. Tafoya

• Court: New Mexico Court of Appeals
• Decided: November 4, 2014
• Docket: 33,556
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,556

5 ANICA TAFOYA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Ross C. Sanchez, District Judge

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

11 for Appellee

12 Law Offices of the Public Defender 13 Jorge A. Alvarado, Chief Public Defender 14 Santa Fe, NM 15 Vicki Zelle, Assistant Public Defender 16 Albuquerque, NM

17 for Appellant

18 MEMORANDUM OPINION

19 HANISEE, Judge.

20 {1} Defendant has appealed from a conviction for DWI. We previously issued a

21 notice of proposed summary disposition in which we proposed to affirm. Defendant 1 has filed a memorandum in opposition. After due consideration, we remain

2 unpersuaded. We therefore uphold the conviction.

3 {2} Because the pertinent background information and applicable principles have

4 previously been set forth, we will avoid unnecessary repetition here, and instead focus

5 on the content of the memorandum in opposition.

6 {3} First, Defendant renews her assertion that the trial court improperly limited the

7 scope of cross-examination. [MIO 18-22] In the notice of proposed summary

8 disposition we expressed our general agreement with the district court’s thoughtful

9 handling of this issue. In her memorandum in opposition Defendant continues to

10 argue that she should have been permitted to cross-examine the officers about their

11 recollection of entirely separate, unrelated DWI investigations, for the purpose of

12 undermining their credibility. In this context, we review for abuse of discretion. See

13 generally State v. Brown, 1998-NMSC-037, ¶ 25, 126 N.M. 338, 969 P.2d 313 (noting

14 that abuse of discretion is the standard of review for limitations on

15 cross-examination). We remain unpersuaded that the trial court abused its discretion,

16 for a couple of reasons. First, the avenue of inquiry was not entirely foreclosed: the

17 trial court did permit defense counsel to question one of the officers about his limited

18 recollection of other DWI investigations. [RP 76] Second, Defendant was able to

19 impeach the officers by focusing on far more relevant questions about what they did

2 1 and did not recall about Defendant’s case. [RP 71-72, 75-77, 79-80] Because

2 Defendant was permitted to thoroughly and effectively cross-examine the witnesses

3 and to impeach their credibility, we conclude that the few limitations imposed on the

4 scope of cross-examination were well within the trial court’s discretion.

5 {4} Defendant also renews her challenge to the admission of a copy of the BAT

6 card produced by the intoxilyzer in the course of the DWI investigations and arrest.

7 [MIO 22-25] As we previously observed, Rule 11-1003 NMRA provides that

8 duplicates are admissible to the same extent as original documents “unless a genuine

9 question is raised about the original’s authenticity or the circumstances make it unfair

10 to admit the duplicate.” See also Gushwa v. Hunt (In re Estate of Gushwa),

11 2008-NMSC-064, ¶ 24, 145 N.M. 286, 197 P.3d 1 (“Our rules . . . provide that a

12 duplicate, which includes a photocopy, may be admitted in lieu of an original to prove

13 the contents of a document unless there is a genuine question about the authenticity

14 of the original or unless it would be unfair to admit the duplicate.”). Although

15 Defendant suggests that Rule 11-1003 is inapplicable because the State failed to make

16 a showing that the original was unavailable, [MIO 23-24] Rule 11-1003 requires no

17 such showing. The authority upon which Defendant relies, Central Security & Alarm

18 Co. v. Mehler, 1996-NMCA-060, ¶ 32, 121 N.M. 840, 918 P.2d 1340, provides that

19 “the best evidence rule . . . . deals primarily with the admissibility of copies of

3 1 documents when the originals are available.” (emphasis added). Rule 11-1002 NMRA

2 is the best evidence rule. It requires the presentation of original documents to prove

3 content “unless these rules or a statute provides otherwise.” Id. Rule 11-1003

4 “provides otherwise,” by specifying that duplicates are “admissible to the same extent

5 as the original unless a genuine question is raised about the original’s authenticity or

6 the circumstances make it unfair to admit the duplicate.” Id.

7 {5} With respect to the requirements of Rule 11-1003, Defendant acknowledges

8 that she has not raised any genuine question about the original’s authenticity. [MIO

9 23] On this matter, the officer who administered the breath test testified that he

10 recognized the document and confirmed the date, the identity of the test subject, and

11 his own signature, and also testified that the document was an accurate representation

12 of the original, with no alterations. [RP 73-75, 81] See generally Rule 11-901(A),

13 (B)(1) NMRA (providing that evidence may be authenticated by producing “evidence

14 sufficient to support a finding that the item is what the proponent claims it is,”

15 including testimony that the evidence “is what it claimed to be”). Although Defendant

16 continues to challenge the officer’s independent recollection of the original document,

17 [MIO 24] the trial court was well within its discretion in crediting the officer’s

18 testimony and concluding that authenticity had been adequately established. See

19 generally State v. Sewell, 2009-NMSC-033, ¶ 23, 146 N.M. 428, 211 P.3d 885

4 1 (recognizing that the trial courts have the best vantage from which to evaluate witness

2 credibility); State v. Mora, 1997-NMSC-060, ¶ 53, 124 N.M. 346, 950 P.2d 789

3 (reviewing a district court’s determination relative to the authentication of evidence

4 for abuse of discretion), abrogated on other grounds recognized by Kersey v. Hatch,

5 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. Nor has Defendant identified

6 any circumstance that could be said to have made the admission of the duplicate

7 unfair, such as illegibility. [MIO 23-25; RP 13] We therefore conclude that the

8 duplicate BAT card was properly admitted pursuant to Rule 11-1003, and reject

9 Defendant’s assertion of error.

10 {6} Accordingly, for the reasons stated in our notice of proposed summary

11 disposition and above, we affirm.

12 {7} IT IS SO ORDERED.

13 14 J. MILES HANISEE, Judge

15 WE CONCUR:

16 17 RODERICK T. KENNEDY, Chief Judge

18 19 TIMOTHY L. GARCIA, Judge