State v. Tollardo

2003 NMCA 122, 77 P.3d 1023, 134 N.M. 430
CourtNew Mexico Court of Appeals
DecidedAugust 26, 2003
Docket22,562
StatusPublished
Cited by18 cases

This text of 2003 NMCA 122 (State v. Tollardo) 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. Tollardo, 2003 NMCA 122, 77 P.3d 1023, 134 N.M. 430 (N.M. Ct. App. 2003).

Opinion

OPINION

BUSTAMANTE, Judge.

{1} Trial lawyers are acutely aware that one picture is worth a thousand words. Studies show that jurors retain more information from visual presentations or presentations that are both verbal and visual than from verbal presentations alone. Jack A. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 900.07[7][b], at 900-101 n. 172 (2d ed. 1997) (Weinstein’s Federal Evidence). A witness can illustrate his or her testimony by drawing diagrams on paper for a jury, as long as the diagram is not misleading. Zemke v. Zemke, 116 N.M. 114, 122, 860 P.2d 756, 764 (Ct.App.1993). This case concerns the use and admission into evidence of images generated by a computer, rather than drawn by a person. We hold that under the circumstances of this case, the trial court correctly required the proponent of the images to establish the validity of the computer programs used to generate the images. We further hold that the trial court did not abuse its discretion in determining that the programs were valid. Thus, we affirm.

FACTS AND PROCEEDINGS

{2} The events that were the subject of the trial took place in the early morning hours of July 20, 2000, near Taos, New Mexico. Shortly after midnight, Rosalee Kisto, Robert Miera, and Jeremy Trujillo went to Miera’s mobile home in a mobile home park outside of Taos. What happened at the mobile home was disputed at trial. The prosecution’s theory was that Miera and Kisto had an argument over the proceeds from a drug deal. Kisto’s brother, Manuel Tom Tollardo (Defendant), testified that Kisto told him that she had been beaten and raped by Miera. Defendant, Kisto, and a third person drove back to the mobile home park, where they encountered Trujillo, who was driving out of the park to the road. Both cars stopped and their occupants got out. What happened next was the subject of conflicting testimony at trial. However, it was undisputed that Defendant, Kisto, and Trujillo argued loudly, that Miera joined them at some point, and that Miera and Kisto moved away from Defendant and Trujillo. Ultimately, Defendant retrieved a gun from Kisto’s car and shot Trujillo and Miera. Both victims died as a result of their wounds. The testimony at trial indicated that at least four shots were fired in rapid succession.

{3} At some point before trial, the State contacted the Federal Bureau of Investigation (FBI) for assistance. Carl Adrian, a visual information specialist examiner in the Investigative, Prosecutive and Graphic Unit, which is part of the FBI laboratory, was assigned to the case. Using information gathered by others investigating the case and computer programs described in more detail below, Adrian set out to determine whether, given the physical evidence found at the scene, a shooter in a fixed location could quickly fire three shots that would create the wounds found in Trujillo’s chest, in Miera’s chest, and in Miera’s thigh. The result was a series of computer images that showed three figures against a checked background. Two of the figures represented the victims, with dotted lines through their bodies indicating the trajectory of the bullets that caused the three wounds. The third figure was a shooter holding a gun. The computer programs allowed Adrian to move the figures of the victims so that the dotted lines of the bullet trajectories intersected with the muzzle of the gun. Using these images, Adrian determined that a person standing in one place could have fired all three shots. Because the images were to scale and were shown against a checked background in which each check represented a square foot, the images also showed the relative distances between the figures. In addition, the images showed Trujillo was crouched down and facing forward and that Miera was turning at the time they were hit by the bullets.

{4} Before trial, Defendant filed a motion in limine asking the trial court to exclude the images. Among other things, Defendant argued that the computer-generated images did not meet the standards of validity and reliability required by State v. Alberico, 116 N.M. 156, 165, 861 P.2d 192, 200-01 (1993), for the admission of scientific testimony. See also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

{5} The trial court held an evidentiary hearing on Defendant’s motion. At the hearing, Adrian testified in detail and was subject to cross-examination concerning the information he used to construct the images shown on the exhibit, the nature and accuracy of the application programs he used to create the images, and the process he went through to create the images. At the close of the hearing, the State argued that the images were demonstrative evidence that would be used as visual aids to assist the jury in understanding the evidence. Therefore, in the State’s view, the images were not scientific evidence and Alberico did not apply. The trial court held that Alberico applied to all expert testimony. In addition, it held that Adrian’s testimony was sufficient to establish the validity of the programs used to generate the images. Accordingly, the trial court held that the exhibit could be admitted into evidence and the images on it shown to the jury during Adrian’s testimony, subject, of course, to the requirement that the State lay a proper foundation for the admission of the evidence.

{6} During trial, there was considerable testimony from the various law enforcement personnel involved in investigating the crime. New Mexico State Police Agent Joe Shiel, who was the crime scene manager for the incident, testified to what he saw when he first arrived at the scene of the shooting. In addition, Shiel identified photographs taken at the scene. Those photographs were admitted into evidence and shown to the jury. Agent Shiel also made a video of the scene that was admitted into evidence and shown to the jury. Defendant made no objection to the photographs or videotape. Forensic pathologists from the Office of the Medical Investigator testified concerning the autopsies of Miera and Trujillo. Both pathologists made written reports and took photographs that were introduced into evidence. The pathologists testified to the location of the entrance and exit wounds and the path each bullet took through the body. New Mexico State Police Agent Wesley La Cuesta testified that he made a diagram of the scene of the shooting. He then took measurements of the various objects found at the scene from a fixed point and noted the measurements on the diagram. Although the diagram was not drawn to scale, La Cuesta testified that the measurements used to locate objects on the diagram were accurate. William Hubbard, an investigator for the district attorney’s office, testified about shell ejection and powder residue tests he performed on the weapon used in the shootings. All of these witnesses were cross-examined.

{7} The State’s last witness was Adrian. Adrian was recognized as an expert in several areas.

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Cite This Page — Counsel Stack

Bluebook (online)
2003 NMCA 122, 77 P.3d 1023, 134 N.M. 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tollardo-nmctapp-2003.