State v. Loddy

STATE OF NEW MEXICO, Plaintiff-Appellee, v. LONNIE LEE LODDY, Defendant-Appellant.

No. A-1-CA-34542

COURT OF APPEALS OF THE STATE OF NEW MEXICO

July 13, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

James L. Sanchez, District Judge

Hector H. Balderas, Attorney General

Maha Khoury, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Mary Barket, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

B. ZAMORA, Judge.

{1} Defendant Lonnie Lee Loddy was convicted of possession of a controlled substance, contrary to NMSA 1978, Section 30-31-23(E) (2011, amended 2019), and possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A) (2001, amended 2019). Defendant argues that (1) the district court violated his constitutional right to be present at all critical stages of his criminal proceeding by reading the verdict in his absence; (2) the district court erroneously denied his motion to suppress; (3) his constitutional right to effective assistance of counsel was violated; and (4) the State failed to present sufficient evidence to support his convictions. We affirm.

BACKGROUND

{2} In July 2012, the police were dispatched to Mount Laurel Street in Los Lunas in reference to "a fight in progress . . . with numerous subjects fighting in the middle of the street." The dispatcher identified two vehicles involved in the fight: "a silver van and a black truck with flames painted on it." Upon arrival, Officer Michael Romero and Officer Buster Whitley saw "a silver van and a black truck with flames painted on the side" driving towards them, and pulled in front of the vehicles in their patrol car with their lights and sirens on. Officer Romero testified that he and Officer Whitley "held everybody in the vehicles at gunpoint until other officers arrived on scene." Officer Whitley observed Defendant driving the black truck. While waiting for other officers to arrive, Officer Romero ordered the people inside Defendant's truck to keep their hands visible outside of the window, but Defendant "kept putting his hands inside the vehicle."

{3} The officers called for backup, and after additional officers arrived, Defendant was ordered out of his vehicle so that officers could conduct a safety pat-down of the vehicle's occupants. Defendant did so and left the driver's side door open. When Officer Romero asked Defendant for identification, he "said it was on the passenger seat of his vehicle." While retrieving Defendant's identification, Officer Romero observed a "marijuana pipe" in the center console. Defendant admitted to Officer Romero that the pipe was his. Officer Romero testified that he was informed by "a deputy" that "a little plastic baggie containing a white crystal-like substance" was in plain view on the floorboard of the driver's side of the truck. Defendant was arrested immediately after a "field test" confirmed the substance to be "crystal meth."

{4} Two issues arose during the trial that are relevant on appeal. First, Defendant raised a motion to suppress the evidence found by law enforcement mid-trial, arguing the stop was "illegal" and everything seized "after the illegal stop would be fruit of the poisonous tree," but the district court found that the stop was "valid" and denied Defendant's motion. Second, while the jury was deliberating, Defendant left the courthouse and never returned. Once the jury had reached a verdict, the district court waited approximately twenty-five minutes, and eventually read the verdict without Defendant present. Defendant was found guilty of possession of a controlled substance and possession of drug paraphernalia. This appeal followed.

DISCUSSION

I. Absence During Reading of Verdict

{5} Defendant challenges the district court's decision to read the verdict in his absence because the "record does not substantiate that [Defendant] was voluntarily absent or that he otherwise waived his presence at the rendition of the verdict of hiscase." The State argues that Defendant's voluntary absence should be equated to an implied waiver by Defendant. For the reasons stated below, we agree with the State.

{6} We review de novo whether Defendant's voluntary absence during the reading of the verdict was an implicit waiver of his constitutional right to be present at all critical stages of his criminal proceeding. See State v. Padilla, 2002-NMSC-016, ¶ 18, 132 N.M. 247, 46 P.3d 1247. Because defense counsel did not object to the reading of the verdict in Defendant's absence, we review for fundamental error. See State v. Sosa, 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348 ("Where counsel fails to object, the appellate court is limited to a fundamental error review."). Fundamental error "applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done." State v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72 (internal quotation marks and citation omitted). The burden is on the party "alleging fundamental error" to "demonstrate the existence of circumstances that shock the conscience or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked." State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted).

{7} A defendant has the constitutional right to be present at all critical stages of a criminal case. State v. Astorga, 2016-NMCA-015, ¶ 19, 365 P.3d 53; see State v. Clements, 1988-NMCA-094, ¶ 12, 108 N.M. 13, 765 P.2d 1195 (stating that a defendant's right to be present "has its genesis in the sixth amendment's confrontation clause and the fourteenth amendment's due process clause"). Rule 5-612 NMRA protects a defendant's "constitutional right to be present . . . at all critical stages of trial[.]" Padilla, 2002-NMSC-016, ¶ 11. However, this right is not absolute. Rule 5-612(B), (C)(1) states that a "defendant may waive the right to be personally present," and "[t]he further progress of the trial, including the return of the verdict . . . shall not be prevented . . . whenever a defendant who was initially present . . . is voluntarily absent after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial)[.]" (Emphasis added.)

{8} Defendant contends that his waiver was required to be on the record. We disagree. Our Supreme Court has held that a defendant's conduct alone can impliedly waive his right to be present at trial. See Padilla, 2002-NMSC-016, ¶ 8 (noting that departure from trial before it has concluded is considered "a knowing and voluntary waiver of the right to be present" (internal quotation marks and citation omitted)); see also id. ¶ 12 (stating that "an accused may either expressly or by implication waive his right to be present by being voluntarily absent" (internal quotation marks and citation omitted)); Hovey v. State, 1986-NMSC-069, ¶ 17, 104 N.M. 667, 726 P.2d 344 (holding that a "defendant need not be present in court in order to waive his right to be present"). Therefore, an express, on-the-record waiver was not required; Defendant can waive his right to be present for the reading of the verdict by virtue of his voluntary absence from the courtroom.

{9} Based on our review of the record, Defendant's absence was voluntary. The district court waited an additional twenty to twenty-five minutes for Defendant after the jury had reached a verdict before it proceeded. Before reading the verdict, the district court pointedly asked defense counsel, "Why did you allow him to leave?" Defense counsel responded, "[I]n retrospect, I should have kept him here[,]" that he thought defendant was only going to the parking lot, and that he had "made sure [Defendant] gave [him] a number when [Defendant] left so [defense counsel] could call him." The reading of the verdict then proceeded without objection from defense counsel. After the reading of the verdict, the State clarified that Defendant "left by himself" and never came back. Defendant never returned to the courtroom after the verdict was read, and defense counsel did not object to the State's recitation of what had transpired. We have previously held that when a defendant leaves mid-trial and the district court resumes trial without objection, a district court is not required to "conduct an inquiry into the reason" for the defendant's absence because "a defendant shall be considered to have waived his right to be present at [the] trial if he voluntarily absents himself after the trial has commenced." State v. Burrell, 1976-NMCA-025, ¶¶ 11-13, 89 N.M. 64, 547 P.2d 69. Like the defendant in Burrell, Defendant left voluntarily after the trial began, and defense counsel did not object to proceeding with the trial in Defendant's absence. Defendant has not demonstrated circumstances that "shock the conscience" of the Court and accordingly, there was no fundamental error. See Cunningham, 2000-NMSC-009, ¶ 21.

II. Motion to Suppress

{10} Defendant argues that the traffic stop violated Defendant's right to be free from unreasonable searches and seizures, and as a result, that the district court erred by admitting evidence flowing from the stop. Defendant contends that the stop was neither justified at its inception, nor reasonable in its scope.¹

{11} The Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution establish an individual's right to be free from "unreasonable searches and...