State v. Moten, A-1-CA-35324

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JAMES CLIFTON MOTEN, Defendant-Appellant.

No. A-1-CA-35324

COURT OF APPEALS OF THE STATE OF NEW MEXICO

October 9, 2018

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Drew D. Tatum, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, 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

FRENCH, Judge.

{1} Defendant James Moten appeals his conviction for trafficking controlled substances, contrary to NMSA 1978, Section 30-31-20 (2006). On appeal, Defendant argues (1) the State presented insufficient evidence to support Defendant's conviction; (2) the State violated Defendant's rights under Article II, Section 10 of the New Mexico Constitution by admitting a video recorded by a confidential informant (CI) inside Defendant's house and without a warrant; (3) Defendant's confrontation rights were violated when the State introduced the video into evidence and did not call the CI as a witness; (4) Defendant received ineffective assistance of counsel because his trial counsel failed to file a motion to suppress the CI video on Article II, Section 10 grounds and because his trial counsel failed to interview or call the CI as a witness; (5) the district court erred in allowing a police officer to testify as an expert witness regarding conduct taking place in a video; and (6) the foundation offered by the State for the CI video was insufficient and the district court therefore erred in admitting it into evidence. For the reasons below, none of Defendant's arguments prevail and accordingly we affirm his conviction.

BACKGROUND

{2} On January 8, 2013, Officer Phil Caroland conducted a controlled buy of illegal narcotics using a paid CI in Curry County, New Mexico. Officer Caroland searched the CI to make sure he did not have any drugs or money on his person and then equipped him with a recording device. Officer Caroland did not show the CI how to turn the recording device off or on, nor was the CI able to edit therecording. Officer Caroland later testified that if the CI had turned the recording device off, it would have shown a break in the recording.

{3} After preparations were complete, Officer Caroland watched the CI enter Defendant's house. After the CI had spent some time in the house, Officer Caroland watched him emerge and return to the police vehicle. Officer Caroland debriefed the CI and later watched the CI video, determining the two were consistent with each other.

{4} On January 28, 2015, Defendant filed a motion in limine to suppress the CI video arguing admission of it would violate his right to confrontation. Defendant also filed a pro se motion requesting disclosure, under Rules 5-501 and 5-505 NMRA, of the application or order to intercept communications, pursuant to NMSA 1978, Section 30-12-7(D) (1973). A hearing on these motions was held on August 13, 2015. Defendant offered no grounds for suppression of the evidence other than the Confrontation Clause, and again insisted the State had a duty to disclose any application or order to intercept communications, pursuant to the Abuse of Privacy Act. See NMSA 1978, Section 30-12-2 to -11 (1973, as amended through 1979). The State asked for the basis upon which this demand originated. The district court reserved ruling on the suppression motion and determined the request for disclosure was not relevant, pursuant to the Abuse of Privacy Act.

{5} The motion to suppress the CI video was again discussed during the pretrial hearing on September 30, 2015. In addition to objecting to the CI video on Confrontation Clause grounds, Defendant raised concerns regarding the foundation and reliability of the video. The district court decided that if the CI was not called as a witness and the State still sought to admit the CI video in evidence, it would only be admitted without audio. During the pretrial hearing, Defendant renewed his motion seeking disclosure and inspection of any applications and orders to intercept communications. Defendant again argued failure to disclose any applications and orders to intercept communications is a violation of his privacy, and the alleged surveillance violated "any of his rights," including the Fifth Amendment to the United States Constitution. The State responded it had no such documents and therefore could not disclose them. The district court agreed with the State and found that if there was no application to disclose, there was nothing further to address.

{6} At trial, Officer Caroland testified to his extensive experience in law enforcement in general, drug interdiction specifically, and including the fact that he trains others on how to conduct undercover drug operations.

{7} Because neither party planned to call the CI as a witness, a muted copy of the CI video was played for the jury. Officer Caroland was able to identify Defendant in the video. Relying upon his experience conducting undercoverpurchases of crack cocaine, Officer Caroland described Defendant's actions seen in the video as consistent with cutting pieces of crack cocaine from a "cookie." Officer Caroland also testified the video showed the CI taking a plastic bag, which is typical of how crack cocaine is packaged and sold. Defendant's trial counsel objected to this line of questioning arguing that Officer Caroland had not been offered as an expert and was testifying to an ultimate issue. The district court judge allowed the testimony to continue. Neither the State nor Defendant's trial counsel called the CI as a witness. Defendant was convicted of one count of trafficking controlled substances and now appeals his conviction.

DISCUSSION

I. Substantial Evidence Supports Conviction

{8} Defendant challenges the sufficiency of the evidence used to convict him, arguing the State failed to prove either that Defendant received money in exchange for drugs, or that Defendant directly or indirectly gave the CI the drugs. Because substantial evidence claims can be raised for the first time on appeal, we need not concern ourselves with whether the argument was preserved. See State v. Stein, 1999-NMCA-065, ¶ 9, 127 N.M. 362, 981 P.2d 295.

{9} To convict Defendant for trafficking controlled substances, the State was required to prove Defendant knowingly transferred cocaine to another. See § 30-31-20. "The test for sufficiency of the evidence is whether substantial evidence ofeither a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted). When reviewing the sufficiency of evidence, we view it "in a light most favorable to the verdict," and disregard contrary evidence. State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. The question on appeal is whether the district court's "decision is supported by substantial evidence, not whether the [district] court could have reached a different conclusion." In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318.

{10} The State played a muted copy of the CI video for the jury and though it was not made part of the record on appeal, the record proper does contain references to what was shown in the CI video. Officer Caroland testified the video shows Defendant using a razor blade to cut a "cookie" of some substance. Officer Caroland testified this cutting process and the wrapping of the substance in a plastic bag was consistent with the typical process for packaging and selling crack cocaine. Officer Caroland's testimony provided evidence that the CI possessed drugs when he returned to the police vehicle, and a presumptive test performed onthe drugs showed it to be crack cocaine. This presumptive test was later confirmed through lab analysis, also presented at trial, that the substance was a cocaine-base. During closing arguments, Defendant argued someone else could have given the CI the drugs, the search may have been faulty, or the CI could have obtained the drugs through some other means. The jury was free to accept or reject any of these theories, and by convicting Defendant, it rejected them. Viewing the evidence in a light most favorable to the verdict and disregarding Defendant's contrary and unsupported speculations, we conclude the evidence was sufficient to show beyond a reasonable doubt that Defendant knowingly transferred cocaine to another.

II. Defendant's Article II, Section 10 Claim Under the New Mexico Constitution was Not Preserved

{11} Defendant argues failure to suppress the CI video recorded in his home, without a warrant, violated his rights under Article II, Section 10 of the New Mexico Constitution and his conviction should therefore be vacated. Defendant concedes admission of the CI recording was proper under the Fourth Amendment of the United States Constitution and does not ask us to address this question. The State argues the New Mexico Constitution claim was not preserved and regardless, admission of the CI video did not constitute fundamental error.

{12} Article II, Section 10 of the New Mexico Constitution secures people against unreasonable searches. Evidence gathered in violation of this protection is...