State v. Palma

STATE OF NEW MEXICO, Plaintiff-Appellee, v. REIDESEL O. PALMA, Defendant-Appellant.

No. A-1-CA-35401

COURT OF APPEALS OF THE STATE OF NEW MEXICO

December 19, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

Matthew E. Chandler, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Mary Barket, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

BOHNHOFF, Judge.

{1} Defendant Reidesel O. Palma appeals from his conviction for conspiracy to commit trafficking by distribution of methamphetamine, contrary to NMSA 1978, Section 30-28-2 (1979). We affirm.

BACKGROUND

{2} Defendant was arrested in connection with a drug trafficking sting operation. A confidential informant (CI) informed law enforcement that he had arranged to purchase a pound of methamphetamine from Estevan Garcia. The CI and Garcia were to meet at an Allsup's gas station in Clovis, New Mexico. Sergeant Rodriguez drove the CI to the Allsup's in an unmarked vehicle. After the CI and Sergeant Rodriguez arrived at the Allsup's the CI got out of the vehicle and stood next to an ice machine. Garcia approached the CI; Garcia made a phone call and then spoke to the CI for several minutes. Defendant then pulled up in a brown Jeep and parked two spots away from Sergeant Rodriguez. The CI and Garcia then approached Defendant's Jeep. Garcia approached the passenger-side front door and got into the Jeep and the CI walked toward the back passenger side of the vehicle. Defendant, who remained sitting in the driver's seat, reached into the back of the Jeep and then handed something to Garcia. At that point the CI gave the "move in signal" to Sergeant Rodriguez who called in other law enforcement officers. Garcia walked toward an alley, but Sergeant Rodriguez ordered him to stop; Garcia reached into his right coat pocket, pulled out a bag, and threw it toward adumpster. When tested, the substance inside the bag was determined to be methamphetamine. A jury acquitted Defendant of trafficking but convicted him of conspiracy to commit trafficking. Defendant now appeals.

DISCUSSION

{3} Defendant makes four arguments on appeal: (1) there was insufficient evidence to convict him of conspiracy to commit trafficking by distribution of methamphetamine; (2) the district court erred in limiting defense counsel's cross-examination of Lieutenant Wayland Rains; (3) the State violated Defendant's right to a speedy trial; and (4) the district court erred in denying defense counsel's request to dismiss Defendant's charges based on the State's failure to timely disclose evidence—inculpatory statements made by Defendant following his arrest—and instead ordering only partial suppression of the statements.

I. Sufficient Evidence Supported Defendant's Conviction for Conspiracy to Commit Trafficking by Distribution of Methamphetamine

{4} "We review the evidence introduced at trial to determine whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M. 202, 207 P.3d 1179 (internal quotation marks and citation omitted). "We do not reweigh the evidence or substitute our judgment for that of the fact[-]finder as long as there is sufficient evidence to support the verdict." Id. ¶ 4. The reviewing court "view[s] the evidencein the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. "So long as a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction, we will not upset a jury's conclusions." State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (emphasis, internal quotation marks, and citation omitted).

{5} "Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883. Thus, to convict Defendant of conspiracy to commit trafficking of a controlled substance, the jury had to find that:

1. [D]efendant and another person by words or acts agreed together to commit Trafficking of Controlled Substance;

2. [D]efendant and the other person intended to commit Trafficking of Controlled Substance.

UJI 14-2810 NMRA. The instruction setting forth the elements of trafficking a controlled substance by distribution stated that the jury had to find that on or about November 18, 2014, "(1) Defendant attempted to transfer methamphetamine to another; and (2) [Defendant] knew it was methamphetamine or believed it to be some drug or other substance the possession of which is regulated or prohibited by law." UJI 14-3110 NMRA.{6} "Conspiracy consists of knowingly combining with another for the purpose of committing a felony within or without this state." State v. Johnson, 2004-NMSC-029, ¶ 49, 136 N.M. 348, 98 P.3d 998 (internal quotations and citation omitted). "An overt act is not required; the crime is complete when the felonious agreement is reached." Id. "Such an agreement need not be proven by direct evidence; the agreement may be in the form of a mutually implied understanding and may be inferred from circumstantial evidence." Id. Furthermore, "intent can rarely be proved directly and often is proved by circumstantial evidence." State v. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495. "A defendant's knowledge or intent generally presents a question of fact for a jury to decide. " State v. Wasson, 1998-NMCA-087, ¶ 12, 125 N.M. 656, 964 P.2d 820.

{7} Defendant argues that the State's evidence failed to establish anything beyond Defendant's presence at the scene and a mere association with Garcia. We disagree. The State's theory was supported by the following testimony: (1) Sergeant Rodriguez, who was in the undercover vehicle with the CI and who drove the CI to the Allsup's, and Sergeant Rains, who supervised the operation, testified that the CI negotiated a transaction to purchase methamphetamine from Garcia at the Allsup's. (2) Sergeant Rodriguez testified that upon meeting with the CI, Garcia spoke with him then made a brief phone call and the two waited. (3) Sergeant Rodriguez then testified that Defendant arrived at the Allsup's shortlyafter Garcia made the phone call—evincing that he spoke with Defendant and that Garcia and the CI were awaiting Defendant's arrival to complete the transaction. (4) Sergeant Rodriguez testified that once Defendant arrived, Garcia immediately got inside Defendant's Jeep and the CI also approached the vehicle. (5) Sergeant Rodriguez testified that Defendant reached into the back of the Jeep and handed something to Garcia, which triggered the CI to give the bust signal. (6) Sergeant Rodriguez testified that Garcia got out of the Jeep possessing methamphetamine. (7) Sergeant Raphael Aguilar, who provided back up surveillance during the operation, testified that officers found an open, large silver container in the back of the Jeep that he found odd considering there was nothing else in the vehicle. (8) Sergeant Rains and Sergeant Rodriguez testified that after the CI gave the bust signal they witnessed Garcia throw the bag of methamphetamine into the dumpster before he was detained.

{8} This evidence was sufficient to meet the elements required by the jury instructions: (1) Defendant and another, Garcia, by words or acts agreed together to commit trafficking of methamphetamine; and (2) Defendant and Garcia intended to commit trafficking of methamphetamine. UJI 14-2810. A jury reasonably could infer that Defendant was the individual who had communicated with Garcia with respect to facilitating the methamphetamine transaction. Perhaps most significantly, the jury was free to reject Defendant's version of the facts. State v.Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We "will not invade the jury's province as fact-finder by second-guessing [its] decision concerning the credibility of witnesses, reweighing the evidence, or [otherwise] substituting our judgment for that of the jury." See State v. Cabezuela, 2015-NMSC-016, ¶ 23, 350 P.3d 1145 (alterations, internal quotation marks, and citation omitted).

II. The District Court Did Not Err in Limiting Defense Counsel's Cross-Examination of Sergeant Rains

{9} Defendant argues that the district court's restriction of defense counsel's cross-examination of Sergeant Rains (1) prevented counsel from confronting Sergeant Rains and (2) prevented him from impeaching Sergeant Rains' testimony and character for truthfulness.

{10} We generally review confrontation clause claims de novo. See State v. Lasner, 2000-NMSC-038, ¶ 24, 129 N.M. 806, 14 P.3d 1282. However, this issue does not appear to have been raised below and Defendant also fails to indicate how this issue was preserved for our review. See Rule 12-213(A)(4) NMRA 1999 (requiring that appellant's brief-in-chief set forth argument "with respect to each issue presented . . . and a statement explaining how the issue was preserved in the court below, with citations to authorities [and parts of the] record proper, transcript of proceedings or exhibits relied on"). Because this claim was not preserved and Defendant does not argue fundamental error on appeal, he has waived review of the confrontation clause argument. See State v. Joanna V., 2003-NM...