State v. Stalter

534 P.3d 989

STATE of New Mexico, Plaintiff-Appellee,

v.Jason STALTER, Defendant-Appellant.

No. A-1-CA-39984

Court of Appeals of New Mexico.

Filing Date: March 21, 2023

Certiorari Denied, August 3, 2023, No. S-1-SC-39886

Raúl Torrez, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Mark A. Peralta-Silva, Assistant Appellate Defender, Albuquerque, NM, for Appellant

WRAY, Judge.

{1} Defendant Jason Stalter appeals his convictions for larceny over $20,000, contrary to NMSA 1978, Section 30-16-1 (2006), and burglary, contrary to NMSA 1978, Section 30-16-3 (1971), in connection with money stolen from the Lowe's Home Improvement (Lowe's) store in Farmington, New Mexico on December 2, 2017 (the incident). At trial, Defendant presented alibi evidence and requested the uniform jury instruction on alibi, UJI 14-5150 NMRA. The district court denied the jury instruction based on the direction in the accompanying use note (Use Note). On appeal, Defendant challenges the denial of the alibi jury instruction as well as the admission, exclusion, and sufficiency of the evidence. We affirm but express our rationale for our reservations related to the Use Note's categorical prohibition of the alibi instruction. See State v. Wilson , 1994-NMSC-009, ¶ 6, 116 N.M. 793, 867 P.2d 1175 (encouraging this Court to "express its rationale for any reservations it might harbor over Supreme Court precedent").

BACKGROUND

{2} Defendant worked at Lowe's as an overnight department manager but was fired on November 30, 2017, two days before the incident. As a department manager, Defendant had keys to enter the store and a code to disarm the alarm system. Defendant testified that he returned his keys on the day he was fired, and Lowe's security personnel, Elizabeth Nickel, testified that all the keys were accounted for the following day and that Defendant's code had been deactivated. Video surveillance from December 2, 2017, at 10:40 p.m. (incident footage), showed that an individual "wearing all black" used a key to enter Lowe's through the front doors, disabled the alarm system, went into to the "cash office," unlocked a code-protected safe, took cash from the safe, and left the store in a little over two minutes.

{3} Nickel received a call around 5:00 a.m., informing her of the theft. When she arrived at the store, she ensured that the police were called and reviewed the incident footage. Officer Flores was the responding officer. He first spoke to the store manager, who conveyed his suspicion that Defendant was the person in the incident footage. Officer Flores next investigated the area for evidence and received a copy of the incident footage from Nickel. Nickel also suspected Defendant had taken the money and provided Officer Flores with additional video footage of Defendant from his time working at Lowe's (workplace footage). Shortly thereafter, Detective Rock took over the investigation.

{4} Defendant maintained throughout the investigation and trial that he could not have stolen from the Lowe's in Farmington on December 2, 2017, because he was visiting friends in Cedar City, Utah. According to Defendant, from December 1, 2017, through December 4, 2017, he visited and stayed with his friend, Wayne Majeski and Wayne's husband, Secondo Docimo. Before trial, the district court agreed to admit into evidence Docimo's preliminary examination testimony but during trial reversed that ruling. As a result, only Defendant and Majeski testified at trial that Defendant was in Cedar City, Utah at the time of the incident. In order to establish a timeline for the alibi, Defendant offered receipts and copies of his bank and phone records. One receipt indicated that Defendant purchased dinner from a restaurant in Cedar City, Utah at 6:15 p.m. on December 2, 2017. Defendant argued that it would have been impossible for him to have the time to return to Farmington, New Mexico by 10:40 p.m., when the incident took place. The evidence at trial confirmed that it would take over six hours to drive from Cedar City to Farmington.

{5} For over an hour at trial, the State showed multiple videos and screenshots of the incident and workplace footage. Nickel testified about her interpretation of the videos and screenshots, identified Defendant in the workplace footage, and gave her opinion that Defendant was the person in black in the incident footage. According to Nickel, she concluded that Defendant was the person in black after reviewing the incident footage and further confirmed this conclusion when she reviewed the workplace footage of Defendant next to the incident footage.

{6} During trial, Defendant requested that the district court give the uniform alibi jury instruction. See UJI 14-5150. Defendant argued that the State appeared to be shifting the burden to Defendant to prove his alibi and that the uniform instruction would clarify and prevent any burden shifting. The State maintained that the accompanying Use Note to UJI 14-5150 "says no instruction on this subject shall be given, period, it doesn't say except in certain circumstances" and that the alibi instruction was not necessary to explain the burdens, because the elements instruction required the State to prove that Defendant was present for both offenses. The district court denied the alibi instruction, based on the accompanying Use Note, which states, "No instruction on this subject shall be given." See UJI 14-5150 use note. The State's closing argument criticized Defendant's alibi evidence as inconsistent and not credible and culminated with the assertion that "the only way he's not guilty is if you believe him and Mr. Majeski."

{7} The jury found Defendant guilty on both Count I, larceny over $20,000, and Count II, burglary. At sentencing, the district court ordered Defendant to pay restitution in the amount of $33,040.83 and sentenced Defendant to nine years’ incarceration. Defendant appeals the convictions and sentence.

DISCUSSION

{8} Defendant makes three arguments on appeal: (1) he was entitled to have the district court give the requested uniform alibi instruction; (2) Docimo's preliminary hearing testimony was improperly excluded at trial and Nickel's identification testimony was improperly admitted; and (3) the State failed to present evidence as to the amount stolen that was sufficient to support the conviction and the restitution order. We begin our analysis with the alibi instruction.

I. The Alibi Instruction

{9} New Mexico's uniform alibi jury instruction states as follows:

Evidence has been presented concerning whether or not the defendant was present at the time and place of the commission of the offense charged. If, after a consideration of all the evidence, you have reasonable doubt that the defendant was present at the time the crime was committed, you must find him not guilty.

UJI 14-5150. The accompanying Use Note expressly states, "No instruction on this subject shall be given." The committee commentary provides the following explanation:

The language of this instruction is derived from California Jury Instructions Criminal, 4.50. The New Mexico Supreme Court has held that the defendant's alibi is a question for the jury. The [C]ourt has also held that it is improper to instruct that the burden is on the defendant to prove his alibi. There are no New Mexico decisions holding that the jury must be instructed on the question of alibi. Analytically, an alibi is not a technical or "legal" defense but it is used to cast doubt on the proof of elements of the crime. Consequently, the committee believed that no instruction on alibi should be given since it merely comments on the evidence.

UJI 14-5150, comm. cmt. (citations omitted). Defendant contends that despite the Use Note and commentary, the requested alibi instruction was (1) warranted because the evidence supported an alibi, and (2) necessary to avoid juror confusion. Defendant has not challenged the text of the jury instruction. At oral argument, however, the State maintained that giving UJI 14-5150 in the present case would not have cured any error because the instruction does not clarify the burden of proof with respect to alibi and suggested that the jury instruction approved by the Fourth Circuit Court of Appeals is more comprehensive and appropriate under the circumstances. See Frye v. Procunier , 746 F.2d 1011, 1012-13 (4th Cir. 1984).

{10} The parties’ arguments raise significant questions. We cannot, however, avoid the threshold question of this Court's authority to reject jury instructions and use notes. While committee commentary is not binding, State v. Barber , 2004-NMSC-019, ¶ 10 n.1, 135 N.M. 621, 92 P.3d 633, use notes are binding and in particular, are "binding on district courts," Delfino v. Griffo , 2011-NMSC-015, ¶ 19, 150 N.M. 97, 257 P.3d 917. Indeed, our Supreme Court has equated UJI 14-5150 with the Use Note. See State v. McGuire , 1990-NMSC-067, ¶ 31, 110 N.M. 304, 795 P.2d 996 (noting that "the uniform jury instruction on this topic provides that no instruction shall be given"). Defendant's arguments would require us to reject the Use Note. This Court may only "amend, modify, or abolish" a uniform jury instruction if it has not been "reviewed and ruled upon" by our Supreme Court. Wilson , 1994-NMSC-009, ¶ 6, 116 N.M. 793, 867 P.2d 1175 ; see also State v. Parish , 1994-NMSC-073, ¶ 24, 118 N.M. 39, 878 P.2d 988 ("The only restriction is that if there exists precedent from [our Supreme] Court that specifically addresses the validity of a Uniform Jury Instruction, the Court of Appeals may not overrule that precedent nor alter or reject that instruction." (alterations, internal quotation marks, and citation omitted)). Our Supreme Court has "sustain[ed]" and "reaffirm[ed]" the Use Note at issue. See State v. Robinson , 1980-NMSC-049, ¶ 31, 94 N.M. 693, 616 P.2d 406 (referring to the alibi instruction as N.M.U.J.I.Crim. 41.30 ...