311 P.3d 1205
N.M. Ct. App.2013Background
- Romero was charged with multiple sexual offenses against a minor by neighbor Victim.
- Victim alleged penetration counts and a separate CSCM count based on touching intimate parts.
- The State sought and obtained a trial amendment to convert count one from CSPM to CSCM.
- Romero underwent a polygraph test arranged by defense; the State later sought analysis from its own polygraph expert.
- At trial, Victim’s trial testimony differed from pretrial interviews; the jury ultimately convicted on the amended CSCM count and dismissed other counts.
- Romero appeals arguing improper amendment, failure to disclose polygraph evidence, and a coercive jury instruction; the appellate court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amendment of count one permissible? | Romero claims prejudice from amendment changing CSPM to CSCM. | Romero argues improper shifting of charges without adequate notice. | Not prejudicial; CSCM is a lesser-included offense of CSPM; amendment permissible. |
| Failure to disclose State polygraph evidence? | Brady disclosure requirement violated by withholding the polygraph expert’s assessments. | State not required to disclose because expert not listed and evidence could be cumulative. | No Brady violation; disclosure would not likely change outcome. |
| Court’s handling of jury notes and continuation of deliberations? | District court’s request for a numerical breakdown and continuation of deliberations was coercive (shotgun instruction). | Actions did not coerce verdict or undermine honest convictions. | No fundamental error; cumulative conduct not coercive. |
Key Cases Cited
- State v. Meadors, 121 N.M. 38, 908 P.2d 731 (1995) (lesser-included offenses and notice of charges)
- State v. Paiz, 140 N.M. 815, 149 P.3d 579 (2006) (physiological overlap of penetration and contact in offense analysis)
- State v. Rickerson, 95 N.M. 666, 625 P.2d 1184 (1981) (inquiry into jury’s numerical division not per se error; may harm if coercive)
- State v. Laney, 134 N.M. 648, 81 P.3d 591 (2003) (courts may inquire about verdict progress without coercing jurors)
- State v. Hester, 127 N.M. 218, 979 P.2d 729 (1999) (indicates permissible trial tactics and notice considerations)
- Case v. Hatch, 144 N.M. 20, 183 P.3d 905 (2008) (Brady-like considerations and evidentiary disclosures)