*1 Mexico, Petitioner, of New STATE CORTEZ, George
George a/k/a A. Cortez, Respondent.
Robert 14663.
No. of New Mexico.
Supreme Court
Feb. 1983. Denied March
Rehearing *2 with that We deal issue. therefore to the of Appeals
remand Court for the of purpose addressing that issue consistent opinion. with this of publication of both the Court Ap- reverse, peals majority opinion, which we dissent, adopt, which we are or- dered. This also opinion published. IT IS SO ORDERED.
PAYNE, RIORDAN, J., C.J., and concur. Justice, SOSA, Senior and WILLIAM R. FEDERICI, J., respectfully dissent. Justice, SOSA, majori- adopts Senior as ty opinion Appeals of the Court his own. EXHIBIT A Bardacke, Gen.,
Paul Atty. William La- zar, Gen., Fe, Asst. Atty. petition- Santa for COURT APPEALS OF OF STATE OF IN THE THE NEW MEXICO er. STATE OF NEW MEXICO, Roberts-Hohl, Fe, Winston for Santa re- Plaintiff-Appellee, spondent.
STOWERS, OPINION ON CERTIORARI Justice. GEORGE GEORGE ROBERT CORTEZ, Defendant-Appellant A. CORTEZ, a/k/a No. This in granted Court certiorari
Cortez, in which the Court of Appeals 99
he believed the Atty. question evidence in Lazar, Asst. Gen., Santa Attorneys Plaintiff-Appellee Fe, for properly seized and should not have been suppressed. As a result of finding, this Winston Roberts-Hohl & Singleton Roberts-Hohl Judge Wood found sufficient evidence to Santa Fe, show an intent to distribute cocaine. Addi- & Driggers Driggers tionally, Judge disagreed Wood with the Attorneys Defendant-Appellant Las Cruces, majority opinion regarding prosеcutorial OPINION misconduct. WALTERS, Judge. Chief
We adopt opinion authored Judge Wood the Court Appeals distributing as the Convicted of two counts of opinion However, minor, Court. even to a one count traffick- though Judge distribute, Wood in his ing dissent has found cocaine with intent sufficient evidence to property, show defendant’s in one count of stolen receiving cocaine, tent to distribute the majority appeals presents did fendant five issues De- itеms. those observed cle He has reversal. require claims which he re- charged with ultimately in his raised fendant was points four other abandoned Marquez, encompassed which statement. State stolen docketing ceiving We (Ct.App.1981). searches in both jewelry seized all of the a new trial. reverse for house. Circle *3 are: defendant by briefed The issues furnish to evidence Hearsay may provide for cause demonstrated probable 1. Was sufficient that to believe cause probable house at search the warrants to two support exist to circumstances underlying Encanto Circle? to be sought items that the belief affiant’s to intent regarding verdict Was the “provided search upon found will be seized sub- by supported cocaine distribute believing for basis a substantial (1) there is evidence? stantial credible, and to be hearsay of the the source believing of basis for distribution (2) the еvidence of is a substantial 3. Was competent substan- the informa- and basis for a factual that there is Snedeker, 99 N.M. tial? furnished.” State tion (1982), citing N.M. at 617 jury and instruction charge the 4. Was (1980 Repl. 17(f), N.M.S.A.1978 so R.Crim.P. receiving stolen regarding Pamph.). fundamen- as to constitute defective tal error? linkage of defend- for factual basis grant refusal to the trial court’s
5. Was
Circle
at 919 Encanto
premises
ant to the
mistrial,
key wit-
the
upon
a
State’s
he had
that
statement
juvenile’s
was the
that he heard
statement
ness’s
door at
open the
the defendant
once seen
“Mafia,” re-
belonged
fendant
to the
had informed
juvenile
that address.
versible error?
lived at another
that defendant
the affiant
items al-
about
the
address.
Information
warrants
search
1. The
to
within the
to be found
legedly
the officer who
juvenile informant told
A
double unac-
provided
was
be searched
search warrant
that
the affidavit for
signed
juvenile’s friend.
from the
hearsay
credited
(or 504)
Plati-
lived at 509
South
defendant
question-and-an-
attached
The affidavit
an-
seen defendant
num,
that he had
and
to the
juvenile
the
given by
swer statement
to
919 Encanto Circle
the door at
swer
admitted com-
affiant,
juvenile
the
in which
friends. One
juvenile’s
of the
admit two
bringing the
burglaries and
mitting several
informant
that he had
told the
the friends
home
to defendant’s
stolen items
and all kinds of
and coke
“bags
pills
seen
separate
on twо
address
Platinum Street
* * *
“that other house
stuff” inside
[t]he
occasions.
circle.”
the basis
at that
On
one over
reasonable-
Snedeker,
indicates the
supra,
juvenile,
of the
and other statements
these
thought process
magistrate’s
of a
ness
an affidavit
for
alleged in
the officer
goods
that stolen
to a belief
which leads
Encanto Circle
to search 919
warrant
and, thus,
home
suspect’s
in a
kept
will be
juvenile
goods,
and stolen
that
drugs
(that other-
a warrant
to
issuance
justify
to
he had stolen
jewelry
twice had traded
standards) to
cause
probable
wise meets
Plati-
marijuana at the
the defendant
The basis
residence.
suspect’s
search the
“is
address,
num
and
warrant
to search
first
for issuance
the above described
frequent
know[n]
however,
premises,
Circle
the Encanto
A warrant
in this affidavit.”
house
the officer
respects:
least two
in at
flawed
issued;
Encanto
during the searсh at 919
to the state-
according
grounds,
had no
appeared
items which
the affiant saw
Circle
informant,
that de-
to believe
his
ments of
of various
description
to the
correspond
Circle
“frequented”
fendant
have been stolen in other
goods reported to
no
absolutely
offers
address;
affidavit
obtained
burglaries.
sought
He
and
reliability
facts
underlying
Cir-
to search the Encanto
second warrant
the information furnished
the infor-
that the
to detail
underly-
failure
sufficient
informant,
mant’s
or the
credibility
ing
circumstances
reliable factual infor-
informant,
drugs
goods
or stolen
would
in the
prevented
mation
affidavit
the mag-
* * *
be found at that
“other house
over
concluding
istrate from
the criminal
that circle.”
sought
would be found at
Baca,
premises searched. As in
supra, we
Snedeker, supra,
examined
facts re-
hold that the search warrant for 919 Encan-
an
cited in
affidavit for search warrant аnd
supported by
Circle
sufficient
significant
made two
observations:
cause,
information to establish probable
(1)
from the facts presented,
magistrate
thus the warrant was invalid and the search
probable
had
cause
believe that defend-
warrant,
unlawful.
Since
second
issued
ant
searched,
lived in the
house
later,
a week
on
based
observations
magistrate
had
cause
search,
made during the first
it
unlawful
believe that
possession
defendant was in
*4
too was improperly
Coolidge
issued. See
stolen property that
kept
would be
at de-
443,
Hampshire,
New
403 U.S.
91 S.Ct.
fendant’s home. The sole nexus between
stated support which would either the alle- gation or source of that information. alleged pos- Count III that defendant to sessed cocaine with intent distribute it.
“Frequent,” verb, when used as a means Cocaine was seized at 919 Encanto Circle. “to with, in, associate be or resort to often That evidence be at a cannot introduced or habitually.” Webster’s Third New Inter- trial, making new it unnecessary thus for us (1976 ed.). national Dictionary The observ- to time decide whether was or ance of defendant at the Encanto Circle will be sufficient evidence to occasion, location on one and the identifica- on fendant’s conviction that count. tion by the informant the affiant of the residence, Platinum as defendant’s of the Competency testimony minor’s does not establish probable cause to believe that Circle, lived at 919 Encanto Defendant’s conviction on two counts or “frequented” even that he marijuana that address. distributing to a minor resulted juvenile’s testimony from that defend- nothing There was in the affidavit to marijuana ant twice had traded to him establish cause that there were goods the stolen he had delivered to defend- stolen goods at 919 Encanto Circle. There This case will be reversed for a new ant. was nothing in the affidavit establish trial; we therefore review defendant’s con- probable cause to believe it that was de- tention that as a mattеr of law the minor’s fendant’s home. There was hearsay double testimony competent prove was not only from a reliable informant and from charges. informant, that suggest informant’s drugs would be premises. found within the argument (1) The is that the substance The information contained in the affidavit traded was smoked the witness and thus and its evidence, attachments was more tenuous than was consumed and as unavailable produced Baca, in that the minor “was not еstablished 485 (1982). P.2d Baca qualified” identify nevertheless held marijuana. motion; ion, by pretrial experts.
Those were raised Now let requires they issues ruling simple to await devel- I think a anybody testify.... the court reserved statement, was, saying that’s what it like opment testimony trial. After the an direct, opinion, that the was red. That’s on car fully had been examined witness stated in the form statement of facts. extensively regarding cross-examined marijuana or he say He сould receipt marijuana his from defendant in have it was a pack could said Camels. stolen, the exchange jewelry for the he had have said it was a red auto- Or defense moved for directed verdicts on mobile. ground as counts. The stated prosecution presented had not Jury is entitled to listen it and “prima facie knowl- case of they whether or not what heard he judge [the minor’s] edge, experience expertise or ablе correctly. agree you, I with judging * * identify marijuana law, court’s it has changing changed it is a but ruling objection view that the expresses our drastically years. over last half dozen goes to the rather than to the ad- weight granted your would years ago Six I have testimony. witness’s We missibility motion but I won’t anymore [sic]. quote the record: admissibility identifying THE is- Apparently COURT: real or of a controlled substance from user sue Motion that raised Counts addict, weight sufficiency and the or boy, ..., and 2 is whether or not the who are anno- testimony, such discussed two *5 is only give any the one here us evi- 75 95 tations at A.L.R.3rd 717 and dence, give opinions, was able to us or not jurisdictions A.L.R.3rd 978 opinion, flatly even simply state questions have are which considered these marijuana. Now, he that’s got you all satisfied, however, uniform. are not We in the have case. case, the that under the evidence in this and
[*] [*] % fact the minor’s identification of the challengеd once cross- substance was not on he had marijuana That smoked and had * * * examination, its the court did not abuse experience had some with it. He allowing jury in the to assess the discretion expressed any explicit opinion, never testimony. of the minor’s N.M. weight See stuff, was, he the knew what it saw he N.M.S.A.1978; Luna, 701, v. R.Evid. it, it and it tested smelled tasted or did 92 P.2d (Ct.App.1979). N.M. 594 340 anything else other than he went got. and that’s what he All conviction 4. The stolen conclusionary. in- complains Defendant of a defective problem early is that in days the given and instruction dictment an erroneous the development law in all this so- charge receiving stolen jury the on the esoteric pro- called substances that were complaint by was raised property. Neither require hibited. What we is generally In in the trial court. objection motion or what you establish the stuff was. error, see State the absence of fundamental Some dеfinite of what it was. establishing Lott, (1963), P.2d 855 73 N.M. 387 Gradually they persons allowed with a lay Hamilton, 557 and State experience testify little bit of on an [to] al- (1976), we to address decline opinion basis what it was. But in recent the attention leged errors not called to common years the stuff has become so Haney, trial Maldonado the court. generally today and used that without 222 (Ct.App.1980). P.2d any explicit testing dealing or without all, just opinion with evidence at it is like 5. Prosecutorial misconduct money. Anybody say money; can- it was the argued, but anybody point it was coffee or tobac- This is raised and say case single co it. It fail to cite you and don't call them on defendant’s briefs in any longer argument. in that realm of esoteric opin- Gonzales, Defendant contends he was to a entitled State v. 93 N.M.
mistrial an prejudicial because of invited (effect (Ct.App.1979) improperly admit- remark by made the State’s wit- principal ted evidence). We are unable to conclude ness. The minor witness had testified that that the improperly response elicited from he had preliminary hearing lied be- the State’s witness did not influence the cause he “was being scared” of if hurt he jury’s convictions of defendant on the against” the defendant. The “witnessed] counts suppressed unrelated evi- prosecutor the questions channeled that fol- dence. lowed, being evеn after cautioned aside; Defendant’s convictionsare set court to be sure of the answers elicit- taken from 919 Encanto Circle is ed, to point of asking, reasons “[W]hat suppressed; ordered the matter is remand- you did have for feeling you afraid when ed for newa trial. * * testified *?” The responded: witness IT IS SO ORDERED. “I heard in Upon Mafia.” motion for mistrial court denied the LOPEZ, J., concurs. instruction, motion gave a curative not- ing the same time its awarenеss that the WOOD, J., part in concurring dis- only “theoretically” instruction cured the senting part. improper answer. WOOD, Judge (concurring part of questions series pros- asked dissenting in part). ecutor related to who visited the witness I concur with the in major- discussion the before he testified at the preliminary hear- ity opinion concerning the competency ing, and with whom the visitor had had testimony minor’s and concerning the just lunch before he visited the witness. stolen prоperty conviction. I with disagree questions Those sequentially followed the the majority’s treatment and disposition of witness’s statement that he had be- lied the search prosecutorial warrant and mis- cause he “was prosecutor scared.” The ulti- issues, conduct and dissent from disposi- mately obtained the answer which the trial tion of those two issues. *6 court jury disregard. admonished the to Search Warrant Issue a Normally trial court’s withdrawal of majоrity The skew the facts. objectionable evidence from the con- jury’s sideration has been held to prejudi- (a) cure its There were three search warrants. McFerran, 622, cial effect. v. 80 State The first warrant authorized a search of P.2d (Ct.App.1969); 459 148 but see State v. person defendant’s and the —504 Rowell, 124, 77 N.M. 419 (1966). Deming, South Platinum in New Mexico. objectionable When the appears to no propriety There is issue as to the of this solicited, have bеen intentionally however, or pursuant warrant searches thereto. The toward the end prejudicing the jury second warrant authorized search de- defendant, against prosecutorial mis- person fendant’s and the En- premises—919 against conduct is examined the harmless Deming. canto Circle in The propriety rule determine error to whether new trial this The warrant is attacked. third war- should be allowed. Day, State v. 91 N.M. rant authorized a second sеarch of the En- 570, 577 878 (Ct.App.1978). P.2d canto observa- premises and was based on during tions officers the first search of There were convictions in this that case premises. the Encanto If the second war- not dependent proof were upon the evi- issued, improperly rant was the third war- dence that should suppressed. have been rant was also improper. purposeful For misconduct to be considered harmless, there overwhelming (b) must such majority identify The fail to what evidence of guilt that no reasonable proba- was included within the affidavit submitted bility exists that effect of the miscon- warrant to the first search the duct jury’s contributed to the verdict. The premises. See Encanto affiant was Detec-
164 included, (f) probable provided The detective as a statements Fry’s
tive Coussons.
with
affidavit,
signed
dealing
of the
sto-
part
question
cause
defendant was
Fry
reports
and answer statement of
twice
goods.
(1)
len
stated:
he
traded
Fry
concerning
defendant;
three
offenses at
residences.
Morris
to
stolen property
back from defend-
get
tried
the tool box
to
(c) Fry’s
includes admissions
statement
ant;
bring
to
Fry
told
(3) defendant
residences, stole
burglarized
that he
two
also wanted
jewelry,
all the
but
fendant
property therefrom and traded the stolen
guns.
Probable cause
Fry
bring TVs
to
property
marijuana.
defendant
goods was
to seаrch defendant for stolen
against penal
These
statements
inter
established;
to the con-
no one contends
est, Fry’s
is established.
v.
credibility
State
trary.
Archuleta,
146,
(Ct.App.1973),
P.2d
85 N.M.
509
1341
876,
denied,
t.
414
94
U.S.
(g)
majority
affidavit
cer
The
state
(1973).
the prosecutor’s question, distorting thus
what happened. The refer to ob- majority
jectionable “appears evidence which to have
been intentionally (My empha- solicited”.
sis.) I disagree characterization, with this and rely on the trial court record. Fry gave signed question and an WEAVER, Plaintiff-Appellant, James K.
swer police. Fry statement to the repudiat ed this statement at the preliminary exami WEAVER, Defendant-Appellee. Norma B. trial, nation. Fry At affirmed the state ment, explaining that he had told the No. 14633. truth at the preliminary examination. Supreme Court of New Mexico. Asked why testified as he did at the examination, preliminary that he Fry stated Aug. was scared of being hurt defendant’s friends.
The prosecutor then asked series of
questions to having Fry explain directed *8 scared;
why produc- these questions
ed nothing explained Fry’s fear. The
prosecutor then asked:
Q. Donald, O.K. you what reasons did feeling
have for you afraid when testified 13, 1981,
on July besides what anybody
told you? [My emphasis.]