*1 case, In this never made reports crimi- Plaintiffs prior of based on the expert {19} is they above, allegations regarding what fundamentally any specific activity. As nal stated discovery. cir- find in Under such hoped to prior incidents do not render dissimilar cumstances, liberty court the district case occurred in this crime which type of summary judg- with award of proceed reasonably foreseeable. ment, cursory as- notwithstanding Plaintiffs’ discovery. about the need for further sertions 2. Cause Proximate ¶¶ (arriving at a id. 38-39 similar conclu- See dispute De- parties also whether circumstances). {16} under similar sion failing to alleged negligence in fendant’s CONCLUSION security regarded be provide could stated, For the reasons we conclude injuries. As proximate cause Plaintiffs’ of duty prevent no that Defendant had stated, previously the district court did deliberate, targeted shooting in this at issue any analysis proximate cause rely on case. summary judgment. support the award of IT IS ORDERED. duty issue SO our Because assessment independent supplies a sufficient basis
affirmance, FRY, necessary to un- it is not for us CYNTHIA A. Chief WE CONCUR: GARCIA, analysis Judge. L. separate Judge the element and TIMOTHY dertake proximate at this time. causation Discovery 3. Finally, Plaintiffs contend judgment im summary
the award
must submit discovery are time needed.
tional insufficient; vague regard, assertions are
rather, party specifically “must demon ruling of a on the postponement
strate how him, by discovery or other will enable
motion
means, showing of the to rebut the movant’s Butler v. genuine of a issue fact.”
absence Inc., Grenfell, Morgan 2006-
Deutsche
NMCA-084, 38, N.M.
(internal omit quotation marks citation
ted). *4 Defendant that Tami-
misha. Samantha told and, according girls’ not sha was there testimony, pretended to leave. Defendant talk, however, As soon as Tamisha started yelling began from outside pounding in there and started knew she was General, Fe, Attorney Santa Gary King, K. because, according to his testi- on the door NM, Attorney Grayson, Assistant James W. enraged had mony, he was that Samantha NM, General, Appellee. for Albuquerque, hiding him that Tamisha was from lied to shouting Tami- cursing him. After Defender, Public Hugh Dangler, Chief W. avail, apartment to no sha to come out Barket, Appellate Defend- Mary A. Assistant damage Tamisha’s Defendant threatened er, Fe, NM, Appellant. Santa parked that were and Samantha’s cars apartment. girls immedi- front of the OPINION police ran outside to ately called the FRY, Judge. Chief damaged. that their vehicles were ensure appeals from his conviction incident, Following Tamisha and *5 stalking in violation of NMSA aggravated time. How- reconciled for short Defendant (1997). Defendant 30-3A-3.1 Section ever, quickly relationship deteriorated conduct was insufficient argues that his trip went on a weekend with after Tamisha stalking, that charge support testified her friends. Defendant some of he made to testimony regarding statements gone, he had a vision that while Tamisha was arrest should police prior to and after his in screen staring at a blank television while suppressed he was been because have being intimate with he saw Tamisha which trial his Miranda rights, and that the read Tamisha returned to another man. When erroneously admitted evidence that De- court went to Tamisha’s Alamogordo, Defendant his attempted plead fendant had cheating her of on apartment and accused reasons, following For appearance. first Tamisha told him she was out of town. while affirm Defendant’s conviction. we just and they friends Defendant in fact been with someone else that she had I. BACKGROUND became en- the weekend. Defendant over Tamisha, the victim of Defendant and {2} and to move raged by this comment started stalking, online. After hav- met Defendant’s Hope in a and her friend toward Tamisha over a ing regular telephone conversations addition, threatening Defendant manner. time, from Lit- Defendant traveled period of your boy- stated, [you and new I see “[if] Arkansas, Rock, Alamogordo, New tle you.” killing both of together, I’m friend] Mexico, person. in After meet Tamisha Hope safety, Tamisha and Fearing for their room that Tami- initially staying in a motel and apartment pushed Defendant out rented, stayed for a few had Defendant sha police By the time the police. called the by Ta- being rented apartment at an weeks arrived, had left the scene. Defendant Although the rela- misha’s friend Samantha. that the advised Tamisha responding officer tionship Tamisha and Defendant between threatening from way stop Defendant best friendly, weeks after initially about three was restraining temporary was to obtain a her Alamogordo, in Tami- had arrived Defendant (TRO). of the threats Defen- Because order concerned Defendant sha became boy- kill her and her new had made to dant relationship than she about the more serious friend, damage had made to the threat he need- Tamisha decided that Defendant was. belongings to his his her car after she took apartment, so to move out of Samantha’s ed had left workplace, and because Defendant belongings and up Defendant’s packed she in Tamisha’s threatening letters number co-workers. them with one of Defendant’s left phone threatening had made a mailbox and father, Tamisha obtained Tamisha’s call to evening, Defendant showed Later that following day. looking for Ta- TRO the apartment up at Samantha’s engaged threatening had day Tamisha obtained the and his conduct On served, TRO, but Ta- violation of the TRO. before Defendant pulled parking misha lot of her into apartment and saw Defendant complex sit- II. DISCUSSION holding “Ninja-style”
ting in a chair
knives
Aggravated Stalking
A. The
Statute
recently purchased. Fearing
that he
had
safety,
quickly backed out of
her
Tamisha
trial,
case,
At
after the State rested its
lot,
parking
and
called
circled the block
argued
pre-
the State had
police
police
until the
arrived. When the
support
sented insufficient evidence to
a con-
Defendant,
talking to
began
arrived and
De-
aggravated stalking
viction for
because he
“put
fendant stated that he was there to
engaged
only
had
instance
one
of threaten-
fear
for what
of God” into Tamisha
she had
ing conduct
was served with
after he
accomplish
done to him
he could
and that
TRO,
requires
and Section 30-3A-3.1
by letting
it
ways:
go,
calling
this in three
pattern
there be a
of conduct
the TRO
after
out,
help him
his “homies” from Arkansas to
court disagreed
is served. The trial
by taking
using
of it
care
himself
concluded that
requires
Section 30-3A-3.1
Ninja
Japan
skills he
studied in
had
only
threatening
following
one
act
the issu-
intimidation methods
had learned as an
appeal,
ance of a TRO.
On
makes
talking
ex-felon. While Defendant was
argument
same
that he made
the trial
Guinn,
responded
Officer
who
the officer
had
court.
call,
to Tamisha’s 911
another officer arrived
served Defendant
the TRO Tamisha
1. Standard of Review
day.
had obtained
earlier
Officer
Interpretation of a
explained
statute is a
Guinn
the seriousness of the
TRO
*6
question
we
Defendant,
of law that
review de novo.
acknowledged
and Defendant
¶
Davis,
B.
Miranda Violations
of law to
therefore,
facts,”
we,
apply
and
de novo
argues that certain
Defendant next
{22}
State v.
ruling.
review of the trial court’s
police
should have
statements he made to
Nieto,
536
ques-
volunteers statements” either mak-
dant]
broke the law and because
officers
violation,
ing
police
he
a statement “which the
did not
tioned him
that
was
about
purposes of a Miranda
analysis.
attempt
making
to elicit” or
a statement
custody
“unresponsive
questions
that is
to the
asked.”
argument
We do not
This
is without merit.
Id.
subjective
parties
of the
consider the
beliefs
Nieto,
belief that Defendant
have had
incriminating statement
he
when
told Defen-
ing
he would be arrested does not
whether
forget
dant to
about Tamisha because Officer
that Defendant
affect our conclusion
was not
thing
had told
Jackson
Defendant the same
and that Miranda
custody
warnings
prior to
the arrest
Defendant had made
required.
not
Thus,
incriminating
similar
statements.
De-
argues fendant
“Officer Jackson was
2. Post-Arrest Statement
aware that almost
statement to [Defen-
relationship
about his
dant]
[Tamisha]
arrest,
Following his
incriminating
would elicit a veritable wave of
transported
police
station for
information.”
booking. During booking, Defendant be
extremely upset
agitated
came
and start
assume,
deciding,
We
without
cursing
ed
about Tamisha and what she had
previously
that because Defendant had
made
done to him. Officer Jackson told Defen
incriminating
statements when was told to
dant,
down, you
“You need to calm
need to
Tamisha,
forget about
Officer Jackson should
her, you
forget
go.”
about
need to let her
In
telling
have known that
Defendant to calm
statement,
response to this
Defendant told
incriminating response.
down would elicit an
Jackson,
just
right,
Officer
“You’re
I should
assumption,
Under
trial
court erred
around,
go
let her
... because if I stick
allowing
testimony regarding
Defen
me,
you’ll
fingerprinting
next time
be
it’ll be
finger
dant’s statement
he would be
for murder.”
being
Because Defendant was
printed
forget
for murder if he did not
about
jail
booked into
at the time he made this
However,
Tamisha.
based on the evidence
statement,
dispute
there is no
he was
trial,
presented at
this error was harmless.
However,
custody.
because Officer Jackson
“An error is
if
can
[s]tate
harmless
estab
not
question,
parties
did
ask Defendant a
beyond
lish ...
a reasonable doubt” that
disagree
being
as to whether Defendant was
possibility
there is no reasonable
interrogated at the time that he made the
objectionable
might
have contribut
statement.
ed to the defendant’s conviction. Walters,
withdrawn,
appear
though
at trial it is to
(1974) (internal
661,
quotation
327 A.2d
666
plea
place.
the earlier
... never took
omitted).
marks and citation
While we rec
wiped
plea negotiations
slate is
clean once
ognize
prejudicial
effect that the admis
plea.”
fail or the defendant withdraws his
attempt
plead guilty
sion of a defendant’s
724, 727,
Trujillo,
93 N.M.
605 P.2d
trial,
disagree
can have on a criminal
we
(1980).
232,
plea
235
is
When
entered and
the dissent’s contention that “reversible er
withdrawn,
then
Rule 11—410 makes
evi
regardless
ror is committed
of what the re
plea
dence of that
inadmissible at trial. See maining
may
evidence in the case
be” and
State,
725,
718,
Standen v.
101 Nev.
710 P.2d
subject
that a violation of Rule 11—410 is not
(1985) (noting
guilty
720
that a withdrawn
to a
error
harmless
test.
plea is “deemed never to have existed and
evidence”);
should not be
correctly
used as
Toth v.
While the dissent
*14
P.2d
27
that cases are
857
guilty plea and conviction will
d]efendant’s
authority
not consid
propositions
not
beyond
not warrant a new trial if it is
ered).
fact, contrary
In
to the dissent’s ar
complained
that the error
reasonable doubt
gument that a harmless error test cannot be
not contribute to the
did
verdict obtained”
circumstances, a number
applied under these
(internal quotation
omit-
marks and citation
jurisdictions
other
that have considered
ted)).
applied a
error test
this issue have
harmless
addition,
the United States
guilty pleas.
admission of
to the erroneous
Supreme
explained
Court has
that error can
Acostar-Ballardo,
See,
8
e.g., United States v.
analyzed
be
under
harmless error
test
(10th Cir.1993)
1532,
(applying
1536
F.3d
when the case involves “error which occurred
410
harmless error test to Rule
violation
during
presentation
of the case to the
re
concluding that error was harmless with
jury,
may
quantita
and which
therefore be
spect
to the defendant’s conviction for a
tively
in the context of other evi
assessed
testimony
in his
but
charge he admitted to
presented in order
to determine
dence
charge
re
respect
with
to
reversible
was harmless
whether its admission
quired
jury weigh
credibility
to
of the
a reasonable
Arizona v. Fulmi
Tesack,
doubt.”
witnesses); United States v.
538
1246,
nante,
279, 307-08, 111
(4th Cir.1976)
499 U.S.
S.Ct.
1068,
(holding that
F.2d
1070
(1991). Thus, the harmless
verdict this case. sup- tive evidence is additional evidence that Supreme pro- Our in Court Johnson ports already by existing a fact established analysis. vided a framework for our That evidence, while corroborative evidence tends case addressed whether a confrontation point suggested by to confirm a other evi- clause violation amounted to ¶ harmless error already proved. dence but not Id. 39. Fi- adopted a number of factors to consider. nally, the Court noted that the defendant’s These factors include: testimony contradicted the evidence that had importance testimony in erroneously jury
the of the witness’ been admitted and that the case, prosecution’s credibility the whether the testi- would have had to make deter- cumulative, mony presence erroneously was the or ab- mination in favor of the admit- corroborating disregard sence of evidence in contra- ted evidence order to the defen- dicting testimony testimony the of the witness on dant’s and convict him. Id. 43. factors, points, analysis material the extent of cross-exami- Based on its of these and, course, permitted, nation otherwise Court determined that it could not conclude mony proving engaged that the evidence that Defendant had doubt a reasonable pattern threatening defendant’s convic- not contribute to the behavior directed at did importantly, jury tion. Id. Tamisha. More had already testimony heard from Officers Jack- Elizondo, Similarly, in a ease cited son and Guinn that Defendant had admitted dissent, that its ad- the court concluded everything that he had done that Tamisha had evidence that a defendant mission of testimony him had accused of. The harmless error be- pleaded guilty was not attempted Defendant had against remaining evidence “[t]he [the cause everything had stated that Tamisha had said defendant, though probably legally sufficient true, therefore, merely him about re- verdict, strong that was not so sustain peated guilt Defendant’s admissions of say any can confidence [c]ourt already properly jury. before the Con- guilty plea evidence of the and conviction did sequently, truly evidence was impact jury’s on the not have a substantial simply cumulative evidence that reiterated F.Supp.2d at 704. The court verdict.” already jury. before the The erro- also noted that the other evidence neously not, admitted evidence was knowledge, an essential element defendant’s argues, dissent corroborative evidence that charged, of the crime “was limited and cir- merely strengthened prosecution’s case. cumstantial.” addition, In when Defendant took stand case, to Johnson contrast defense, his own he did not offer Elizondo, we are able to conclude be- testimony that was inconsistent with his yond a that the erroneous reasonable doubt guilty plea. deny Defendant did not that he attempted guilty admission of Defendant’s engaged pattern threatening had plea jury’s verdict. did not contribute to gave conduct that rise to his the case the defendant Unlike conviction; instead, stalking Defendant ad- Johnson, against Defendant here the ease everything that he had done mitted Tamisha solely comprised of circumstantial *16 had accused him of and maintained that he erroneously admitted evi- evidence that the really actually did not intend to threaten or Instead, dence served to corroborate. result, harm her. As a cross- State’s in State this case offered direct evidence far from examination of Defendant was “dev- aggravated stalk- Defendant had committed ¶ 54, astating,” Dissent because State ing, including eyewitness Tamisha’s testimo- simply re-emphasized that had al- ny her that Defendant had threatened on ready through been admitted other witnesses eyewitness multiple occasions and the similar nothing attempt- to do and that had with regarding testimony Hope of Samantha and erroneously guilty plea. ed Because the ad- multiple Defendant’s threats toward Tami- testimony cumulative and was not mitted sha. prosecution’s case or contra- central to the addition, In testified Officer Guinn {51} record, by any in the dicted other evidence going that Defendant stated that he was to to a reasonable we are able conclude pain,” “feel his that he was make Tamisha of Defendant’s at- doubt that the admission her, going put the fear of God in and that tempted guilty plea did not contribute to his in he had sat down front of Tamisha’s resi- We, therefore, conviction. hold that the er- receiving in dence after the TRO order testimony of the ror caused the admission Finally, pain” on her. Officer Jack- ] “inflictf attempted that Defendant to him son testified that Defendant admitted harmless. TRO, night that the he received the Defen- stopped by Tamisha’s house and dant had disagree the dis- We further {53} had “left a note on her door” and sat outside of De- contention that the admission sent’s fear in her.” “[t]o Tamisha’s house instill plea may attempted guilty have fendant’s Thus, him to take the stand in violation of at the time that the State’s forced {52} rights. Defendant never attempt- that Defendant had his constitutional witness testified threatening guilty, jury already disputed had heard the occurrence of the plead ed to eyewitnesses had overwhelming eyewitness testi- actions about which the amount of Instead, cross-examining argue where the state did not while error review testified. witnesses, harmless). sought defense counsel State’s that error was really did not only to show that Defendant CONCLUSION harm Tamisha. Because his de- intend to reasons, foregoing For the affirm we {55} fense on his intentions when was based aggravated Defendant’s conviction for stalk- Tamisha, he had ac- threatened not whether her, ing. tually we cannot conclude threatened forced
that the admission of IT IS SO ORDERED. in Defendant to take the stand his own de- only way that Defendant could fense. The WECHSLER, I CONCUR: JAMES J. not mean that he would establish that he did Judge. actually harm Tamisha when he threatened by testifying harm that his her was VIGIL, Judge (concurring E. MICHAEL empty. threats were Without Defendant’s part). part, dissenting in testimony, the case would have rested on the case, overwhelmingly proved State’s which VIGIL, Judge (concurring part, engaged pattern in a that Defendant had dissenting part). threatening to find him behavior sufficient stalking. light majority opinion I concur with the this, unlikely it is that Defendant have would except Part C which it concludes that contemplated theory a different defense even improperly admitting evidence before the attempted guilty plea if the evidence of the jury attempted plead that Defendant had not been admitted. guilty did not constitute reversible error. follow, respectfully For the reasons which I Finally, argues the dissent that the that Defendant is submit entitled to new has failed to meet its burden of show- improper trial which the evidence is ex- ing error caused admission jury’s cluded from the consideration. Since attempted guilty plea was harmless be- majority disagrees, I dissent. yond agree a reasonable doubt. While we burden, Chapman, that this is the State’s 386 FACTS 824; Johnson, U.S. at 87 S.Ct. 2004- January On Officer Guinn NMSC-029, 9, 98 P.3d arrested Defendant him and booked into the
we decline
reverse on the technical basis
County
felony
Otero
Detention
on a
Center
argue
failure to
error.
State’s
harmless
*17
charge
aggravated stalking.
Officer
analyzed
We have
the State’s violation of
appear
Guinn noted that Defendant was to
in
using
Chapman
Rule 11-410
the
constitution-
days
upon.”
court “when called
Three
later
though
al
even
error test
Defendant did not
February
brought
on
Defendant was
argue
appeal
on
that this violation rose to the
magistrate
ap-
before the
court for his first
level of constitutional error.
It would be
pearance.
felony
Because a
is not within the
patently
require
unfair to
the State to ad-
court,
jurisdiction
magistrate
of the
at a first
argument
an
dress
its answer brief in
appearance
magistrate judge only
the
advis-
response
argument
an
to
that was not raised
charge,
es the
penalty
defendant of the
the
addition,
by
Chapman
Defendant.
ulti-
provided,
rights,
his
and
sets the matter for
mately requires only that “the court must be
6-501(A), (D)
preliminary hearing. Rule
able to declare a belief that [the error] was
magistrate
“In
NMRA.
actions not within
harmless
a reasonable doubt.” 386
jurisdiction,
plea
trial
no
shall be entered.”
at
U.S.
entered a felony through them a video court on the monitor. While seated was held the district chair, testimony the the defendant is able to see charge. presented The the monitor, Samantha, judge on a Tamisha, judge video and the Tamisha’s Mend Offi- likewise able to see the Guinn, defendant on video Jackson and estab- cer Officer monitor from his location. There is a third paragraphs the facts forth in 2-6 of lished set jail pointed video monitor in the which is majority opinion. Except to the extent public the audience so the can see and hear by the Miranda issue addressed in raised process. magistrate judge the entire The majority opinion, Part B of the Defendant then asks each defendant whether he ob- testimony challenge appeal does not on videotape. served and understood the On these witnesses or the facts established testimony the basis of this and over Defen- testimony. their objection, the court ruled that dant’s district witness at trial was The State’s last the State established a foundation to admit Gilmore, a victim advocate with the dis- Ms. testimony. Ms. Gilmore’s attorney’s trict office. that she She testified jury Ms. then told the Gilmore appearance attended Defendant’s in the first acknowledged magistrate Defendant to the magistrate court. Defendant and whoever judge rights he understood ex- jail videotape else was in were shown a which plained by videotape he wanted said explained prisoners rights. to the their plead guilty. magistrate judge to ad- videotape played, attorney was no When accept guilty vised Defendant he could not present to advise Defendant. After the charged felony, plea because he was with a played group prisoners, video was replied, and Ms. Gilmore that Defendant said magistrate judge Ms. Gilmore said that the denying anything I’m not “[b]ut she has Defendant, complaint read the criminal to just go I said. want to back to Arkansas.” magistrate judge and the asked Defendant testified in his own de- plead charge. Ms. Gilmore testified began testimony by explaining fense. He his plead that Defendant stated “he wanted to why plead guilty in he had tried to immediately object- guilty.” Defense counsel magistrate court: conference, and, argued at a ed bench Well, occasion, particular testimony highly improper and relat- in that attempt everything everybody without the I heard from in New ed to jail, pleaded guilty, my if I then presence of counsel. Defendant moved for a Mexico go basically trial And Arguing mistrial. evidence was ad- would faster. that’s missible, said, my prosecutor proffer really go “The all I wanted was for trial to began just knowing anybody that ... to talk I in New about faster. Not Arkansas, go everything having any family and want to that the Mexico and not friends, true, just plead just get I want I back home. victim said is wanted guilty. We believe that’s an admission of committing Defendant then denied the acts *18 guilt. It’s —it’s admissible.” After further Explaining why him Tamisha accused of. argument, court ruled that the district magistrate court that he had said prosecutor lay could a foundation for admis- agreed saying, De- with what Tamisha was sion of the evidence. earlier, testified, I said fendant as “[b]eeause just fight I want to this didn’t about Ms. then testified that Gilmore my winning more. I felt like chances of magistrate arraignment court utilizes a video county knows case female this procedure. prac- Gilmore said that the Ms. good], my so best bet would be [were videotape played explaining tice is for to be with, guilty, get get and plead this over back they prisoners rights their and that if possible.” home as soon felony charge, have a this constitutes their surprisingly, prosecutor’s appearance they and if have a misde- Not first arraignment. of Defendant was detailed charge, meanor this is their cross examination devastating. played, is and After the ten-minute video Q. Well, Q. you being arraigned you being arraigned at the were for Do recall Magistrate aggravated stalking; you agree arraignment video over do jail, You’re in video machine is set that? Court?
up; is that correct? agree- A. That I doesn’t mean that was ing Yes, agreeing to the fact that —I was
A. sir. charged aggravated fact that she me with Q. you you And remember had to stalking. videotape; that correct? watch a Well, Q. just try agree let’s to dis- Yes, A. sir. agree on some stuff. This was on date of Q. Judge And the came on the screen arraignment, you already you agreed said you up and called to the chair and asked you plead you guilty. tried to Do to— you you Christopher are Smile? You said, agree you “Everything that Ta- know that? misha said was true”? Yes, A. sir. A. Yeah. Q. You remember that? Now, Q. questions when those are— Yes, A. sir. you you being understand that were ar- Q. Okay. you Judge Do remember the raigned aggravated stalking, is that asking you you videotape if watched the correct? and it? understood Yes, A. sir. Yes, A. sir. Q. you recognize Do and understand Q. you saying yes, And remember Judge you that the read elements it, you you watched it? understood aggravated stalking? the crime of (Inaudible) Yes,
A. sir. A. Yeah. evidence of what it came to stalking, be and I’m Q. you Judge And do remember the pretty upset sure I would be kind about you asking you you how do plead, said being up locked for six months over it. plead guilty. I Is that correct? Q. you you And do understand —or do Yes, A. sir. agree well, you that he told I won’t the — Q. you telling Judge And do recall go into that. you Judge telling or the he couldn’t take you But knew there would be felony? because it was a that; repercussions you saying A. Yes. enough? that fair Q. you saying And do remember Yes, A. sir. everything time that Tamisha said Now, Q. Okay. your cross —or di- was true? [your counsel], rect you examination with Yes, A. sir. said—tried to make excuse for this. Q. just I go want to basically, you You everything said said— you back Arkansas. Is what said? only you she said was true because wanted Yes, A. sir. magically get jail, go out of take care of your baby girl in Arkansas. Is that Now, what Q. arraign- at the time of that you said? ment, you being arraigned aggra- on courtroom; stalking vated in that isn’t that all, excuse, A. First of it wasn’t an it true? awas true statement. Yes,
A. sir. Q. Okay. you So when talked [the] *19 Judge you ... everything said Tami- Q. you everything And said she said true, you saying you sha said was are that true, stalking about was cor- lying Judge? to a rect? No, lying anybody. A. I wasn’t to specified A. I never what she said was true, Well, everything Q. statement, never said she said was was this a true ev- true, specify I erything— didn’t what.
545
admissible);
Yes, it
true.
was not
overruled on
A.
other
Keet,
695,
grounds,
Parte
Ex
315 Mo.
287
(1926);
State,
Dykes
S.W. 463
v.
213 Tenn.
40,
(1963)
184,
372
(equating
S.W.2d
186
an
Smile,
Q.
you’re saying
what
Mr.
so
plead guilty
plea
offer to
with an actual
that
you
everything
now is when
said
Tamisha
withdrawn);
State,
Dean
72
is
v.
Tex.Crim.
true,
a
said was
that is
true statement?
(1913)
274,
974,
(concluding
S.W.
that
Yes,
A.
it is.
an offer of the
plead
defendant’s counsel to
Q.
your
today
So
statement
earlier
admissible).
guilty was not
[your
with
counsel on
direct]
part
majori-
I
company
first
with the
{67}
true,
a
wasn’t
was that
lie?
ty in its conclusion that the error in this case
A.
I
it wasn’t true.
never said
The
subject
analysis.
is
to a harmless error
Ma-
only thing I ever
I said
said was—what
jority Opinion 43. Because of the nature of
I
and what the truth —because wanted to
judicial
judge
statements made to a
in a
go
my
to
child.
back home
be with
That’s
proceeding
pleading guilty
offering
while
or
wanting
all
I’ve been
the last six
plead guilty,
to
the erroneous admission of
my daughter.
months was to see
subject
such statements into evidence is not
analysis.
to harmless error
ANALYSIS
It
is
debate that
the best
{68}
agree
majority
I
with the
that Rule
competent
evidence of whether a
accused
clearly
11-410 of the Rules of Evidence was
committed
violation of the criminal law is
¶¶
Majority Opinion
violated. See
39^41.
his own statement that he
act
committed the
5-304(F)
Rule
NMRA of the Rules of Crimi-
requisite
exactly
with the
intent. This is
nal Procedure was also violated. This rule is
is,
guilty plea
probative
what a
and the
force
equally
unambiguous
clear and
almost
of such evidence cannot be overlooked.
language
the same
directs:
trial,
proceeds
When a defendant
to
it
on
plea
guilty,
Evidence of a
later with-
guilty” plea. Allowing
the basis of a “not
...
an
plead guilty
drawn
or of
offer to
attempt
to
introduce evidence of
...
charged
no contest
to the crime
or
[or]
plead guilty nullifies the entire basis for the
crime,
any other
or of
made in
statements
resulting prejudice
trial. The
is so obvious
any
foregoing pleas
connection with
overwhelming
and so
that when a defendant’s
offers,
or
is not admissible in
civil or
prior attempt
plead guilty
judge
proceeding against
person
criminal
evidence,
improperly admitted into
reversible
plea
who made
offer.
regardless
error is committed
of what the
remaining
may
evidence in the case
be.
The fact that evidence of Defendant’s
majority
The
asserts
the admis-
admitted,
op-
offer
attempted guilty plea
sion of Defendant’s
posed
plea,
to evidence of an actual
makes no
into evidence did not constitute structural
difference,
majority
substantive
and the
¶45.
Majority Opinion
disagree.
error.
I
¶42.
agrees. Majority Opinion
11-
Rules
right
pre-
Defendant’s constitutional
5-304(F) equate
plead
410 and
offers to
sumption
instantly evaporated
of innocence
Moreover,
guilty pleas.
actual
jury
the moment Ms. Gilmore told the
the cases which have considered whether
appeared
magis-
when Defendant
before
such
distinction makes
difference have
judge,
trate
Defendant said
“wanted
McGunn,
concluded it
not.
does
See State
denying any-
plead guilty,” and that “I’m not
(1940)
208 Minn.
294 N.W.
thing that she
has said.”
[Tamisha]
plead
(concluding that a conditional offer to
States,
v. United
156 U.S.
court,
Coffin
guilty to the
which the court did not
(1895),
432, 453, 15
undoubted
reasoning
particularly applicable here:
lies at the foundation
and its enforcement
permitting
criminal law.
of our
The effect of the court’s order
of the administration
adjudge
the withdrawal was
innocence,
Furthermore,
of
‘'presumption
naught.
plea
guilty
be held for
Its
Constitution,
in
although not articulated
subsequent
[the
use as evidence
component of a fair trial.” Estelle
is a basic
with that
direct conflict
defendant]
503,
1691,
Williams,
501,
v.
425 U.S.
96 S.Ct.
plea
an-
determination. When the
(1976).
126
What occurred
48 L.Ed.2d
By per-
it
nulled
ceased to be evidence.
deprived Defendant of a “basic com-
this case
[by
jury]
mitting
given weight
it to
be
very
of a fair trial.” Id. The
founda-
ponent
pro
it
tanto.
the court reinstated
jus-
criminal
how we administer our
tion of
224,
Supreme
The
Id. at
jority
53. These conclusions
Defendant,
jail,
in
which included
that ex
grounded
pear
upon
to be
a conclusion that
plained
prisoners
“rights.”
their
How
attempted plea
nothing
was
more than
ever,
us,
videotape is not
do
before
so we
Opinion
Majority
cumulative
evidence.
know,
not know contents. We do
its
howev
¶¶ 50-52.
er,
attorney
that Defendant had no
when the
The admission
of Defen-
into evidence
played and
videotape
plead
was
he offered to
attempt
dant’s
and statements
guilty.
his
Whether
was afforded
attempt
he
connection with that
made
right to
constitutional
counsel and whether
violated,
upon,
touched
vari-
implicated
there was a valid waiver of this constitutional
rights
ous constitutional
of Defendant. Two right
implicated.
are both
See State v. Me
rights
constitutional
of Defendant were
lendez,
182,
1117,
N.J.Super.
165
397 A.2d
squarely
Trujillo
violated.
mandates
(1979)
curiam)
1118,
(concluding
(per
1120
fails,
plea
appear
“at
where
trial it is to
right
constitutional
the defendant’s
though
plea
plea
earlier
discus-
and/or
pleaded
when
guilty
counsel was violated
place.”
never took
at
sions
605
appearance
at his
because it
made
first
way,
P.2d at 235. Stated another
at trial
counsel,
or a valid
without counsel
waiver of
every
entitled to
constitution-
directing
“[n]o
admissions made
safeguard
presumption
al
with
associated
during
original arraignment
defendant
plea
guilty.”
of “not
the nature
Because of
shall be admissible
him
plea,
already
guilty
of a
which I
dis-
have
retried”). Secondly,
the event he is
we have
cussed, improperly admitting into evidence
concluding
no
whether Defendant
basis
guilty
attempt
plead
de-
Defendant’s
validly
right against
his constitutional
waived
stroyed
presump-
Defendant’s constitutional
plead
self-incrimination when he offered to
addition,
tion of innocence.
the State’s
guilty.
right
impli
This constitutional
is also
improper use of Defendant’s statements
Spears v.
cated. See United States ex rel.
plead
made in connection with his offer
Rundle,
(E.D.Pa.1967),
F.Supp.
699
guilty
testifying against
resulted
him
him-
(3d Cir.1969) (concluding
aff'd, 405
F.2d
“in substance if not in
See
self
form.”
Wood
operate
plea
that a
cannot
as waiver
(D.C.Cir.
States,
v. United
128 F.2d
right against
of the constitutional
self-incrim
1942) (using
language).
Defen-
Once
ination if there was no valid waiver of that
statements in connection
the at-
dant’s
itself).
making
plea
privilege in
admitted,
plea
tempted
improperly
his
Chapman,
hold
Under
order to
right
constitutional
to remain
was de-
silent
require
error
re-
plea if
that constitutional
does
stroyed.
testify
He had to
about the
versal,
be able to conclude that
any hope
overcoming
to have
we must
he was
its
“harmless
a reasonable
jury.
Spitaleri,
on the
error was
effect
See
824;
(stating
CONCLUSION reasons, foregoing I would all the For remand conviction and Defendant’s
reverse trial. case for a new
STATE
Plaintiff-Appellee, DAVIS, Defendant-Appellant.
Richard 26,573.
No. Appeals of New Mexico.
Court 25, 2009.
June notes State, 53, (Fla.Dist.Ct.App.1974) Supreme 297 So.2d 53 the United States Court did not guilty concluding pleaded v. dant had test Kercheval apply a harmless error 225, States, 47 S.Ct. due to circumstantial 274 U.S. error was not harmless United (1927), case); prosecution’s when it ruled nature of the 71 L.Ed. United Doamarel, attempt F.Supp. of an 262-63 States (D.Del.1983) inadmissible, do not believe (applying Chapman we harmless sufficiency failure to discuss wrongful Court’s test admission of error remaining evidence to sustain the convic plea concluding evidence and that error was intended to tion indicates that Court limiting harmless due to instruction and error test prohibit the use of a harmless overwhelming evidence the defen- im every of a Elizondo, time evidence dant); United States v. v. Farm properly admitted. See Fernandez (S.D.Tex.2002) F.Supp.2d (noting Arizona, ers Ins. Co. in admitting error “[t]he [c]ourt’s [the (1993) (noting