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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 35,176
5 JESSICA BROWN,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Cristina T. Jaramillo, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 L. Helen Bennett PC
13 Linda Helen Bennett
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VIGIL, Chief Judge.
18 {1} Defendant appeals from the district court’s judgment, sentence, and
19 commitment, entered following a jury trial, convicting her of one count of battery
1 upon a peace officer, and one count of resisting, evading, or obstructing an officer.
2 This Court issued a notice proposing summary affirmance. Defendant filed a
3 memorandum in opposition to this Court’s notice of proposed disposition, which we
4 have duly considered. Remaining unpersuaded, we affirm.
5 {2} Defendant raised six issues in her docketing statement: (1) whether the district
6 court erred in denying her motion to dismiss or suppress, based on an illegal
7 warrantless entry; (2) whether the district court erred in denying her motion to
8 dismiss, based on State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d
9 1329; (3) whether the district court erred in failing to sanction the State for discovery
10 violations; (4) whether the district court erred in denying her request for an instruction
11 on entrapment; (5) whether the evidence was sufficient to support the guilty verdicts;
12 and (6) whether Defendant received ineffective assistance of counsel when her
13 defense attorney was not notified until the sentencing hearing that Defendant was
14 subject to a mandatory habitual offender enhancement. [CN 2]
15 {3} We initially note that Defendant, in her memorandum in opposition, specifically
16 declined to address our proposed disposition as to issues 2, 3, 5, and 6. [See MIO 10]
17 Accordingly, these issues are deemed abandoned. See State v. Johnson, 1988-NMCA-
18 029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (stating that when a case is decided on the
19 summary calendar, an issue is deemed abandoned where a party fails to respond to the
2
1 proposed disposition of the issue); cf. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,
2 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary
3 calendar cases, the burden is on the party opposing the proposed disposition to clearly
4 point out errors in fact or law.”).
5 {4} With respect to Defendant’s first issue—that the district court erred in denying
6 her motion to dismiss or suppress—we initially proposed to conclude in our calendar
7 notice, based on the facts before us, that Defendant was correct in her assertion that
8 Albuquerque Police Officer Daniel Sanchez’s (Officer Sanchez) warrantless entry into
9 her home was unlawful. [CN 4] See State v. Ryon, 2005-NMSC-005, ¶ 23, 137 N.M.
10 174, 108 P.3d 1032 (“Warrantless searches and seizures inside a home are
11 presumptively unreasonable, subject only to a few specific, narrowly defined
12 exceptions.”). Specifically, we suggested that it did not appear that the State
13 sufficiently proved that Officer Sanchez reasonably believed that Defendant’s child
14 was in need of immediate aid to protect or preserve life or limb, especially in light of
15 the fact that the child had already been taken inside by his mother, and that the State,
16 at most, proved that Officer Sanchez was concerned about the child’s safety and
17 health. [CN 5] On these facts, we proposed to conclude that the officer’s warrantless
18 entry was not justified by the emergency assistance doctrine. [CN 5] See Ryon, 2005-
19 NMSC-005, ¶¶ 27, 29 (requiring the State to prove three elements to justify an
4
1 emergency assistance entry: (1) the officer “reasonably believed that a person within
2 was in need of immediate aid to protect or preserve life or avoid serious injury”; (2)
3 the officer’s motivation for the initial decision to enter the home is to render
4 protection of human life or property in imminent danger and not to perform a criminal
5 investigation; and (3) the police did not expand the scope of the intrusion beyond what
6 is necessary to address the emergency).
7 {5} However, although we suggested in our calendar notice that the emergency
8 assistance doctrine did not apply, we noted that our proposed conclusion appeared to
9 be of no moment to Defendant, at least insofar as her convictions for battery upon a
10 peace officer and resisting arrest were concerned. [CN 5] That is, our jurisprudence
11 has rejected the argument that trial courts should suppress evidence relating to a
12 defendant’s violence or threatened violence toward police officers subsequent to an
13 unlawful search or seizure or a warrantless entry. State v. Tapia, 2015-NMCA-055,
14 ¶ 12, 348 P.3d 1050, cert. granted, 2015-NMCERT-005; see also, e.g., State v.
15 Travison B., 2006-NMCA-146, ¶ 9, 140 N.M. 783, 149 P.3d 99 (concluding that even
16 if police officers entered an apartment unlawfully, evidence that the officers were
17 attacked was admissible because the attack was “new criminal activity that is not
18 subject to the exclusionary rule”); State v. Jones, 1992-NMCA-064, ¶¶ 5, 16, 18, 114
19 N.M. 147, 835 P.2d 863 (concluding that notwithstanding that the initial stop of the
5
1 defendant was illegal, evidence that the defendant struggled with the police officer,
2 hit him, broke from his grasp, and bolted, only to be caught by another police officer
3 was admissible); State v. Chamberlain, 1989-NMCA-082, ¶¶ 2-4, 109 N.M. 173, 783
4 P.2d 483 (assuming that even if two police officers unlawfully remained in the
5 defendant’s home, evidence that the defendant shot at the police officers, killing one
6 of them, was admissible). According to Tapia, this jurisprudence is supported by case
7 law across the country. 2015-NMCA-055, ¶ 12. Therefore, we suggested in our
8 calendar notice that we could find no error in the district court’s failure to suppress
9 evidence regarding Defendant’s new criminal activity; namely, her alleged crimes of
10 battery upon a peace officer and resisting arrest. [CN 6]
11 {6} In her memorandum in opposition, Defendant does not clearly point out errors
12 in fact or law in our calendar notice. Not surprisingly, Defendant agrees with our
13 proposed conclusion that Officer Sanchez’s entry into her home was not justified by
14 the emergency assistance doctrine. [MIO 3] Notably, however, aside from asserting
15 that our new criminal activity jurisprudence “defies common sense” and arguing that
16 fairness and public policy require a different outcome, Defendant has not provided
17 authority to convince us that our proposed disposition is incorrect. See In re Adoption
18 of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that where a
19 party cites no authority to support an argument, we may assume no such authority
6
1 exists). To the contrary, as our Supreme Court recognized in State v. Doe, 1978-
2 NMSC-072, ¶ 10, 92 N.M. 100, 583 P.2d 464, “[s]elf-help measures undertaken by
3 a potential defendant who objects to the legality of the search can lead to violence and
4 serious physical injury. The societal interest in the orderly settlement of disputes
5 between citizens and their government outweighs any individual interest in resisting
6 a questionable search.” Thus, we find Defendant’s fairness and public policy
7 arguments unavailing.
8 {7} Defendant also appears to argue that Officer Sanchez was not “lawfully about
9 the business of law enforcement or community care-taking after he entered
10 [Defendant’s] home.” [MIO 3] In Doe, the Court held that a police officer is engaged
11 in the performance of his official duties if he is simply “acting within the scope of
12 what [he was] employed to do[,]” as opposed to engaging in a “personal frolic[.]”
13 1978-NMSC-072, ¶ 14. There is no argument, nor is there any indication, that Officer
14 Sanchez was on a personal frolic when he climbed a ladder to rescue Defendant’s
15 three-year-old son from the roof of her house, when he followed Defendant into the
16 second-story window to check on the health of the child, or when he expressed his
17 desire to see the child’s room after smelling a strong odor in Defendant’s house.
18 Instead, it appears that he was acting within the scope of what he was employed to do.
19 Consequently, we remain convinced that while Officer Sanchez’s initial warrantless
7
1 entry into Defendant’s home was unlawful, evidence of Defendant’s new
2 crimes—battery upon a peace officer and resisting arrest—was properly not
3 suppressed by the district court. See State v. Gallegos, 2007-NMSC-007, ¶ 26, 141
4 N.M. 185, 152 P.3d 828 (holding that the appellate court will affirm the district
5 court’s decision if it is right for any reason, so long as it is not unfair to the appellant).
6 {8} Defendant’s final issue hinges on her contention that Officer Sanchez’s actions
7 entrapped her into committing the offenses and that the jury should have been
8 instructed on subjective entrapment, UJI 14-5160 NMRA, and objective entrapment,
9 UJI 14-5161 NMRA. [MIO 4] In our calendar notice, we pointed out that to the extent
10 Defendant was arguing entrapment on the charge of battery upon a peace officer, we
11 were not convinced that the district court erred in refusing to instruct the jury on
12 Defendant’s entrapment defense, given the fact that it appears that she denied
13 committing the offense. [CN 10] See State v. Rodriguez, 1988-NMCA-069, ¶ 23, 107
14 N.M. 611, 762 P.2d 898 (stating that the defense of entrapment “is not available to a
15 defendant who denies committing the offense, because its invocation necessarily
16 assumes the commission of at least some elements of the offense”). In her
17 memorandum in opposition, Defendant responds to our concern by citing to Poore v.
18 State, 1980-NMSC-035, 94 N.M. 172, 608 P.2d 148, for the proposition that “when
19 considering the propriety of a jury instruction, the evidence must be examined in favor
8
1 of the defendant, to whom the instruction might be of any benefit under any
2 reasonable hypothesis.” [MIO 9] While this may be true, Poore is inapposite to the
3 question of whether an entrapment defense is available to a defendant who denies
4 committing the offense. Thus, we are not convinced that our suggestion was incorrect,
5 and we will therefore review Defendant’s entrapment argument solely with respect to
6 her conviction for resisting arrest.
7 {9} According to Defendant, she submitted UJI 14-5160 to the district court, but the
8 instruction was denied. [MIO 4; see RP 96] This instruction applies to subjective
9 entrapment. UJI 14-5160, comm. cmt. Subjective entrapment—unfair inducement
10 where the defendant is not predisposed—occurs “when the criminal design originates
11 with the officials of the government, and they implant in the mind of an innocent
12 person the disposition to commit the alleged offense and induce its commission in
13 order that they may prosecute.” State v. Vallejos, 1997-NMSC-040, ¶ 5, 123 N.M.
14 739, 945 P.2d 957. Here, in order for the instruction to apply, the criminal
15 design—resisting arrest—would have had to have originated with Officer Sanchez.
16 Similarly, the disposition to commit the crime of resisting arrest would have had to
17 have been implanted in Defendant’s mind and induced by Officer Sanchez for the
18 purpose of prosecuting her for that crime. There is notably no evidence in the record
19 to support this; instead, Defendant argues that Officer Sanchez entered her house
9
1 without a warrant, followed her throughout the house demanding that she permit him
2 to search it, escalated the encounter until she began to weep, and aroused her fear and
3 anger to the point that she “resisted his efforts to restrain her so that he could conduct
4 an illegal search.” [MIO 5] Although we view the evidence in the light most favorable
5 to the giving of a defendant’s requested instruction, State v. Boyett, 2008-NMSC-030,
6 ¶ 12, 144 N.M. 184, 185 P.3d 355, we are not persuaded that Officer Sanchez
7 attempted to handcuff Defendant for the purpose of ultimately prosecuting her for
8 resisting arrest. Rather, it appears that his actions were taken for the purpose of
9 searching Defendant’s home. Consequently, we are not convinced that the district
10 court erred in refusing to give Defendant’s subjective entrapment instruction. Cf. State
11 v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69 (stating that a defendant
12 is entitled to jury instructions on his or her theory of the case if there is evidence to
13 support the instruction).
14 {10} Defendant also tendered an instruction on objective entrapment, UJI 14-5161,
15 which was refused by the district court. [MIO 5; see RP 97] The thrust of Defendant’s
16 memorandum in opposition is directed at the normative component of objective
17 entrapment, which is whether, as a matter of law, the “police conduct exceeded the
18 standards of proper investigation[.]” Vallejos, 1997-NMSC-040, ¶ 11. [See generally
19 MIO 5-8] The focus of the normative inquiry is on the standards of proper
10
1 investigative conduct, particularly prohibiting investigative activity that employs
2 unconscionable methods or advances illegitimate purposes. Id. ¶¶ 12, 16-18. Under
3 the normative component,
4 the district court must carefully scrutinize both the methods and purposes
5 of police conduct to determine whether police tactics offend our notions
6 of fundamental fairness, or are so outrageous that due process principles
7 would absolutely bar the government from invoking judicial processes
8 to obtain a conviction.
9 State v. Shirley, 2007-NMCA-137, ¶ 17, 142 N.M. 765, 170 P.3d 1003 (alteration,
10 internal quotation marks, and citation omitted).
11 {11} We note that neither the submitted instruction nor Defendant’s memorandum
12 in opposition appear to assert that Officer Sanchez’s investigative activity advanced
13 an illegal purpose; rather, they concentrate on the methods used. With respect to
14 unconscionable methods, Vallejos provides a list of helpful “indicia of
15 unconscionability[,]” which, in relevant part, includes
16 coaxing a defendant into a circular transaction, . . . an extreme plea of
17 desperate illness, an appeal based primarily on sympathy or friendship,
18 . . . persistent solicitation to overcome a defendant’s demonstrated
19 hesitancy, the use of brutality or physical or psychological coercion to
20 induce the commission of a crime, . . . unjustified intrusion into citizens’
21 privacy and autonomy, . . . excessive involvement by the police in
22 creating the crime, [and] the manufacture of a crime from whole cloth[.]
23 1997-NMSC-040, ¶ 18 (alteration, internal quotation marks, and citations omitted).
24 {12} A finding of normative entrapment is “an extreme remedy for extreme
11
1 government behavior.” Id. ¶ 20. A determination of objective entrapment should be
2 “reserved for only the most egregious circumstances[.]” Id. ¶¶ 21-22 (internal
3 quotation marks and citation omitted). On appeal, we review de novo the application
4 of normative standards of objective entrapment. In re Alberto L., 2002-NMCA-107,
5 ¶ 15, 133 N.M. 1, 57 P.3d 555.
6 {13} Here, Defendant argues that Officer Sanchez’s actions in unlawfully entering
7 her home unannounced and without authority, berating her in front of her children for
8 the conditions of her home, demanding permission to search the home, ignoring her
9 instructions to leave, and announcing an intention to search regardless of her refusal,
10 “shock the conscience” and amount to “outrageous government conduct.” [MIO 6-8]
11 Keeping in mind our Supreme Court’s admonition that objective entrapment should
12 be reserved for only the most egregious circumstances, Vallejos, 1997-NMSC-040,
13 ¶¶ 21-22, we are not convinced that the facts of this case rise to that level.
14 Specifically, although Officer Sanchez was not acting as a community caretaker for
15 purposes of his warrantless entry into Defendant’s home, his initial actions
16 demonstrate a concern for the three-year-old child he observed standing on the
17 second-story roof—a concern that intensified when he entered the home and observed,
18 through sight and smell, the conditions of the home. We are not prepared to say that
19 Officer Sanchez’s actions in requesting to view the child’s room and his subsequent
12
1 conduct with respect to Defendant, including attempting to handcuff her, were so
2 extreme as to warrant a determination that the “police conduct exceeded the standards
3 of proper investigation[.]” Vallejos, 1997-NMSC-040, ¶ 11. Consequently, we are not
4 convinced that the district court erred in refusing to give Defendant’s instruction on
5 objective entrapment.
6 {14} Accordingly, for the reasons stated in this Opinion, as well as those provided
7 in our notice of proposed disposition, we affirm.
8 {15} IT IS SO ORDERED.
9 _________________________________
10 MICHAEL E. VIGIL, Chief Judge
11 WE CONCUR:
12 ___________________________
13 JAMES J. WECHSLER, Judge
14 ___________________________
15 STEPHEN G. FRENCH, Judge
13