State v. Delgado

Certiorari Granted, No. 31,733, June 23, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-061

Filing Date: May 14, 2009

Docket No. 27,192

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

PABLO DELGADO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Silvia Cano-Garcia, District Judge

Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

WECHSLER, Judge.

{1} Defendant Pablo Delgado appeals his convictions of possession of cocaine and
tampering with evidence. With regard to the possession charge, a forensic chemist from the
New Mexico Department of Public Safety Crime Lab (Crime Lab) testified concerning the
analyses of another chemist from the Crime Lab based on the reports of his test results. The
district court received one of the reports in evidence as a business record. We conclude that

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the report was properly received as a business record and that the chemist’s testimony did
not violate Defendant’s right of confrontation. We further conclude that there was sufficient
evidence to convict Defendant of both charges. We therefore affirm.

BACKGROUND

{2} In their bike patrol on June 18, 2004, at approximately 10:00 p.m., Officers Irma
Palos and Wavie Brown of the Las Cruces Police Department observed Defendant in the
vicinity of mobile homes. He was bent down behind a wooden fence. Officer Palos called
out to Defendant. Defendant stood up, looked at the officers, and walked quickly away from
them toward a nearby storage shed. Officer Palos called out to Defendant to stop. She lost
sight of Defendant for “a quick moment” as Defendant walked toward the shed. Defendant
then turned around and started walking back to the officers.

{3} When Officer Palos asked Defendant what he was doing, Defendant responded that
he was “drinking a beer and talking to his wife on the phone.” Officer Palos testified,
however, that the beer can that Defendant was holding was not open, and there was no one
on Defendant’s cell phone. Officer Palos asked Defendant what he had thrown because,
based on his body movements, she believed that he had disposed of something. Defendant
repeated that he was drinking a beer and talking with his wife on the phone. Officer Cindy
McCants, who had arrived at the scene, found a baggie with a white powdery substance in
front of the shed. Officer McCants gave the baggie to Officer Brown, who showed it to
Officer Palos. At that point, without provocation, Defendant put his hands behind his back
and turned around. He asked if he could make a phone call. The officers then detained him.
A field test of the substance indicated that it was cocaine.

CHEMIST’S REPORT

{4} At trial, Danielle Elenbaas, a forensic chemist at the Crime Lab, testified that the
Crime Lab is accredited by an accrediting body that inspects the lab every five years to
ensure that it uses current procedures, validated methods, and good science. She stated that
Eric Young, another forensic chemist at the Crime Lab, tested the substance and prepared
a report of his analysis. Ms. Elenbaas testified as the records custodian of Mr. Young’s
report. She identified the report and described the routine process by which it was created.
She stated that only she and Mr. Young were authorized to generate such reports on
controlled substances. She further stated that the reports record the results of the tests the
chemists performed and that, after the chemists approve the reports, they provide them to the
submitting agency.

{5} The State moved for the admission of Mr. Young’s report as a business record. The
district court received the report in evidence over Defendant’s objection. Ms. Elenbaas
testified that the report showed that Mr. Young identified the substance as 1.53 grams of
cocaine.

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{6} On appeal, Defendant argues that the district court erred in receiving the Crime Lab
report in evidence. “We review the admission of evidence under an exception to the hearsay
rule with deference to the trial court’s discretion; we review to determine whether there has
been an abuse of discretion.” State v. McClaugherty, 2003-NMSC-006, ¶ 17, 133 N.M. 459,
64 P.3d 486, aff’d, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234. We will not conclude
that the district court “abused its discretion by its ruling unless we can characterize it as
clearly untenable or not justified by reason.” State v. Mora, 2003-NMCA-072, ¶ 8, 133
N.M. 746, 69 P.3d 256 (internal quotation marks and citation omitted).

{7} The district court admitted Mr. Young’s laboratory report into evidence under the
business records exception to the hearsay rule. See Rule 11-803(F) NMRA. Under the
business records exception to the hearsay rule, the following documents are admissible:

A memorandum, report, record or data compilation, in any form, of acts,
events, conditions, opinions or diagnoses, made at or near the time by, or
from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report, record or
data compilation, all as shown by the testimony of the custodian or other
qualified witness[.]

Id. The rule further provides that the exception is not to be applied if the “source of
information or the method or circumstances of preparation indicate lack of trustworthiness.”
Id. Although the district court expressly received Mr. Young’s laboratory report in evidence
under the business records exception to the hearsay rule, Defendant primarily focuses his
argument on appeal on the public records exception to the hearsay rule, claiming that the two
exceptions are analogous. The public records exception to the hearsay rule permits the
admission of “[r]ecords, reports, statements or data compilations, in any form, of public
offices or agencies” that set forth “the activities of the office or agency” or “matters observed
pursuant to duty imposed by law as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers and other law enforcement
personnel.” Rule 11-803(H)(1)-(2).

{8} In State v. Christian, 119 N.M. 776, 778, 895 P.2d 676, 678 (Ct. App. 1995), limited
on other grounds by State v. Ruiz, 120 N.M. 534, 537, 903 P.2d 845, 848 (Ct. App. 1995),
this Court considered the admissibility of a blood alcohol report created by an employee of
the Scientific Laboratory Division of the New Mexico Department of Health (SLD) under
both the business records and public records exceptions to the hearsay rule. First, we
concluded that the report was properly admitted into evidence under the business records
exception. Id. at 780-81, 895 P.2d at 680-81. We reasoned that, even though the report in
question was made in the furtherance of the prosecution of the defendant, the testimony
given at the trial indicated that the report was nonetheless made no “differently from any of
the thousands of other reports similarly situated.” Id. at 780, 895 P.2d at 680. Second, we
rejected the defendant’s argument that the admission of the report was improper under the

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public records exception. Id. at 782, 895 P.2d at 682. We explained that the defendant’s
argument that the preparer of the report was “law enforcement personnel” for the purposes
of Rule 11-803(H)(2) failed because the laboratory in which the report was created was “not
an arm of law enforcement.” Christian, 119 N.M. at 781, 895 P.2d at 681. We further noted
that “even documents prepared by the state police crime laboratory can satisfy the public
records exception where an adequate foundation for reliability is laid.” Id.

{9} We read Christian to be controlling in this case. Defendant offers no argument
against the admission of the report as a business record based on the plain language of Rule
11-803(F), and our review of the trial transcript reveals that, as in Christian, a sufficient
foundation for that exception was laid and that nothing elicited at trial indicated that Mr.
Young’s laboratory report was not trustworthy. See Christian, 119 N.M. at 780-81, 895 P.2d
at 680-81.

{10} Notwithstanding the admissibility of the laboratory report as a business record,
Defendant argues that Mr. Young’s laboratory report is inadmissible because Rule 11-
803(H) does not permit the reports of law enforcement personnel to be admitted as public
records. The crux of his argument is that the district court’s admission of the report was
reversible error because it “allow[ed] the State to prove its case through a report generated
by a police agency during the investigation under the guise of an ordinary business record.”
We do not agree for two reasons.

{11} First, even if we were to accept Defendant’s assertion that the Crime Lab is a “police
agency,” Christian states that “even documents prepared by the state police crime laboratory
can satisfy the public records exception where an adequate foundation for reliability is laid.”
119 N.M. at 781, 895 P.2d at 681. In reaching this conclusion, we explained the distinction
drawn by some courts between “reports of police investigations which contain the kind of
adversarial and subjective commentary often found in such documents” and documents
“recording routine, objective observations, made as part of the everyday function of the
preparing official or agency.” Id. at 782, 895 P.2d at 682 (internal quotation marks and
citation omitted). We adopted the reasoning allowing such routine, objective reports as
evidence even though prepared by personnel associated with law enforcement. Id.
Defendant offers no compelling argument that Mr. Young’s laboratory report was not
routinely or objectively prepared or that it was in any way unreliable. See State v. Dedman,
2004-NMSC-037, ¶ 44, 136 N.M. 561, 102 P.3d 628 (finding that the state met its burden
of showing trustworthiness when there was no evidence that a blood alcohol report was
prepared atypically).

{12} Second, in Christian, we also pointed out the consistency of the reasoning allowing
as evidence such reports of routine, objective observations with existing New Mexico case
law. This Court particularly noted our Supreme Court’s observation in State v. Linam, 93
N.M. 307, 308, 600 P.2d 253, 254 (1979), that the purpose of excluding the reports of law
enforcement personnel from admissibility under Rule 11-803(H) is to ensure that officers
who engage in investigative and prosecutorial activities testify. See Christian, 119 N.M. at

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782, 895 P.2d at 682. Defendant argues in this regard that Mr. Young’s report falls within
this category because the Crime Lab prepares such reports of controlled substances “to help
law enforcement agencies investigate and prosecute cases.” However, although Mr.
Young’s laboratory report was a part of the State’s case, Mr. Young did not engage in
investigative or prosecutorial activities. As Ms. Elenbaas testified, Mr. Young’s
responsibility as a forensic chemist at the Crime Lab with regard to the evidence in this case
was to conduct an analysis and prepare a report following protocols that are reviewed by the
Crime Lab’s accrediting body. See Dedman, 2004-NMSC-037, ¶ 30 (holding that a process
under which a report is prepared that is “routine, non-adversarial, and made to ensure an
accurate measurement” indicated that the report was not investigative or prosecutorial). The
district court did not abuse its discretion in admitting Mr. Young’s laboratory report into
evidence.

RIGHT OF CONFRONTATION

{13} Defendant additionally argues that the testimony of Ms. Elenbaas violated his rights
under the United States and New Mexico constitutions to confront Mr. Young, who had
conducted the drug analysis and prepared the report. Under Crawford v. Washington, 541
U.S. 36, 53-54, 68 (2004), the state may not introduce a testimonial statement against a
criminal defendant at trial unless it establishes that the declarant is unavailable to testify at
trial and that the defendant had the prior opportunity for cross-examination. Because the
State in our case does not assert that it met these prerequisites of Crawford, the issue before
us is solely whether Mr. Young’s laboratory report was testimonial evidence.

{14} The Supreme Court expressly did not “spell out a comprehensive definition” of
“testimonial” in Crawford, but it did indicate that the term did apply to “prior testimony at
a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”
Id. at 68; see Davis v. Washington, 547 U.S. 813, 817, 822 (2006) (considering a 911 call
and statements made at a crime scene and holding that “[s]tatements are non-testimonial
when made in the course of police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency”). As our Supreme Court pointed out in Dedman, the Supreme Court’s
“historical analysis indicates that the core concern is government officers who are
prosecuting or investigating a crime, or interrogating or at least questioning a witness,” and
a Supreme Court footnote described “[i]nvolvement of government officers in the production
of testimony with an eye toward trial” because of the “unique potential for prosecutorial
abuse.” Dedman, 2004-NMSC-037, ¶ 29 (alteration in original) (internal quotation marks
and citation omitted).

{15} In Dedman, our Supreme Court addressed the issue of testimonial evidence with
regard to a blood alcohol report generated by SLD. Id. ¶¶ 4, 30. It held that the SLD report
was not testimonial for several reasons: (1) SLD personnel are not law enforcement, and the
report was not investigative or prosecutorial; (2) even though SLD prepared the report for
trial, the process was “routine, non-adversarial, and made to ensure an accurate

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measurement”; (3) the government officer preparing the report was not preparing testimony
for trial; and (4) a blood alcohol report “is very different from” the examples of testimonial
evidence described in Crawford—“prior testimony at a preliminary hearing, before a grand
jury, or at a former trial” and statements taken during “police interrogations.” Id. ¶ 30
(internal quotation marks and citation omitted).

{16} Defendant relies upon the difference between the Crime Lab and SLD to distinguish
Dedman from this case. But the fact that Crime Lab chemists are employed by the
Department of Public Safety as opposed to the Department of Health is not dispositive as it
is only one factor that we must consider. Moreover, we do not ascribe it the significance that
Defendant urges.

{17} Even though the Crime Lab chemists are employed by the Department of Public
Safety, they do not perform the duties of law enforcement officers. See NMSA 1978, § 41-
4-3(D) (2007) (describing the principal duties of a “law enforcement officer” under the Tort
Claims Act as “to hold in custody any person accused of a criminal offense, to maintain
public order or to make arrests for crimes” (internal quotation marks omitted)). The Crime
Lab chemists are not charged with the responsibility of investigating or prosecuting crime.
They are under the inspection of an accrediting body, and they use standard operating
procedures with validated methods and “good science” to analyze substances submitted to
them and prepare their reports. Although chemists testify at trial and can reasonably expect
that their reports will be used if there is a trial, their testimony and reports are significantly
different from the testimonial evidence identified in Crawford as representing a
confrontation problem. They are performing the responsibilities of their jobs, and their
testing merely provides proof, or the absence of proof, of an element in a controlled
substance case.

{18} We therefore conclude, based on our analysis of the factors expressed in Dedman,
that Mr. Young’s report was not testimonial evidence under Crawford. Following Dedman,
we must then analyze the evidence as non-testimonial hearsay under Ohio v. Roberts, 448
U.S. 56 (1980), abrogated on other grounds by Crawford, 541 U.S. 36, to determine whether
Defendant’s confrontation rights were violated because he did not have the opportunity to
cross-examine Mr. Young. See Dedman, 2004-NMSC-037, ¶¶ 32-34. There is no
constitutional violation if the evidence has demonstrated reliability. See id. ¶ 37. Further,
when evidence “falls within a firmly rooted hearsay exception,” nothing else need be shown
to establish reliability. Roberts, 448 U.S. at 66; Dedman, 2004-NMSC-037, ¶ 37. Mr.
Young’s report was admissible hearsay either as a business record or a public record. Both
are firmly rooted exceptions to the hearsay rule. Roberts, 448 U.S. at 66 n.8; Dedman, 2004-
NMSC-037, ¶ 37. There was no confrontation violation in this case.

SUFFICIENCY OF THE EVIDENCE

{19} Defendant further contends that the evidence was not sufficient to convict him of
either possession of cocaine or tampering with evidence. We conduct our review for the

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sufficiency of the evidence by viewing the evidence in the most permissible way that is
favorable to the state. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We
resolve all conflicts in the evidence and indulge all permissible inferences from the evidence
in favor of the verdict. Id. We ascertain whether there was substantial evidence to enable
any rational factfinder to find that the state established each element of the crime beyond a
reasonable doubt. Id.; State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). The
evidence may be direct or circumstantial. Sutphin, 107 N.M. at 131, 753 P.2d at 1319.

Possession of Cocaine

{20} The district court instructed the jury that, to convict Defendant of possession of
cocaine, the jury was required to find that Defendant, on June 18, 2004, had cocaine in his
possession and that he knew or believed it to be cocaine or some other drug or substance the
possession of which is regulated or prohibited by law. See NMSA 1978, § 30-31-23(A)
(2005). Because constructive possession constitutes possession, see State v. Brietag, 108
N.M. 368, 370, 772 P.2d 898, 900 (Ct. App. 1989), the district court instructed the jury,
without objection:

A person is in possession of cocaine when he knows it is on his
person or in his presence, and he exercises control over it.

Even if the substance is not in his physical presence, he is in
possession if he knows where it is, and he exercises control over it.

Two or more people can have possession of a substance at the same
time.

A person’s presence in the vicinity of the substance or his knowledge
of the existence or the location of the substance, is not, by itself, possession.

See UJI 14-3130 NMRA.

{21} There is sufficient evidence that Defendant had constructive possession of the
cocaine that Officer McCants found in front of the shed on June 18, 2004. When the officers
approached, Defendant was bent down behind a fence. He stood up, looked at the officers,
and walked away from them at a quick pace toward the shed. He did not stop when Officer
Palos called out to him. The officers lost sight of him for a moment before he walked back
to the officers. Defendant then gave the officers an explanation about drinking a beer and
talking on his cell phone that did not fit with the officers’ observations. When the cocaine
was found, he placed his hands behind his back and turned around without any request by
the officers.

{22} The fact that Defendant did not speak English and Officer Palos may have called out
to him in English is inconsequential. Even if Defendant did not understand the command,

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the officers observed him stand up, look at them, and quickly walk toward the shed, where
the cocaine was found. We are similarly unconvinced by Defendant’s argument that he did
not have exclusive control over the area and that there were others who lived in the area,
including some present within ten to fifteen feet of the shed. This evidence was before the
jury, and the jury nevertheless viewed the evidence differently from Defendant. See Sutphin,
107 N.M. at 131, 753 P.2d at 1319 (stating that we do not reweigh the evidence, “so long as
there is sufficient evidence to support the verdict”). Based on all of the circumstances, there
was substantial evidence to support Defendant’s conviction for possession of cocaine. See
State v. Smith, 100 N.M. 352, 354, 670 P.2d 963, 965 (Ct. App. 1983) (stating that
knowledge can be inferred from circumstantial evidence), abrogated on other grounds by
State v. Watkins, 2008-NMCA-060, 144 N.M. 66, 183 P.3d 951.

Tampering with Evidence

{23} “Tampering with evidence consists of destroying, changing, hiding, placing or
fabricating any physical evidence with intent to prevent the apprehension, prosecution or
conviction of any person or to throw suspicion of the commission of a crime upon another.”
NMSA 1978, § 30-22-5(A) (2003). The district court instructed the jury that, to find
Defendant guilty of tampering with evidence, the State needed to prove beyond a reasonable
doubt that on June 18, 2004, Defendant hid or placed cocaine, intending to prevent his
apprehension, prosecution, or conviction.

{24} There is sufficient evidence to support the tampering with evidence conviction. After
Defendant walked away from the officers, Officer Palos observed his body movements that
to her appeared as if he had disposed of something. When she asked him what he had
thrown, Defendant responded that he was drinking a beer and talking on the cell phone; a
response that did not comport with Officer Palos’ observations. The cocaine was located in
the area where Defendant had been. Defendant then placed his hands behind his back and
turned around. The jury could reasonably conclude that Officer Palos observed Defendant
discard the later-located cocaine.

{25} Defendant’s reference to our Supreme Court’s statement in State v. Duran, 2006-
NMSC-035, ¶ 13, 140 N.M. 94, 140 P.3d 515, misses the mark. In Duran, the Court stated
that “[w]hile New Mexico has no case law indicating that a tampering with evidence charge
cannot be based solely on circumstantial evidence, our cases upholding convictions for this
charge involve some kind of direct evidence of tampering.” Id. The evidence that was the
subject of the tampering charge was never found. Id. ¶ 15. In contrast, in this case, not only
was the evidence found, but the officers testified to Defendant’s actions linking him to his
disposing of the evidence.

CONCLUSION

{26} We affirm Defendant’s convictions for possession of cocaine and tampering with
evidence.

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{27} IT IS SO ORDERED.

____________________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

___________________________________
CYNTHIA A. FRY, Chief Judge

___________________________________
CELIA FOY CASTILLO, Judge

Topic Index for State v. Delgado, No. 27,192

CL CRIMINAL LAW
CL-PS Possession
CL-TE Tampering with Evidence

CA CRIMINAL PROCEDURE
CA-RT Right to Confrontation
CA-SE Substantial or Sufficient Evidence

EV EVIDENCE
EV-AE Admissibility of Evidence
EV-HR Hearsay Evidence
EV-SC Scientific Evidence & Daubert Standard
EV-SS Substantial or Sufficient Evidence
EV-TM Tampering with Evidence

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