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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 15:32:48 2011.09.16
Certiorari Denied, August 1, 2011, No. 33,106
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-088
Filing Date: June 6, 2011
Docket No. 28,754
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOSE M. GUTIERREZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Stephen D. Pfeffer, District Judge
Gary K. King, Attorney General
Farhan Khan, Assistant Attorney General
Santa Fe, NM
for Appellee
Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM
for Appellant
OPINION
KENNEDY, Judge.
{1} Defendant Jose Gutierrez’s involvement in an April 2005 altercation resulted in two
separate grand juries indicting him on a total of ten counts of criminal behavior. The two
indictments were joined for trial. The first trial resulted in a conviction on one count,
acquittal on two counts, and a hung jury mistrial on the remaining counts. Defendant
1
appealed the conviction. While that appeal was pending, a second trial was conducted on
the mistrial counts. The second jury convicted Defendant on all counts submitted to it.
{2} Defendant now appeals from the second verdict and sentence, asserting that the
district court (1) was without jurisdiction to try him while his first conviction was on appeal;
(2) violated his rights under the Confrontation Clause when it admitted a videotape taken at
the scene of the incident; and (3) improperly admitted a 2003 judgment and sentence entered
against Defendant for previous crimes, as well as a prior stipulated restraining order against
Defendant concerning one of the victims in this case. We affirm.
I. DISCUSSION
A. The District Court Had Jurisdiction to Conduct the Trial
{3} Defendant argues that the district court lacked jurisdiction to conduct the second trial
against Defendant while the appeal from his first trial was pending. “We review
jurisdictional issues . . . under a de novo standard of review.” State v. Heinsen, 2005-
NMSC-035, ¶ 6, 138 N.M. 441, 121 P.3d 1040; see State v. Chavarria, 2009-NMSC-020,
¶ 11, 146 N.M. 251, 208 P.3d 896 (“Questions regarding subject matter jurisdiction are
questions of law which are subject to de novo review.” (internal quotation marks and citation
omitted)).
{4} In April 2005, a grand jury indicted Defendant of first-degree murder, conspiracy
to commit first-degree murder, two counts of aggravated battery with a deadly weapon, two
counts of aggravated assault with a deadly weapon, and aggravated stalking. In February
2006, another grand jury indicted Defendant of additional charges that included aggravated
burglary, aggravated battery against a household member, and violation of an order of
protection. In May 2006, Defendant was simultaneously tried for all charges.
{5} At his first trial, the jury acquitted Defendant of first-degree murder and battery on
a household member and convicted Defendant of violating an order of protection. On the
remaining counts, the jury was unable to reach a verdict, and the district court ordered a
mistrial on those counts. Defendant then appealed his conviction and sentence for violating
the protective order.1 While the appeal was pending, Defendant was retried and convicted
of the counts on which the jury was unable to reach a verdict during the first trial and was
sentenced by the district court on the other charges for which he was convicted. Defendant
now appeals from that case and contends that the district court lacked jurisdiction to retry
him on those offenses while his convictions were on appeal to this Court.
1
This appeal was dismissed by Defendant about a month following the conclusion
of his second trial and is not a part of this appeal.
2
{6} In general, “[a] trial court loses jurisdiction of a case upon the filing of the notice of
appeal, except for the purposes of perfecting such appeal, or of passing upon a motion
directed to the judgment pending at the time.” State v. Roybal, 120 N.M. 507, 512, 903 P.2d
249, 254 (Ct. App. 1995) (alteration omitted) (internal quotation marks and citation omitted).
Yet, it is established “that a pending appeal does not divest the [district] court of jurisdiction
to take further action when the action will not affect the judgment on appeal.” Kelly Inn No.
102, Inc. v. Kapnison, 113 N.M. 231, 241, 824 P.2d 1033, 1043 (1992). The United States
Supreme Court has explained that “[t]he filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case involved in the appeal.” Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (emphasis added).
{7} In addition, the “right to appeal is restricted to final judgments and decisions. A final
order is commonly defined as an order that decides all issues of fact and law necessary to be
determined or which completely disposes of the case to the extent the court had the power
to dispose of it.” State v. Begay, 2010-NMCA-089, ¶ 11, 148 N.M. 685, 241 P.3d 1125
(internal quotation marks and citation omitted). The United States Supreme Court has held
that a “[f]inal judgment in a criminal case means sentence. The sentence is the judgment.”
Berman v. United States, 302 U.S. 211, 212 (1937).
{8} In State v. Lobato, we stated that “an order declaring mistrial simply terminates the
trial before a verdict is reached and does not finally determine any issues in the case.” 2006-
NMCA-051, ¶ 34, 139 N.M. 431, 134 P.3d 122. There, we held that an “order declaring
mistrial was not a final order [the d]efendant could appeal as a matter of right.” Id. Thus,
any charges resulting in a mistrial or hung jury are not finally determined. In contrast, as in
this case, a matter upon which a defendant has been convicted and sentenced and which he
has appealed is finally determined and no longer within the district court’s jurisdiction.
Charges that have not been finally determined properly remain with the district court.
{9} This case presents us with a trial that resulted in part with a conviction and in part
with a mistrial. In People v. Schulz, the California Court of Appeals dealt with a similar
situation. 7 Cal. Rptr. 2d 269 (Ct. App. 1992). In that case, the defendant argued on appeal
that he could not be retried for a great bodily injury enhancement, which the jury had hung
on, while he appealed his conviction from that same trial for attempted murder. Id. at 270.
The Schulz court “conclude[d that] the [district] court had jurisdiction to retry and sentence
the great bodily injury enhancement, since its resolution would have no direct impact on the
validity of the guilty verdict and sentence for the attempted murder charge pending on
appeal.” Id. at 273.
{10} We apply a similar rationale to this case. Here, Defendant’s first trial, from which
he appealed, ended in a conviction for a protective order violation, yet, the jury hung on the
other charges. Defendant was sentenced only for the protective order violation. As to that
charge, the criminal trial process was complete, and the judgment and sentence filed was a
final order as to that charge. Defendant thus had an appealable judgment with respect to that
conviction and not with respect to the counts that resulted in a mistrial. As a matter of right,
Defendant could and did appeal the conviction on that single count, but his appeal was
3
limited to only the conviction for violating the protective order. The district court retained
jurisdiction to retry the unresolved charges.
B. The Videotapes Were Properly Admitted
{11} Defendant contends that the district court improperly admitted videotaped statements
in violation of his Sixth Amendment right to confront witnesses. Owing to the poor quality
of the videotape, only several statements were audible. After hearing arguments and
testimony about this issue, the district court redacted two of the statements on the videotape
which were made by police officers because the statements were “improper.” The court
determined that “[these] other statements [were not] confrontational clause issues,” and the
jury heard the following taped statements: (1) “[we] are [the] victims”; (2) “this guy had a
restraining order”; (3) “[t]he chick who lives in there, he’s her baby daddy, he pulled a knife
on her first thing”; and (4) “[t]hey fucking stabbed me, bro[.]” The court identified two
speakers who could have made these statements as “Landeros or . . . Martinez,” both of
whom were victims of Defendant’s attack.
{12} We now determine the extent to which the admission of such statements violated the
Confrontation Clause. “We apply a de novo standard of review as to the constitutional
issues related to [the d]efendant’s rights under the Confrontation Clause.” State v.
Massengill, 2003-NMCA-024, ¶ 5, 133 N.M. 263, 62 P.3d 354; see State v. Soliz, 2009-
NMCA-079, ¶ 7, 146 N.M. 616, 213 P.3d 520 (reviewing de novo the district court’s
admission of statements recorded in a 911 transcript for Sixth Amendment violations), cert.
quashed, 2010-NMCERT-008, 148 N.M. 943, 242 P.3d 1289.
{13} “The Confrontation Clause guarantees the accused in a criminal trial the right to be
confronted with the witnesses against him, regardless of how trustworthy the out-of-court
statement may appear to be.” State v. Mendez, 2010-NMSC-044, ¶ 28, 148 N.M. 761, 242
P.3d 328 (internal quotation marks and citation omitted). “[T]he Confrontation Clause
prohibits the admission of testimonial statements unless the declarant is unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.” State v.
Bullcoming, 2010-NMSC-007, ¶ 11, 147 N.M. 487, 226 P.3d 1 (internal quotation marks and
citation omitted), cert. granted, Bullcoming v. N.M., 131 S. Ct. 62 (2010). At issue here is
whether the statements made on the videotape were testimonial.
{14} “Statements 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.” State v. Romero, 2007-NMSC-
013, ¶ 7, 141 N.M. 403, 156 P.3d 694 (internal quotation marks and citation omitted). On
the other hand, statements “are testimonial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.” Id. (internal
quotation marks and citation omitted). In Romero, our Supreme Court examined the United
States Supreme Court’s rulings in Davis v. Washington, 547 U.S. 813 (2006) and Crawford
v. Washington, 541 U.S. 36 (2004). The Court explained that “[t]he [United States Supreme]
Court distinguished Crawford, which considered an interrogation by police officers of a
4
witness hours after the event [the witness] described, from Davis, which considered an
interrogation by a 911 operator during an ongoing emergency, based on the immediacy of
the event.” Romero, 2007-NMSC-013, ¶ 8. Crawford’s interrogation of a witness was
testimonial, and Davis’s questioning by a 911 operator during an on-going emergency was
non-testimonial. Romero, 2007-NMSC-013, ¶ 8. The purpose for the questioning in each
case is the dispositive distinction: questions asked to resolve an on-going emergency are
non-testimonial, and questions used to elicit information about past events involving no
present emergency are testimonial. Id. Furthermore, the formality of the interrogation is
also of importance in determining whether the statements were testimonial as testimonial
questions are typically given under the circumstances involving greater formality. Id. ¶¶ 8,
21.
{15} The circumstances in this case are of the type associated with non-testimonial
statements. The videotape at issue was taken from a police officer’s patrol car when the
officer was responding to a call about a fight in progress. The officer testified that at the
time the video was recorded, the police were “still trying to figure out . . . if [they were] still
looking for other suspects, if the guys [on the videotape were] just victims or suspects . . .
and if there [were] any other victims that [they were] not aware of.” The officer arrived to
find four men at the scene, two of whom had been stabbed. He explained that the two
injured men “were just blurting out statements and were in a lot of pain[,]” and the uninjured
men were not talking.
{16} After listening to the video and the testimony from the officer, the district court
determined that at the time the video was taken, the police were “securing the scene, finding
out if other suspects or victims [were] out there [because] they need[ed] to act quickly to put
a perimeter around the action.” The court further stated that if the statements were made in
“response to an inquiry, it would be a very general inquiry about what’s happening, not some
interrogation at this point.” We reason that the lack of a structured question and answer, and
the fact that the statements were spontaneously given, support this view. We therefore
conclude that the statements were non-testimonial.
C. Defendant’s Prior Bad Acts and Convictions Were Properly Admitted
{17} Pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v. Boyer,
103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), Defendant argues that the district court
improperly admitted evidence of his prior convictions and restraining order. Defendant
contends that their admission was improper under Rule 11-404(B) NMRA. “As a general
rule, the [a]dmission of evidence is entrusted to the discretion of the [district] court, and
rulings of the [district] judge will not be disturbed absent a clear abuse of discretion.” State
v. Trujillo, 2002-NMSC-005, ¶ 15, 131 N.M. 709, 42 P.3d 814 (alteration in original)
(footnote omitted) (internal quotation marks and citation omitted). “An abuse of discretion
occurs when the ruling is clearly against the logic and effect of the facts and circumstances
of the case. We cannot say the [district] court abused discretion by its ruling unless we can
characterize it as clearly untenable or not justified by reason.” State v. Juan, 2010-NMSC-
041, ¶ 33, 148 N.M. 747, 242 P.3d 314 (internal quotation marks and citations omitted).
Abuse of discretion occurs when a district court exercises its discretion based on a
5
misunderstanding of the law. State v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948
P.2d 1209.
{18} Generally, “[e]vidence of a person’s character or a trait of character is not admissible
for the purpose of proving action in conformity therewith on a particular occasion[.]” Rule
11-404(A).
Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident.
Rule 11-404(B). Our Supreme Court has held that “[e]vidence is admissible under Rule [11-
]404([B]) if it is probative of a material element at issue.” State v. McGhee, 103 N.M. 100,
104, 703 P.2d 877, 881 (1985). In determining whether the district court abused its
discretion in admitting evidence under Rule 11-404(B), we examine “whether the State
made a sufficient showing that the evidence would serve a legitimate purpose other than to
show character . . . and whether the probative value was substantially outweighed by the
danger of unfair prejudice or other factors.” State v. Dietrich, 2009-NMCA-031, ¶ 40, 145
N.M. 733, 204 P.3d 748 (alteration in original) (internal quotation marks and citation
omitted).
{19} In this case, Defendant was charged with aggravated stalking of Barbara Olivas.
Under the statute applicable at the time, “[s]talking consists of a person knowingly pursuing
a pattern of conduct that would cause a reasonable person to feel frightened, intimidated or
threatened. The alleged stalker must intend to place another person in reasonable
apprehension of death, bodily harm, sexual assault, confinement or restraint.” NMSA 1978,
§ 30-3A-3(A) (1997) (amended 2009). Furthermore, “[a]ggravated stalking consists of
stalking perpetrated by a person . . . who knowingly violates a permanent or temporary order
of protection issued by a court, except that mutual violations of such orders may constitute
a defense to aggravated stalking[.]” NMSA 1978, § 30-3A-3.1(A)(1) (1997).
{20} Over Defendant’s Rule 11-404(B) objections, the district court admitted his 2003
judgment and sentence stemming from his convictions for false imprisonment and battery
against a household member. The sixth condition of the 2003 judgment and sentence stated
that Defendant was to have no contact with Olivas. The State argued that the no contact
provision was necessary to prove the aggravated stalking charge at issue in the present case,
and we agree. The State contended that it demonstrated that Defendant’s entry into Olivas’s
house in this case was unlawful and that he engaged in a pattern of conduct to frighten,
intimidate, or threaten her. The State asserted that the previous incident showed Defendant’s
intent, motive, and absence of mistake under Rule 11-404(B). Defendant responded that the
judgment and sentence were inadmissible propensity evidence. After argument, the court
admitted the evidence. We observe that evidence of Defendant’s convictions for false
imprisonment and battery on a household member are less probative of his prior relevant
conduct than the facts establishing the crimes for which he was convicted. Thus, the fact of
6
conviction may look more like evidence of being a criminal, like criminal propensity
evidence, than pattern of conduct evidence that would support a conviction under the
stalking statute. Care is needed to avoid confusion, but the use of such evidence was
acceptable as the charges directly spoke to physical harm and physical restraint, and the no
contact condition of the sentence also constituted a judicial order of protection for the period
of time which Defendant was bound by the sentence in that case.
{21} Additionally, the district court admitted a stipulated restraining order between
Defendant and Olivas. Defendant argues that this was improper character evidence. We
conclude that the district court did not abuse its discretion in admitting Defendant’s 2003
judgment and sentence and the stipulated restraining order. The State made a sufficient
showing at trial that the evidence served the legitimate purpose of proving the requisite
elements of aggravated stalking. The judgment and sentence go to the issue of whether a
reasonable person in Olivas’s position would have felt “frightened, intimidated or
threatened” by Defendant. Section 30-3A-3(A). The judgment and sentence provide
evidence as to why Olivas might have been intimidated or frightened by Defendant because
it shows that Defendant and Olivas had some prior incident and that he was to have no
contact with Olivas as a condition of his sentence. In addition, the stipulated restraining
order directly proves an element of aggravated stalking and, therefore, has a legitimate
purpose in proving Defendant’s guilt.
{22} The value of neither piece of evidence was outweighed by the danger of unfair
prejudice. Both documents were probative of the elements of aggravated stalking. During
direct examination of Olivas, the State asked her if she recognized the judgment and
sentence document. Olivas stated that it was a “[j]udgment for [s]entencing on a prior
incident between [her] and [Defendant]” and that, as a condition of his sentence, Defendant
was to have no contact with her. The judgment and sentence showed restraint and battery
of Olivas and supported the required pattern of conduct element. The stipulated restraining
order also did not unfairly prejudice Defendant as it established an element of aggravated
stalking, and its admission did not reveal any prejudicial details upon which the order was
based. We hold that the district court did not abuse its discretion in admitting the evidence.
D. Cumulative Error
{23} Defendant contends that the above issues amounted to cumulative error. Since we
concluded that the district court did not err with regard to the issues appealed, we do not
address Defendant’s cumulative error argument.
II. CONCLUSION
{24} For the foregoing reasons, we affirm Defendant’s convictions.
{25} IT IS SO ORDERED.
______________________________________
RODERICK T. KENNEDY, Judge
7
WE CONCUR:
______________________________________
MICHAEL D. BUSTAMANTE, Judge
______________________________________
LINDA M. VANZI, Judge
Topic Index for State v. Gutierrez, Docket No. 28,754
AE APPEAL AND ERROR
AE-AJ Appellate Jurisdiction
AE-CE Cumulative Error
AE-SR Standard of Review
AE-SP Stay Pending Appeal
CL CRIMINAL LAW
CL-DO Domestic Violence
CP CRIMINAL PROCEDURE
CA-FO Final Order
CA-MT Mistrial
CA-RT Right to Confrontation
DR DOMESTIC RELATIONS
DR-RO Restraining Order
EV EVIDENCE
EV-AE Admissibility of Evidence
EV-PA Prior Acts or Statements
EV-PC Prior Convictions or Judgments
EV-TE Taped Evidence
8