State v. East

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. No. 29,486 10 CODY EAST, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 13 John W. Pope, District Judge 14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 SUTIN, Judge. 1 Defendant Cody East appeals his convictions of three counts of child abuse 2 (endangerment) under NMSA 1978, Section 30-6-1 (2005) (amended 2009), and one 3 count of battery under NMSA 1978, Section 30-3-4 (1963). 4 Defendant and his brother picked up and drove five young women ranging in 5 age from thirteen to nineteen to their family’s home. Defendant’s child abuse 6 convictions involved Sarah M., Eva R., and Rachel P., and his petty misdemeanor 7 battery conviction involved Sarah M. Defendant and most of the young women had 8 consumed what appears to be a significant amount of alcohol, and Defendant “took 9 some pills.” Defendant physically damaged property, committed battery on several 10 individuals, and at one point was seen holding a kitchen knife. 11 Defendant’s appellate points are (1) the district court abused its discretion and 12 denied Defendant due process in admitting several items in evidence that were not 13 timely disclosed to Defendant, and (2) the district court erred in refusing to suppress 14 statements made by Defendant to police officers who advised him of his rights while 15 he was wounded, bleeding, intoxicated, and suicidal because the statements were not 16 the product of a knowing, voluntary, and intelligent waiver of his rights. 17 The Untimely Disclosure Issue 18 Defendant complains of failures of the State to timely disclose several different 19 documents, including witness statements, medical-related documents, and 2 1 photographs. Defendant also complains that his counsel was not able to interview a 2 police officer and a neighbor. See State v. Mora, 1997-NMSC-060, ¶ 43, 124 N.M. 3 346, 950 P.2d 789 (setting out what a court is to consider on the issue of late 4 disclosure of evidence), abrogated on other grounds as recognized by Kersey v. 5 Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. We review the admission of 6 evidence involving alleged discovery violations for abuse of discretion. State v. 7 Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968, abrogated on other 8 grounds by State v. Forbes, 2005-NMSC-027, 138 N.M. 264, 119 P.3d 144; State v. 9 Jackson, 2004-NMCA-057, ¶ 10, 135 N.M. 689, 92 P.3d 1263; State v. Wilson, 2001- 10 NMCA-032, ¶ 39, 130 N.M. 319, 24 P.3d 351, abrogated on other grounds by State 11 v. Montoya, 2005-NMCA-078, 137 N.M. 713, 114 P.3d 393. 12 We have reviewed the arguments. We see no need to detail them or the 13 evidence and circumstances. We hold that there exists no basis on which to rule that 14 the district court abused its discretion. We see no violation of Rules 5-501 or 5-505 15 NMRA relating to disclosure by the State, because the circumstances neither reflect 16 any material breach of any duty by the prosecutor, nor any intentional deprivation of 17 evidence. Further, Defendant fails to show how any evidence or circumstance was 18 material such that there existed a reasonable probability that the outcome of the trial 19 would have been different had the evidence been disclosed or obtained earlier. See 3 1 State v. McDaniel, 2004-NMCA-022, ¶ 14, 135 N.M. 84, 84 P.3d 701 (holding that 2 the defendant failed to show “how his cross-examination would have been improved 3 by an earlier disclosure or how he would have prepared differently for trial”). 4 Moreover, Defendant did not specifically show how he was prejudiced by any late 5 disclosure. See State v. Rojo, 1999-NMSC-001, ¶ 61, 126 N.M. 438, 971 P.2d 829 6 (refusing to hold that the prosecution’s delay in disclosing evidence required reversal 7 in the absence of a showing of prejudice from the non-disclosure); see also McDaniel, 8 2004-NMCA-022, ¶ 6 (“The prejudice must be more than speculative.”). We note that 9 the court made curative rulings with regard to some of the discovery issues. 10 The Suppression Issue 11 Defendant claims that statements he made to law enforcement officers at the 12 scene were involuntary because he was in no condition to understand he was waiving 13 his constitutional rights; he was wounded, bleeding, and intoxicated, and he had 14 suicidal thoughts. We determine whether the law was correctly applied to the facts, 15 we view the facts in the light most favorable to support the decision reached, and we 16 resolve all conflicts and indulge all inferences in favor of the decision. See State v. 17 Vargas, 1996-NMCA-016, ¶ 8, 121 N.M. 316, 910 P.2d 950. 18 We reject the claims. Defendant’s motion to suppress was untimely, having 19 been made on the eve of trial. See Rules 5-212(C) and 5-601(D) NMRA. On the 4 1 merits, the evidence reflects that Defendant initiated the encounter by approaching the 2 officer and wanting to speak to the officer to tell his side. Nothing in the record 3 requires a determination that, based on how Defendant described his physical and 4 mental conditions, along with the circumstances surrounding the making of the 5 statements, the district court’s discretion compelled suppression of the statements. 6 The district court was not required to conclude from Defendant’s description of his 7 condition that his waiver of rights was not a product of a free and deliberate choice. 8 There exists no evidence of intimidation, coercion, or deception. See State v. 9 Martinez, 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 P.2d 718 (stating the 10 prosecution’s burden is to demonstrate that the waiver was a product of a free and 11 deliberate choice rather than intimidation, coercion, or deception and that the waiver 12 was made with a full awareness of the nature of the right and the consequences of 13 abandoning the right). The evidence reflects that Defendant understood the 14 exchanges, was cognizant of the circumstances, and engaged in coherent conversation. 15 Defendant did not proffer evidence to the contrary. 16 CONCLUSION 17 We affirm. 18 IT IS SO ORDERED. 5 1 __________________________________ 2 JONATHAN B. SUTIN, Judge 6 1 WE CONCUR: 2 _________________________________ 3 MICHAEL D. BUSTAMANTE, Judge 4 _________________________________ 5 LINDA M. VANZI, Judge 7