1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 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. 30,384
10 PATRICE CHUNG,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas Hynes, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 M. Anne Kelly, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Jacqueline L. Cooper, Chief Public Defender
20 B. Douglas Wood, III, Assistant Appellate Defender
21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 VIGIL, Judge.
1 Defendant was convicted of one count of distribution of marijuana. NMSA
2 1978, § 30-31-22(A) (2006) (amended 2011). Defendant appeals, contending that he
3 was denied his constitutional right to confront a critical witness against him. See U.S.
4 Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the
5 right . . . to be confronted with the witnesses against him.”); N.M. Const. art. II, § 14
6 (“In all criminal prosecutions, the accused shall have the right . . . to be confronted
7 with the witnesses against him.”). We reverse.
8 DISCUSSION
9 Trial was held in Aztec, New Mexico. Prior to trial, the State filed a motion to
10 allow its witness from the New Mexico Scientific Laboratories Division to testify by
11 video conference. The witness was necessary to prove an essential element of the
12 charge, that the substance transferred was marijuana. The grounds stated in the
13 motion were:
14 (1) A Crime Lab Analyst with the New Mexico Scientific
15 Laboratories Division has been subpoened [sic] to testify in the above
16 matter . . .;
17 (2) The Scientific Laboratories Division is located in Santa Fe, New
18 Mexico;
19 (3) The Crime Lab Analyst is a necessary witness;
20 (4) For judicial economy the Crime Lab Analyst should be allowed to
21 appear via video-conferencing;
2
1 (5) An appearance of a witness by video-testimony does not run afoul
2 of . . . Defendant’s right to confront the witnesses against him. Unlike
3 telephonic appearance, video-conferencing permits the jury, . . .
4 Defendant, the Court, and Counsel for both parties to not only hear the
5 testimony, but to also visually observe the witness’ demeanor and
6 candor. It also permits the witness to see . . . Defendant and Counsel.
7 Because of this, the members of the jury can independently form
8 opinions as to the veracity of the witness and the weight to give the
9 witness’ testimony.
10 The motion also states that Defendant opposed the motion. Under the Rules of
11 Criminal Procedure, Defendant therefore had a right to file a response within fifteen
12 days. Rule 5-120(C) NMRA (stating that the moving party shall determine if the
13 motion is opposed, and if it is not opposed, an order initialed by opposing counsel
14 shall accompany the motion); Rule 5-120(E) (“Unless otherwise specifically provided
15 in these rules, a written response shall be filed within fifteen (15) days after service
16 of the motion.”). Defendant also had the right to file a response under the district
17 court’s own local rules. LR11-104(B) (“The responding party shall have fifteen (15)
18 days after service of the motion to answer by written brief.”). However, without
19 affording Defendant an opportunity to respond, or otherwise be heard, the district
20 court entered its order the day after the State filed its motion, and granted the motion.
21 In its totality, the “Order Allowing Testimony Via Video Conferencing” states:
22 THIS MATTER having come before the Court this 9th day of
23 March, 2010 on the written motion of the State and good cause
24 appearing therefore,
3
1 IT IS HEREBY ORDERED that the Crime Lab Analyst may
2 appear via video conferencing.
3 At trial, the analyst was allowed to testify by video conference over
4 Defendant’s objection that it violated his constitutional right to confront the witness
5 against him. After the analyst testified, a hearing was held outside the presence of the
6 jury in which the analyst stated that while he was testifying, he could see the
7 prosecutor, and sometimes defense counsel, but not Defendant, the judge, or the jury.
8 This was contrary to the representation made in the State’s motion. Defendant then
9 moved to strike the analyst’s testimony.
10 Two days after the trial was completed, the district court filed a formal order,
11 which denied Defendant’s objection to allowing the analyst to testify by video
12 conference, and his motion to strike the analyst’s testimony. The order states that
13 Defendant’s constitutional right to confront the witness against him was not
14 compromised by the video conference testimony because the jury was able to observe
15 and hear the analyst’s testimony “in the same manner they would have if the [a]nalyst
16 had personally appeared at trial.” Moreover, the order continues, “If the [a]nalyst was
17 required to appear and testify in person, he would have been required to drive a total
18 of six hours to and from the courthouse to testify,” and that “The State of New Mexico
19 is presently experiencing a financial crisis and the appearance of the [a]nalyst by video
20 conferencing equipment saved money.”
4
1 The order was entered after the district court had already decided to allow the
2 testimony by video conference, and after the analyst had already testified. Moreover,
3 the finding relating to a “financial crisis” has no evidentiary support. And, even if the
4 district court could take judicial notice of the state’s general financial condition, the
5 finding sheds no light on the budget resources available to the Scientific Laboratories
6 Division for travel at the time of the trial.
7 No Opportunity To Be Heard
8 The State’s motion raised the issue of whether, and under what circumstances,
9 the State may present evidence crucial to its case by video conference without
10 violating a defendant’s constitutional right to confront witnesses against him. The
11 State’s motion cited no legal authority and only made an assertion of convenience for
12 the witness.
13 The district court granted the motion without affording Defendant his right to
14 respond, as provided in the Rules of Criminal Procedure and the district court’s own
15 rules. Further, the motion was granted without hearing or considering any evidence,
16 without considering or applying applicable case law and standards, and without
17 making pertinent findings of fact and conclusions of law. Granting the motion under
18 these circumstances was error. State v. Shaw, 90 N.M. 540, 541, 565 P.2d 1057, 1058
19 (Ct. App. 1977).
5
1 Legal Error
2 Our review of Defendant’s Confrontation Clause Claim is de novo. State v.
3 Dedman, 2004-NMSC-037, ¶ 23, 136 N.M. 561, 102 P.3d 628, overruled on other
4 grounds by State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, rev’d
5 by ___ U.S. ___, 131 S.Ct. 2705 (2011).
6 In State v. Almanza, 2007-NMCA-073, ¶ 1, 141 N.M. 751, 160 P.3d 932, we
7 considered whether a chemist from the New Mexico State Crime Lab was allowed to
8 give testimony by telephone in the absence of a compelling need or reason for such
9 testimony, and concluded he could not. We pointed out that United States Supreme
10 Court authority has held that face-to-face confrontation is an element of the Sixth
11 Amendment right of confrontation, and that any exceptions to the general rule
12 providing for face-to-face confrontation are “narrowly tailored” and include “only
13 those situations where the exception is necessary to further an important public
14 policy.” Id. ¶ 8 (internal quotation marks and citation omitted). “Thus, there must be
15 both an important public policy and a required necessity.” Id. After considering other
16 authorities, we concluded:
17 [I]t is apparent that the chemist’s busy schedule and the inconvenience
18 that would be caused by either requiring his testimony or postponing the
19 trial until he was able to testify are just the sort of considerations that do
20 not satisfy the exceptions to the Confrontation Clause. Where there are
21 requirements of important public policy and showing of necessity, mere
22 inconvenience to the witness is not sufficient to dispense with face-to-
6
1 face confrontation.
2 Id. ¶ 12.
3 The State’s motion cited to nothing more than “judicial economy” arising from
4 allowing the analyst to testify by video conference because the analyst was located in
5 Santa Fe, and the trial was being held in Aztec. This was nothing more that an
6 assertion that it would be more convenient for the witness, which Almanza
7 unambiguously holds is not sufficient. On the basis of Almanza alone, it was error to
8 grant the State’s motion.
9 CONCLUSION
10 The conviction is reversed.
11 IT IS SO ORDERED.
12 ______________________________
13 MICHAEL E. VIGIL, Judge
14 WE CONCUR:
15 __________________________________
16 JAMES J. WECHSLER, Judge
17 __________________________________
18 TIMOTHY L. GARCIA, Judge
7