February 09, 2012 – State of New Mexico v. Patrice Chung, No. 30,384

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _February 9, 2012

NO. 30,384

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

PATRICE CHUNG,
Defendant-A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY
Thomas Hynes, District Judge

Gary K. King, Attomey General
Santa Fe, NM
M. Anne Kelly, Assistant Attomey General

Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender

B. Douglas Wood, III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
VIGIL, Judge.
{1} 	The memorandum opinion filed in this case on January 24, 2012, is hereby
withdrawn, and this opinion is substituted in its place.
{2} 	Defendant was convicted of one count of distribution of marijuana. 	NMSA
1978, § 30-31-22(A) (2006) (amended 2011). Defendant appeals, contending that he
was denied his constitutional right to confront a critical witness against him. See U.S.
Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”); N.M. Const. art. II, § 14
(“In all criminal prosecutions, the accused shall have the right . . . to be confronted
with the witnesses against him.”). We reverse.
DISCUSSION
{3} 	Trial was held in Aztec, New Mexico. Prior to trial, the State filed a motion to
allow its witness from the New Mexico Scientific Laboratories Division to testify by
video conference. 	The witness was necessary to prove an essential element of the
charge, that the substance transferred was marijuana. 	The grounds stated in the
motion were:
(1) 	A 	Crime 	Lab 	Analyst 	with 	the 	New 	Mexico 	Scientific
Laboratories Division has been subpoened [sic] to testify in the above
matter . . .;

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(2) 	The Scientific Laboratories Division is located in Santa Fe, New
Mexico;
(3) 	The Crime Lab Analyst is a necessary witness;
(4) 	For judicial economy the Crime Lab Analyst should be allowed to
appear via video-conferencing;
(5) 	An appearance of a witness by video-testimony does not run afoul
of . . . Defendant’s right to confront the witnesses against him. Unlike
telephonic appearance, video-conferencing permits the jury, . . .
Defendant, the Court, and Counsel for both parties to not only hear the
testimony, but to also visually observe the witness’ demeanor and
candor. It also permits the witness to see . . . Defendant and Counsel.
Because of this, the members of the jury can independently form
opinions as to the veracity of the witness and the weight to give the
witness’ testimony.
{4} 	The motion also states that Defendant opposed the motion. Under the Rules of
Criminal Procedure, Defendant therefore had a right to file a response within fifteen
days. 	Rule 5-120(C) NMRA (stating that the moving party shall determine if the
motion is opposed, and if it is not opposed, an order initialed by opposing counsel
shall accompany the motion); Rule 5-120(E) (“Unless otherwise specifically provided
in these rules, a written response shall be filed within fifteen (15) days after service
of the motion.”). 	Defendant also had the right to file a response under the district
court’s own local rules. LR11-104(B) (“The responding party shall have fifteen (15)
days after service of the motion to answer by written brief.”). 	However, without
affording Defendant an opportunity to respond, or otherwise be heard, the district

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court entered its order the day after the State filed its motion, and granted the motion.
In its totality, the “Order Allowing Testimony Via Video Conferencing” states:
THIS MATTER having come before the Court this 9th day of
March, 2010 on the written motion of the State and good cause
appearing therefore,
IT IS HEREBY ORDERED that the Crime Lab Analyst may
appear via video conferencing.
{5} 	At trial, the analyst was allowed to testify by video conference over
Defendant’s objection that it violated his constitutional right to confront the witness
against him. After the analyst testified, a hearing was held outside the presence of the
jury in which the analyst stated that while he was testifying, he could see the
prosecutor, and sometimes defense counsel, but not Defendant, the judge, or the jury.
This was contrary to the representation made in the State’s motion. Defendant then
moved to strike the analyst’s testimony.
{6} 	Two days after the trial was completed, the district court filed a formal order,
which denied Defendant’s objection to allowing the analyst to testify by video
conference, and his motion to strike the analyst’s testimony. 	The order states that
Defendant’s constitutional right to confront the witness against him was not
compromised by the video conference testimony because the jury was able to observe
and hear the analyst’s testimony “in the same manner they would have if the [a]nalyst
had personally appeared at trial.” Moreover, the order continues, “If the [a]nalyst was

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required to appear and testify in person, he would have been required to drive a total
of six hours to and from the courthouse to testify,” and that “The State of New Mexico
is presently experiencing a financial crisis and the appearance of the [a]nalyst by video
conferencing equipment saved money.”
{7} 	The order was entered after the district court had already decided to allow the
testimony by video conference, and after the analyst had already testified. Moreover,
the finding relating to a “financial crisis” has no evidentiary support. And, even if the
district court could take judicial notice of the state’s general financial condition, the
finding sheds no light on the budget resources available to the Scientific Laboratories
Division for travel at the time of the trial.
No Opportunity To Be Heard
{8} 	The State’s motion raised the issue of whether, and under what circumstances,
the State may present evidence crucial to its case by video conference without
violating a defendant’s constitutional right to confront witnesses against him. The
State’s motion cited no legal authority and only made an assertion of convenience for
the witness.
{9} 	The district court granted the motion without affording Defendant his right to
respond, as provided in the Rules of Criminal Procedure and the district court’s own
rules. Further, the motion was granted without hearing or considering any evidence,
without considering or applying applicable case law and standards, and without

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making pertinent findings of fact and conclusions of law. Granting the motion under
these circumstances was error. State v. Shaw, 90 N.M. 540, 541, 565 P.2d 1057, 1058
(Ct. App. 1977).
Legal Error
{10} 	Our review of Defendant’s Confrontation Clause Claim is de novo. 	State v.
Dedman, 2004-NMSC-037, ¶ 23, 136 N.M. 561, 102 P.3d 628, overruled on other
grounds by State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, rev’d
by ___ U.S. ___, 131 S.Ct. 2705 (2011).
{11} 	In State v. Almanza, 2007-NMCA-073, ¶ 1, 141 N.M. 751, 160 P.3d 932, we
considered whether a chemist from the New Mexico State Crime Lab was allowed to
give testimony by telephone in the absence of a compelling need or reason for such
testimony, and concluded he could not. We pointed out that United States Supreme
Court authority has held that face-to-face confrontation is an element of the Sixth
Amendment right of confrontation, and that any exceptions to the general rule
providing for face-to-face confrontation are “narrowly tailored” and include “only
those situations where the exception is necessary to further an important public
policy.” Id. ¶ 8 (internal quotation marks and citation omitted). “Thus, there must be
both an important public policy and a required necessity.” Id. After considering other
authorities, we concluded:

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[I]t is apparent that the chemist’s busy schedule and the inconvenience
that would be caused by either requiring his testimony or postponing the
trial until he was able to testify are just the sort of considerations that do
not satisfy the exceptions to the Confrontation Clause. Where there are
requirements of important public policy and showing of necessity, mere
inconvenience to the witness is not sufficient to dispense with face-to-
face confrontation.
Id. ¶ 12.
{12} 	The State’s motion cited to nothing more than “judicial economy” arising from
allowing the analyst to testify by video conference because the analyst was located in
Santa Fe, and the trial was being held in Aztec. This was merely an assertion that it
would be more convenient for the witness, which Almanza unambiguously holds is
not sufficient. On the basis of Almanza alone, it was error to grant the State’s motion.
CONCLUSION
{13} 	The conviction is reversed.
{14} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

TIMOTHY L. GARCIA, Judge