November 18, 2013 – State v. Steven Perez, No. 31,814

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	November 18, 2013
NO. 31,814
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
STEVEN PEREZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Ralph D. Shamas, District Judge
Gary K. King, Attorney General
Corinna Laszlo-Henry, Assistant Attorney General
Santa Fe, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Defendant appeals from his conviction by a jury of criminal sexual penetration
in the fourth degree. Defendant’s primary argument is that, because the magistrate
judge’s probable cause determination at a preliminary hearing rested on no more than
judicial notice of testimony from a prior hearing, no proper felony prosecution was
initiated against him. 	We recognize that there are serious problems with the
magistrate 	judge’s 	reliance 	on 	prior 	testimony 	to 	determine 	probable 	cause.
Nevertheless, we decline to reverse on this basis because, under State v. Bent, there
is no adequate remedy for such errors after a trial on the merits. 2012-NMSC-038,
289 P.3d 1225. Finding no other reversible error, we affirm.
DISCUSSION
{2} 	Defendant makes two arguments on appeal. First, he contends that because “the
procedure used [to initiate prosecution] did not follow the requirements for bringing
a felony charge” the district court never gained jurisdiction and the conviction must
be reversed. 	Second, he maintains that “the [district] court erred in permitting the
State to call, as a rebuttal witness, an undisclosed witness who had watched the trial
as an observer, contrary to Rule 11-615 NMRA.” We address these arguments in turn
and incorporate the facts of the case as necessary to each.

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I. 	Initiation of the Charges
{3} 	Defendant was charged by criminal complaint. No witnesses testified at the
preliminary hearing as to the present charge. Instead, the State referred to and offered
the victim’s prior testimony that she had consensual sex with Defendant. 	That
testimony was given at a previous hearing before the same magistrate pertaining to a
different charge against Defendant. 	The State also referred to and offered the
testimony of a detective who testified at the earlier hearing that Defendant had
admitted to the physical relationship. 	Over objection by defense counsel, the
magistrate agreed to take judicial notice of the offered testimony. Based solely on the
judicially-noticed testimony, the magistrate issued a determination of probable cause.
{4} 	Defendant argues that, because it was improper for the magistrate to take
judicial notice of testimony in an earlier hearing on different charges, he was deprived
of his right to a properly-conducted preliminary hearing and, therefore, his conviction
should be reversed. 	See Rule 11-201(B) NMRA. 	Even if judicial notice of prior
testimony was error, however, we affirm Defendant’s conviction because, at this point
in the proceedings, there is no remedy for the error in the preliminary hearing. Bent,
2012-NMSC-038, ¶ 21.
{5} 	In Bent, the defendant was indicted by a grand jury whose statutorily-defined
term had allegedly expired. The defendant in Bent was convicted after a trial on the
merits. Id. ¶¶ 3, 8. On appeal, the defendant in Bent argued that the indictment issued

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by the grand jury was void given that its term had expired and, therefore, his
prosecution was never properly initiated. 	Id. ¶ 6. 	The Supreme Court assumed
without deciding that the grand jury’s term had expired and focused instead on
“whether a procedural, statutory error in the grand jury proceedings . . . can be raised
and decided after a petit jury has already found [the d]efendant guilty.” Id. ¶ 13. The
Court stated that “we must assume that the quantum of evidence against [the
d]efendant, having been enough to establish guilt beyond a reasonable doubt, is more
than adequate to establish probable cause merely to accuse [the d]efendant.” Id. ¶ 18.
It therefore “recognize[d] a prudential limit on the exercise of [its] appellate
jurisdiction” and stated that “reversal . . . after a guilty verdict[] would accomplish
little because, based on this record, probable cause exists to bring these same charges
against [the d]efendant.” Id. ¶¶ 15, 18.
{6} 	Like in Bent, Defendant here proceeded to trial without challenging the
preliminary hearing and his case was decided on the merits—Defendant was found
guilty of committing the crime beyond a reasonable doubt by a jury of his peers. Had
Defendant challenged the preliminary hearing—after the hearing but before trial—by
interlocutory appeal to this Court or extraordinary writ to the Supreme Court, the issue
of the propriety of the magistrate’s taking of judicial notice might have been ripe for
determination on the merits. See id. ¶ 15; State v. McCrary, 1982-NMCA-003, ¶ 2,
97 N.M. 306, 639 P.2d 593 (accepting interlocutory appeal of district court’s denial

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of the defendant’s motion to dismiss the information after a preliminary hearing). But
“[a]t this point in the proceedings—post-conviction—there is simply no adequate
remedy available for [the d]efendant.” Bent, 2012-NMSC-038, ¶ 21. In other words,
“there comes a point, as a practical matter, when issues with the [probable cause
determination] can no longer be remedied.” Id. ¶ 28. See United States v. Mechanik,
475 U.S. 66, 67 (1986) (“We believe that the petit jury’s verdict of guilty beyond a
reasonable doubt demonstrates a fortiori that there was probable cause to charge the
defendants with the offenses for which they were convicted. Therefore, the
convictions must stand despite the [Federal Rule of Criminal Procedure 6(d)]
violation.”). This is one of those times.
{7} 	Defendant argues that Bent does not control this issue because “in New Mexico
a felony must be initiated by an indictment or information, or if not, the court does not
acquire jurisdiction over the case.” 2012-NMSC-038, ¶ 34; N.M. Const. art. II, § 14
(“No person shall be held to answer for a capital, felonious[,] or infamous crime
unless on a presentment or indictment of a grand jury or information . . . . No person
shall be so held on information without having had a preliminary examination before
an examining magistrate, or having waived such preliminary examination.”). 	He
relies on State v. Chacon for the proposition that a defective preliminary hearing
violates Article II, Section 14 of the New Mexico Constitution, and thus the district
court never acquired jurisdiction over his case. Chacon, 1957-NMSC-030, 62 N.M.

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291, 309 P.2d 230. Chacon does not apply here, however, because the error in this
case was procedural, not jurisdictional. We explain.
{8} 	In Chacon, the state filed only a criminal complaint; no indictment or
information was filed. Id. ¶ 2. The defendant pled guilty based on the complaint and
was sentenced. Id. ¶ 3. Thus, in Chacon, there was no probable cause determination,
nor was the defendant found guilty after a trial on the merits. On appeal, the Supreme
Court held that the criminal complaint “failed to meet the requirements of [Article] II,
[Section] 14, thereby denying the court jurisdiction to accept the guilty plea and
impose sentence upon him.” Id. ¶ 10. The sentence was reversed. Id. ¶ 19.
{9} 	The Bent Court addressed an argument similar to that advanced here—that the
alleged error in the grand jury proceedings deprived the district court of jurisdiction
to proceed to trial. See Bent, 2012-NMSC-038, ¶ 33. It concluded that the fact that
a grand jury convened and indicted Bent as required by Article II, Section 14
distinguished that case from Chacon. See Bent, 2012-NMSC-038, ¶ 34; N.M. Const.
art. II, § 14. The Court recognized that “Chacon should be seen as a constitutional
limit on the power of the court over criminal matters that must be initiated by an
indictment or information.” 	Bent, 2012-NMSC-038, ¶ 35. 	But it held that the
duration of a grand jury’s term “being merely a matter of statute, goes not to the
jurisdiction of the court . . . but to the manner in which that power is to be exercised.”
Id.; see id. ¶ 13 (describing the alleged error as “procedural”). It “disavow[ed] any

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use of a jurisdictional analysis for what amounts to a statutory error in how the grand
jury conducted its business.” Id. ¶ 36.
{10} 	Chacon is similarly inapposite to this case. Here, a preliminary hearing was in
fact held as required by Article II, Section 14. Moreover, the alleged error Defendant
relies on is procedural, not jurisdictional. The magistrate’s decision to take judicial
notice of testimony from a prior hearing on a different case was based on the rules of
evidence, which, like the statute in Bent, govern how a court may exercise its
jurisdiction, not the extent of the court’s jurisdiction itself. 	See Ammerman v.
Hubbard Broad., Inc., 1976-NMSC-031, ¶ 8, 89 N.M. 307, 551 P.2d 1354 (stating
that “[the r]ules of evidence do no more than regulate the method of proceeding by
which substantive rights and duties are determined” and that rules of evidence are
procedural). Per Bent, a jurisdictional analysis of the error is improper.
{11} 	Despite the outcome here, we find serious fault with the magistrate’s reliance
on Rule 11-201. See Korematsu v. United States, 584 F. Supp. 1406, 1415 (N.D. Cal.
1984) (“Care must be taken that Rule [11-]201 not be used as a substitute for more
rigorous evidentiary requirements and careful fact[-]finding.”). 	Rule 11-201(B)
applies to evidence that is “not subject to reasonable dispute.” 	It does not apply
where, like here, the evidence is disputed and serves to constitute the foundation of
criminal charges. Though we conclude that “the petit jury’s verdict rendered harmless
any conceivable error in the charging decision that might have flowed from the

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violation[,]” we caution against the process followed by the prosecutor and the
magistrate below. Bent, 2012-NMSC-038, ¶ 25 (quoting Mechanik, 475 U.S. at 73).
II. 	Admission of Evidence
{12} 	At trial, Defendant testified that he never had sex with the victim S.B., but that
he did have sex with her sister (Sister). 	Contrary to the State’s contention that
Defendant had admitted to the detective that he had sex with S.B., Defendant
maintained that in his statement he was talking about having had sex with Sister, not
S.B. After Defendant testified, the State called Sister as a rebuttal witness. Defendant
objected on the ground that Sister had been in the courtroom throughout the testimony
in spite of Defendant having invoked Rule 11-615 NMRA. See Rule 11-615 (“At a
party’s request, the court must order witnesses excluded so that they cannot hear other
witnesses’ testimony, or the court may do so on its own.”). Sister testified that she
never had sex with Defendant.
{13} 	On appeal, Defendant argues that the district court erred in permitting the
testimony of a rebuttal witness who was not named as a witness before trial and that
it was error to admit that witness’s testimony when she had heard some or all of the
testimony contrary to Rule 11-615.
{14} 	As to the first issue, “rebuttal witnesses are those witnesses whose testimony
reasonably cannot be anticipated before the time of trial[.]” El Paso Elec. Co. v. Real
Estate Mart, Inc., 1982-NMCA-117, ¶ 5, 98 N.M. 570, 651 P.2d 105 (internal

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quotation marks and citation omitted). 	Rarely does allowing a rebuttal witness to
testify rise to reversible error. 	Montoya v. Super Save Warehouse Foods, 1991-
NMSC-003, ¶ 16, 111 N.M. 212, 804 P.2d 403. 	“When an undisclosed ‘rebuttal’
witness is called, the [district] court should seek to determine whether there has been
genuine surprise arising out of unexpected testimony . . . that justifies calling the
undisclosed witness.” Id. Even if the district court determines that “the party calling
the rebuttal witness reasonably might have anticipated calling the witness, [however,]
absent a strong showing of prejudice we see no error in allowing the witness to
testify.” Id. As to the second, “[t]he district court has broad discretion under Rule 11-
615 and we will not disturb the decision of the [district] court absent a clear abuse of
this discretion and prejudice to the complaining party.” State v. Shirley, 2007-NMCA-
137, ¶ 33, 142 N.M. 765, 170 P.3d 1003 (alteration, internal quotation marks, and
citation omitted).
{15} 	Because both tests for error hinge on whether Defendant has shown that
admission of the testimony unfairly prejudiced him, we need not address whether the
State was genuinely surprised by Defendant’s testimony or whether the district court
abused its discretion in admitting Sister’s testimony because, even if these criteria
were met, Defendant has not demonstrated that he was prejudiced by Sister’s
testimony. 	Direct examination of Sister was limited to whether Sister ever had a
sexual relationship with Defendant and the extent of their acquaintance with each

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other. Sister did not testify as to whether S.B. had sex with Defendant. Defendant
cross-examined Sister, including the fact that she was in the courtroom when
Defendant testified and that the State had not called her to testify before Defendant’s
testimony. He also questioned her as to her testimony that she never told anyone that
she had not had sex with Defendant until after she heard Defendant testify, even
though the case had been going on for nearly nine months. 	In closing argument,
Defendant highlighted the possibility of Sister “tailoring” her testimony to support the
State’s case.
{16} 	Defendant does not explain how cross-examination would have been different
had he had notice that Sister would testify. See State v. Griffin, 1988-NMCA-101, ¶
14, 108 N.M. 55, 766 P.2d 315 (stating that an element of prejudice is whether cross-
examination could have been strengthened by notice of the witness). Although he
objected to admission of Sister’s testimony, Defendant failed to request a continuance
in order to interview her and does not explain how lack of opportunity to do so created
unfair 	prejudice. 	See 	id. 	¶ 	12. 	“Moreover, 	the 	witness[’s] testimony 	was
ascertainable.” 	Id. ¶ 13. Defendant himself argues that the defense strategy—that
Defendant had slept with Sister, not S.B.—was clear from the day after the alleged
incident, well before trial. Defendant, therefore, had sufficient notice that the State
might seek to rebut this defense and adequate opportunity to interview Sister. Finally,
Defendant does not address whether the “testimony of [Sister was] crucial to the

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[State’s] case.” Mayeux v. Winder, 2006-NMCA-028, ¶ 36, 139 N.M. 235, 131 P.3d
85 (stating that “undisclosed witness testimony should be excluded . . . 	where
prejudice to the appellant is severe because the testimony of the witness is crucial to
the appellee’s case.” (emphasis added)). Defendant has failed to demonstrate that he
was prejudiced by Sister’s testimony, and we therefore decline to reverse on the
grounds that Sister was a surprise witness or that permitting her testimony was an
abuse of discretion.
CONCLUSION
{17} 	There being no post-trial remedy for the error in the preliminary hearing and
having found no reversible error in admission of Sister’s testimony, we affirm.
{18} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
RODERICK T. KENNEDY, Chief Judge
J. MILES HANISEE, Judge