August 3, 2020- State of New Mexico v. Samuel Pinon, No. A-1-CA-38168

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-38168	4
SAMUEL PIÑON,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	7
Michael H. Stone, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Aarons Law Firm PC	12
Stephen D. Aarons	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION
VARGAS, Judge.	16
{1} 	Defendant appeals from his conviction for second-degree murder. This Court	17
issued a calendar notice proposing to affirm Defendant’s conviction. Defendant has	18
filed a memorandum in opposition with this Court, which we have duly considered.	19
Unpersuaded, we affirm.	20
Court of Appeals of New Mexico
Filed 8/3/2020 10:57 AM

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{2} 	On appeal, Defendant challenges the admissibility of (1) the State’s irrelevant	1
and prejudicial expert witnesses’ testimony at trial; and (2) the preliminary hearing	2
testimony of Marissa Castillo because Defendant did not have a meaningful	3
opportunity to cross-examine the witness. Defendant continues to assert both issues	4
in his memorandum in opposition.	5
{3} 	First, Defendant continues to assert that “[t]he [district] court failed in its	6
gatekeeper duties to exclude from the jury junk science twisted beyond recognition	7
to gain a murder conviction.” [MIO 5] “To find plain error, the Court must be	8
convinced that admission of the testimony constituted an injustice that created grave	9
doubts concerning the validity of the verdict.” State v. Montoya, 2015-NMSC-010,	10
¶ 46, 345 P.3d 1056 (internal quotation marks and citation omitted). Defendant	11
contends in his memorandum in opposition that “a shoe expert stated that three out	12
of fifty-six (56) shoe impressions ‘were consistent with the shoes worn’ by	13
[Defendant]” and another “expert testified that four of sixteen (16) impressions at	14
the scene ‘could neither be identified nor eliminated as having been created’ by	15
[Defendant’s] tires.” [MIO 3, 4, ¶¶ 4, 6] Defendant argues that as a result of the	16
district court’s failure to conduct a proper Rule 11-702 NMRA inquiry [MIO 4-5,	17
¶¶ 7-8], 	the 	experts 	were 	allowed 	to 	testify 	“that 	they 	could 	not 	eliminate	18
[D]efendant’s shoe and tire impressions” from the scene, enabling “prosecution to	19
place [Defendant] at the scene absent physical evidence.” [MIO 5, ¶ 8]	20

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{4} 	We conclude that Defendant has not demonstrated plain error because the	1
experts’ testimony merely declines to affirmatively exclude Defendant’s shoe and	2
tire impressions from the scene and does not indicate that Defendant is the individual	3
who murdered the victim. See Montoya, 2015-NMSC-010, ¶ 49 (refusing to find	4
plain error in the admission of expert testimony when the expert “made no assertions	5
that [the d]efendant caused” the victim’s injuries and there was “ample evidence	6
outside 	of 	[the 	expert’s] testimony to 	support 	the 	jury’s 	finding 	of 	guilt”).	7
Furthermore, there was testimony from another witness that, in fact, placed	8
Defendant at the scene. [DS 5] See id. The disputed expert testimony did not create	9
grave doubts as to the verdict and therefore its admission was not plain error. See id.	10
¶ 46.	11
{5} 	Second, Defendant continues to assert that his Confrontation Clause rights	12
were violated when “an additional [forty-four (44)] items of evidence had been	13
disclosed by the State subsequent to the preliminary hearing testimony of Marissa	14
Castillo[,]” which effectively prevented Defendant “from any meaningful cross-	15
examination of the witness at the preliminary hearing.” [MIO 6, ¶ 9] Defendant	16
again has not identified how the additional items of evidence impacted his defense	17
or changed his motive for cross-examination. Instead, Defendant cites cases that	18
assert general statements of law regarding the Confrontation Clause and preliminary	19
examinations and asks this Court to place the case on the general calendar so he can	20

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brief “how the forty-four items of discovery would have altered cross examination.”	1
[MIO 9]	2
{6} 	While we do not disagree with the general propositions of law referenced by	3
Defendant, they do not require reversal in the present case. See State v. Mondragon,	4
1988-NMCA-027, ¶ 10, 107 N.M. 421, 758 P.2d 1003 (stating that a party	5
responding to a summary calendar notice must come forward and specifically point	6
out errors of law and fact, and that repetition of earlier arguments does not fulfill this	7
requirement), superseded by statute on other grounds as stated in State v. Harris,	8
2013-NMCA-031, 297 P.3d 374; see also Hennessy v. Duryea, 1998-NMCA-036,	9
¶ 24, 124 N.M. 754, 955 P.2d 683 (“[I]n summary calendar cases, the burden is on	10
the party opposing the proposed disposition to clearly point out errors in fact or	11
law.”); State v. Ibarra, 1993-NMCA-040, ¶¶ 4, 10, 116 N.M. 486, 864 P.2d 302	12
(noting that the counsel who tried the case prepares the initial docketing statement,	13
which provides each side the opportunity to advance its version of the facts, and	14
indicating that this Court does not order transcripts or place cases on the general	15
calendar to allow an appellant to “sort through the transcript for unidentified error”);	16
State v. Sheldon, 1990-NMCA-039, ¶ 5, 110 N.M. 28, 791 P.2d 479 (“It has long	17
been recognized by this [C]ourt that the appellate rules do not allow appellate	18
counsel to pick through the record for possible error.”). Without any explanation as	19
to how the forty-four items of evidence provided after the preliminary hearing	20
impacted Defendant’s effective cross-examination of Ms. Castillo or any authority	21

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demonstrating that any discovery disclosed after a preliminary examination renders	1
a prior cross-examination not meaningful, we are unpersuaded that the district court	2
violated Defendant’s Confrontation Clause rights by admitting the preliminary	3
examination testimony. See Hennessey, 1998-NMCA-036, ¶ 24.	4
{7} 	Accordingly, for the reasons stated above and in our notice of proposed	5
disposition, we affirm Defendant’s conviction.	6
{8} 	IT IS SO ORDERED.	7
__________________________________	8
JULIE J. VARGAS, Judge	9
WE CONCUR:	10
_________________________________	11
JENNIFER L. ATTREP, Judge	12
_________________________________	13
JACQUELINE R. MEDINA, Judge	14