State v. Ortiz ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 vs. No. 31,828
5 ANTONIO ORTIZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Lisa C. Schultz, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 GARCIA, Judge.
1 Defendant appeals from the district court’s order of dismissal in the district
2 court and remand to the magistrate court for execution of the previously imposed
3 judgment and sentence. In this license revocation case, Defendant contends that a
4 copy of his driving record is testimonial, and that the metropolitan court judge erred
5 in accepting it into evidence without any attempt to determine if the information
6 contained in the document was accurate. [DS 2] Defendant argues that submission
7 of the driving record without the testimony of the person who prepared it is a violation
8 of his confrontation rights. [Id.] [CN 2]
9 The calendar notice pointed out that recent United States Supreme Court case
10 law does not support Defendant’s contentions that Defendant’s driving record is
11 testimonial or that the district court erred in admitting it. [Ct. App. File, CN 2]
12 Defendant has filed a memorandum in opposition. [Ct. App. File, MIO] Upon due
13 consideration, we affirm Defendant’s convictions.
14 DISCUSSION
15 “In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009), the
16 United States Supreme Court held that a forensic laboratory report stating that a
17 suspect substance was cocaine ranked as testimonial for purpose of the Sixth
18 Amendment’s Confrontation Clause.” Bullcoming, 564 U.S. __, 131 S.Ct. 2705,
19 2709 (2011). “The report had been created specifically to serve as evidence in a
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1 criminal proceeding.” Id. “Absent stipulation, . . . the prosecution may not introduce
2 such a report without offering a live witness competent to testify to the truth of the
3 statements made in the report.” Id. In Bullcoming, the United States Supreme Court
4 held that the defendant’s confrontation rights were violated when the forensic
5 laboratory analyst, who had prepared the report certifying that the defendant’s blood-
6 alcohol concentration was above the threshold for aggravated DWI, did not appear in
7 court to be cross-examined by the defendant.
8 In this case, Defendant was charged with driving on a suspended/revoked
9 license. [RP 36, 37] After his conviction in magistrate court at a bench trial,
10 Defendant appealed to the district court for a trial de novo. [DS 1-2] The State
11 presented Defendant’s driving record as evidence that Defendant’s license had been
12 revoked at the time he was pulled over for speeding. [DS 2] Defendant objected
13 to the admission of his driving record as testimonial evidence for which a live witness
14 would be required to testify as to the record’s accuracy or its truth in order to protect
15 his confrontation rights. [Id.] The district court denied Defendant’s objection, and
16 admitted Defendant’s driving record under the business records exception to the
17 hearsay rule. See Rule 11-803(F) NMRA. We agree.
18 Defendant’s driving record itself was not created specifically for the present
19 criminal proceeding. It is a record kept in the course of the regularly conducted
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1 business activities of the Motor Vehicle Department; it is the regular practice of the
2 Motor Vehicle Department to make such reports; and it was properly certified as “a
3 true and accurate copy” of Defendant’s report. [MIO 4] We hold, therefore, that
4 Defendant’s driving record is not testimonial, and its admission without the testimony
5 of a witness to testify as to the accuracy of the report, when it was certified to be “a
6 true and accurate copy” of Defendant’s driving record [MIO 4], did not violate
7 Defendant’s confrontation rights. See State v. Wynne, 108 N.M. 134, 139-40, 767
8 P.2d 373, 378-79 (Ct. App. 1988) (“There is no violation of the confrontation clause
9 by the admission of business records where a qualified witness other than the maker
10 is present at trial and where the record contains other indicia of reliability of the
11 records.”).
12 CONCLUSION
13 We affirm the district court’s order dismissing the case and remanding to the
14 magistrate court to enforce the previously entered judgment and sentence.
15 IT IS SO ORDERED.
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17 TIMOTHY L. GARCIA, Judge
18 WE CONCUR:
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1 JAMES J. WECHSLER, Judge
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3 J. MILES HANISEE, Judge
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