State v. Crumbo ( 2013 )

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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 v. NO. 32,699
5 WOODROW CRUMBO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Ted Baca, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Vicki W. Zelle, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 WECHSLER, Judge.
1 {1} Defendant, Woodrow Crumbo, appeals from the district court’s judgment
2 affirming Defendant’s conviction for driving while intoxicated (DWI) in an on-record
3 appeal from metropolitan court. [DS 1, RP 88] We issued a notice proposing to
4 summarily affirm, and Defendant filed a memorandum in opposition. We remain
5 unpersuaded by Defendant’s arguments and affirm.
6 BACKGROUND
7 {2} On April 23, 2009, Defendant was stopped at a DWI checkpoint at 3200
8 Broadway SE in Albuquerque. [DS 1, RP 8] He was arrested and charged by
9 criminal complaint with DWI, no insurance, and expired registration. [DS 8, RP 60]
10 At the beginning of Defendant’s trial, the metropolitan court heard testimony and
11 argument regarding the constitutionality of the checkpoint. Deputy Lance Longhi, the
12 designated checkpoint supervisor, testified, but Sergeant Torres, who was also
13 involved in the checkpoint at a supervisory level, did not testify. [RP 60] The
14 metropolitan court ruled the checkpoint was constitutional pursuant to City of Las
15 Cruces v. Betancourt, 105 N.M. 655, 657, 735 P.2d 1161, 1163 (Ct. App. 1987). [RP
16 65] Defendant then entered a conditional plea of guilty to DWI, a first offense,
17 reserving his right to appeal the constitutionality of the checkpoint. [RP 41, 43]
18 Defendant appealed to the district court. [RP 1, 52]
19 {3} In the district court, Defendant argued his conviction should be reversed
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1 because: (1) his right to confrontation was violated because he was not able to
2 question Sergeant Torres regarding his role in the DWI checkpoint; and (2) the
3 evidence presented in the metropolitan court did not establish that the location of the
4 DWI checkpoint was reasonable. [RP 60, 79] The district court issued a thorough
5 and well-reasoned opinion affirming the metropolitan court’s ruling. [RP 79] With
6 respect to Defendant’s first issue, the district court held that Defendant was not
7 entitled to relief because the right to confrontation does not extend to suppression
8 hearings pursuant to State v. Rivera, 2008-NMSC-056, ¶ 1, 144 N.M. 836, 192 P.3d
9 1213. [RP 83] With respect to Defendant’s second issue, the district court held that
10 Defendant was not entitled to relief because the DWI checkpoint was reasonable and
11 constitutional. [RP 84] Defendant appeals from the district court’s judgment
12 affirming his conviction. [RP 88]
13 DISCUSSION
14 {4} In our notice, we proposed to affirm the district court’s ruling that the DWI
15 checkpoint was reasonable and constitutional and that Defendant’s right to
16 confrontation was not violated in the metropolitan court because the right to
17 confrontation does not extend to suppression hearings. In his memorandum in
18 opposition, Defendant continues to challenge the constitutionality of the DWI
19 checkpoint. [MIO 1, 7] He does not address our proposed affirmance with respect
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1 to the confrontation issue, and we thus consider this issue abandoned. See State v.
2 Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App.1988) (noting an issue is
3 deemed abandoned when a party fails to respond to our proposed disposition with
4 respect to the issue).
5 {5} In Betancourt, this Court presented eight factors that courts are to consider in
6 determining whether a checkpoint is reasonable: (1) role of supervisory personnel; (2)
7 restrictions on discretion of field officers; (3) safety; (4) reasonable location; (5) time
8 and duration; (6) indicia of official nature of the checkpoint; (7) length and nature of
9 detention; and (8) advance publicity. 105 N.M. at 658-59, 735 P.2d at 1164-65; see
10 also State v. Madalena, 121 N.M. 63, 69, 908 P.2d 756, 762 (Ct. App. 1995) (holding
11 “a sobriety checkpoint conducted in substantial compliance with the eight Betancourt
12 factors is constitutional under the New Mexico Constitution”).
13 {6} “In determining the reasonableness of a roadblock, all the factors must be
14 considered, and none is dispositive but the role of supervisory personnel and the
15 restrictions on discretion of field officers.” State v. Bates, 120 N.M. 457, 463, 902
16 P.2d 1060, 1066 (Ct. App. 1995). “The ultimate question [on appeal] is whether the
17 facts and inferences before the trial court support its conclusion that the roadblock was
18 reasonable.” Id. at 462, 902 P.2d at 1065. In considering this question, we “review
19 the evidence presented, giving deference to the facts found by the trial court, and then
4
1 determine whether those facts are legally sufficient to make the roadblock
2 reasonable.” Id.
3 {7} Defendant does not challenge the location of the checkpoint; nor does he
4 contend that the media failed to receive advance notice of the checkpoint. Instead, he
5 argues only that Deputy Longhi gave conflicting testimony about his role in
6 determining the location of the checkpoint and faxing the media release. [MIO 1, 7,
7 11] The district court found that “[t]he officers in the field exercised no discretion
8 related to the selection of the checkpoint location, and Deputy Longhi’s testimony
9 sufficiently outlined legitimate bases for the site selection, taking into account
10 previous alcohol-related incidents and arrests in the area.” [RP 86-87] Considering
11 all the Betancourt factors, we agree with the district court’s conclusion that the
12 checkpoint was reasonable and constitutional.
13 CONCLUSION
14 {8} For the reasons discussed above and in our previous notice, we affirm
15 Defendant’s conviction for DWI.
16 {9} IT IS SO ORDERED
17 _______________________________
18 JAMES J. WECHSLER, Judge
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1 WE CONCUR:
2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge
4 _________________________________
5 TIMOTHY L. GARCIA, Judge
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