State v. Marez ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 30,233
10 JOSEPH MAREZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Stephen K. Quinn, District Judge
14 Gary K. King, Attorney General
15 William Lazar, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Jacqueline L. Cooper, Acting Chief Public Defender
19 Susan Roth, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 SUTIN, Judge.
1 Defendant Joseph Marez appeals from the judgment and sentence, following
2 a jury trial, convicting him of driving while intoxicated (DWI) (.08 or above). [RP
3 106] Defendant contends that his confrontation rights were violated when the district
4 court allowed the supervisor of the person who actually conducted the blood test and
5 prepared the Scientific Laboratory Division (SLD) report to give his expert opinion
6 at trial as to the blood-alcohol test results (.29), rather than the person who actually
7 conducted the test and prepared the report. [DS 5-6] In a memorandum opinion
8 issued on August 18, 2010, this Court summarily affirmed Defendant’s conviction
9 based on our Supreme Court’s opinion in State v. Bullcoming, 2010-NMSC-007, ¶ 1,
10 147 N.M. 487, 226 P.3d 1, which applied Melendez-Diaz v. Massachusetts, 557 U.S.
11 __, 129 S. Ct. 2527 (2009), in the DWI context. [MOP]
12 On October 18, 2010, our Supreme Court granted Defendant’s petition for writ
13 of certiorari and held this case in abeyance pending the United States Supreme Court’s
14 decision in Bullcoming v. New Mexico, 131 S. Ct. 2705, which was issued on June 23,
15 2011. In Bullcoming, the United States Supreme Court reversed the defendant’s
16 conviction and remanded the case. Id. at 2713. On July 21, 2011, our Supreme Court
17 issued an order remanding this case to this Court for further proceedings in light of
18 Bullcoming. [Ct. App. File] Accordingly, this Court’s memorandum opinion issued
19 on August 18, 2010, was withdrawn.
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1 In accordance with the Supreme Court’s opinion in Bullcoming, this Court’s
2 second calendar notice proposed to hold that the district court’s admission of the SLD
3 test report, without the testimony of the person who conducted the test and prepared
4 the results, violated Defendant’s confrontation rights. [CN2] The State has filed a
5 response, stating that it does not contest the second calendar notice and that it concurs
6 in the proposed reversal and remand. [Ct. App. File]
7 For the reasons set forth in the second calendar notice, we reverse Defendant’s
8 conviction and remand to the district court for further proceedings.
9 IT IS SO ORDERED.
10 __________________________________
11 JONATHAN B. SUTIN, Judge
12 WE CONCUR:
13 _________________________________
14 JAMES J. WECHSLER, Judge
15 _________________________________
16 TIMOTHY L. GARCIA, Judge
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