This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 30,384 9 PATRICE CHUNG , 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas Hynes, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 M. Anne Kelly, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Jacqueline L. Cooper, Chief Public Defender 19 B. Douglas Wood, III, Assi stant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22

MEMORANDUM OPINION 23 VIGIL, Judge. 242 Defendant was convicted of one count of distribution of marijuana. NMSA 1 1978, § 30-31-22(A) (2006) (amended 2011). De fendant appeals, contending that he 2 was denied his constitutional right to confront a critical witness against him. See U.S. 3 Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the 4 right . . . to be confronted with the witne sses against him.”); N.M. Const. art. II, § 14 5 (“In all criminal prosecutions, the accused shall have the right . . . to be confronted 6 with the witnesses against him.”). We reverse. 7 DISCUSSION 8 Trial was held in Aztec, New Mexico. Pri or to trial, the State filed a motion to 9 allow its witness from the New Mexico Scientific Laboratories Division to testify by 10 video conference. The witness was necessaryto prove an essential element of the 11 charge, that the substance transferred was marijuana. The grounds stated in the 12 motion were: 13 (1) A Crime Lab Analyst with the New Mexico Scientific 14 Laboratories Division has been subpoened [sic] to testify in the above 15 matter . . .; 16 (2) The Scientific Laboratories Divi sion is located in Santa Fe, New 17 Mexico; 18 (3) The Crime Lab Analyst is a necessary witness; 19 (4) For judicial economy the Crime Lab Analyst should be allowed to 20 appear via video-conferencing; 213 (5) An appearance of a witness by video-testimony does not run afoul 1 of . . . Defendant’s right to confront the witnesses against him. Unlike 2 telephonic appearance, video-conferencing permits the jury, . . . 3 Defendant, the Court, and Counsel fo r both parties to not only hear the 4 testimony, but to also visually observe the witness’ demeanor and 5 candor. It also permits the witness to see . . . Defendant and Counsel. 6 Because of this, the members of the jury can independently form 7 opinions as to the veracity of the witness and the weight to give the 8 witness’ testimony. 9 The motion also states that Defendant opposed the motion. Under the Rules of 10 Criminal Procedure, Defendant therefore had a right to file a response within fifteen 11 days. Rule 5-120(C) NMRA (stating that the moving party shall determine if the 12 motion is opposed, and if it is not opposed, an order initialed by opposing counsel 13 shall accompany the motion); Rule 5-120(E) (“Unless otherwise specifically provided 14 in these rules, a written response shall be f iled within fifteen (15) days after service 15 of the motion.”). Defendant also had the right to file a response under the district 16 court’s own local rules. LR11-104(B) (“Th e responding party shall have fifteen (15) 17 days after service of the motion to answ er by written brief.”). However, without 18 affording Defendant an opportunity to respond, or otherwise be heard, the district 19 court entered its order the day after the State filed its motion, and granted the motion. 20 In its totality, the “Order Allowing Te stimony Via Video Conferencing” states: 21 THIS MATTER having come before the Court this 9th day of 22 March, 2010 on the written motion of the State and good cause 23 appearing therefore, 244 IT IS HEREBY ORDERED that the Crime Lab Analyst may 1 appear via video conferencing. 2 At trial, the analyst was allowed to testify by video conference over 3 Defendant’s objection that it violated his c onstitutional right to confront the witness 4 against him. After the analyst testified, a hearing was held outsidethe presence of the 5 jury in which the analyst stated that while he was testifying, he could see the 6 prosecutor, and sometimes defense counsel, but not Defendant, the judge, or the jury. 7 This was contrary to the representation made in the State’s motion. Defendant then 8 moved to strike the analyst’s testimony. 9 Two days after the trial was completed, the district court filed a formal order, 10 which denied Defendant’s objection to allowing the analyst to testify by video 11 conference, and his motion to strike the an alyst’s testimony. The order states that 12 Defendant’s constitutional right to con front the witness against him was not 13 compromised by the video conference testimony because the jury was able to observe 14 and hear the analyst’s testimony “in the samemanner they would have if the [a]nalyst 15 had personally appeared at trial.” Moreover, the order continues, “If the [a]nalyst was 16 required to appear and testify in person, he would have b een required to drive a total 17 of six hours to and from the courthouse to te stify,” and that “The State of New Mexico 18 is presently experiencing a financial crisis and the appearance of the [a]nalyst by video 19 conferencing equipment saved money.” 205 The order was entered after the district court had already decided to allow the 1 testimony by video conference, and after the analyst had already testified. Moreover, 2 the finding relating to a “financial crisis” ha s no evidentiary support. And, even if the 3 district court could take judicial notice of the state’s general financial condition, the 4 finding sheds no light on the budget resources av ailable to the Scientific Laboratories 5 Division for travel at the time of the trial. 6 No Opportunity To Be Heard 7 The State’s motion raised the issue of whether, and under what circumstances, 8 the State may present evidence crucial to its case by video conference without 9 violating a defendant’s constitutional right to confront witnesses against him. The 10 State’s motion cited no legal authority and only made an assertion of convenience for 11 the witness. 12 The district court granted the motion without affording Defendant his right to 13 respond, as provided in the Rules of Criminal Procedure and the district court’s own 14 rules. Further, the motion was granted without hearing or considering any evidence, 15 without considering or applying applicab le case law and standards, and without 16 making pertinent findings of fact and conc lusions of law. Granting the motion under 17 these circumstances was error. State v. Shaw , 90 N.M. 540, 541, 565 P.2d 1057, 1058 18 (Ct. App. 1977). 196 Legal Error 1 Our review of Defendant ’s Confrontation Clause Claim is de novo. State v. 2 Dedman , 2004-NMSC-037, ¶ 23, 136 N.M. 561, 102 P.3d 628, overruled on other 3 grounds by State v. Bullcoming, 2010-NMSC-007, 147 N.M . 487, 226 P.3d 1, rev’d 4 by___ U.S. ___, 131 S.Ct. 2705 (2011). 5
In State v. Almanza , 2007-NMCA-073, ¶ 1, 141 N.M. 751, 160 P.3d 932, we 6 considered whether a chemist from the New Mexico State Crime Lab was allowed to 7 give testimony by telephone in the absence of a compelling need or reason for such 8 testimony, and concluded he could not. We pointed out that United States Supreme 9 Court authority has held that face-to-face c onfrontation is an element of the Sixth 10 Amendment right of confrontation, and that any exceptions to the general rule 11 providing for face-to-face confrontation are “narrowly tailored” and include “only 12 those situations where the exception is necessary to further an important public 13 policy.” Id. ¶ 8 (internal quotation marks and c itation omitted). “Thus, there must be 14 both an important public policy and a required necessity.” Id. After considering other 15 authorities, we concluded: 16 [I]t is apparent that the chemist’s busy schedule and the inconvenience 17 that would be caused by either re quiring his testimony or postponing the 18 trial until he was able to testify are ju st the sort of considerations that do 19 not satisfy the exceptions to the Con frontation Clause. Where there are 20 requirements of important public po licy and showing of necessity, mere 21 inconvenience to the witness is not sufficient to dispense with face-to- 227 face confrontation. 1 Id. ¶ 12. 2 The State’s motion cited to nothing more than “judicial economy” arising from 3 allowing the analyst to testify by video c onference because the analyst was located in 4 Santa Fe, and the trial was being held in Aztec. This was nothing more that an 5 assertion that it would be more convenient for the witness, which Almanza 6 unambiguously holds is not sufficient. On the basis of Almanza alone, it was error to 7 grant the State’s motion. 8 CONCLUSION 9 The conviction is reversed. 10 IT IS SO ORDERED. 11

______________________________ 12 MICHAEL E. VIGIL, Judge 13 WE CONCUR: 14

__________________________________ 15 JAMES J. WECHSLER, Judge 16

__________________________________ 17 TIMOTHY L. GARCIA, Judge 18