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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,384

10 PATRICE CHUNG, 

11 Defendant-Appellant. 

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

13 Thomas Hynes, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 M. Anne Kelly, Assistant Attorney General 

17 Albuquerque, NM

18 for Appellee

19 Jacqueline L. Cooper, Chief Public Defender

20 B. Douglas Wood, III, Assistant Appellate Defender

21 Santa Fe, NM 

22 for Appellant

23 MEMORANDUM OPINION

24 VIGIL, Judge.
2

1 Defendant was convicted of one count of distribution of marijuana. NMSA

2 1978, § 30-31-22(A) (2006) (amended 2011). Defendant appeals, contending that he

3 was denied his constitutional right to confront a critical witness against him. See U.S.

4 Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

5 right . . . to be confronted with the witnesses against him.”); N.M. Const. art. II, § 14

6 (“In all criminal prosecutions, the accused shall have the right . . . to be confronted

7 with the witnesses against him.”). We reverse. 

8 DISCUSSION

9 Trial was held in Aztec, New Mexico. Prior to trial, the State filed a motion to

10 allow its witness from the New Mexico Scientific Laboratories Division to testify by

11 video conference. The witness was necessary to prove an essential element of the

12 charge, that the substance transferred was marijuana. The grounds stated in the

13 motion were:

14 (1) A Crime Lab Analyst with the New Mexico Scientific

15 Laboratories Division has been subpoened [sic] to testify in the above

16 matter . . .; 

17 (2) The Scientific Laboratories Division is located in Santa Fe, New

18 Mexico; 

19 (3) The Crime Lab Analyst is a necessary witness;

20 (4) For judicial economy the Crime Lab Analyst should be allowed to

21 appear via video-conferencing;
3

1 (5) An appearance of a witness by video-testimony does not run afoul

2 of . . . Defendant’s right to confront the witnesses against him. Unlike

3 telephonic appearance, video-conferencing permits the jury, . . .

4 Defendant, the Court, and Counsel for both parties to not only hear the

5 testimony, but to also visually observe the witness’ demeanor and

6 candor. It also permits the witness to see . . . Defendant and Counsel.

7 Because of this, the members of the jury can independently form

8 opinions as to the veracity of the witness and the weight to give the

9 witness’ testimony.

10 The motion also states that Defendant opposed the motion. Under the Rules of

11 Criminal Procedure, Defendant therefore had a right to file a response within fifteen

12 days. Rule 5-120(C) NMRA (stating that the moving party shall determine if the

13 motion is opposed, and if it is not opposed, an order initialed by opposing counsel

14 shall accompany the motion); Rule 5-120(E) (“Unless otherwise specifically provided

15 in these rules, a written response shall be filed within fifteen (15) days after service

16 of the motion.”). Defendant also had the right to file a response under the district

17 court’s own local rules. LR11-104(B) (“The responding party shall have fifteen (15)

18 days after service of the motion to answer by written brief.”). However, without

19 affording Defendant an opportunity to respond, or otherwise be heard, the district

20 court entered its order the day after the State filed its motion, and granted the motion.

21 In its totality, the “Order Allowing Testimony Via Video Conferencing” states:

22 THIS MATTER having come before the Court this 9th day of

23 March, 2010 on the written motion of the State and good cause

24 appearing therefore, 
4

1 IT IS HEREBY ORDERED that the Crime Lab Analyst may

2 appear via video conferencing.

3 At trial, the analyst was allowed to testify by video conference over

4 Defendant’s objection that it violated his constitutional right to confront the witness

5 against him. After the analyst testified, a hearing was held outside the presence of the

6 jury in which the analyst stated that while he was testifying, he could see the

7 prosecutor, and sometimes defense counsel, but not Defendant, the judge, or the jury.

8 This was contrary to the representation made in the State’s motion. Defendant then

9 moved to strike the analyst’s testimony. 

10 Two days after the trial was completed, the district court filed a formal order,

11 which denied Defendant’s objection to allowing the analyst to testify by video

12 conference, and his motion to strike the analyst’s testimony. The order states that

13 Defendant’s constitutional right to confront the witness against him was not

14 compromised by the video conference testimony because the jury was able to observe

15 and hear the analyst’s testimony “in the same manner they would have if the [a]nalyst

16 had personally appeared at trial.” Moreover, the order continues, “If the [a]nalyst was

17 required to appear and testify in person, he would have been required to drive a total

18 of six hours to and from the courthouse to testify,” and that “The State of New Mexico

19 is presently experiencing a financial crisis and the appearance of the [a]nalyst by video

20 conferencing equipment saved money.” 
5

1 The order was entered after the district court had already decided to allow the

2 testimony by video conference, and after the analyst had already testified. Moreover,

3 the finding relating to a “financial crisis” has no evidentiary support. And, even if the

4 district court could take judicial notice of the state’s general financial condition, the

5 finding sheds no light on the budget resources available to the Scientific Laboratories

6 Division for travel at the time of the trial.

7 No Opportunity To Be Heard

8 The State’s motion raised the issue of whether, and under what circumstances,

9 the State may present evidence crucial to its case by video conference without

10 violating a defendant’s constitutional right to confront witnesses against him. The

11 State’s motion cited no legal authority and only made an assertion of convenience for

12 the witness. 

13 The district court granted the motion without affording Defendant his right to

14 respond, as provided in the Rules of Criminal Procedure and the district court’s own

15 rules. Further, the motion was granted without hearing or considering any evidence,

16 without considering or applying applicable case law and standards, and without

17 making pertinent findings of fact and conclusions of law. Granting the motion under

18 these circumstances was error. State v. Shaw, 90 N.M. 540, 541, 565 P.2d 1057, 1058

19 (Ct. App. 1977). 
6

1 Legal Error

2 Our review of Defendant’s Confrontation Clause Claim is de novo. State v.

3 Dedman, 2004-NMSC-037, ¶ 23, 136 N.M. 561, 102 P.3d 628, overruled on other

4 grounds by State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, rev’d

5 by ___ U.S. ___, 131 S.Ct. 2705 (2011).

6 In State v. Almanza, 2007-NMCA-073, ¶ 1, 141 N.M. 751, 160 P.3d 932, we

7 considered whether a chemist from the New Mexico State Crime Lab was allowed to

8 give testimony by telephone in the absence of a compelling need or reason for such

9 testimony, and concluded he could not. We pointed out that United States Supreme

10 Court authority has held that face-to-face confrontation is an element of the Sixth

11 Amendment right of confrontation, and that any exceptions to the general rule

12 providing for face-to-face confrontation are “narrowly tailored” and include “only

13 those situations where the exception is necessary to further an important public

14 policy.” Id. ¶ 8 (internal quotation marks and citation omitted). “Thus, there must be

15 both an important public policy and a required necessity.” Id. After considering other

16 authorities, we concluded:

17 [I]t is apparent that the chemist’s busy schedule and the inconvenience

18 that would be caused by either requiring his testimony or postponing the

19 trial until he was able to testify are just the sort of considerations that do

20 not satisfy the exceptions to the Confrontation Clause. Where there are

21 requirements of important public policy and showing of necessity, mere

22 inconvenience to the witness is not sufficient to dispense with face-to-
7

1 face confrontation.

2 Id. ¶ 12. 

3 The State’s motion cited to nothing more than “judicial economy” arising from

4 allowing the analyst to testify by video conference because the analyst was located in

5 Santa Fe, and the trial was being held in Aztec. This was nothing more that an

6 assertion that it would be more convenient for the witness, which Almanza

7 unambiguously holds is not sufficient. On the basis of Almanza alone, it was error to

8 grant the State’s motion.

9 CONCLUSION

10 The conviction is reversed. 

11 IT IS SO ORDERED.

12 ______________________________

13 MICHAEL E. VIGIL, Judge

14 WE CONCUR:

15 __________________________________

16 JAMES J. WECHSLER, Judge

17 __________________________________

18 TIMOTHY L. GARCIA, Judge