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Certiorari Granted, May 11, 2012, No. 33,568

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-049

Filing Date: February 9, 2012

Docket No. 30,384

STATE OF NEW MEXICO,

Plaintiff-Appellee, 

v.

PATRICE CHUNG, 

Defendant-Appellant. 

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

Thomas Hynes, District Judge

Gary K. King, Attorney General

Santa Fe, NM

M. Anne Kelly, Assistant Attorney General 

Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender

B. Douglas Wood, III, Assistant Appellate Defender

Santa Fe, NM 

for Appellant

OPINION

VIGIL, Judge.

{1} The memorandum opinion filed in this case on January 24, 2012, is hereby

withdrawn, and this opinion is substituted in its place. 
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{2} Defendant was convicted of one count of distribution of marijuana. NMSA 1978,

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

his constitutional right to confront a critical witness against him. See U.S. Const. amend. VI

(“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.”); N.M. Const. art. II, § 14 (“In all criminal prosecutions, the accused

shall have the right . . . to be confronted with the witnesses against him.”). We reverse. 

DISCUSSION

{3} Trial was held in Aztec, New Mexico. Prior to trial, the State filed a motion to allow

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

conference. The witness was necessary to prove an essential element of the charge, that the

substance transferred was marijuana. The grounds stated in the motion were:

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

Division has been subpoened [sic] to testify in the above matter . . .; 

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

Mexico; 

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

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

appear via video-conferencing;

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

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

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

the Court, and Counsel for both parties to not only hear the testimony, but to

also visually observe the witness’ demeanor and candor. It also permits the

witness to see . . . Defendant and Counsel. Because of this, the members of

the jury can independently form opinions as to the veracity of the witness and

the weight to give the witness’ testimony.

{4} The motion also states that Defendant opposed the motion. Under the Rules of

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

Rule 5-120(C) NMRA (stating that the moving party shall determine if the motion is

opposed, and if it is not opposed, an order initialed by opposing counsel shall accompany

the motion); Rule 5-120(E) (“Unless otherwise specifically provided in these rules, a written

response shall be filed within fifteen (15) days after service of the motion.”). Defendant also

had the right to file a response under the district court’s own local rules. LR11-104(B) (“The

responding party shall have fifteen (15) days after service of the motion to answer by written

brief.”). However, without affording Defendant an opportunity to respond, or otherwise be
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heard, the district court entered its order the day after the State filed its motion, and granted

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

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

2010 on the written motion of the State and good cause appearing therefore,

IT IS HEREBY ORDERED that the Crime Lab Analyst may appear

via video conferencing.

{5} At trial, the analyst was allowed to testify by video conference over Defendant’s

objection that it violated his constitutional right to confront the witness against him. After

the analyst testified, a hearing was held outside the presence of the jury in which the analyst

stated that while he was testifying, he could see the prosecutor, and sometimes defense

counsel, but not Defendant, the judge, or the jury. This was contrary to the representation

made in the State’s motion. Defendant then moved to strike the analyst’s testimony. 

{6} Two days after the trial was completed, the district court filed a formal order, which

denied Defendant’s objection to allowing the analyst to testify by video conference, and his

motion to strike the analyst’s testimony. The order states that Defendant’s constitutional

right to confront the witness against him was not compromised by the video conference

testimony because the jury was able to observe and hear the analyst’s testimony “in the same

manner they would have if the [a]nalyst had personally appeared at trial.” Moreover, the

order continues, “If the [a]nalyst was required to appear and testify in person, he would have

been required to drive a total of six hours to and from the courthouse to testify,” and that

“The State of New Mexico is presently experiencing a financial crisis and the appearance

of the [a]nalyst by video conferencing equipment saved money.” 

{7} The order was entered after the district court had already decided to allow the

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

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

court could take judicial notice of the state’s general financial condition, the finding sheds

no light on the budget resources available to the Scientific Laboratories Division for travel

at the time of the trial.

No Opportunity To Be Heard

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

State may present evidence crucial to its case by video conference without violating a

defendant’s constitutional right to confront witnesses against him. The State’s motion cited

no legal authority and only made an assertion of convenience for the witness. 

{9} The district court granted the motion without affording Defendant his right to

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

Further, the motion was granted without hearing or considering any evidence, without
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considering or applying applicable case law and standards, and without making pertinent

findings of fact and conclusions of law. Granting the motion under these circumstances was

error. State v. Shaw, 90 N.M. 540, 541, 565 P.2d 1057, 1058 (Ct. App. 1977). 

Legal Error

{10} Our review of Defendant’s Confrontation Clause Claim is de novo. State v. Dedman,

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

v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, rev’d by ___ U.S. ___, 131

S.Ct. 2705 (2011).

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

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

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

and concluded he could not. We pointed out that United States Supreme Court authority has

held that face-to-face confrontation is an element of the Sixth Amendment right of

confrontation, and that any exceptions to the general rule providing for face-to-face

confrontation are “narrowly tailored” and include “only those situations where the exception

is necessary to further an important public policy.” Id. ¶ 8 (internal quotation marks and

citation omitted). “Thus, there must be both an important public policy and a required

necessity.” Id. After considering other authorities, we concluded:

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

would be caused by either requiring his testimony or postponing the trial

until he was able to testify are just the sort of considerations that do not

satisfy the exceptions to the Confrontation Clause. Where there are

requirements of important public policy and showing of necessity, mere

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

confrontation.

Id. ¶ 12. 

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

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

Fe, and the trial was being held in Aztec. This was merely an assertion that it would be more

convenient for the witness, which Almanza unambiguously holds is not sufficient. On the

basis of Almanza alone, it was error to grant the State’s motion.

CONCLUSION

{13} The conviction is reversed. 

{14} IT IS SO ORDERED.
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______________________________

MICHAEL E. VIGIL, Judge

WE CONCUR:

__________________________________

JAMES J. WECHSLER, Judge

__________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for State v. Chung, Docket No. 30,384

CT CONSTITUTIONAL LAW

CT-CT Confrontation

CL CRIMINAL LAW

CL-CL Controlled Substances

CA CRIMINAL PROCEDURE

CA-RT Right to Confrontation