State v. Smith

                                                                        Office of the          New Mexico
                                                                            Director           Compilation
                                                                                               Commission
                                                                 09:46:45 2024.09.30
                                                                              '00'06-
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 13, 2024

No. A-1-CA-40717

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

HUGH SMITH,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Court Judge

Raúl Torrez, Attorney General
Santa Fe, NM
Aletheia V.P. Allen, Solicitor General
Peter James O’Connor, Assistant Solicitor General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Luz C. Valverde, Assistant Appellate Defender
Albuquerque, NM

for Appellant

                                         OPINION

WRAY, Judge.

{1}    Determining the credibility of witnesses at trial is a core function of the jury. See
State v. Alberico, 

, ¶ 88, 

, 

. Nevertheless, in
the present case, a forensic interviewer and an investigating officer (collectively, the
Witnesses) testified about the credibility of the two victims (Victims) and Defendant.
Thereafter, the jury returned a guilty verdict on seven counts of third degree criminal
sexual contact of a minor (child under thirteen) (CSCM), contrary to NMSA 1978,
Section 30-9-13(C)(1) (2003), two counts of bribery or intimidation of a witness, contrary
to NMSA 1978, Section 30-24-3 (1997), and one count of false imprisonment, contrary
to NMSA 1978, Section 30-4-3 (1963). In relevant part, Defendant requests that this
Court reverse the convictions because the Witnesses improperly vouched for the
credibility of Victims and disparaged Defendant’s credibility. We conclude that the
Witnesses improperly testified as experts regarding Victims’ and Defendant’s credibility,
and in the context of the entire trial and despite Defendant’s failure to object, the
admission of this testimony was plain error. We therefore reverse Defendant’s
convictions. Having confirmed that sufficient evidence supported the convictions, we
remand for a new trial without reaching Defendant’s remaining appellate issues.

BACKGROUND

{2}      Based on the reports of his two stepsisters, Defendant was charged with twenty
counts related to allegations of CSCM, bribery of a witness, and false imprisonment. At
trial, Victims’ testimony was followed by the testimony of a forensic interviewer (the
Interviewer) and the investigating detective (the Detective).

{3}     The Interviewer described her experience conducting forensic interviews and her
observations during the interviews with Victims. The Interviewer explained that for
forensic interviews, the goal is not to get the subject to make a disclosure, but it is to
“listen and to understand the experience that they’ve gone through.” On cross-examination, when asked whether she believed Victims made full or false disclosures,
the Interviewer stated that (1) as to one of the Victims, she believed that there was a
partial disclosure and that based on her experience with false disclosures, did not
believe that this victim’s disclosure was false; and (2) as to the second victim, the
Interviewer thought there had been a full disclosure, and she “believed her.”

{4}     After the Interviewer, the State called the Detective, who testified about his
training and experience working in the violent crimes division, as well as observations
he made while watching the forensic interviews with Victims and during his interview
with Defendant. The Detective described his training and experience discerning
truthfulness, as follows:

      So, there, there’s training—there’s training for that. But this is one of those
      things where, you know, we always talk about in law enforcement training
      and experience. You really, you really can’t have one without the other.
      They, they need to—to—to mesh together. So you can have all the
      training in the world and if you have no experience, you—you—really don’t
      know what—what to expect or, or how to do it properly. So I would say,
      you know, at the point that you have the training which I have and, and
      then the experience—the first time I saw a kid lying, I knew what that
      looked like. And I mean, lying off a script, right? A kid that had been
      coached. And through all the training I had been through, I really didn’t
      grasp that. I didn’t understand that. But with the first time you experience
      it, you’re like, okay, now I—I know what that looks like. I get it.
The Detective then testified that he saw no signs of “coaching” and “didn’t see any signs
that [Victims] weren’t telling the truth.” When testifying about his interview with
Defendant, the Detective explained various techniques that he claimed allowed him to
discern whether the subject is lying, including asking baseline questions, building a
rapport, and then looking for a reaction when the suspect is confronted with the
allegations. The Detective offered an example of a “guy that ended up being innocent”
who “was furious” when confronted with allegations, and described Defendant’s
response to being confronted with the allegations in contrast as “kind of just
nonchalant.” During the interview, the Detective told Defendant that the Detective
believed there are two types of people, good people who make mistakes and are sorry
and people who do not care about repercussions. In response, Defendant described
nonsexual touching with Victims and apologized if he had inadvertently upset Victims.
The Detective thought Defendant “was upset, he was tearing up.” The Detective
interpreted this response as follows: “I felt like he was being truthful about what he was
giving me. You know, again, partial truths, but I think he felt bad. I think he felt bad
about—about everything.” After this testimony by the Detective, the jury heard more
than ninety minutes of a redacted recording of the interview.

{5}    It was in this context that on cross-examination, Defendant’s counsel asked the
Detective if he went into the interview with Defendant looking for certain answers, and
the Detective replied, “I wanted the truth. So yes, I believe the girls. So I wanted him to
talk about what happened . . . I believe it did happen—I didn’t want to be lied to.” When
asked whether he can tell when somebody is lying, the Detective stated, “I believe so,
yes.” Referring back to the “two types of people” testimony from direct examination,
Defendant’s counsel asked about a third type of person, those who “didn’t do it,” and the
Detective agreed that he did not identify that group for Defendant, because he
“believe[d Defendant] did these acts.” Shortly after this testimony, the following
exchange took place:

       Defendant’s counsel: You, you seem to get frustrated when you were
       interrogating [Defendant] that—that he wouldn’t remember specific details,
       what you would refer to as—the incident. Could it be that he didn’t have
       those specific details because it didn’t happen? Is that a possibility?

       The Detective: I didn’t think so. No.

       Defendant’s counsel: But is that a possibility?

       The Detective: Sure. Anything’s possible. That wasn’t my mindset though.

       Defendant’s counsel: Because you went in there with a specific mindset
       that, that he was guilty and that you are going to get him to talk?

       The Detective: Yes.
Defense counsel asked, “So just to be clear, there was no polygraph, but you’re
convinced he was lying?” The Detective responded, “I—I believe—correct. There was
no polygraph and I do believe what the girls had said. Yes.”

{6}   After Defendant testified, the jury returned guilty verdicts, and the district court
imposed a sentence of forty-two years. This appeal followed the district court’s denial of
Defendant’s motion to reconsider the length of the sentence.

DISCUSSION

{7}     It is undisputed that Defendant’s counsel did not object to the testimony about
credibility elicited by the State and, therefore, did not preserve this issue for review.
Defendant argues that the admission of the testimony of the Interviewer and the
Detective as to their beliefs about the credibility of Victims and Defendant was plain
error. “To find plain error, we must be convinced that admission of the testimony
constituted an injustice that created grave doubts concerning the validity of the verdict.”
State v. Garcia, 

, ¶ 10, 

 (alteration, internal quotation
marks, and citation omitted). Plain error applies “in cases raising evidentiary matters in
which the asserted error affected substantial rights, though they were not brought to the
attention of the trial judge.” 

 Defendant maintains that this Court must evaluate
whether the credibility testimony of the Witnesses impacted “substantial rights to due
process and a fair trial” particularly because “credibility was the pivotal issue in this
case.” As we explain, we agree that the Witnesses’ testimony amounted to plain error
and conclude that remand for a new trial is an appropriate remedy because the
evidence presented at trial supported Defendant’s convictions. See id. ¶ 17.

I.     In the Context of the Trial as a Whole, the Witnesses’ Testimony Amounted
       to Plain Error

{8}     Witness credibility is not the purview of expert witnesses, particularly when the
“case boiled down to a ‘swearing match’ between the defendant and the complainant,”
and it is therefore “likely that the expert testimony pertaining to the credibility of the
complainant and the identity of the perpetrator was instrumental in the jury’s decision to
convict.” Alberico, 

, ¶ 94. In the present case, there was no physical
evidence presented at trial, and Defendant and Victims were the only witnesses to the
abuse. As a result, Victims’ and Defendant’s testimony and their credibility was pivotal.
See State v. Lucero, 

, ¶ 22, 

, 

. Thus,
“direct testimony regarding the credibility or truthfulness of the alleged victim of sexual
abuse” is “expressly prohibit[ed].” Alberico, 

, ¶ 85; see Lucero, 1993-
NMSC-064, ¶¶ 15-17 (concluding that expert testimony that comments “directly upon
the credibility of the complainant” or opines that symptoms “were in fact caused by
sexual abuse” intrudes “too far upon the jury’s function as arbiter of the witnesses’
credibility,” and it was plain error to admit it when the testimony was pivotal); Garcia,

, ¶¶ 12, 16 (determining that it was plain error to admit credibility
testimony when it was pivotal and a witness “repeatedly commented, both directly and
indirectly, upon [the v]ictim’s truthfulness, identified [the d]efendant as [the v]ictim’s
molester numerous times based solely on [the v]ictim’s statement of events, and
repeated in detail [the v]ictim’s statements regarding the sexual abuse”).

{9}     The “effect” of the Witnesses’ testimony was to indicate to the jurors that they
believed Victims were “telling the truth” and that the Detective believed Defendant was
dishonest and had abused Victims. See Alberico, 

, ¶ 87. The credibility
testimony in the present case developed on a continuum. See State v. Montoya, 2015-
NMSC-010, ¶ 46, 

 (“[I]n determining whether there has been plain error,
we must examine the alleged errors in the context of the testimony as a whole.”
(alteration, omission, internal quotation marks, and citation omitted)). On direct
examination, the Witnesses couched broad opinions that touched on credibility within
the context of their experience and training surrounding interviews, and the Detective
testified as to his own method for determining whether a witness was telling the truth.
On cross-examination, Defendant directly challenged both Witnesses and identified
what had otherwise been implied: Witnesses believed or did not believe Victims and
Defendant. While Defendant elicited the direct comments on credibility from the
Witnesses when the State had been more circumspect in questioning, the result
remains—the nature of the testimony on direct examination gave rise to a “legal
conclusion that [Victims were] not fabricating [their] story.” See Alberico, 1993-NMSC-
047, ¶ 87. Taken as a whole, the Witnesses’ testimony as we have described served no
purpose other than impermissible vouching and encouraged the jury to surrender its
duty to determine credibility. This, our courts have determined, experts cannot do. See
id. ¶ 86 (“When the only evidence consists of the victim’s accusation and the
defendant’s denial, expert testimony on the question of who to believe is nothing more
than advice to jurors on how to decide the case.” (internal quotation marks and citation
omitted)).

{10} The State has both conceded and challenged the Witnesses’ status as experts
and relied on both positions at different times on appeal to support the admissibility of
the Witnesses’ testimony. In its briefing, the State argued that the Witnesses’ expert
qualifications supported the admission of their opinion testimony. We have already
explained that the strictures on credibility testimony apply to expert witnesses, and we
therefore consider this argument no further. At oral argument, however, the State
changed course and asserted that the Witnesses were not experts because they relied
on their specialized knowledge and not scientific knowledge. The State’s uncertain view
of the record is somewhat understandable because neither witness was offered or
qualified as an expert at trial in order for the district court to perform its function to
ensure that the Witnesses’ opinions satisfied the requirements for expert testimony. See
Rule 11-702 NMRA; see also State v. Torrez, 

, 

,

 (explaining that the district court must exercise a “gate[]keeping function
and ensure that the expert’s testimony is reliable”). Defendant does not challenge on
appeal the failure to offer or qualify the Witnesses as experts. Because, however, the
Witnesses’ expert status is the basis for the State’s arguments that the testimony was
properly admitted, we continue and consider whether the Witnesses were experts and
the impact of their expertise on the admissibility of their testimony to the jury.
{11} Expert opinion, unlike lay witness testimony, must be offered by a witness who is
qualified by “knowledge, skill, experience, training, or education” to “help the trier of fact
to understand the evidence or to determine a fact in issue.” See Rule 11-702
(Testimony by expert witnesses.); Rule 11-701(A) NMRA (requiring that lay opinion
testimony be “rationally based on the witness’s perception”). Our courts have explained
that “[a] witness may be admitted as an expert under Rule 11-702 upon the satisfaction
of three requirements: (1) ‘that the expert be qualified’; (2) that the testimony ‘will assist
the trier of fact’; and (3) that the expert’s testimony concern ‘scientific, technical or other
specialized knowledge.’” State v. Ruffin, 

, 

 (quoting
Alberico, 

, ¶¶ 43-45). These characteristics distinguish expert opinion
testimony from lay opinion testimony, which are opinions that are “[(1)] rationally based
on the witness’s perception, [(2)] helpful to clearly understanding the witness’s
testimony or determining a fact in issue, and [(3)] not based on scientific, technical, or
other specialized knowledge within the scope of Rule 11-702.” See Rule 11-701.

{12} The State posited at oral argument that the Witnesses did not offer expert
testimony based on a distinction in New Mexico law between scientific opinions and
opinions based on specialized knowledge. This distinction arises from the third
requirement for the admission of expert testimony under Rule 11-702—that an expert’s
opinion must be based on “‘scientific, technical or other specialized knowledge.’” See
Torrez, 

 (quoting Rule 11-702). When an expert’s opinion is
based on scientific knowledge, the district court uses the multifactor test set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 

 (1993) and
adopted in Alberico, see 

, ¶ 51, in order to determine whether the
expert’s opinion is “grounded in valid, objective science” and “reliable enough to prove
what it purports to prove,” id. ¶ 54. In New Mexico, however, the Daubert/Alberico test is
“inapplicable to expert testimony that is based on the expert’s specialized knowledge,”
as opposed to scientific knowledge. Torrez, 

. This is not to say
that New Mexico district courts need not determine “whether expert testimony is
competent under Rule 11-702” when the expert’s opinion is based on specialized
knowledge. 

 To make that determination, the role of the district court is to “evaluate a
non-scientific expert’s personal knowledge and experience to determine whether the
expert’s conclusions on a given subject may be trusted.” 

{13} The use of the Daubert/Alberico test or another evaluation to determine the
trustworthiness of an expert’s opinion has little bearing on whether a witness is or is not
an expert. Expert testimony “is neither the kind of personal observation that a lay person
is capable of making nor common knowledge within the general public.” State v. Duran,

, 

; see Rule 11-701(A) (limiting lay opinion to
testimony that is “rationally based on the witness’s perception”). Information not known
by the general public includes “[k]nowledge contained in treatises and understood by
practitioners in their particular field,” Duran, 

, as well as
knowledge that is beyond personal observation and “a product of . . . specialized
training and experience not possessed by” the average person, Ruffin, 2019-NMCA-
009, ¶ 17.
{14} Expert witnesses may apply their specialized knowledge to form opinions based
on personal observations, as our case law demonstrates. The officer in Ruffin described
his personal observations of an accident scene but also “explain[ed] his conclusions
regarding what those observations mean[t] and opine[d] as to the cause of the accident
in light of his specialized training and experience.” Id. ¶ 17. In Duran, a witness’s
testimony about delayed disclosure in child sex abuse cases “was based not just on her
personal observations, but also on specific statistics compiled in [a] . . . specialized work
environment.” 

. The conclusions in these cases that the
witnesses were experts and not lay witnesses flow naturally from a 2006 amendment to
Rule 11-701(C), see Rule 11-701, annot., which added the requirement that lay opinion
testimony may not be “based on scientific, technical, or other specialized knowledge
within the scope of Rule 11-702.” Rule 11-701. Before the amendment, district courts
properly admitted lay opinion testimony that may have been based on specialized
knowledge but otherwise satisfied the personal knowledge requirements. See State v.
Wildgrube, 

, 

, 

 (determining that the
district court did not abuse its discretion in admitting as lay opinion an officer’s accident
reconstruction testimony that “was based on his perceptions and was helpful to a clear
understanding of the testimony about the location of the debris”).

{15} The Witnesses’ testimony in the present case was expert testimony. Each of the
Witnesses began their testimony describing their experience and training, the nature of
their work, and the goals and procedures for their work. After that, each of the
Witnesses described their personal observations of the subject, put those observations
in the context of their experience and training, and formed an opinion about whether the
behavior of Victims or Defendant was consistent with a tenant of each of the Witnesses’
particular training and experience. In this way, the Witnesses applied their specialized
knowledge to form an opinion drawn from their personal observations. This is expert
testimony. See Ruffin, 

; Duran, 

.

{16} Nevertheless, the State suggested at oral argument that because the testimony
was based on specialized knowledge, the principles limiting expert witness credibility
testimony that were articulated in Alberico, Lucero, and Garcia do not apply because in
those cases, the expert witnesses were “scientific” experts. The holdings in those
cases, however, did not rely on the scientific bases for the experts’ opinions. To the
contrary, despite the admissibility of expert testimony that satisfies Rule 11-702, experts
may not “tell the jury that a witness is telling the truth” in all cases because the rule “was
not intended to permit experts to tell the jury what result to reach.” Alberico, 1993-
NMSC-047, ¶ 84; see Lucero, 

, ¶ 18 (“Determining the complainant’s
credibility or truthfulness is not a function for an expert in a trial setting, but rather is an
issue reserved for the jury.”); Garcia, 

, ¶ 16 (highlighting that the
importance of credibility in the trial gave rise to “grave doubts concerning the fairness of
the trial”). The present case similarly involved a central credibility question and a jury
that received testimony from experienced and trained professionals that went directly to
the credibility of Victims and Defendant. We therefore conclude, in the context of all of
the testimony, that the Witnesses’ testimony amounted to plain error.
II.    The Sufficiency of the Evidence

{17} The remedy for plain error is dismissal or retrial, depending “on the legal
sufficiency of the [s]tate’s evidence in support of [the d]efendant’s convictions at the first
trial.” Garcia, 

, ¶ 17. To evaluate whether sufficient evidence supports
Defendant’s convictions, we consider “all the evidence admitted by the [district] court,”
including the “wrongfully admitted evidence,” and if it is sufficient, “then retrial following
appeal is not barred.” Id. ¶ 18 (internal quotation marks and citations omitted). Applying
well-established standards of review, see id., and measuring the evidence against the
jury instructions, see State v. Smith, 

, ¶ 7, 

, 

,
we conclude that sufficient evidence supported all of Defendant’s convictions.

{18} In the present case, the jury was instructed on the crimes of CSCM for Counts 1
through 7, intimidation of a witness for Counts 8 and 9, and false imprisonment for
Count 12. Counts 1 through 5, 8, 9, and 12 relate only to one victim (Victim One).
Counts 6 and 7 relate only to the other victim (Victim Two). We review the evidence
supporting the CSCM counts for both Victims, followed by the intimidation and false
imprisonment counts for Victim One.

{19} The evidence supported the CSCM counts. As to Counts 1 through 5, Victim One
testified that Defendant touched her breasts and vagina on six occasions during spring,
summer, and winter break, and that she was under thirteen years old at the time of each
incident. As to Counts 6 and 7, Victim Two testified that on multiple occasions,
Defendant put her feet on his penis, that she was eight years old at the time, and that
visits with Defendant happened during spring and winter break. This testimony is
sufficient to establish the elements of CSCM. See UJI 14-925 NMRA (“Criminal sexual
contact of a minor . . . ; essential elements.”); State v. Lente, 

,

 (“Additional details regarding the time, place or circumstance of the
various assaults may assist in assessing the credibility or substantiality of the victim’s
testimony, but are not essential.” (internal quotation marks and citation omitted)).

{20} The intimidation and false imprisonment counts were also supported by the
evidence. Victim One established the elements of Counts 8 and 9, intimidation of a
witness, by testifying that after two separate incidents of CSCM, Defendant told her not
to tell anyone because no one would believe her and he would hurt her. See UJI 14-
2403 NMRA (“Intimidation of a witness to prevent reporting.”). Count 12, false
imprisonment, was established by Victim One’s testimony that during the incident
occurring over spring break, Defendant locked the door and covered her mouth. See
UJI 14-401 NMRA (“False imprisonment; essential elements.”).

{21} Because sufficient evidence supported each of Defendant’s convictions, retrial is
permissible on remand. See State v. Cabezuela, 

, 

,

 (explaining that when “sufficient evidence was presented at trial to
support a conviction, then retrial is not barred” (internal quotation marks and citation
omitted)).
CONCLUSION

{22}   We reverse Defendant’s convictions and remand for a new trial.

{23}   IT IS SO ORDERED.

KATHERINE A. WRAY, Judge

WE CONCUR:

J. MILES HANISEE, Judge

JANE B. YOHALEM, Judge