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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MATTHEW PERKINS,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY, Jane
Shuler Gray, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellee
Bennett J. Baur, Chief Public Defender,
Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for
Appellant
TIMOTHY L. GARCIA, Judge. WE CONCUR: JAMES
J. WECHSLER, Judge, M. MONICA ZAMORA, Judge
AUTHOR: TIMOTHY L. GARCIA
{1} Defendant appeals
his conviction for driving while intoxicated. We issued a Notice of Proposed
Summary Disposition proposing to affirm. Defendant has responded with a timely
memorandum in opposition, which we have duly considered. Because we remain
unpersuaded that our initial proposed disposition was incorrect, we affirm.
{2} Defendant continues
to argue that his right to confrontation was violated when the district court
allowed the State’s expert witness to testify that in his opinion Defendant was
driving while impaired. [MIO 1, 4-5] “We review claimed violations of the
confrontation right de novo.”
See State v. Huettl,
2013-NMCA-038, ¶ 16,
305 P.3d 956.
{3} According to facts
as stated in the docketing statement and the memorandum in opposition, during
voir dire, Dr. Hwang, the State’s analyst, testified that he did not conduct
the test of Defendant’s blood, did not personally observe the test being
conducted, and did not train the analyst who conducted the test. [DS 4; MIO 3]
Dr. Hwang did testify that he independently reviewed the data provided by the
gas chromatograph machine, the notes and paperwork provided by the analyst. [DS
4; MIO 3] Dr. Hwang also testified that he formed his opinion by taking other evidence
into account such as the fact that Defendant was speeding. Dr. Hwang was then
allowed to testify that in his expert opinion, Defendant had both marijuana and
methamphetamine in his system and was impaired while driving. [MIO 3]
{4} Defendant argues that
admission of this evidence and testimony violated his right to confrontation.
We disagree. In
Huettl, we noted that the Confrontation Clause prohibits
expert testimony that is based solely on a non-testifying analyst’s conclusions
and analysis. We therefore determined that the defendant’s right to
confrontation was not violated when the expert witness reviewed raw data
interpreted by a non-testifying analyst and formed his own expert opinion that
the substance in question was methamphetamine.
See id. ¶¶ 3, 34-39. In
this case, Dr. Hwang testified that he reviewed data generated by another
analyst, and then formed his own expert opinion based on this data and other
information. We therefore, conclude that Defendant’s right to confrontation was
not violated.
Compare State v. Moncayo,
2012-NMCA-066, ¶¶ 3, 8-9, 12,
284 P.3d 423 (holding that the defendant’s confrontation right was violated
where an analyst testified as to the content of a report prepared by a
non-testifying analyst and not to his independently derived expert opinion).
{5} Defendant also
continues to argue that the district court erred in denying his Rule
5-203(C)
NMRA motion to sever. [MIO 6]
See Rule 5-203(C) (providing for separate
trials of offenses where it appears that a defendant is prejudiced by the
joinder of offenses). We review the district court’s denial of a motion for
severance for abuse of discretion.
See State v. Flores,
2015-NMCA-002, ¶
21,
340 P.3d 622.
{6} Defendant sought
severance of the “driving on a revoked license charge from [the] trial because
the revocation was based on a prior DWI.” [MIO 6] According to the memorandum
in opposition, after Defendant filed his motion to sever, the parties agreed to
stipulate that Defendant’s license was revoked without stating the basis for
the revocation. [DS 4, MIO 6] The record in this case does not indicate that
any evidence of the basis of Defendant’s prior license revocation was actually
introduced against him at trial.
See State v. Dominguez,
2007-NMSC-060,
¶ 10,
142 N.M. 811,
171 P.3d 750 (stating that the granting of a severance is
discretionary, “and one test for abuse of discretion is whether prejudicial
testimony, inadmissible in a separate trial, is admitted in a joint trial”
(internal quotation marks and citation omitted)). We therefore reject this
assertion of error.
{7} Finally, Defendant
withdraws his argument that the district court erred when it did not play the
entire recording of the officer’s encounter with Defendant because it violated
the rule of completeness. [MIO 6-7]
See Rule
11-106 NMRA (“If a party
introduces all or part of a writing or recorded statement, an adverse party may
require the introduction, at that time, of any other part—or any other writing
or recorded statement—that in fairness ought to be considered at the same
time.”). Defendant states that, while a factual basis exists to support this
claim, the factual basis is not on the record.
See State v. Haddenham,
1990-NMCA-048, ¶25,
110 N.M. 149,
793 P.2d 279 (stating that issues for which
there is no factual basis in the record will not be reviewed).
{8} For these reasons,
and those stated in our notice of proposed summary disposition, we affirm the
district court.