June 06, 2011 – State of New Mexico v. Jose M. Gutierrez, No. 28,754

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June6 2011

NO. 28,754

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

JOSE M. GUTIERREZ,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Stephen D. Pfeffer, District J udge

Gary K. King, Attomey General
Farhan Khan, Assistant Attomey General
Santa Fe, NM

for Appellee

Robert E. Tangora, L.L.C.
Robert E. Tangora

Santa Fe, NM

for Appellant

OPINION
KENNEDY, Judge.
{1} 	Defendant Jose Gutierrez’s involvement in an April 2005 altercation resulted
in two separate grand juries indicting him on a total of ten counts of criminal behavior.
The two indictments were joined for trial. The first trial resulted in a conviction on
one count, acquittal on two counts, and a hung jury mistrial on the remaining counts.
Defendant appealed the conviction. While that appeal was pending, a second trial was
conducted on the mistrial counts. The second jury convicted Defendant on all counts
submitted to it.
{2} 	Defendant now appeals from the second verdict and sentence, asserting that the
district court (1) was without jurisdiction to try him while his first conviction was on
appeal; (2) violated his rights under the Confrontation Clause when it admitted a
videotape taken at the scene of the incident; and (3) improperly admitted a 2003
judgment and sentence entered against Defendant for previous crimes, as well as a
prior stipulated restraining order against Defendant concerning one of the victims in
this case. We affirm.
I. 	DISCUSSION
A. 	The District Court Had Jurisdiction to Conduct the Trial

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{3} 	Defendant argues that the district court lacked jurisdiction to conduct the
second trial against Defendant while the appeal from his first trial was pending. “We
review jurisdictional issues . . . under a de novo standard of review.” State v. Heinsen,
2005-NMSC-035, ¶ 6, 138 N.M. 441, 121 P.3d 1040; see State v. Chavarria, 2009-
NMSC-020, ¶ 11, 146 N.M. 251, 208 P.3d 896 (“Questions regarding subject matter
jurisdiction are questions of law which are subject to de novo review.” (internal
quotation marks and citation omitted)).
{4} 	In April 2005, a grand jury indicted Defendant of first-degree murder,
conspiracy to commit first-degree murder, two counts of aggravated battery with a
deadly weapon, two counts of aggravated assault with a deadly weapon, and
aggravated stalking. 	In February 2006, another grand jury indicted Defendant of
additional charges that included aggravated burglary, aggravated battery against a
household member, and violation of an order of protection. In May 2006, Defendant
was simultaneously tried for all charges.
{5} 	At his first trial, the jury acquitted Defendant of first-degree murder and battery
on a household member and convicted Defendant of violating an order of protection.
On the remaining counts, the jury was unable to reach a verdict, and the district court
ordered a mistrial on those counts. 	Defendant then appealed his conviction and

1This appeal was dismissed by Defendant about a month following the
conclusion of his second trial and is not a part of this appeal.
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sentence for violating the protective order.1 While the appeal was pending, Defendant
was retried and convicted of the counts on which the jury was unable to reach a
verdict during the first trial and was sentenced by the district court on the other
charges for which he was convicted. 	Defendant now appeals from that case and
contends that the district court lacked jurisdiction to retry him on those offenses while
his convictions were on appeal to this Court.
{6} 	In general, “[a] trial court loses jurisdiction of a case upon the filing of the
notice of appeal, except for the purposes of perfecting such appeal, or of passing upon
a motion directed to the judgment pending at the time.” 	State v. Roybal, 120 N.M.
507, 512, 903 P.2d 249, 254 (Ct. App. 1995) (alteration omitted) (internal quotation
marks and citation omitted). 	Yet, it is established “that a pending appeal does not
divest the [district] court of jurisdiction to take further action when the action will not
affect the judgment on appeal.” Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231,
241, 824 P.2d 1033, 1043 (1992). The United States Supreme Court has explained
that “[t]he filing of a notice of appeal is an event of jurisdictional significance—it
confers jurisdiction on the court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer
Disc. Co., 459 U.S. 56, 58 (1982) (emphasis added).

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{7} 	In addition, the “right to appeal is restricted to final judgments and decisions.
A final order is commonly defined as an order that decides all issues of fact and law
necessary to be determined or which completely disposes of the case to the extent the
court had the power to dispose of it.” 	State v. Begay, 2010-NMCA-089, ¶ 11, 148
N.M. 685, 241 P.3d 1125 (internal quotation marks and citation omitted). The United
States Supreme Court has held that a “[f]inal judgment in a criminal case means
sentence. The sentence is the judgment.” Berman v. United States, 302 U.S. 211, 212
(1937).
{8} 	In State v. Lobato, we stated that “an order declaring mistrial simply terminates
the trial before a verdict is reached and does not finally determine any issues in the
case.” 2006-NMCA-051, ¶ 34, 139 N.M. 431, 134 P.3d 122. There, we held that an
“order declaring mistrial was not a final order [the d]efendant could appeal as a matter
of right.” 	Id. 	Thus, any charges resulting in a mistrial or hung jury are not finally
determined. In contrast, as in this case, a matter upon which a defendant has been
convicted and sentenced and which he has appealed is finally determined and no
longer within the district court’s jurisdiction. 	Charges that have not been finally
determined properly remain with the district court.
{9} 	This case presents us with a trial that resulted in part with a conviction and in
part with a mistrial. In People v. Schulz, the California Court of Appeals dealt with

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a similar situation. 7 Cal. Rptr. 2d 269 (Ct. App. 1992). In that case, the defendant
argued on appeal that he could not be retried for a great bodily injury enhancement,
which the jury had hung on, while he appealed his conviction from that same trial for
attempted murder. Id. at 270. The Schulz court “conclude[d that] the [district] court
had jurisdiction to retry and sentence the great bodily injury enhancement, since its
resolution would have no direct impact on the validity of the guilty verdict and
sentence for the attempted murder charge pending on appeal.” Id. at 273.
{10} 	We apply a similar rationale to this case. Here, Defendant’s first trial, from
which he appealed, ended in a conviction for a protective order violation, yet, the jury
hung on the other charges. 	Defendant was sentenced only for the protective order
violation. As to that charge, the criminal trial process was complete, and the judgment
and sentence filed was a final order as to that charge. 	Defendant thus had an
appealable judgment with respect to that conviction and not with respect to the counts
that resulted in a mistrial. As a matter of right, Defendant could and did appeal the
conviction on that single count, but his appeal was limited to only the conviction for
violating the protective order. 	The district court retained jurisdiction to retry the
unresolved charges.
B. 	The Videotapes Were Properly Admitted

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{11} 	Defendant contends that the district court improperly admitted videotaped
statements in violation of his Sixth Amendment right to confront witnesses. Owing
to the poor quality of the videotape, only several statements were audible. 	After
hearing arguments and testimony about this issue, the district court redacted two of
the statements on the videotape which were made by police officers because the
statements were “improper.” 	The court determined that “[these] other statements
[were not] confrontational clause issues,” and the jury heard the following taped
statements: (1) “[we] are [the] victims”; (2) “this guy had a restraining order”; (3)
“[t]he chick who lives in there, he’s her baby daddy, he pulled a knife on her first
thing”; and (4) “[t]hey fucking stabbed me, bro[.]” The court identified two speakers
who could have made these statements as “Landeros or . . . Martinez,” both of whom
were victims of Defendant’s attack.
{12} 	We now determine the extent to which the admission of such statements
violated the Confrontation Clause. “We apply a de novo standard of review as to the
constitutional issues related to [the d]efendant’s rights under the Confrontation
Clause.” State v. Massengill, 2003-NMCA-024, ¶ 5, 133 N.M. 263, 62 P.3d 354; see
State v. Soliz, 2009-NMCA-079, ¶ 7, 146 N.M. 616, 213 P.3d 520 (reviewing de novo
the district court’s admission of statements recorded in a 911 transcript for Sixth

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Amendment violations), cert. quashed, 2010-NMCERT-008, 148 N.M. 943, 242 P.3d
1289.
{13} 	“The Confrontation Clause guarantees the accused in a criminal trial the right
to be confronted with the witnesses against him, regardless of how trustworthy the
out-of-court statement may appear to be.” State v. Mendez, 2010-NMSC-044, ¶ 28,
148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted). “[T]he
Confrontation Clause prohibits the admission of testimonial statements unless the
declarant is unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.” State v. Bullcoming, 2010-NMSC-007, ¶ 11, 147 N.M. 487, 226
P.3d 1 (internal quotation marks and citation omitted), cert. granted, Bullcoming v.
N.M., 131 S. Ct. 62 (2010). 	At issue here is whether the statements made on the
videotape were testimonial.
{14} 	“Statements 	are 	non[-]testimonial 	when 	made 	in 	the 	course 	of 	police
interrogation under circumstances objectively indicating that the primary purpose of
the interrogation is to enable police assistance to meet an ongoing emergency.” State
v. Romero, 2007-NMSC-013, ¶ 7, 141 N.M. 403, 156 P.3d 694 (internal quotation
marks and citation omitted). On the other hand, statements “are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially

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relevant to later criminal prosecution.” 	Id. (internal quotation marks and citation
omitted). 	In Romero, our Supreme Court examined the United States Supreme
Court’s rulings in Davis v. Washington, 547 U.S. 813 (2006) and Crawford v.
Washington, 541 U.S. 36 (2004). 	The Court explained that “[t]he [United States
Supreme] Court distinguished Crawford, which considered an interrogation by police
officers of a witness hours after the event [the witness] described, from Davis, which
considered an interrogation by a 911 operator during an ongoing emergency, based
on the immediacy of the event.” 	Romero, 2007-NMSC-013, ¶ 8. 	Crawford’s
interrogation of a witness was testimonial, and Davis’s questioning by a 911 operator
during an on-going emergency was non-testimonial. Romero, 2007-NMSC-013, ¶ 8.
The purpose for the questioning in each case is the dispositive distinction: questions
asked to resolve an on-going emergency are non-testimonial, and questions used to
elicit information about past events involving no present emergency are testimonial.
Id. 	Furthermore, the formality of the interrogation is also of importance in
determining whether the statements were testimonial as testimonial questions are
typically given under the circumstances involving greater formality. Id. ¶¶ 8, 21.
{15} 	The circumstances in this case are of the type associated with non-testimonial
statements. The videotape at issue was taken from a police officer’s patrol car when
the officer was responding to a call about a fight in progress. The officer testified that

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at the time the video was recorded, the police were “still trying to figure out . . . if
[they were] still looking for other suspects, if the guys [on the videotape were] just
victims or suspects . . . and if there [were] any other victims that [they were] not aware
of.” The officer arrived to find four men at the scene, two of whom had been stabbed.
He explained that the two injured men “were just blurting out statements and were in
a lot of pain[,]” and the uninjured men were not talking.
{16} 	After listening to the video and the testimony from the officer, the district court
determined that at the time the video was taken, the police were “securing the scene,
finding out if other suspects or victims [were] out there [because] they need[ed] to act
quickly to put a perimeter around the action.” 	The court further stated that if the
statements were made in “response to an inquiry, it would be a very general inquiry
about what’s happening, not some interrogation at this point.” We reason that the lack
of 	a 	structured 	question 	and 	answer, 	and 	the 	fact 	that 	the 	statements 	were
spontaneously given, support this view. We therefore conclude that the statements
were non-testimonial.
C. 	Defendant’s Prior Bad Acts and Convictions Were Properly Admitted
{17} 	Pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v.
Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), Defendant argues that the district
court improperly admitted evidence of his prior convictions and restraining order.

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Defendant contends that their admission was improper under Rule 11-404(B) NMRA.
“As a general rule, the [a]dmission of evidence is entrusted to the discretion of the
[district] court, and rulings of the [district] judge will not be disturbed absent a clear
abuse of discretion.” State v. Trujillo, 2002-NMSC-005, ¶ 15, 131 N.M. 709, 42 P.3d
814 (alteration in original) (footnote omitted) (internal quotation marks and citation
omitted). “An abuse of discretion occurs when the ruling is clearly against the logic
and effect of the facts and circumstances of the case. We cannot say the [district] court
abused discretion by its ruling unless we can characterize it as clearly untenable or not
justified by reason.” State v. Juan, 2010-NMSC-041, ¶ 33, 148 N.M. 747, 242 P.3d
314 (internal quotation marks and citations omitted). Abuse of discretion occurs when
a district court exercises its discretion based on a misunderstanding of the law. State
v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209.
{18} 	Generally, “[e]vidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular
occasion[.]” Rule 11-404(A).
Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident.

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Rule 11-404(B). Our Supreme Court has held that “[e]vidence is admissible under
Rule [11-]404([B]) if it is probative of a material element at issue.” State v. McGhee,
103 N.M. 100, 104, 703 P.2d 877, 881 (1985). In determining whether the district
court abused its discretion in admitting evidence under Rule 11-404(B), we examine
“whether the State made a sufficient showing that the evidence would serve a
legitimate purpose other than to show character . . . and whether the probative value
was substantially outweighed by the danger of unfair prejudice or other factors.” State
v. Dietrich, 2009-NMCA-031, ¶ 40, 145 N.M. 733, 204 P.3d 748 (alteration in
original) (internal quotation marks and citation omitted).
{19} 	In this case, Defendant was charged with aggravated stalking of Barbara Olivas.
Under the statute applicable at the time, “[s]talking consists of a person knowingly
pursuing a pattern of conduct that would cause a reasonable person to feel frightened,
intimidated or threatened. The alleged stalker must intend to place another person in
reasonable apprehension of death, bodily harm, sexual assault, confinement or
restraint.” 	NMSA 1978, § 30-3A-3(A) (1997) (amended 2009). 	Furthermore,
“[a]ggravated stalking consists of stalking perpetrated by a person . . . who knowingly
violates a permanent or temporary order of protection issued by a court, except that
mutual violations of such orders may constitute a defense to aggravated stalking[.]”
NMSA 1978, § 30-3A-3.1(A)(1) (1997).

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{20} 	Over Defendant’s Rule 11-404(B) objections, the district court admitted his
2003 judgment and sentence stemming from his convictions for false imprisonment
and battery against a household member. The sixth condition of the 2003 judgment
and sentence stated that Defendant was to have no contact with Olivas. 	The State
argued that the no contact provision was necessary to prove the aggravated stalking
charge at issue in the present case, and we agree. 	The State contended that it
demonstrated that Defendant’s entry into Olivas’s house in this case was unlawful and
that he engaged in a pattern of conduct to frighten, intimidate, or threaten her. The
State asserted that the previous incident showed Defendant’s intent, motive, and
absence of mistake under Rule 11-404(B). Defendant responded that the judgment
and sentence were inadmissible propensity evidence. 	After argument, the court
admitted the evidence. We observe that evidence of Defendant’s convictions for false
imprisonment and battery on a household member are less probative of his prior
relevant conduct than the facts establishing the crimes for which he was convicted.
Thus, the fact of conviction may look more like evidence of being a criminal, like
criminal propensity evidence, than pattern of conduct evidence that would support a
conviction under the stalking statute. Care is needed to avoid confusion, but the use
of such evidence was acceptable as the charges directly spoke to physical harm and
physical restraint, and the no contact condition of the sentence also constituted a

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judicial order of protection for the period of time which Defendant was bound by the
sentence in that case.
{21} 	Additionally, the district court admitted a stipulated restraining order between
Defendant and Olivas. Defendant argues that this was improper character evidence.
We conclude that the district court did not abuse its discretion in admitting
Defendant’s 2003 judgment and sentence and the stipulated restraining order. The
State made a sufficient showing at trial that the evidence served the legitimate purpose
of proving the requisite elements of aggravated stalking. The judgment and sentence
go to the issue of whether a reasonable person in Olivas’s position would have felt
“frightened, intimidated or threatened” by Defendant. 	Section 30-3A-3(A). 	The
judgment and sentence provide evidence as to why Olivas might have been
intimidated or frightened by Defendant because it shows that Defendant and Olivas
had some prior incident and that he was to have no contact with Olivas as a condition
of his sentence. In addition, the stipulated restraining order directly proves an element
of aggravated stalking and, therefore, has a legitimate purpose in proving Defendant’s
guilt.
{22} 	The value of neither piece of evidence was outweighed by the danger of unfair
prejudice. Both documents were probative of the elements of aggravated stalking.
During direct examination of Olivas, the State asked her if she recognized the

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judgment and sentence document. 	Olivas stated that it was a “[j]udgment for
[s]entencing on a prior incident between [her] and [Defendant]” and that, as a
condition of his sentence, Defendant was to have no contact with her. The judgment
and sentence showed restraint and battery of Olivas and supported the required pattern
of conduct element. The stipulated restraining order also did not unfairly prejudice
Defendant as it established an element of aggravated stalking, and its admission did
not reveal any prejudicial details upon which the order was based. We hold that the
district court did not abuse its discretion in admitting the evidence.
D. 	Cumulative Error
{23} 	Defendant contends that the above issues amounted to cumulative error. Since
we concluded that the district court did not err with regard to the issues appealed, we
do not address Defendant’s cumulative error argument.
II. 	CONCLUSION
{24} 	For the foregoing reasons, we affirm Defendant’s convictions.
{25} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

LINDA M. VANZI, Judge

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