Opinion
A-1-CA-40651
10-24-2023
STATE OF NEW MEXICO, Plaintiff-Appellee, v. DYMOND SKEET, Defendant-Appellant.
Raúl Torrez, Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J. Forberg Assistant Appellate Defender Albuquerque, NM for Appellant
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO COUNTY Linda Rogers, Metropolitan Court Judge
Raúl Torrez, Attorney General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J. Forberg Assistant Appellate Defender Albuquerque, NM for Appellant
MEMORANDUM OPINION
JACQUELINE R. MEDINA, JUDGE
{¶1} Defendant appeals from her bench trial conviction of driving while intoxicated (DWI). We issued a calendar notice proposing to affirm. Defendant has filed a memorandum in opposition, which we have duly considered. Unpersuaded, we affirm.
{¶2} In her memorandum in opposition, Defendant continues to argue that portions of the 911 audio admitted at trial constituted inadmissible hearsay. [MIO 2] Specifically, Defendant relies on out-of-state authority for the proposition that "the statements made by the 911 caller did not fall under the present sense impression hearsay exception because there was no percipient witness." [MIO 2] Defendant argues that "[s]ome jurisdictions demand that an 'equally percipient witness' testify to the existence of the event or condition described in the statement to be admitted." [MIO 2] This Court does not need to rely on out-of-state authorities to decide the issue here. Our Supreme Court has explained that "[a]lthough independent corroboration is not a foundational requirement for admission, it may be a factor in the trial judge's exercise of discretion in admitting the hearsay." State v. Flores, 2010-NMSC-002, ¶ 54, 147 N.M. 542, 226 P.3d 641, overrule on other grounds by State v. Martinez, 2021-NMSC-002, 478 P.3d 880. As such, we are unpersuaded that the arguments asserted by Defendant in her memorandum in opposition impact our analysis or our disposition of the case.
{¶3} This Court's proposed summary disposition also proposed to conclude that the metropolitan court did not err by (1) considering the 911 audio to reach its verdict [CN 6-7]; (2) denying Defendant's motion to suppress on the reasonable suspicion issue [CN 7-9]; (3) denying Defendant's motion to suppress on her probable cause argument [CN 10-11]; and (4) reasonably relying on the evidence to determine that Defendant was in actual physical control of the vehicle [CN 12-14]. Defendant, in her docketing statement, states, on each of these issues, that "the defense rests on the docketing statement." [MIO 3] As such, we consider these matters abandoned and do not address them further. See Taylor v. Van Winkle's IGA Farmer's Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a docketing statement, but not contested in a memorandum in opposition are abandoned).
{¶4} For the reasons stated in our notice of proposed disposition and herein, we affirm the metropolitan court.
{¶5} IT IS SO ORDERED.
WE CONCUR: KRISTINA BOGARDUS, Judge, MEGAN P. DUFFY, Judge