State v. Gamble ( 2014 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,178
5 CHRISTOPHER GAMBLE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Stan Whitaker, District Judge
9 Gary K. King, Attorney General
10 Corinna Laszlo-Henry, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Jorge A. Alvarado, Chief Public Defender
14 Vicki W. Zelle, Assistant Appellate Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
1 KENNEDY, Chief Judge.
2 {1} Christopher Gamble (Defendant) appeals from the district court’s judgment
3 affirming his jury trial conviction for DWI and improper display of a license plate
4 following an on-record appeal. He contends that the metropolitan court erred in
5 denying his motion to suppress because the stop of his vehicle was not supported by
6 reasonable suspicion. This Court issued a calendar notice proposing summary
7 affirmance. Defendant filed a memorandum in opposition to this Court’s notice of
8 proposed disposition, which we have duly considered. Unpersuaded, we affirm.
9 {2} In our calendar notice, we proposed to hold that the metropolitan court did not
10 err in denying Defendant’s motion to suppress. [CN 4-5] Defendant’s memorandum
11 in opposition does not point to any specific errors in fact or in law in our calendar
12 notice. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683
13 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on
14 the party opposing the proposed disposition to clearly point out errors in fact or law.”).
15 Instead, Defendant in his memorandum in opposition continues to argue that the
16 district court erred in finding reasonable suspicion for the initial stop because the
17 arresting officer made conflicting statements in his pretrial interview and at the
18 hearing on Defendant’s motion to suppress as to the basis for the stop. [MIO 6-8]
19 {3} In our calendar notice, we recognized that the metropolitan court made a factual
20 finding that, while it was unclear whether Officer Monette stopped the vehicle or
2
1 whether the vehicle was already stopped, his testimony was consistent that he did not
2 turn his emergency lights on until he noticed that Defendant’s license plate was
3 expired. [CN 6] This factual finding was based on the officer’s testimony at the
4 motion hearing. [MIO 4; RP 112] Defendant’s memorandum in opposition simply
5 restates the argument that this finding was not supported by sufficient evidence
6 because the officer made conflicting statements at a pretrial interview. [MIO 6]
7 {4} While we acknowledge that Defendant cross-examined Officer Monette
8 regarding his pretrial interview statements, we note that the State conducted redirect
9 examination to clarify his testimony, and the metropolitan court also asked the officer
10 a question designed to clarify the time line. [MIO 3] Based on the entire testimony,
11 the metropolitan court made its factual finding regarding the reason and timing of the
12 traffic stop. [MIO 4] “As an appellate court, we do not substitute our judgment for
13 that of the factfinder concerning the credibility of witnesses or the weight to be given
14 their testimony.” State v. Nichols, 2006-NMCA-017, ¶ 9, 139 N.M. 72, 128 P.3d 500
15 (internal quotation marks and citation omitted). We therefore conclude that there was
16 substantial evidence based on the officer’s testimony to support the metropolitan
17 court’s factual finding that the officer activated his lights and effected a traffic stop
18 following his discovery that Defendant’s license plate was expired.
19 {5} Based on this finding, we proposed to hold in our calendar notice that Officer
20 Monette had reasonable suspicion to believe that Defendant was driving with an
3
1 expired license plate, and the officer was justified in making a traffic stop. [CN 4] See
2 State v. Vandenberg, 2002-NMCA-066, ¶ 17, 132 N.M. 354, 48 P.3d 92 (“A police
3 officer may stop a vehicle if he has an objectively reasonable suspicion that the
4 motorist has violated a traffic law.”), rev’d on other grounds, 2003-NMSC-030, 134
5 N.M. 566, 81 P.3d 19. Defendant’s memorandum in opposition does not point to any
6 error in law and consequently has failed to demonstrate that this Court’s proposed
7 disposition is incorrect.
8 {6} For these reasons, and those in our calendar notice, we affirm.
9 {7} IT IS SO ORDERED.
10 ____________________________________
11 RODERICK T. KENNEDY, Chief Judge
12 WE CONCUR:
13 ___________________________
14 MICHAEL E. VIGIL, Judge
15 ___________________________
16 M. MONICA ZAMORA, Judge
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