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New Mexico Court of Appeals: Defendant Texter Has Knowledge of Texts and Cannot Be Prejudiced

Last month, Judge Jennifer L. Attrep, in State v. Howell, No. A-1-CA-34766, 2018 N.M. App. Unpub. LEXIS 298 (N.M. Ct. App. Aug. 16, 2018) rejected an appeal by the Defendant based in part on the late disclosure of evidence and inadequately redacted evidence.

The Defendant was convicted for the theft of an iPhone which belonged to Renee Groves. Screen shots of text messages between the Defendant and Groves relevant to the theft were admitted at the trial. The Defendant admitted that she had the iPhone in the texts. The Defendant's objection was overruled because the texts were referenced in the criminal complaint and disclosed at a preliminary hearing. On appeal the Defendant had the burden of proving that the State intentionally deprived the Defendant of evidence; that the evidence was material; that the Defendant was prejudiced; and that the Court did not cure the failure to disclose the evidence. The Court found the Defendant failed to show how earlier disclosure of the texts would have changed the outcome of the trial. The opinion also notes that the Defendant only states that having the texts earlier may have caused it to change its strategy at trial. Judge Attrep concluded that, ". . . even if trial counsel was not aware of the text messages, Defendant must have had knowledge of them since she was one of the participants in the conversation. This cuts against any claim of prejudice." Id. at * 13.

The Defendant also argued that the Court committed plain error in admitting text messages that were not fully redacted to hide a reference to her being on probation. Judge Attrep ruled that there was no plain error resulting from the poorly redacted text messages that would lead the validity of the verdict to be questioned. "Even if we assume the jury read through the redaction, the probation references were vague and indirect. And there is no indication that the State ever mentioned Defendant's probationary status at trial." Id. at *16.

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