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State v. Sanchez11/7/2001
fendant claims that defense counsel did not fully investigate the possibility of evidence tampering in regard to the videotape that was admitted into evidence. Before trial, defense counsel made a motion to have the court appoint new counsel. The trial court questioned Officer Massis about the videotape and inquired into the possibility of tampering. The court asked Officer Massis where he kept the videotape, and who had access to it. Being satisfied with the answers provided by Officer Massis, and concluding that the videotape had not been altered, the trial court denied Defendant's motion.
In State v. Hernandez, 104 N.M. 268, 272, 720 P.2d 303, 307 (Ct. App. 1986), this Court stated that an indigent defendant has no right to choose or substitute his appointed counsel. The decision to appoint substitute counsel is within the sound discretion of the trial judge. Id. Defendant has not shown that the trial court abused its discretion in denying his motion for new counsel. See id. Defendant has not shown any likelihood that substitute counsel could have demonstrated that the videotape was, in fact, altered, or that Defendant suffered any prejudice, in connection with the videotape, because of his appointed counsel. We find Defendant's argument on this point to be without merit.
CONCLUSION
For the reasons stated above, we affirm Defendant's conviction for aggravated DWI.
IT IS SO ORDERED.
RICHARD C. BOSSON, Chief Judge
WE CONCUR:
CELIA FOY CASTILLO, Judge
IRA ROBINSON, Judge (specially concurring)
ROBINSON, Judge (special concurrence).
I do not find comfort in Davis, which holds that a defendant's refusal to submit to a field sobriety test gives rise to an inference that the defendant has a guilty conscience. I am convinced that there are other valid inferences, including that of innocence, fear of police, apprehension, and confusion that are equally reasonable, logical and realistic.
Furthermore, the line of cases supporting the "reasonable officer" standard for probable cause, as opposed to allowing the testimony of the officer on the scene to govern what constitutes probable cause for arrest, may be distinguishable. Almost all of those cases deal with a police officer who testifies that he did have probable cause to arrest. Here, the officer testified that he did not believe he had probable cause, and that is what sparked the controversy.
In this case there is enough evidence to find the Defendant not guilty. The problem with such a conclusion is that we would be substituting our own judgment for that of the trial judge, and that is not our job. We must resist the temptation to re-weigh the evidence on appeal. In this case, the temptation is great because the officer at the scene testified, on cross-examination by defense counsel, that he did not find probable cause for arrest until the Defendant refused to take the field sobriety test. If this testimony stood throughout the trial, I could not concur in the majority decision to affirm. However, the trial judge asked the officer what circumstances led him to believe that he had probable cause. At that time, the officer stated that it was not just the Defendant's refusal to take the field sobriety test, but also the fact that the Defendant had watery, bloodshot eyes and an odor of alcohol on his breath. This testimony provides substantial evidence supporting the arrest and later the trial court's finding of guilt.
I, therefore, concur.
IRA ROBINSON, Judge
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