Improper Hearsay and the Value Goods in New Mexico Shoplifting Cases

In the case of State v. Cofer, the New Mexico Court of Appeals considered the use of improper hearsay testimony to establish the market value of stolen goods.

In June 2008, the defendant took a 32″ Sanyo LCD television from a Wal-Mart. Soon after, the defendant was pulled over by a police officer, based upon information provided by the police dispatcher. While the defendant was pulled over, the officer noticed a 32″ Sanyo LCD television in plain view in the back seat of the defendant‘s vehicle.

The police officer read the defendant his Miranda rights, and the defendant admitted that he shoplifted the television from Wal-Mart. He was charged with one count of shoplifting over $500.

At trial, the defendant admitted to taking the 32″ Sanyo LCD television, but he did not state its value. The prosecution‘s only witness, a Wal-Mart assistant manager from the electronics department, testified that she researched the value of the television on the in-store database. She concluded that the television was worth $576 on the date of the crime. The trial court accepted the valuation of the television, and the defendant was convicted of shoplifting merchandise valued at more than $500.

At trial there are rules governing the proper way to introduce evidence. Generally, a witness is not allowed to testify about another person‘s statement. That is known as hearsay. Of course, there are exceptions to that rule, like where the other statement is a record of regularly conducted business activity.

Specifically, the courts in New Mexico have traditionally allowed the admission of price tags or testimony thereon as non-hearsay evidence. In this case, there was no price tag for admission. Nor did the manager have firsthand knowledge of the price of the item at the time of the theft. Instead, she conducted research into the pricing using historical inventory and pricing reports 10 months after the incident.

There were several problems with the pricing testimony and one easy solution for the state. The first problem was the lack of a price tag. The second was lack of firsthand knowledge of the price.

The last problem was the reliance on inventory and pricing reports. The obvious question is why is this a problem? Here, those inventory and pricing reports were not provided to the defense nor were they entered into evidence. Instead, manager just testified to what she found.

This might seem like a gotcha type case for prosecutors. However, the solutions would have been relatively easy. First, the police could have secured the price tag and pricing info at the time of the theft. Second, the prosecutor could have obtained the inventory reports and presented them as business records through the manager.

These are routine steps in the introduction of evidence. Shortcuts are not allowed. It is not hard to imagine how even a seemingly trivial shortcut like this one could quickly lead to abusive prosecution tactics. In short, the Courts did their jobs in holding the prosecutor accountable for following the rules of procedure and the rules of evidence.


Related Reading:
4th Amendment and the Plain View Doctrine
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

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