July 20, 2011 • Volume 50, No. 28

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July 20, 2011 • Volume 50, No. 28
July 20, 2011 • Volume 50, No. 28
Inside This Issue
Table of Contents................................................ 3
Fifth Judicial District Court
Nominating Commission...............................5
Ninth Judicial District Court
Nominating Commission............................... 5
Ask Pat: Committee on Women
and the Legal Profession.................................. 6
40 Years on the Bench and Going Strong,
by Judy Stuteville............................................ 7
A Time for Hope,
by Judge Frank A. Sedillo................................8
From the New Mexico Supreme Court
2011-NMSC-025, No. 31,905:
State v. Ramirez............................................. 17
2011-NMSC-026, No. 32,263:
State v. Williams............................................ 21
From the New Mexico Court of Appeals
2011-NMCA-064, No. 29,884:
State v. Maes................................................. 25
2011-NMCA-065, No. 30,399:
State v. Lovato............................................... 27
2011-NMCA-066, No. 29,524:
Romero v. Board of County Commissioners,
Taos............................................................... 30
2011-NMCA-067, No. 29,956:
State v. Rodarte............................................. 33
Metamorphosis XII, by Gail Factor (see page 3)
ARTWORK International, Santa Fe
2011-NMCA-068, No. 29,716:
State v. Leeson............................................... 36
2011-NMCA-069, No. 30,482:
State v. Trevizo............................................... 40
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 1
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CENTER FOR LEGAL EDUCATION
2 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
7-Day Eastern
Caribbean Cruise aboard the
Holland America ms Eurodam
December 3-10, 2011
Departing /Arriving in Fort Lauderdale
Cruise starting at $649.00 + tax
per person/double occupancy
Call Good Mood Cruises for details at (505) 296-6255
Table of Contents
Officers, Board of Bar Commissioners
Jessica A. Pérez, President
Hans Voss, President-Elect
Andrew J. Cloutier Vice President
Erika Anderson, Secretary-Treasurer
Stephen S. Shanor, Immediate Past President
Board of Editors
Kimberly L. Alderman
Ian Bezpalko
Cynthia A. Christ
Jocelyn C. Drennan
Jennifer C. Esquibel
Autumn Gray
Danny W. Jarrett
Tiffany L. Sanchez
Kelly A. Thomas
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Membership and Communications
Director Chris Morganti
Editor Dorma Seago
(505) 797-6030 • [email protected]
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
(505) 797-6058 • [email protected]
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2011, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
(505) 797-6000 • (800) 876-6227 • Fax: (505) 828-3765
E-mail: [email protected] • www.nmbar.org
July 20, 2011, Vol. 50, No. 28
Notices .................................................................................................................................................................4
Ask Pat: Committee on Women and the Legal Profession.................................................................6
40 Years on the Bench and Going Strong, by Judy Stuteville...............................................................7
A Time for Hope, by Judge Frank A. Sedillo...............................................................................................8
Legal Education Calendar .......................................................................................................................... 11
Writs of Certiorari .......................................................................................................................................... 12
List of Court of Appeals’ Opinions............................................................................................................ 14
Recent Rule-Making Activity...................................................................................................................... 15
Opinions
From the New Mexico Supreme Court
2011-NMSC-025, No. 31,905: State v. Ramirez........................................................................... 17
2011-NMSC-026, No. 32,263: State v. Williams........................................................................... 21
From the New Mexico Court of Appeals
2011-NMCA-064, No. 29,884: State v. Maes................................................................................ 25
2011-NMCA-065, No. 30,399: State v. Lovato............................................................................. 27
2011-NMCA-066, No. 29,524: Romero v. Board of County Commissioners, Taos.......... 30
2011-NMCA-067, No. 29,956: State v. Rodarte........................................................................... 33
2011-NMCA-068, No. 29,716: State v. Leeson............................................................................. 36
2011-NMCA-069, No. 30,482: State v. Trevizo............................................................................. 40
Advertising ...................................................................................................................................................... 43
State Bar Workshops
Meetings
July
July
20
Committee on Women and the Legal
Profession, noon, Lewis and Roca LLP
27
Consumer Debt/Bankruptcy Workshop
6–8 p.m., State Bar Center, Albuquerque
22
Indian Law Section BOD,
9 a.m., State Bar Center
August
22
Trial Practice Section BOD
noon, State Bar Center
26
Appellate Practice Section BOD,
noon, Keleher & McLeod
10
Estate Planning/Probate Workshop
6–8 p.m., State Bar Center, Albuquerque
24
Consumer Debt/Bankruptcy Workshop
6–8 p.m., State Bar Center, Albuquerque
27
NREEL BOD, noon, State Bar Center
28
Health Law Section BOD,
7:30 a.m., via teleconference
Cover Artist: For Gail Factor, painting is a means to access serenity, a calm soul. The unrelenting impulse to create
something of beauty and personal truth has resulted in five decades of focused and committed painting, a daily offering
of sorts, whereby the act itself generates luminosity and eradicates darkness. Harmonizing rich color, tone and texture,
Factor strives for pure abstraction, but as images emerge, the past often makes an unwitting appearance. With only
slight reference to the tangible world, she takes the viewer along on a journey through an altered reality, the unknown.
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 3
Notices
Professionalism Tip
Court News
Lawyer’s Preamble
NM Supreme Court
Proposed Rule Revisions
Proposed Revisions to the
Children’s Court Rules
The Children’s Court Rules Committee
has recommended proposed amendments to
the Children’s Court Rules for the Supreme
Court’s consideration.
Proposed Amendments to Uniform Jury
Instructions—Civil
The Committee on Uniform Jury
Instructions for Civil Cases is considering
whether to recommend proposed amendments to the committee commentary to
UJI 13-2304 for the Supreme Court’s
consideration.
Proposed Amendments to Uniform Jury
Instructions—Civil
The Committee on Uniform Jury
Instructions for Civil Cases is considering
whether to recommend proposed amendments to the Uniform Jury Instructions—
Civil for the Supreme Court’s consideration.
Proposed Revisions to Uniform Jury
Instructions for Criminal Cases
The Committee on Uniform Jury
Instructions for Criminal Cases is considering whether to recommend proposed
amendments to the Uniform Jury Instructions—Criminal for the Supreme Court’s
consideration.
To comment on the proposed amendments before they are submitted to the
Court for final consideration, either
submit a comment electronically through
the Supreme Court’s website at http://
As a lawyer, I will strive to make our system of justice work fairly and efficiently.
In order to carry out that responsibility, I will comply with the letter and spirit of
the disciplinary standards applicable to all lawyers, and I will also conduct myself
in accordance with the Creed of Professionalism when dealing with my client,
opposing parties, their counsel, the courts, and any other person involved in the
legal system, including the general public.
nmsupremecourt.nmcourts.gov/ or send
written comments to:
Kathleen J. Gibson, Clerk
New Mexico Supreme Court
PO Box 848
Santa Fe, NM 87504-0848
Comments must be received on or before Aug. 3 to be considered by the Court.
Note that any submitted comments may be
posted on the Supreme Court’s website for
public viewing. For reference, see the July
13 (Vol. 50, No. 27) Bar Bulletin.
Second Judicial
District Court
CLE in Family Court
The 2nd Judicial District Court will
present Death and Dissolution: Oldham, the
Probate Code and Beyond (1.3 general CLE
credits) from 11:30 a.m.–1 p.m., Aug. 1, at
the Bernalillo County Courthouse, Courtroom 706, 400 Lomas NW, Albuquerque.
The cost of $2 (cash only) includes CLE
credit and administrative fee.
Executive Officer to Retire
The 2nd Judicial District Court invites
the legal community to a program celebrating
the retirement of Juanita M. Duran, court
executive officer, from 4–6 p.m., July 26, in
Ceremonial Courtroom 338. A reception will
follow in the 4th Floor Atrium, Bernalillo
County Courthouse, 400 Lomas NW, Albuquerque.
Settlement Week 2011
The 2nd Judicial District Court’s 23rd
Annual Settlement Week is Oct. 17–21. The
deadline for requesting a referral of a civil or
domestic relations case is July 29. For complete details regarding referral requests, refer
to LR2-602, Section C, of the 2nd Judicial
District Court’s Local Rules governing the
Settlement Facilitation Program. Blank referral forms are available in the Clerk’s Office,
Court Alternatives, and online at http://
www.nmcourts.gov/seconddistrictcourt/
calt2.html. All referrals should be filled out
completely and sent directly to the assigned
judge in the case. Include names, addresses
and contact numbers of all parties/attorneys
(especially pro se parties) involved and any
other individuals requiring notice of the
settlement facilitation. For more information,
call Court Alternatives, (505) 841-7412.
Judicial Records Retention and Disposition Schedules
Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and
courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are
advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit
information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and
defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not
claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.
Court
Exhibits/Tapes For Years
May Be Retrieved Through
1st Judicial District Court
Criminal, civil domestic relations,
1984–1996
September 19
(505) 455-8275
and children’s cases
10th Judicial District Court
(575) 461-2764
Tapes in all criminal cases
Tapes in incompetency, mental health and competency,
guardianships/conservatorships, abuse/neglect, juvenile,
adoption, and probate cases
Tapes in grand jury cases
Tapes in criminal preliminary cases
4 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
2001–July 2005
August 19
2002–July 2005
2004
August 2005–2008
August 19
August 19
www.nmbar.org
Fifth Judicial
District Court
Nominating Commission
Five applications have been received in
the Judicial Selection Office as of 5 p.m.,
June 30, for the judicial vacancy on the 5th
Judicial District Court due to the retirement
of the Honorable Thomas A. Rutledge.
The District Judicial Nominating Commission will meet at 9 a.m., July 25, at the
Eddy County Courthouse, 102 N. Canal,
Carlsbad, to evaluate the applicants for this
position. The meeting is open to the public.
Those wishing to make public comment are
requested to be present at the opening of
the meeting. The names of the applicants in
alphabetical order are:
Matthew T. Byers
Mark Ray Horton
Lisa B. Riley
Raymond L. Romero
Lesley S. Williams
Ninth Judicial
District Court
Nominating Commission
Four applications have been received in
the Judicial Selection Office as of 5 p.m., July
8, for the judicial vacancy on the 9th Judicial
District Court due to the death of the Honorable Robert S. Orlik. The District Judicial
Nominating Commission will meet at 9 a.m.,
July 21, at the Curry County Courthouse,
700 N. Main Street, Clovis, to evaluate the
applicants for this position. The meeting is
open to the public. Those wishing to make
public comment are requested to be present
at the opening of the meeting. The names of
the applicants in alphabetical order are:
Donna J. Mowrer
Wesley O. Pool
Andrea Rowley Reeb
Brian Scott Stover
State Bar News
Attorney Support Group
•Aug. 15, 7:30 a.m.–Morning groups
meet regularly on the third Monday
of the month.
•Aug. 1, 5:30 p.m.–Afternoon groups
meet regularly on the first Monday of
the month.
Both groups meet at the First United
Methodist Church at Fourth and Lead
SW, Albuquerque. For more information,
contact Bill Stratvert, (505) 242-6845.
Young Lawyers Division
Taos Luncheon
The Young Lawyers Division will host a
luncheon with Justice Edward Chávez from
noon–1:30 p.m., July 28, at the Gorge Bar
and Grill, 103 East Plaza, Taos. Join YLD for
this ongoing series of informal discussions
with Justice Chávez about the practice of
law. Space is limited to the first 13 YLD
members who respond, and preference will
be given to those who have not previously
attended. Lunch will be provided. R.S.V.P.
by July 20 to Martha Chicoski, [email protected]
chicoskilaw.com.
UNM
Law Library Hours
To August 21
Building & Circulation
Monday–Thursday: Friday
Saturday
Sunday
Reference
Monday–Friday
Saturday and Sunday
8 a.m.–9 p.m.
8 a.m.–6 p.m.
8 a.m.–5 p.m.
noon–8 p.m.
9 a.m.–6 p.m.
No reference
New Mexico Law Review
Seeking Articles for
Special Issue
As New Mexico prepares to celebrate a
century of statehood, the New Mexico Law
Review is seeking articles both historical and
forward-looking regarding the development
of New Mexico jurisprudence. Anyone
interested in publishing under this broad
umbrella should contact the publication
with article ideas. Articles must be completed by Dec. 1. Contact Karen Chase,
[email protected], or Lysette Romero,
[email protected], for information or
article submissions.
Member Benefit of the Week
Meeting Bridge
• Easy to use teleconferencing
designed for law firms.
• Set up calls and notifications in
one simple step.
• No reservations are required.
• Client codes provide for easy
tracking.
• Operator assistance is available
on every call.
Contact Dave Martin
[email protected]
or 1-888-723-1200 x627.
Visit www.meetingbridge.com.
Submit
announcements
for publication in
the Bar Bulletin to
[email protected]
by noon Monday
the week prior to
publication.
New Mexico Delegation to Cuba
Under the leadership of State Bar President Jessica Pérez and President-elect Hans Voss,
the State Bar will send a delegation of New Mexico lawyers to Cuba for an interactive,
educational professional exchange program to learn about the Cuban legal system and
share New Mexico information with Cuban lawyers. The trip is scheduled for Oct. 1–8.
The cost is approximately $4,200 per person based on double occupancy and includes
air from Miami, hotel accommodations, meals, transportation, etc. The cost does not
cover the flight from New Mexico to Miami. Non-attorney guests are welcome. A oncein-a-lifetime opportunity. Contact Joe Conte, (505) 797-6099 or [email protected]
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 5
Ask Pat
Committee on Women and the Legal Profession
Dear Pat,
I am a new attorney practicing in Albuquerque. My new job in the legal profession will require me to make regular appearances in court
on behalf of my clients. Most of the clothing in my wardrobe is probably too trendy to wear in the courtroom. I need some advice on
how to begin building my professional wardrobe without breaking the bank.
Signed,
Albuquerque Associate
Dear Albuquerque Associate,
The Local Rules of the Second Judicial District Court require attorneys appearing in court or in a judge’s office or chambers to “dress
in a manner befitting the dignity of the court.” However, the Local Rules do not elaborate on specific dress requirements for attorneys.
Most new attorneys in Albuquerque probably learn what to wear by observing their colleagues at work and in the courtroom.
Last fall, I attended a Professional Attire Program presented by the Committee on Women and the Legal Profession, the Women’s Law
Caucus, and the New Mexico Women’s Bar Association. The program featured a panel of judges from the federal and state benches who
gave very helpful advice about appropriate professional attire for attorneys. The panelists, noting that an attorney’s appearance in the
courtroom is very important to her clients and to jurors, recommended that attorneys should dress conservatively in the courtroom, and
their appearance should convey confidence, preparedness and respect for the judicial process. Dressing professionally and conservatively
is one way in which attorneys can demonstrate that we respect and value our clients and our profession. Conservative attire is also a
good way for a new attorney to appear more experienced; whereas, dressing too trendy might highlight a new attorney’s inexperience.
For attorneys who are beginning to build a professional wardrobe, I recommend purchasing classic suits in dark colors, readily available
in local specialty stores and department stores. Lately, I’ve also seen affordable suits offered for sale in stores such as Target and Kohl’s.
It is important that the suit fits properly. Ask your friends or colleagues to recommend a good tailor who can alter items and achieve a
proper fit at a reasonable price. If possible, purchase the matching jacket, pants and skirt, which will enable you to change your look
without having to purchase another suit.
If you have difficulty finding or affording suits, then purchase separates. Men can purchase two or three jackets in dark colors and pair
them with slacks and a variety of shirts and ties. Women can pair jackets with slacks, skirts and dresses. Women can also add variety to
their wardrobes by purchasing shirts and blouses in various colors to wear beneath their jackets.
Courtroom attire should always be clean and pressed. Necklines and hemlines should be conservative, and you should avoid distracting
accessories. Always keep a jacket on hand in your office for emergency hearings.
I also recommend visiting the Professional Clothing Closet, established by the Committee on Women and the Legal Profession and free
for law students and members of the State Bar who are in need of professional attire. It contains a wide variety of new and gently used
professional clothing. To schedule an appointment for the Professional Clothing Closet or to obtain a DVD of the Professional Attire
Program, contact Jocelyn Castillo, [email protected]
Good luck as you begin to build your legal career and your professional wardrobe.
Sincerely,
Pat
Ask Pat, provided by the Committee on Women and the Legal Profession, will answer questions about gender bias in the legal profession. Letters are loosely based
on real events. Send comments or letters to Ask Pat, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860.
6 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
40 Years on the Bench and Going Strong
■■The Honorable Edmund “Ted” H. Kase III is the longest-serving district court judge in NM.
By Judy Stuteville
T
he year was 1959, and a young Ted Kase was anxiously
awaiting the results of the Colorado bar exam. During
this period of uncertainty, Ted decided to visit his parents
who had relocated to Socorro, where his father was employed at
New Mexico School of Mines, now known as New Mexico Tech.
Ted took the opportunity to meet Ganett Burks Sr., the presiding
district court judge. Judge Ganett suggested that he take the threeday New Mexico bar exam. Ted learned that he passed the exam
on the fourth day and serendipitously began what would become
his lifelong career in Socorro.
Other than those fateful
decisions in 1959, there
was little to indicate Ted
would become the longest-serving district court
judge in New Mexico.
Born and raised in New
Jersey then moving to
Pennsylvania for high
school, Ted graduated
from Princeton in 1954.
His first opportunity for
government service soon
arrived in the form of a
draft notice and Ted was inducted into in the U.S. Army within
two months of graduation. Although he had military occupation
status as a German translator, he was stationed in southern France
where his travel interests developed and evolved as he found himself
watching the running of the bulls in Pamplona, Spain, for the first
time in 1955. After his military service, he enrolled in the University
of Pennsylvania Law School, graduating in 1959. The adventuresome young man then headed west for the mountains of Colorado.
Ted opened his own private practice in Socorro and honed his legal
skills for six years, working as an appointed public defender, doing
land cases and divorces. When asked about the range of cases he
handled as a young lawyer and sole practitioner, Ted quipped that
he took “whatever came in
the door,” which was typical
The Honorable Edmund
of rural attorneys practicing
H. Kase III will be recognized
in small towns at the time
and is still the case to some
for 40 years of service to
degree today.
the judiciary at 2 p.m., July
29, at the Socorro County
In 1965, Ted moved to the
district attorney’s office, then
Courthouse Courtroom I.
under Raymond Keithly. At
A reception in his honor will
that time, assistant district
follow the ceremony.
attorneys were permitted
For further information,
to also maintain their own
private practice which Ted,
contact Jason Jones, (575)
always a hard worker, did
835-0050, ext. 20.
until the rules changed.
The 7th Judicial District
Attorney’s Office then consisted of only Raymond and Ted, and
Ted began the thousands of miles of travel throughout Socorro,
Catron and Sierra counties that would be an enduring hallmark of
his legal career. Interstate 25 had not yet been constructed, and the
trips involved long hours of driving over two-lane roads.
With his legal experience and his knowledge of the judicial district,
Ted was selected by then-Governor Bruce King in 1971 to serve
the remainder of Judge Burk’s term when the judge retired due to
medical issues. It was a geographically large district with a unique
personality, which was an excellent match for Judge Kase. And Ted
Kase certainly knew his way around the district. He added Torrance
County to his routes and continues to this day to log approximately
20,000 miles per year in the district.
The newly appointed Judge Kase assumed responsibility, in addition
to other matters, for the ongoing Tome Land Grant case, which
had been in litigation for 16 years under Judge Burk. Judge Kase
eventually ruled in favor of 200 plus heirs in the matter, only to have
the case sent back to the 7th Judicial District by the New Mexico
Supreme Court with instructions to open the case to all possible
heirs. The case eventually expanded to more than 7,000 potential
heirs before finally concluding in 2010.
For six years, Judge Kase presided alone over the four-county
district. In 1977 when his case load had grown from 600 to 1,300,
the State Legislature approved a second judgeship. In 1995, the 3rd
Judicial District judgeship was created. The 7th Judicial District
was growing and changing as was much of the legal system in New
Mexico. Judge Kase continued to demonstrate the adaptability and
commitment that had led him to the bench.
Judge Kase has been an active participant as the courts have adopted
technology and automation. Commenting that he still likes to see
continued on page 9
At its 2010 birthday celebration, the State Bar recognized Judge Kase as the “Longest
Serving Judge” and for 50 years of practice. Shown with Judge Kase is Lauren Reed,
who was recognized as the “Youngest Active Member.” Reed frequently appears
before Judge Kase in the 7th Judicial District Court.
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 7
A time for Hope
■Over
■
700 attorneys have given over 270,000 pro bono hours around the state
By Judge Frank A. Sedillo
G
iven the many natural disasters and the grand changes occurring all over the world, many of us may be left with a
feeling of helplessness. When these events are combined with
the worst economic climate in generations, one might be left with
a feeling of hopelessness. If we were one of the many unfortunate
members of society that have been directly impacted by any one of
these ill-fated occurrences, we could surely understand any feelings
of desperation or despair.
Is it not amazing then, that when we examine the manner in which
those most affected by these adversities have endured, we find that,
although it is a struggle, the human spirit continues to rise above all
the encountered challenges. Those directly impacted begin to rebuild
or reshape their environments and look forward to a better day. Many
more, gazing on with shock and amazement, have found a way to help,
a way to ease the pain, to restore the optimism, to foster a transition,
to make it through one more day and onto a better day. While these
world events dominate every news cycle, hope, faith and generosity
still persist and still rule the day.
Robert F. Kennedy once said, “It is from numberless diverse acts of
courage and belief that human history is shaped.” He went on to say
that “acts to improve the lot of others” can send forth “a tiny ripple of
hope.” Hal Lindsey observed that we “can live about 40 days without
food, about three days without water, about eight minutes without
air, but only for one second without hope.” It is with these
sentiments in mind that we recall the many acts of kindness and
charity shared on a global and local level. It is also with these
thoughts that we reflect on the efforts being made by the legal
community here in New Mexico to help address the needs of
those less fortunate and most in need.
as direct representation, pro se clinics and courthouse booths, have
provided assistance to over 10,000 New Mexicans.
It should also be noted that the New Mexico Attorney General’s Office,
along with many other civil legal service providers, typically attend the
legal fairs. Their involvement has been extremely helpful in addressing
the specific needs of those attending and in providing information and/
or assistance on an ongoing basis after the legal fairs are concluded.
One of the civil legal service providers, Law Access New Mexico, has
developed a database of volunteer attorneys or a Volunteer Attorney
Pool (VAP). This database provides a way to connect the pro bono
committee with a list of attorneys available to assist in a particular
area or event. This in turn helps connect the person in need with an
attorney available to help. On many occasions, VAP attorneys serve as
the last resort for referrals from the state’s many legal service providers
when either the legal service providers do not have available staff or
available expertise or when there are conflicts of interest. It should also
be noted that Law Access New Mexico provides malpractice coverage
for services rendered by volunteer attorneys participating in the VAP.
The efforts of the pro bono committees, attorneys, civil legal service
providers and all the employees of the State Bar of New Mexico have
been invaluable in ensuring that access to justice is available to all New
Mexicans, even those that may not have the means to hire an attorney.
Since the inception of the pro bono committees, countless ripples of
hope have been
created by members of the legal
community who
have selflessly
and graciously
given their time,
knowledge and
energies to assist.
Through their
efforts, they are
helping to shape
a new and better
day for all New
Mexicans and
have helped restore and maintain—HOPE.
In 2007, the New Mexico Supreme Court Access to Justice
Commission developed a plan to establish district court pro
bono committees in every judicial district in the state. The chief
judge in every district was required to appoint a committee to
develop a plan on how best to address the legal needs of the
local community by involving the private bar, other legal service
providers and the public. As a result of these efforts, several of
the pro bono committees, made up of judges, attorneys, law
students, paralegals and legal service providers, have decided
to hold legal fairs in their respective communities. Through
the present, Albuquerque, Alamogordo, Santa Fe, Los Lunas,
Las Cruces, Roswell, Española, Silver City, Gallup, Ruidoso, Volunteer attorney Jay Hertz of Sutin Thayer & Browne answers
Clovis and Lovington have all had legal fairs where volunteer probate law questions at the Law-La-Palooza Legal Fair conducted Legal fairs and
legal professionals from each community have come together March 9, 2010, at the Westside Community Center in Albuquerque. other legal events
are currently beto provide free legal information to low-income New Mexicans. Photo courtesy of Judge Clay Campbell.
ing planned in
In Farmington, week-long events have been scheduled where
other communilaw students and local attorneys conduct training sessions and
seminars. Legal information is provided free of charge to members of ties around the state. If any community and/or pro bono committee is
interested in conducting a legal fair or providing other similar services,
the local community during these week-long events.
please feel free to contact Amy LaFaver, pro bono coordinator at
It is estimated that over 700 attorneys have volunteered their time in [email protected] If any attorney is interested in becoming a part
these various endeavors. It is also estimated that attorneys have given of the Volunteer Attorney Pool, please contact Rosalie Fragosa, Law
over 270,000 hours in pro bono efforts around the state in the year Access New Mexico, at [email protected]
2010 alone. These legal fairs, combined with other legal events such
Let’s do our part to keep hope alive.
8 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
Judge Ted Kase continued from page 7
the paper copy of a brief to be able “to scribble in the margins,” he
also acknowledges that “of course, there are those features available”
that allow the same functionality in the Pegasus system. There have
also been changes in the content of the cases coming before him. He
is concerned about the high number of cases which involve illegal
drug use and the effect those drugs have on our communities. He
continues to support the use of drug courts to address issues created
by illegal use.
One of Judge Kase’s notable achievements has been his support of
1987 Family Protection Act, which addresses issues of domestic
violence, including the establishment of domestic violence special
commissioners. The special commissioners have allowed more time
for district judges to address their ever-growing case load and have
also provided more expedient hearings for domestic violence cases.
Retirement does not seem to be in the plans for Judge Kase. He
continues to hear cases in all four counties and commented that he
still enjoys the job. He especially enjoys performing weddings and
presiding over adoption cases. Judge Kase remains a formidable
presence in courtrooms throughout the district, and he is respected
throughout the legal system. The court staff continues to admire
Kase, and they are openly pleased by their opportunity to work with
him. He is a visible presence in each of the communities, where
he is often seen in the local restaurants enjoying a meal and the
companionship of many local residents. The 7th Judicial District
has been fortunate to have had Judge Kase on the bench for these
past 40 years. Both the citizens and legal community look forward
with anticipation to many more years of his gracious service to the
people of New Mexico.
Judge Kase III has two children, Adam and Judy. Adam and his
wife Karin live in Tijeras and have a daughter, Lauren, two. Judy
and husband Joseph Cuttone live in Bernardsville, New Jersey, and
Judge Kase (left) watches the enactment into law of a project which he worked hard
and long for—better compensation for jurors. In this 70s newspaper file photo,
Then-Gov. Bruce King signs House Bill 33, which raised juror compensation to
$2.30 per hour and 17 cents per mile with future compensation being “at the
highest prevailing state minimum wage rate.” On the right is David Gardner, then
executive secretary of the Judicial Council of New Mexico.
have two daughters, Grace, 12, and Mia, eight, and a son Giuseppe,
five. Ted continues to enjoy travel and has managed to make a
second trip to watch the running of the bulls, as well as many other
journeys. He also enjoys gardening, walking and hiking and visiting
with his family.
About the Author
Judy Stuteville is an associate professor at New Mexico Tech in
Socorro. She is an attorney and has been a domestic violence special
commissioner in the 7th Judicial District since 1998.
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Bar Bulletin - July 20, 2011 - Volume 50, No. 28 9
IF NOT FOR THE CONFIDENTIAL NATURE OF
WHAT WE DO, YOU’D HEAR ABOUT
SUCCESS STORIES ALL THE TIME.
Lawyers are as vulnerable to personal and professional problems as anyone else. Competition, chronic
stress, long hours, and high expectations can wear down even the most competent and energetic
lawyer, often leading to depression, anxiety, relationship problems, gambling issues, alcohol or other
drug abuse.
If you are a lawyer, judge, or law student in New Mexico with a personal or professional problem, the
New Mexico Lawyers and Judges Assistance Program (NMJLAP) can help. Since 1986, our program’s
counselor and peer helpers (lawyers and judges) have helped hundreds of legal professionals deal with
alcohol and other drug-related problems, mental illness, and emotional distress.
Absolute confidentiality and highly professional service is our promise.
If an issue in your life is beginning to cause problems, or someone you know is confronting difficulties,
we can be the crucial first step in turning things around. Don’t wait for a problem to become a crisis,
or a personal issue to become a professional one.
You don’t have to manage alone. Help and Support are only a phone call away.
Call (505) 228-1948 or 800-860-4914
10 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
Legal Education
July
20
Handling a Social Security
Disability Case
5.0 G, 1.0 E
Albuquerque
NBI Inc.
(800) 930-6182
www.nbi-sems.com
21
Annual Rocky Mountain Mineral
Law Institute
13.0 G, 1.0 E
Santa Fe
Rocky Mountain Mineral Law
Foundation
(303) 321-8100
www.rmmlf.org
26
Ethics of Using “Metadata” in
Law Practice and Litigation
1.0 EP
Teleseminar
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
28
Tax Planning Issues in Divorce
1.0 G
Teleseminar
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
2
Workers’ Compensation to Social
Security: Representing Claimants
in Social Security Disability
Appeals
3.4 G
Video Replay
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
16
5
16–17 Eminent Domain Practice,
Parts 1 and 2
2.0 G
Teleseminar
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
August
1
Death and Dissolution: Oldham,
the Probate Code and Beyond
1.3 G
Albuquerque
Second Judicial District Court
(505) 222-4575
2
Conflicts of Interest in Law
Practice: A Practical Guide
1.0 EP
Teleseminar
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
2
Employment Law: The Basics
and New Developments
6.1 G
Video Replay
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
2
Workers’ Compensation to Social
Security: Assisting Clients to Avoid
the Holes in the Social Safety Net
2.7 G
Video Replay
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
When Agendas Collide: New
Mexico’s Natural Resources and
its Threatened and Endangered
Species
4.5 G, 2.0 EP
Video Replay
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
Screening and Assessing Intimate
Partner Violence and Abuse
5.0 G, 1.0 E
Albuquerque
Samaritan Counseling Center
(505) 842-5300
www.samaritannm.org
9–10 Business Torts, Parts 1 and 2
2.0 G
Teleseminar
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
16
2010 Intellectual Property Institute
Video Replay
4.5 G, 2.0 EP
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
23
Drafting Employee Handbooks
1.0 G
Teleseminar
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
30
Buying, Selling and Exchanging
LLC and Partnership Interests
1.0 G
Teleseminar
Center for Legal Education of
NMSBF
(505) 797-6020
www.nmbarcle.org
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 11
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective July 20, 2011
Petitions for Writ of Certiorari Filed and Pending:
Certiorari Granted but not yet Submitted to the Court:
No. 33,086
No. 33,107
No. 33,106
No. 33,103
No. 33,104
(Parties preparing briefs)
Date Writ Issued
No. 32,360 State v. Figueroa
(COA 28,798) 6/2/10
No. 32,430 State v. Muqqddin
(COA 28,474) 8/2/10
No. 32,483 State v. Jackson
(COA 28,657) 8/19/10
No. 32,532 Gutierrez v. Hatch
(12-501) 9/15/10
No. 32,548 State v. Robles
(COA 30,118) 9/27/10
No. 32,602 State v. Marez
(COA 30,233)10/18/10
No. 32,603 Holguin v. Fulco Oil
(COA 29,149)10/18/10
No. 32,605 State v. Franco
(COA 30,028)10/18/10
No. 32,510 State v. Swick
(COA 28,316)10/28/10
No. 32,632 State v.
Dominguez-Meraz
(COA 30,382) 11/5/10
No. 32,696 Herbison v. Chase Bank (COA 30,630) 12/3/10
No. 32,697 State v. Amaya
(COA 28,347) 12/3/10
No. 32,713 Bounds v. D’Antonio
(COA 28,860) 1/27/11
No. 32,717 NM Farm and Livestock
Bureau v. D’Antonio
(COA 28,860) 1/27/11
No. 32,770 State v. Sneed
(COA 30,467) 1/27/11
No. 32,789 Chatterjee v. King
(COA 29,823) 1/27/11
No. 32,742 State v. Martinez
(COA 30,637) 1/31/11
No. 32,804 State v. Servantez
(COA 30,414) 2/7/11
No. 32,800 State v. Spearman
(COA 30,493) 3/8/11
No. 32,791 Snider v. State
(12-501) 3/14/11
No. 32,860 State v. Stevens
(COA 29,357) 3/15/11
No. 32,844 Gonzalez v.
Performance Paint, Inc. (COA 29,629) 3/23/11
(On Court’s own motion for reconsideration)
No. 32,868 Nunez v. Armstrong
General Contractors
(COA 29,522) 3/23/11
(COA 29,731) 4/4/11
No. 32,882 State v. Little
No. 32,895 State v. Gonzales
(COA 30,541) 4/4/11
No. 32,876 Gonzales v. State
(12-501) 4/7/11
No. 32,915 State v. Collier
(COA 29,805) 4/7/11
No. 32,871 Bowen v. Mescalero
Apache Tribe
(COA 29,625) 4/27/11
No. 32,899 State v. Esparza
(COA 28,911) 4/27/11
No. 32,937 SF Pacific Trust v. City
of Albuquerque
(COA 30,930) 5/3/11
No. 32,940 State v. Vest
(COA 28,888) 5/3/11
No. 32,941 Titus v. City
of Albuquerque
(COA 29,461) 5/3/11
No. 32,942 Schuster v. Taxation &
Revenue Dept.
(COA 30,023) 5/3/11
No. 32,944 Freedom C. v. Brian D. (COA 30,041) 5/3/11
No. 32,939 United Nuclear Corp. v.
Allstate Insurance Co.
(COA 29,092) 5/4/11
No. 32,943 State v. Hall
(COA 29,138) 5/11/11
No. 32,968 Sunnyland Farms, Inc. v.
Central NM Electric
(COA 28,807) 5/17/11
No. 32,976 State v. Olson
(COA 29,010) 5/24/11
No. 32,985 Helena Chemical Co. v.
Uribe
(COA 29,567) 6/8/11
No. 33,077
No. 33,098
No. 33,019
No. 33,097
No. 33,094
No. 33,093
No. 33,096
No. 33,090
No. 33,089
No. 33,088
No. 33,084
No. 33,081
No. 33,080
No. 33,085
No. 32,984
No. 33,082
No. 33,076
No. 33,075
No. 33,070
No. 33,073
No. 33,068
No. 33,072
No. 33,064
No. 33,063
No. 33,062
No. 33,057
No. 33,060
No. 33,059
No. 33,017
No. 33,053
No. 33,046
No. 33,035
Date Petition Filed
Lopez v. Bravo
(12-501) 7/7/11
State v. Veronica L.
(COA 30,736) 7/5/11
State v. Gutierrez
(COA 28,754) 7/5/11
State v. Brazeal
(COA 31,106) 7/1/11
Barron v. Evangelical Lutheran
Good Samaritan Society (COA 29,707) 6/30/11
State v. Gonzales
(COA 28,700) 6/30/11
State v. Chelsea S.
(COA 30,352) 6/29/11
Chand v. Bravo
(12-501) 6/29/11
State v. Perea
(COA 31,122) 6/28/11
State v. Yazzie
(COA 28,191) 6/28/11
State v. Mahsem
(COA 29,671) 6/28/11
State v. Cofer
(COA 29,717) 6/27/11
Widman v. City
of Albuquerque
(COA 31,168) 6/24/11
Sabatini v. Roybal
(COA 29,804) 6/24/11
State v. Stacy C.
(COA 30,987) 6/24/11
State v. Lavone
(COA 29,266) 6/23/11
State v. Castillo
(COA 29,270) 6/22/11
State v. Rivera
(COA 29,118) 6/22/11
Chavez v.
City of Rio Rancho
(COA 31,070) 6/21/11
Response filed 7/8/11
Rivera v. Rivera
(COA 30,882) 6/21/11
Rohlev v. Rohlev
(COA 31,010) 6/20/11
State v. Diaz
(COA 31,034) 6/20/11
State v. Marchiondo
(COA 30,029) 6/17/11
Montoya v. City
of Albuquerque
(COA 29,838) 6/17/11
State v. Stinnett
(COA 30,772) 6/16/11
State v. Stevens
(COA 29,423) 6/16/11
Perry v. Pacheco
(12-501) 6/14/11
State v. Begay
(COA 31,076) 6/13/11
Duran v. Jaramillo
(12-501) 6/10/11
Response due 7/14/11
State v. Sophia Z.
(COA 30,982) 6/10/11
State v. Turrietta
(COA 29,561) 6/9/11
State v. Otuafi
(COA 30,332) 6/8/11
State v. Chavez
(COA 30,997) 6/8/11
Trujillo v. State
(12-501) 6/8/11
Response due 7/28/11
State v. Coleman
(COA 29,143) 6/6/11
State v. Munoz
(COA 30,837) 6/1/11
State v. Telles
(COA 28,943) 5/25/11
12 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
Writs of Certiorari
No. 32,987
No. 33,001
No. 33,008
No. 33,011
No. 33,013
No. 33,014
No. 33,023
Helena Chemical Co. v.
Uribe
(COA 29,567)
State v. Rudy B.
(COA 27,589)
State v. Lasky
(COA 28,782)
Felts v. CLK
Management, Inc. (COA 29,702/30,142)
Felts v. CLK
Management, Inc. (COA 29,702/30,142)
State v. Crane
(COA 29,470)
State v. Gurule
(COA 29,734)
http://nmsupremecourt.nmcourts.gov.
6/8/11
6/8/11
6/8/11
6/8/11
6/8/11
6/8/11
6/8/11
Certiorari Granted and Submitted to the Court:
(Submission = date of oral argument or briefs-only submission)
Submission Date
No. 31,100 Allen v. LeMaster
(12-501) 2/15/10
No. 32,099 Wachocki v. Bernalillo Co.
Sheriff’s Dept.
(COA 27,761) 7/19/10
No. 32,131 Wachocki v. Bernalillo Co.
Sheriff’s Dept.
(COA 27,761) 7/19/10
No. 32,149 State v. Sandoval
(COA 28,437) 8/30/10
No. 32,137 State v. Skippings
(COA 28,324)10/13/10
No. 32,130 State v. Cruz
(COA 27,292)10/14/10
No. 32,311 Rodriguez v.
Permian Drilling Corp. (COA 29,435)11/15/10
No. 32,170 State v. Ketelson
(COA 29,876)11/16/10
No. 32,344 Provencio v. Wenrich
(COA 28,882)11/16/10
No. 32,447 Mendoza v.
Tamaya Enterprises
(COA 28,809) 1/10/11
No. 32,486 City of Rio Rancho v.
(COA 28,709) 1/11/11
Amrep
No. 32,489 City of Rio Rancho v.
(COA 29,510) 1/11/11
Cloudview Estates
No. 32,340 Rivera v.
American General
(COA 28,691) 1/12/11
No. 32,234 State v. Trujillo
(COA 29,870) 2/23/11
No. 32,524 Republican Party v.
(COA 28,292) 3/14/11
Tax & Revenue Dept.
No. 32,594 Smith v. Durden
(COA 28,896) 3/15/11
No. 32,505 Charley v. Franklin Corp. (COA 28,876) 3/22/11
No. 32,542 Quintero v. Department
of Transportation
(COA 28,875) 3/22/11
No. 32,545 State ex rel. CYFD v.
Octavio F.
(COA 29,469) 3/23/11
No. 32,534 Bustos v.
Hyundai Motor Co.
(COA 28,240) 4/11/11
No. 32,570 City of Albuquerque v.
Montoya
(COA 28,846) 4/11/11
No. 32,695
No. 32,690
No. 32,756
No. 32,388
No. 32,402
No. 32,577
No. 32,291
No. 32,677
No. 32,436
No. 32,716
No. 32,589
No. 32,776
No. 32,707
No. 32,704
Diamond v.
Diamond
(COA 30,009/30,135)
Joey P. V. Alderman-Cave
Milling & Grain Co.
(COA 29,120)
Lenscrafters, Inc. v.
Kehoe
(COA 28,145)
State v. Harper
(COA 27,830)
State v. Harper
(COA 27,830)
May v. DCP
Midstream LP
(COA 29,331/29,490)
State v. Torres
(COA 29,603)
State v. Rivera
(COA 29,317)
Estate of Gutierrez v.
Meteor Monument
(COA 28,799)
Derizotis, Inc. v.
Tomada
(COA 30,679)
State v. Ordunez
(COA 28,297)
Sais v. NM Department
of Corrections
(COA 30,785)
Smith LLC v. Synergy
Operating, LLC (COA 28,248/28,263)
Tri-State v.
State Engineer
(COA 27,802)
5/10/11
5/11/11
7/18/11
7/27/11
7/27/11
8/15/11
8/16/11
8/16/11
8/17/11
8/31/11
8/31/11
9/12/11
9/12/11
9/26/11
Petition for Writ of Certiorari Denied:
No. 33,040
No. 33,045
No. 33,047
No. 32,969
No. 32,973
No. 33,033
No. 33,031
No. 33,030
No. 33,037
No. 33,043
No. 33,044
No. 33,041
No. 33,038
No. 33,061
No. 33,072
No. 33,067
No. 32,972
State v. Telles
(COA 30,936)
State v. Brito
(COA 30,718)
State v. Cipriano
(COA 29,105)
Rascon v. Tapia
(12-501)
Clark v. Salayandia
(12-501)
State v. Jaime L.
(COA 27,799)
State v. Torres
(COA 27,900)
State v. Jimenez
(COA 29,043)
State v. Carrisa M.
(COA 27,958)
Sutin, Thayer & Brown v.
Whitener Law Firm
(COA 30,791)
State v. Portillo
(COA 29,564)
Waterhouse v. Heredia
(12-501)
Marquez v. NM Regulation
& Licensing Dept.
(COA 31,171)
Herrera v. Franco
(12-501)
Perry v. Pacheco
(12-501)
Derringer v. Baxter
(COA 28,681)
Trujillo v. Tapia
(12-501)
6/23/11
6/23/11
6/23/11
6/28/11
6/28/11
6/28/11
6/28/11
6/28/11
6/28/11
6/28/11
6/28/11
6/28/11
6/28/11
6/28/11
6/28/11
6/30/11
6/30/11
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Gina M. Maestas, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Effective July 8, 2011
Published Opinions
Date Opinion Filed
No. 29894
11th Jud Dist San Juan CR-08-1212, STATE v R SORRELHORSE (affirm)
7/5/2011
No. 30461
2nd Jud Dist Bernalillo LR-08-44, STATE v L OWELICIO (affirm)
7/5/2011
No. 29699
5th Jud Dist Chaves CR-07-302, STATE v F MONTANO (affirm in part, vacate in part and remand)
7/5/2011
No. 29822
1st Jud Dist Los Alamos CV-08-154, J HORNE v LOS ALAMOS NATIONAL (reverse and remand)
7/5/2011
No.30863
2nd Jud Dist Bernalillo DM-00-1849, B VAN DEN BRINK v J VAN DEN BRINK
(affirm in part, dismiss in part)
7/5/2011
No. 31000
13th Jud Dist Sandoval DM-09-898, D BRUDEVOLD v D FULTON (affirm) 7/5/2011
No. 31115
2nd Jud Dist Bernalillo JQ-09-72, CYFD v KYLIE B (affirm)
7/5/2011
No. 31215
1st Jud Dist Santa Fe CV-10-4016, F GONZALES v DEPT OF WORKFORCE (reverse and remand)
7/5/2011
No. 29666
WCA-04-54327, P CALBERT v NATIONAL RESTAURANT (reverse)
7/6/2011
No. 30605
13th Jud Dist Valencia PB-09-35, ESTATE OF T LEHMAN (dismiss)
7/6/2011
No. 30912
9th Jud Dist Curry CV-10-8574, STANDAGE FARMS v LUSK ONION (reverse and remand)
7/6/2011
No. 30977
5th Jud Dist Chaves CR-09-550, STATE v T GONZALES (affirm)
7/6/2011
No. 30996
6th Jud Dist Grant CR-07-70, STATE v A GRIEGO (affirm) 7/6/2011
No. 31052
2nd Jud Dist Bernalillo JQ-09-17, CYFD v APOLONIO L (affirm)
7/6/2011
No. 31053
9th Jud Dist Roosevelt CR-05-88, STATE v D CASILLAS (affirm)
7/6/2011
No. 29212
8th Jud Dist Taos CV-06-208, B WINDHAM v L.C.I.2 (reverse)
7/8/2011
No. 30833
11th Jud Dist San Juan CR-07-453, STATE v J GARCIA (dismiss)
7/8/2011
Unpublished Opinions
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective July 20, 2011
Pending Proposed Rule Changes
Open for Comment
Comment Deadline
13-2304 Retaliatory discharge
08/03/11
13-832 Good faith and fair dealing [No instruction drafted.]08/03/11
10-111 Motions; how and when presented
08/03/11
10-341 Witness immunity
08/03/11
10-342 Admissions, including no contest pleas,
and consent decrees
08/03/11
14-945 Criminal sexual penetration of a 13 to 18
year old in the second degree; use of coercion
by person in position of authority; essential
elements08/03/11
14-972 Aggravated criminal sexual penetration in
the first degree; child under thirteen;1
essential elements
08/03/11
14-2241 Tampering with evidence; essential elements 08/03/11
6-503
Disposition without hearing
07/20/11
7-503
Disposition without hearing
07/20/11
8-503
Disposition without hearing
07/20/11
9-104B Appearance, plea and waiver
07/20/11
6-105
Assignment and designation of judges
07/20/11
6-507
Insanity or incompetency;
transfer to district court
07/20/11
Return of the probation violator
07/20/11
6-802
8-507
Insanity or incompetency;
transfer to district court
07/20/11
8-802
Return of the probation violator
07/20/11
9-212C Bench warrant
07/20/11
Recently Approved Rule Changes
Since Release of 2011 NMRA
Effective Date
Rules of Civil Procedure for the District Courts
1-071.1
1-071.2
1-071.3
1-071.4
1-071.5
1-023
1-077
1-079
Statutory stream system adjudication suits;
service and joinder of water rights claimants;
responses06/08/11
Statutory stream system adjudication suits;
stream system issue and expedited inter se
proceedings06/08/11
Statutory stream system adjudication suits;
annual joint working session
06/08/11
Statutory stream system adjudication suits;
ex parte contacts; general problems of
administration06/08/11
Statutory stream system adjudication suits;
excusal or recusal of a water judge
06/08/11
Class actions
05/11/11
Appeals pursuant to Unemployment
Compensation Law
04/18/11
Public inspection and sealing
of court records
02/07/11
Rules of Civil Procedure for the Magistrate Courts
2-112
Public inspection and sealing
of court records
02/07/11
Rules of Civil Procedure for the Metropolitan
Courts
3-105
3-701
3-112
Assignment and designation of judges
Appeal from metropolitan court
on the record
Public inspection and sealing
of court records
05/27/11
05/27/11
02/07/11
Civil Forms
4-831
4-832
4-222
4-223
4-224
Petition for writ of certiorari in appeal
pursuant to Unemployment Compensation
Law04/18/11
Writ of certiorari in appeal pursuant
to Unemployment Compensation Law
04/18/11
Application for free process and affidavit
of indigency
02/09/11
Order for free process
02/09/11
Attorney’s certificate supporting indigency
and free process
02/09/11
Rules of Criminal Procedure for the District Courts
5-123
5-805
5-604
Public inspection and sealing
of court records
02/07/11
Probation; violation
01/31/11
Time of commencement of trial for cases
of concurrent trial jurisdiction originally filed
in the magistrate, metropolitan, or municipal
court03/23/11
Rules of Criminal Procedure for the Magistrate
Courts
6-701Judgment
6-114
Public inspection and sealing
of court records
03/25/11
02/07/11
Rules of Criminal Procedure for the Metropolitan
Courts
7-701Judgment
7-113
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of court records
03/25/11
02/07/11
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8-701Judgment
8-112
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of court records
03/25/11
02/07/11
Children’s Court Rules and Forms
10-166
Public inspection and sealing
of court records
10-409 Affidavit for Arrest Warrant
10-410 Arrest Warrant
10-412A Bench warrant
02/07/11
02/14/11
02/14/11
02/14/11
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 15
Rule-Making Activity
10-137
10-312
http://nmsupremecourt.nmcourts.gov.
Continuing duty to disclose;
failure to comply
01/31/11
Filing of petition; amendment of petition;
appointment of guardian ad litem or attorney 01/31/11
Rules of Evidence
11-804
Hearsay exceptions; declarant unavailability 01/31/11
Rules of Appellate Procedure
12-215
12-306
12-302
Brief of an amicus curiae
Number of copies of papers
Appearance, withdrawal or substitution
of attorneys
12-314 Public inspection and sealing
of court records
12-210 Calendar assignments
12-309Motions
06/28/11
06/28/11
05/16/11
02/07/11
02/09/11
02/09/11
UJI Civil
13-110
13-305
13-306
13-1424
3-1424A
Conduct of jurors
Causation (Proximate cause)
Independent intervening cause
Causation; products liability
Independent intervening cause;
products liability
03/21/11
03/21/11
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03/21/11
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Rules Governing Discipline
17-309
17-105
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06/01/11
03/28/11
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provider reporting Earning credits; credit types 05/01/11
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To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
16 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
02/21/11
06/13/11
Advance Opinions
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Supreme Court
Opinion Number: 2011-NMSC-025
Topic Index:
Constitutional Law: Due Process; Right to Confrontation;
Self-Incrimination; Trial By Jury; and Waiver of Rights
Criminal Law: Assault or Battery on a Peace Officer; Homicide; and Murder
Criminal Procedure: Due Process; Guilty Plea; Plea and Plea Bargaining;
Right Against Self-Incrimination; and Right to Trial by Jury
Judges: Abuse of Discretion
Juries: Right to Trial by Jury
STATE OF NEW MEXICO,
Plaintiff-Appellee,
versus
ALBERT JOSE RAMIREZ,
Defendant-Appellant.
No. 31,905 (filed: June 13, 2011)
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge
Carlos Ruiz De La Torre
Assistant Appellate Defender
Santa Fe, New Mexico
for Appellant
Opinion
Edward L. Chávez, Justice
{1}The crux of this appeal is whether Defendant Albert Jose Ramirez (Defendant)
knowingly, intelligently, and voluntarily
entered into his plea agreement with the
State. At Defendant’s plea hearing, Defendant expressed confusion about sentencing, the premeditation element of his first
degree murder charge, and culpability for
his assault and battery charges. Apparently
recognizing Defendant’s hesitation and
confusion, the prosecutor asked the district court to inquire further on the record
whether Defendant understood the plea
and that he was “willfully” entering into
the plea agreement. Although the district
court acknowledged the need to do so,
the court failed to adequately confirm on
the record Defendant’s understanding of
the plea and its consequences as required
by New Mexico law. Accordingly, we
Gary K. King
Attorney General
Nicole Beder
Assistant Attorney General
Santa Fe, New Mexico
for Appellee
reverse and remand to allow Defendant
to withdraw his plea.
{2}Defendant reached an agreement with
the State whereby he pled guilty to murder
in the first degree (premeditated), contrary to NMSA 1978, Section 30-2-1(A)
(1) (1994); battery upon a peace officer,
contrary to NMSA 1978, Section 30-22-24
(1971); and assault upon a police officer,
contrary to NMSA 1978, Section 3022-21 (1971). Defendant was sentenced
to a term of life imprisonment for the
murder charge with concurrent sentences
of 18 months for the battery charge and
364 days for the assault charge. Because
Defendant received a life sentence, we
review Defendant’s appeal directly from
the district court, pursuant to Article VI,
Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. See
State v. Smallwood, 2007-NMSC-005, ¶
6, 141 N.M. 178, 152 P.3d 821 (“[O]ur
appellate jurisdiction extends to appeals
from district court judgments imposing a
http://www.nmcompcomm.us/
sentence of life imprisonment or death.”).
{3}Defendant raises four issues for our
review: (1) whether Defendant was competent to stand trial; (2) whether Defendant’s motion for additional competency
evaluation was improperly denied; (3)
whether the district court erred in denying
Defendant’s motion to withdraw his plea;
and (4) whether trial counsel’s performance constituted ineffective assistance of
counsel. We reverse on the basis that the
district court erred in denying Defendant’s
motion to withdraw his plea. In particular,
we conclude that Defendant’s plea was not
“knowing, intelligent, and voluntary.” See
Marquez v. Hatch, 2009-NMSC-040, ¶ 12,
146 N.M. 556, 212 P.3d 1110 (internal
quotation marks and citation omitted).
Because this finding is dispositive, we do
not address Defendant’s other claims.
{4}Defendant’s convictions arose from
the July 12, 2007 killing of his mother’s
boyfriend, Eladio Robledo (Victim), in
Curry County. Defendant was indicted
by the Ninth Judicial District grand jury
on July 20, 2007. After being initially
determined incompetent to stand trial,
the district court adjudged that Defendant
was restored to competency following approximately three months of treatment and
evaluation at the New Mexico Behavioral
Health Institute (Behavioral Health Institute) in Las Vegas.
{5}Defendant’s trial began with jury selection on January 26, 2009. Following a
break in that process, the parties informed
the district court that a plea agreement had
been reached in which Defendant pled
guilty to three charges, including first
degree premeditated murder. The court
then conducted a twenty-minute plea
hearing in which the judge concluded that
Defendant had “knowingly, intelligently,
and voluntarily” accepted the plea, despite
statements made by Defendant to the
contrary. Among Defendant’s contentions
was that the act of killing Victim was not
premeditated, undermining the validity of
his plea to the first degree murder count.
The district court deflected Defendant’s
claims, declined to conduct additional
inquiries of Defendant, and left the plea
agreement intact.
{6}A month later, Defendant filed a motion to withdraw his guilty plea, arguing
that his plea was neither knowing nor
intelligent due to the mental health prob-
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 17
lems that gave rise to his commitment to
the Behavioral Health Institute. At the
hearing regarding Defendant’s plea withdrawal motion, Defendant reiterated this
argument and augmented it with others,
including claims that he did not understand
the elements of the crimes covered by the
plea or the sentencing to be imposed under
the agreement. The district court rejected
the claims, concluding that Defendant
had been adequately informed of the plea
details by defense counsel.
BECAUSE THE DISTRICT COURT
FAILED TO ASCERTAIN ON THE
RECORD THAT DEFENDANT’S
PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY, THE
DISTRICT COURT’S ACTION
CONSTITUTES AN ABUSE OF
DISCRETION THAT WARRANTS
REVERSAL
{7}In this appeal, Defendant once again
claims that the district court failed to
ascertain whether Defendant “knowingly
and voluntarily” entered his guilty plea.
Defendant contends that his mental health
problems undermined his capacity to enter
the guilty plea and he “expressed considerable confusion and frustration” during the
plea hearing. He also argues that the district court’s failure to clarify Defendant’s
understanding of the plea and the court’s
subsequent denial of Defendant’s motion
to withdraw the plea constitute error.
{8}A guilty plea in a state criminal court
involves the waiver of “three important
federal [constitutional] rights.” Boykin
v. Alabama, 395 U.S. 238, 243 (1969).
In addition to waiving the Fifth Amendment right against self-incrimination, a
plea also implicates certain due process
entitlements of the Sixth Amendment,
including the right to a jury trial and the
right to confront one’s accusers. Id. at
242-43; State v. Montler, 85 N.M. 60, 61,
509 P.2d 252, 253 (1973). In addition,
“we review the trial court’s denial of a
defendant’s motion to withdraw his guilty
plea for an abuse of discretion.” State
v. Barnett, 1998-NMCA-105, ¶ 12, 125
N.M. 739, 965 P.2d 323. The “trial court
abuses its discretion when it acts unfairly
or arbitrarily, or commits manifest error.”
Id. “A denial of a motion to withdraw a
guilty plea constitutes manifest error when
the undisputed facts establish that the plea
was not knowingly and voluntarily given.”
State v. Garcia, 1996-NMSC-013, 121
N.M. 544, 546, 915 P.2d 300, 302.
{9}A plea is not knowing, intelligent,
and voluntary unless the defendant
“understand[s] his guilty plea and its con18 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
sequences.” Id. at 547, 915 P.2d at 303; see
also Boykin, 395 U.S. at 243-44 (explaining that state trial courts should “make
sure [a defendant] has a full understanding of what the plea connotes and of its
consequence[s]”). Rule 5-303(F) NMRA
codifies the matters our district courts must
address to ascertain that a defendant grasps
the contents and consequences of a plea.
In relevant part, Rule 5-303(F) provides:
The court shall not accept a plea
of guilty or no contest without
first, by addressing the defendant personally in open court,
informing the defendant of and
determining that the defendant
understands the following:
(1) the nature of the charge to
which the plea is offered;
(2) the mandatory minimum
penalty provided by law, if any,
and the maximum possible penalty provided by law for the offense to which the plea is offered,
including any possible sentence
enhancements.
(Emphasis added.) In order to ensure that
the defendant understands “the nature of
the charge[s],” id., the district court must
be satisfied that the defendant understands
the essential elements of the charges that
are subject to the plea. See Garcia, 121
N.M. at 548, 915 P.2d at 304. A related
requirement directs the district court to
“[make an] inquiry as shall satisfy it that
there is a factual basis for the plea.” Rule
5-304(G) NMRA; State v. Willis, 1997NMSC-014, ¶ 9, 123 N.M. 55, 933 P.2d
854. Finally, the record must contain an
“affirmative showing that [the] plea was
knowingly and voluntarily given.” Garcia,
121 N.M. at 547, 915 P.2d at 303; see also
Boykin, 395 U.S. at 242-43.
{10} At the January 2009 plea hearing in
this case, the district court tried to satisfy
the requirements of Rules 5-303(F) and
5-304(G) by establishing, inter alia, a
factual basis for the charges and engaging Defendant in an exchange intended
to confirm the knowing, intelligent, and
voluntary character of his plea. At the
beginning of the plea hearing, the judge
asked Defendant whether he understood
the charges. The district judge then asked
Defendant whether he understood the
maximum prison sentence possible in the
absence of the plea deal. The exchange
proceeded as follows:
DISTRICT COURT: Have you
gone over this guilty plea agreement with your attorneys?
DEFENDANT: Yes.
DISTRICT COURT: Do you
understand what it says? Do you
understand what you’re charged
with?
DEFENDANT: Yes.
DISTRICT COURT: Do you
understand that in the absence
of this agreement you could have
life plus nine and a half years?
DEFENDANT: What, what was
that last thing?
DISTRICT COURT: Life plus
nine and a half years, in the
absence of this agreement, that
could, could have been the sentence that had been imposed.
DEFENDANT: Oh. Okay, that’s
not the . . .
DISTRICT COURT: That’s not
the one. That’s just what would
have, that’s what could have
happened.
DEFENDANT: Okay. Sorry
about that.
At no point did the district court apprise
Defendant of the mandatory minimum
sentence as required under Rule 5-303(F)
(2). See Montler, 85 N.M. at 60, 509 P.2d
at 252 (“Ordinarily an accused should be
advised of the maximum possible sentence
and the minimum mandatory sentence
which can be imposed.”).
{11} After asking Defendant about a range
of other requirements set forth in Rule
5-303(F) such as Defendant’s right to a trial
before a jury, the district court asked the
State and Defendant to address the factual
basis for the charges included in the plea.
Regarding the first degree murder count,
the State offered an account of the evidence
it intended to present at trial to prove that
Defendant’s murder was “willful, deliberate and premeditated” as required by Section 30-2-1(A)(1). In particular, the State
asserted that Defendant had prepared for
the killing by acquiring a gun and ammunition, expressing his desire to kill Victim
prior to the killing, and “lying in wait” for
Victim. Further, the State conveyed that
three witnesses saw Defendant shoot Victim. In response, defense counsel expressed
“sharp disagreement” regarding the murder
charge, suggesting that Defendant had not
planned the crime and had forfeited prior
opportunities to “go after the victim” if that
was his design. However, defense counsel
conceded that because Defendant had apparently chased Victim around a house and
then shot Victim as Victim lay on his back,
with his arms outstretched in surrender, the
jury “most likely would find this to be a
murder in the first degree.”
{12} The district court then accepted the
plea agreement, only asking Defendant
whether it was voluntary and encouraging
Defendant to answer “yes.” The exchange
proceeded as follows:
DISTRICT COURT: We’re going
to find that the Defendant and
the prosecutor have entered into
this plea agreement, [Defendant]
understand[s] it, [Defendant]
consent[s], and it’s voluntary, that
there’s nobody here—you’ve got,
you’ve got a roomful of people
who are family members, and
you understand that this is voluntary. Why don’t you say “yes,”
Albert.
DEFENDANT: Yes.
DISTRICT COURT: Thank you.
(Emphasis added.) The judge then announced that it was a “reasonable plea under these circumstances” and “concluded
that [Defendant] knowingly, voluntarily,
and intelligently [pled] guilty to these
charges, and [the district court will] accept
your plea.”
{13} However, Defendant then expressed
confusion about the sentencing set forth in
the plea agreement. After the district court
enumerated the sentencing terms contained in the plea, Defendant asked, “How
much do I have to do?” Defense counsel
interjected that he had “explained” the sentencing framework in the plea. Moments
later, Defendant expressed additional
confusion about the concurrent nature of
his sentences. The district court did not
conduct any inquiry to confirm Defendant’s understanding of the agreement’s
sentencing terms. See Rule 5-303(F)(2).
{14} Soon thereafter, the district court
permitted Defendant to make a series of
statements where Defendant expressed
doubt about his culpability for the charges
contained in the plea. First, Defendant implied that his actions that gave rise to the
assault and battery charge were the result
of provocation by the law enforcement
officers, asking the court if “there ain’t
no justice for that . . . so they get away
with that?” Next, Defendant turned to
the first degree murder charge, exclaiming that “I don’t think, I don’t believe it
was, uh, premeditated.” The district court
responded by advising Defendant that the
issue of premeditation “would have been
up to the jury to decide.” The court did
not ask Defendant whether he understood
the “nature” of these charges. See Rule
5-303(F)(1).
{15} Following a lengthy exchange
between the district court, Defendant,
and defense counsel regarding several
issues, including Defendant’s complaints
about his treatment in the criminal justice
system, the State rose to ask the court
to make additional inquiries regarding
whether Defendant had “willfully” pled
to the first degree murder charge. Citing
Defendant’s “statement that he doesn’t feel
like he committed the willful and deliberate murder,” the State asked the district
court to “inquire [of Defendant] that he
understands that he’s willfully giving up
his claim and that he’s willfully making his
plea.” Initially the district court agreed to
“do that,” but the judge first complained
that Defendant had already agreed that the
plea was willful, and then asserted that
Defendant’s comments were driven by
a wish that “his life had been different.”
Defendant responded with complaints
about his family and his treatment in the
foster care system. This exchange apparently exasperated the court and prompted
the court to “wish [Defendant] well” and
abruptly recess the hearing, instead of
making further inquiries of Defendant
regarding his understanding of the first
degree murder charge.
{16} Rule 5-303(F) requires the court
to ascertain that a defendant understands
the terms and charges set forth in a plea
agreement, not merely engage in a formulaic exchange about the Rule 5-303
requirements. See Montler, 85 N.M. at
61, 509 P.2d at 253 (“Concerning what
must be stated to an accused by the trial
court in connection with a proffered plea
of guilty, it is . . . difficult to establish a
strict, unvarying formula of words.”); see
also 2 Mark S. Rhodes, Orfield’s Criminal Procedure under the Federal Rules
§ 11.30, at 111 (2d ed. 1985) (“Simply
asking the defendant if he understood the
charges against him is insufficient.”).
{17} In the plea hearing, the district court
did little more than secure perfunctory
one-word answers in addressing Defendant’s understanding regarding the content
and consequences of the plea agreement.
At the outset of the proceeding, the court
asked Defendant, “Do you understand
what you’re charged with?” prompting
Defendant to reply, “Yes.” After running
through various Rule 5-303(F) factors
with Defendant and establishing a factual
basis for the charges, the district court concluded that “Defendant and the prosecutor
have entered into this plea agreement.” It
was not until the end of this announcement
that the court inquired whether the agreement was voluntary. When Defendant
failed to volunteer a verbal response, the
district court appeared to cajole Defendant
into providing an affirmative response, a
tepid “yes” after a pause lasting for several
seconds.
{18} It was only after the district court
accepted the plea and allowed Defendant
to make several statements that the inadequacy of this exchange between the court
and Defendant became apparent. In these
statements, Defendant protested his culpability for the assault and battery charges,
expressed confusion about sentencing, and
challenged the premeditation element of
the first degree murder charge. The issue
of premeditation was important enough
that it caught the State’s attention when
it solicited the court to revisit the “willful” aspect of Defendant’s plea and his
understanding of the first degree murder
charge. Despite both this overt invitation
and the expression of concern by the State,
the district court ultimately failed to ask
Defendant any further questions regarding
the murder charge, a crime carrying a term
of life in prison.
{19} In the past we have faced analogous
circumstances, ruling that it is incumbent
on the court to clarify the understanding
of a defendant who demonstrates misunderstanding regarding the charges and
sentencing set forth in a plea agreement.
Garcia, 121 N.M. at 549, 915 P.2d at 305.
In Garcia, the defendant pled guilty to
felony murder and was asked by the court
to provide a factual basis for the charge at
a plea hearing. Id. at 545, 915 P.2d at 301.
Following the defendant’s recitation of the
facts, the State expressed concern that the
defendant’s account was an inadequate
factual basis. Id. The court “ascertained”
that the defendant did not understand
felony murder, and then recessed to allow
the defendant’s counsel “to fully explain to
[the defendant] all the elements of felony
murder.” Id. During the recess, defense
counsel “discussed with [the defendant]
the leading case concerning the relevant
element of felony murder.” Id. at 549,
915 P.2d at 305. However, following the
recess, the court failed to independently
ascertain whether the defendant’s “misunderstanding of the nature of felony
murder had been sufficiently corrected.”
Id. at 548, 915 P.2d at 304. We held that
the court’s failure to set forth the defendant’s understanding of the elements of
the felony murder charge on the record
constituted error. Id. at 549-50, 915 P.2d
at 305-06. We also held that the court’s
failure to advise the defendant regarding
the range of possible sentences associated
with his plea constituted error. Id. We
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 19
reversed and remanded accordingly. Id.
{20} We see no reason to depart from
the reasoning of Garcia in this case, and
the State did not urge us to distinguish
Garcia in briefing this appeal. There are
numerous parallels between Garcia and
the case at hand. First, the defendants in
both cases expressed confusion regarding
the crimes subject to their pleas, with both
unclear about the elements of their first
degree murder charges. Second, neither
defendant was fully apprised of the range
of sentencing for the crimes subject to
their pleas. Third, the prosecutor in each
case alerted the district court to concerns
regarding the adequacy of the defendant’s
understanding. In addition, in the case at
hand, defense counsel made it clear to the
district court at the beginning of the proceeding that Defendant harbored “sharp
disagreement” over the premeditation
element for the murder charge. Finally,
unlike Garcia, in this case there was nei-
20 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
ther a recess to allow defense counsel to
address Defendant’s misunderstanding
nor any claim by defense counsel that
they had undertaken efforts to remedy
Defendant’s apparent misunderstanding.
Despite all these indicia of uncertainty on
Defendant’s part, the district court failed
to take any concrete steps to confirm Defendant’s understanding as to these issues
on the record. Cf. Cross v. State, 964 So.
2d 535, 539 (Miss. Ct. App. 2007) (“When
[the defendant] appeared to be uninformed
of the consequences of her guilty plea . . .
the trial court consistently continued to
address the perceived point of confusion
with [the defendant] until she stated that
she understood the proceedings and until
the trial court was satisfied that she understood the consequences of her guilty plea
and the rights that she would waive if she
did plead guilty.”); People v. Wilson, 692
N.E.2d 422, 427 (Ill. App. Ct. 1998) (“The
record shows that each time defendant ex-
pressed confusion, the trial court clarified
or explained the issue, repeatedly inquired
whether defendant understood, and did not
continue until defendant confirmed that he
understood.”).
{21} As a result, we conclude that Defendant’s plea was not knowing, intelligent, and voluntary, and that the district
court abused its discretion by denying
Defendant’s motion to withdraw his plea.
We reverse and remand for proceedings
consistent with this Opinion.
{22} IT IS SO ORDERED.
EDWARD L. CHÁVEZ,
Justice
WE CONCUR:
CHARLES W. DANIELS, Chief Justice
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
From the New Mexico Supreme Court
Opinion Number: 2011-NMSC-026
Topic Index:
Constitutional Law: Fourth Amendment
Criminal Procedure: Reasonable Suspicion; Search and Seizure;
and Warrantless Search
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
versus
TERRY WILLIAMS,
Defendant-Respondent.
No. 32,263 (filed: June 15, 2011)
ORIGINAL PROCEEDING ON CERTIORARI
Ross C. Sanchez, District Judge
Gary K. King
Attorney General
Nicole Beder
Assistant Attorney General
Santa Fe, New Mexico
for Petitioner
Opinion
Patricio M. Serna, Justice
{1}We granted certiorari to resolve the
question of whether the Fourth Amendment to the United States Constitution
prohibits an under-clothing search as part
of a search incident to arrest when the arresting officer has reason to suspect that
the arrestee is concealing a weapon or
contraband under his or her clothing. The
State appeals the holding of the Court of
Appeals that the roadside search of Defendant Terry Williams, incident to his arrest
on an outstanding felony warrant, violated
the Fourth Amendment. We adopt and apply the reasonableness factors articulated
in Bell v. Wolfish, 441 U.S. 520 (1979), and
conclude the officer had reasonable suspicion to conduct an under-clothing search
and the search was reasonable under the
Fourth Amendment. The Court of Appeals’
opinion is reversed.
I.BACKGROUND
{2}Defendant was stopped for a traffic
violation and subsequently arrested on an
outstanding felony warrant. The Second
Judicial District Court held a suppression
hearing at which both the arresting officer
and Defendant testified. The district court
ruled from the bench that it found the of-
Jacqueline Cooper
Chief Public Defender
Eleanor Brogan
Assistant Appellate Defender
Santa Fe, New Mexico
for Respondent
ficer’s testimony credible. Because this
Court defers “to the district court’s review
of the testimony and other evidence presented,” State v. Leyva, 2011-NMSC-009,
¶ 30, 149 N.M. 435, 250 P.3d 861, unless
otherwise noted, the factual background
presented below is drawn from the testimony of the arresting officer at the suppression hearing.
{3}The traffic stop occurred in Albuquerque, on University near Gibson,
across the street from a church parking
lot. As the officer who conducted the stop
approached the vehicle, he saw through
the open window that Defendant’s hands
were removed from the steering wheel and
his shoulders were moving as if he were
“fumbling around” with an object. Based
on his ten years of training and experience, the officer found these actions to be
consistent with concealing contraband or
searching for a weapon. After obtaining
Defendant’s information and running a
background check, the officer confirmed
that an outstanding felony arrest warrant
existed for Defendant.
{4}A female backup officer arrived at
the scene of the stop. The arresting officer
asked Defendant to exit the vehicle; when
Defendant did so, his pants were unzipped
and his belt unbuckled. Pursuant to the
warrant, Defendant was placed under arrest
and handcuffed. Defendant was placed between the two police cars parked bumperto-bumper on the side of University, with
the female officer standing between the
two cars, facing away from Defendant, and
Defendant standing between the two officers. The arresting officer patted Defendant
down incident to the arrest, and then shook
the waistband of Defendant’s pants. The
officer pulled the waistband of Defendant’s
pants and underpants outward six to eight
inches, looked down, and saw a plastic bag
underneath Defendant’s underpants. The
officer, with a gloved hand, reached down
and removed the bag; the bag’s contents
later tested positive as illegal substances.
{5}The female officer did not observe the
search of Defendant. Although Defendant
testified that the search occurred on a busy
street, there was no testimony by either
the officer or Defendant that any other
individual, such as a pedestrian or passing
driver, could see underneath Defendant’s
clothing.
{6}The district court concluded that the
search of Defendant was a lawful search
incident to arrest and denied the suppression motion. Defendant entered a plea of
no contest to trafficking by possession with
intent to distribute, reserving his right to
appeal the denial of the motion to suppress.
{7}To the Court of Appeals, Defendant
alleged four points of error: (1) that the
under-clothing search incident to his arrest was unreasonable under the Fourth
Amendment of the United States Constitution and Article II, Section 10 of the
New Mexico Constitution; (2) that he
received ineffective assistance of counsel; (3) that his plea agreement was not
entered into knowingly or voluntarily;
and (4) that his plea should be withdrawn
and his case should proceed to trial. State
v. Williams, 2010-NMCA-030, ¶ 5, 148
N.M. 160, 231 P.3d 616. The Court of
Appeals determined that the search was
unreasonable under the Fourth Amendment and did not reach Defendant’s other
issues. Id. ¶¶ 1, 21. Judge Fry dissented
on the grounds that Defendant had not
preserved the argument that the search
was unreasonable, but, if the issue was
preserved, then the search did not run afoul
of the Fourth Amendment because the
officer had developed reasonable suspicion
that Defendant had concealed a weapon
in his pants and the search was limited in
scope. Id. ¶ 30.
II.DISCUSSION
A. Standard of Review
{8}The review of a denial of a motion to
suppress presents a mixed question of fact
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 21
and law. Leyva, 2011-NMSC-009, ¶ 30.
We review the factual basis of the court’s
ruling for substantial evidence, deferring
to the district court’s view of the evidence.
Id. When, as here, there are no findings of
fact and conclusions of law, we “draw all
inferences and indulge all presumptions
in favor of the district court’s ruling.”
State v. Jason L., 2000-NMSC-018, ¶ 11,
129 N.M. 119, 2 P.3d 856. Our review of
the legal conclusions of the district court,
however, is de novo. State v. Rowell, 2008NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d
95. “Warrantless seizures are presumed
to be unreasonable and the State bears the
burden of proving reasonableness.” Id. ¶
10 (internal quotation marks and citation
omitted).
B.Preservation
{9}Under Rule 12-216(A) NMRA, “[t]
o preserve a question for review it must
appear that a ruling or decision by the
district court was fairly invoked[.]” In his
pro se motion to suppress, on which we
commend Defendant, Defendant argued
that the search under his clothing violated
the Fourth Amendment. Although the
parties did not, as noted by Judge Fry in
her dissent, “focus on the reasonableness
of the search” at the suppression hearing,
Williams, 2010-NMCA-030, ¶ 31, Defendant’s motion to suppress properly preserved the Fourth Amendment argument.
See State v. Javier M., 2001-NMSC-030,
¶ 9, 131 N.M. 1, 33 P.3d 1.
C. Fourth Amendment Reasonableness of Under-Clothing Searches
{10} The Fourth Amendment requires
all searches and seizures be executed in
a reasonable manner. See Leyva, 2011NMSC-009, ¶ 9. Reasonableness depends
“on a balance between the public interest
and the individual’s right to personal
security free from arbitrary interference
by law officers.” Penn. v. Mimms, 434
U.S. 106, 109 (1977) (internal quotation
marks and citation omitted). It is well
established that the Fourth Amendment
is not violated when an officer conducts
a warrantless pat-down incident to arrest
to ensure officer safety and prevent the
destruction of evidence, and Defendant
does not challenge the constitutionality
of the initial pat-down he received. See
United States v. Robinson, 414 U.S. 218,
234 (1973); Rowell, 2008-NMSC-041,
¶ 13. It is undisputed, however, that the
search in this case extended beyond a patdown of Defendant’s outer clothing. When
a more invasive search is conducted, it
is not presumed to be reasonable simply
because it occurs incident to an arrest. See
Amaechi v. West, 237 F.3d 356, 361 (4th
Cir. 2001); United States v. Scott, 987 A.2d
1180, 1195 (D.C. 2010).
{11} To guide the reasonableness analysis
of more intrusive searches, such as the
under-clothing search that occurred in this
case, courts review the factors articulated
by the United States Supreme Court in
Bell: “the scope of the particular intrusion,
the manner in which it is conducted, the
justification for initiating it, and the place
in which it is conducted.” 441 U.S. at 559
(setting forth the factors to determine the
reasonableness of strip and visual body
cavity searches of detainees). See, e.g.,
Amaechi, 237 F.3d at 361; Hill v. Bogans,
735 F.2d 391, 393-94 (10th Cir. 1984);
Scott, 987 A.2d at 1195; State v. Nieves,
861 A.2d 62, 71 (Md. 2004); People v.
Hall, 886 N.E.2d 162, 166 (N.Y. 2008);
State v. Battle, 688 S.E.2d 805, 812 (N.C.
Ct. App. 2010). We approve the Court of
Appeals’ incorporation of the Bell factors
into New Mexico jurisprudence to consider whether the search of Defendant was
reasonable under the Fourth Amendment.
Williams, 2010-NMCA-030, ¶ 12.
{12} Before discussing the Bell factors
in the context of Defendant’s search,
we resolve the question of the minimum
quantum of suspicion required to justify
an under-clothing search conducted incident to an arrest.1 Although the United
States Supreme Court has not addressed
directly the question of the level of proof
necessary to justify a search more intrusive
than a pat-down,2 the weight of authority supports a requirement of reasonable
suspicion that the arrestee is concealing
a weapon or contraband underneath his
or her clothing before an under-clothing
search is conducted. See State v. Jenkins,
842 A.2d 1148, 1156 (Conn. App. Ct.
2004) (adopting the requirement that an
officer have reasonable suspicion “that the
individual is carrying a weapon or contraband” prior to conducting a strip search);
Scott, 987 A.2d at 1196-97 (stating that the
majority of courts which have considered
the issue require at least reasonable suspicion of an attempt to hide contraband or a
weapon before permitting a strip search).
{13} A search incident to arrest is a
reasonable warrantless search because
courts have long acknowledged that the
societal interest in preventing the destruction of evidence and protecting the
arresting officer outweighs the minimal
intrusion of a pat-down. Rowell, 2008NMSC-041, ¶¶ 13-14 (stating that the
search incident to arrest traditionally is
limited by “the exigencies which justify
its initiation” (quoting Terry v. Ohio, 392
U.S. 1, 26 (1968)). An under-clothing
search, however, is different. See Safford
United Sch. Dist. #1 v. Redding, ___ U.S.
___, ___, 129 S. Ct. 2633, 2641 (2009)
(discussing an under-clothing search of a
student and stating that “both subjective
and reasonable societal expectations of
personal privacy support the treatment
of such a search as categorically distinct,
requiring distinct elements of justification on the part of school authorities for
going beyond a search of outer clothing
and belongings”); see also Schmerber v.
Cal., 384 U.S. 757, 769-70 (1966) (distinguishing a warrantless blood draw from a
pat-down and stating that “[t]he interests
in human dignity and privacy which the
Fourth Amendment protects forbid any
such intrusions on the mere chance that
desired evidence might be obtained”). In
the context of a strip search of a visitor
to a prison, our Court of Appeals determined that reasonable suspicion of the
presence of weapons or contraband on
the visitor’s body was necessary to justify
an “embarrassing and humiliating” strip
search. State v. Garcia, 116 N.M. 87, 89,
860 P.2d 217, 219 (Ct. App. 1993) (quoting Hunter v. Auger, 672 F.2d 668, 674
(8th Cir. 1982)). The Court stated that the
reasonable suspicion standard “is flexible
1The parties and the Court of Appeals, 2010-NMCA-030, ¶ 11, spend a good deal of time discussing the proper nomenclature
for the search of Defendant. Although we cite cases that do so, we do not feel it necessary to label the search a “reach-in,” “strip
search,” or something else, as the Bell test is inherently one of reasonableness under the circumstances. See Stanley v. Henson, 337
F.3d 961, 964 n.2 (7th Cir. 2003) (“Whether the procedure at issue here was a ‘strip search’ or just a ‘search’ more appropriately
goes to the question of the scope or manner of the intrusion involved.”).
2In Bell, the searches were found to be permissible “on less than probable cause,” 441 U.S. at 560, though three dissents would
have required a specific justification, see id. at 563 (Powell, J., concurring in part and dissenting in part) (“at least some level of
cause, such as reasonable suspicion”); id. at 578 (Marshall, J., dissenting) (requiring a showing of compelling necessity); id. at 595
(Stevens, J., dissenting) (requiring a showing of probable cause).
22 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
enough to afford the full measure of fourth
amendment protection without posing an
insuperable barrier to the exercise of all
search and seizure powers.” Id. (quoting
Hunter, 672 F.2d at 674).
{14} While we acknowledge that some
courts have required probable cause before
an invasive search is conducted, see, e.g.,
United States v. Bazy, 1994 WL 539300,
*6 (D. Kan. 1994), aff ’d, 82 F.3d 427
(10th Cir. 1996); Battle, 688 S.E.2d at 815,
we conclude that reasonable suspicion is
the proper standard to justify an underclothing search. We hold that a search
incident to arrest that involves an officer
removing or looking under any part of an
arrestee’s clothing requires, at a minimum,
particularized reasonable suspicion that
the arrestee is concealing a weapon or
evidence that is susceptible to destruction
before arriving at the police station.
{15} We now apply the Bell factors to
address the reasonableness of the underclothing search of Defendant. These factors—justification, scope, manner, and
place—are reviewed within the context
of the totality of the circumstances surrounding the under-clothing roadside
search of Defendant. See State v. Sewell,
2009-NMSC-033, ¶ 1, 146 N.M. 428, 211
P.3d 885. The determination of whether a
search was reasonable is based on what
did happen, not whether the officers could
have conducted the search differently. See
United States v. Sharpe, 470 U.S. 675,
686-87 (1985) (“A creative judge engaged
in post hoc evaluation of police conduct
can almost always imagine some alternative means by which the objectives of the
police might have been accomplished. But
the fact that the protection of the public
might, in the abstract, have been accomplished by less intrusive means does not,
itself, render the search unreasonable.”
(internal quotation marks, citation, and
alteration omitted)).
{16} As discussed above, the minimum
justification to conduct an under-clothing
search as part of a search incident to arrest
is reasonable suspicion that the arrestee is
armed or hiding contraband.3 The Court
of Appeals determined that the officer
had reasonable suspicion that Defendant
was hiding a weapon or contraband in his
underpants based on the officer’s observations of Defendant’s furtive movements
after stopping and Defendant’s exiting the
car with his pants in disarray. Williams,
2010-NMCA-030, ¶ 14. After reviewing
the record, deferring, as did the Court of
Appeals, to the district court’s determination that the officer’s testimony was
credible, we agree that substantial evidence supports this conclusion. Compare
Jenkins v. State, 978 So. 2d 116, 127-28
(Fla. 2008) (deferring to the trial court’s
factual findings, supported by the record,
that the officer was justified in conducting a search of a suspect’s underpants for
drugs after a pat-down revealed no drugs
but the officer had reasonable suspicion
that the defendant was secreting drugs
on his body), with Paulino v. State, 924
A.2d 308, 319 (Md. 2007) (concluding
the record did not contain sufficient evidence to support the existence of exigent
circumstances justifying a more intrusive
search, as there was no testimony that
the defendant was attempting to destroy
evidence or in possession of a weapon,
particularly as the officers did not conduct
a pat-down before proceeding to the strip
search).
{17} The Court of Appeals concluded
that the scope of the search was narrowly
tailored based on the officer’s reasonable
suspicion that Defendant was concealing
a weapon or contraband. Williams, 2010NMCA-030, ¶ 14. We agree. The officer
had reasonable suspicion that Defendant
was concealing an object in his underpants; the officer limited his under-clothing search to the specific area in which
he suspected a weapon or contraband was
hidden. See United States v. Williams, 477
F.3d 974, 975-76 (8th Cir. 2007) (concluding that the scope of the search was
not unreasonably intrusive because the
officers believed that the defendant was
hiding something in his underpants and
limited the search to that area of the body,
and though the defendant’s genitals were
touched in the search, “it involved no penetration or public exposure of genitals”).
{18} The Court of Appeals determined
that the State did not carry its burden to
prove that the manner of the search was
reasonable. Williams, 2010-NMCA-030,
¶ 21. The district court credited the officer’s testimony that he pulled Defendant’s
waistband outwards, saw a plastic bag, and
used a gloved hand to remove the bag,
and that no other person saw down Defendant’s pants. The manner of the search
was reasonable under the circumstances.
See Williams, 477 F.3d at 977 (“[A] reach-
in search of a clothed suspect does not
display a suspect’s genitals to onlookers,
and it may be permissible if police take
steps commensurate with the circumstances to diminish the potential invasion
of the suspect’s privacy.”); Bazy, 1994 WL
539300, *7 (finding a search reasonable
when the officer wore gloves, pulled the
defendant’s pants outward, and reached
in to the underpants to remove drugs).
We disagree with the Court of Appeals’
inference that “passers-by witnessed [the]
search.” Williams, 2010-NMCA-030, ¶
21. The evidence presented, viewed in the
light most favorable to the district court’s
ruling, supports the inference that no one
other than Defendant and the searching officer saw underneath Defendant’s clothes;
any occupant of a passing car would have
caught a glimpse of a search incident to
arrest, as the more invasive aspect of the
search was conducted with adequate steps
to preserve Defendant’s privacy. While
we recognize that the Fourth Amendment
analysis does not turn on whether a search
had witnesses, see Battle, 688 S.E.2d at
814, the scope of the search of Defendant
properly minimized the invasion of Defendant’s privacy.
{19} The final Bell factor, the location of
the search, also was found to be unreasonable by the Court of Appeals. Williams,
2010-NMCA-030, ¶ 20. Defendant was
searched on the side of the road, protected
from the public’s eye by the police cars
and the officers themselves. In Bazy, a
case relied upon by the Court of Appeals,
Williams, 2010-NMCA-030, ¶ 18, the
court determined that the location of the
search was reasonable under the circumstances and properly limited the intrusion
into the defendant’s privacy rights. Bazy,
1994 WL 539300, *7. The search in Bazy
was conducted in a location similar to
the one at issue in this appeal, and the officers acted to ensure that “[p]ublic view
was blocked by the defendant’s clothes,
a trooper, and the cars” on the side of
the road where the stop occurred. Id. The
justification for the search of Defendant,
reasonable suspicion of destructible evidence or weapons, required an immediate
search, and the officers took adequate
steps to minimize the invasion of Defendant’s privacy. The Court of Appeals
erred by concluding that further evidence
of an exigent circumstance is necessary,
Williams, 2010-NMCA-030, ¶ 21, when
The justification for the initial stop is not necessarily a part of this analysis, though it may be. We reject Defendant’s suggestion
that we never permit invasive searches when the initial stop was for a crime for which no evidence could be hidden, e.g., a traffic
stop. Such a per se rule would ignore the fact that officers must be able to adjust their investigation as the circumstances of the stop
evolve. See Leyva, 2011-NMSC-009, ¶ 10.
3
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 23
the arresting officers have reasonable
suspicion that the arrestee is concealing
weapons or evidence underneath her or
his clothing and the search is conducted
in a location that minimizes the invasion
of the arrestee’s privacy interests.
{20} While analysis of the Bell factors
support the conclusion that the search of
Defendant was reasonable, the ultimate
determination of Fourth Amendment
reasonableness depends on the balance
between the public and private interests
at stake. The public interest in this case is
that which justifies the search incident to
arrest power as a “reasonable preventative measure to eliminate any possibility
of the arrestee’s accessing weapons or
evidence.” Rowell, 2008-NMSC-041, ¶
25 n.1; see also State v. Ketelson, 2011NMSC-023, ¶ 19, ___ N.M. ___, ___
P.3d ___ (No. 32,170, May 20, 2011)
(concluding that the Fourth Amendment
is not violated by an officer’s temporary
removal of a gun from a vehicle when
the officer possesses a reasonable belief
that an occupant’s ready access to the
gun during a traffic stop poses a danger
to officer safety). Defendant’s interest
is, of course, the expectation of privacy
in his genitalia, and “the Fourth Amendment protects against the infringement of
‘an expectation of privacy that society is
prepared to consider reasonable.’” State v.
24 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
Rivera, 2010-NMSC-046, ¶ 16, 148 N.M.
659, 241 P.3d 1099 (quoting United States
v. Jacobsen, 446 U.S. 109, 113 (1984));
see Battle, 688 S.E.2d at 813 (“[D]eeply
imbedded in our culture is the belief that
people have a reasonable expectation not
to be unclothed involuntarily, to be observed unclothed or to have their private
parts observed or touched by others.”
(internal quotation marks, citations, and
ellipsis omitted)). Based on our review of
the Bell factors, the under-clothing search
of Defendant protected the public interest
at stake without unreasonably violating
Defendant’s expectation of privacy under
the Fourth Amendment. See Jenkins, 978
So. 2d at 128 (applying the Bell factors to
conclude that “the very limited intrusion
into [the defendant’s] clothing was clearly
outweighed by the need for law enforcement to retrieve the contraband before
it could be discarded or destroyed”).
Although the district court ruled that the
search was a reasonable search incident
to arrest and did not review the underclothing search separately for reasonableness, the district court reached the correct
result and must be affirmed. See State v.
Wilson, 2011-NMSC-001, ¶ 20, 149 N.M.
273, 248 P.3d 315.
{21} We hold that the under-clothing
search of Defendant passes constitutional
muster because the officer had particularized reasonable suspicion that Defendant
was concealing a weapon or evidence,
and the location, manner, and scope of
the search were reasonable under the
circumstances. Invasive, under-clothing
searches remain the exception, and this
Opinion is not to be read as an approval
of the incorporation of an under-clothing
search into the typical search incident to
arrest. We reject any suggestion that our
holding would permit invasive searches
for all felony drug offenses, as such would
be inconsistent with our preference for
case-by-case reasonableness analyses
based on the totality of the circumstances.
See, e.g., Leyva, 2011-NMSC-009, ¶ 54.
III.CONCLUSION
{22} For the foregoing reasons, we reverse the opinion of the Court of Appeals.
Because we granted certiorari only on the
issue of whether the search violated Defendant’s rights under the Fourth Amendment, we remand this case to the Court
of Appeals for consideration of the other
issues Defendant raised on appeal.
{23} IT IS SO ORDERED.
PATRICIO M. SERNA,
Justice
WE CONCUR:
CHARLES W. DANIELS, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
Certiorari Denied, May 19, 2011, No. 32,864
From the New Mexico Court of Appeals
Opinion Number: 2011-NMCA-064
Topic Index:
Appeal and Error: Standard of Review
Constitutional Law: Suppression of Evidence
Criminal Law: Controlled Substances; and Motor Vehicle Violations
Criminal Procedure: Motion to Suppress; and Pretextual Stop
Statutes: Interpretation; and Legislative Intent
STATE OF NEW MEXICO,
Plaintiff-Appellant,
versus
DAVID MAES,
Defendant-Appellee.
No. 29,884 (filed: January 19, 2011)
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Sheri A. Raphaelson, District Judge
Gary K. King
Attorney General
Santa Fe, New Mexico
M. Anne Kelly
Assistant Attorney General
Albuquerque, New Mexico
for Appellant
Opinion
Celia Foy Castillo, Judge
{1}This case requires us to determine
whether a Basic Duty Uniform (BDU) constitutes a “uniform” as that term is used in
NMSA 1978, Section 66-8-124(A) (2007),
and NMSA 1978, Section 66-8-125(C)
(1978), both of which require officers to be
in “uniform” when carrying out an arrest for
traffic and motor vehicle code violations.
We conclude that a BDU is a uniform and
reverse.
I.BACKGROUND
{2}In December of 2008, Defendant was
charged with and indicted on one count of
possession with intent to distribute an imitation controlled substance in violation of
NMSA 1978, Section 30-31A-6 (1983), and
one count of possession of drug paraphernalia in violation of NMSA 1978, Section
30-31-25.1 (2001). The events leading to
these charges occurred in October of 2007
in the Chimayo area of New Mexico. The
following facts are not disputed.
{3}Two State police officers wearing BDUs
Nancy L. Simmons
Law Offices of
Nancy L. Simmons, P.C.
Albuquerque, New Mexico
for Appellee
and driving an unmarked vehicle were engaged in a law enforcement operation in the
Chimayo area when they witnessed a driver
commit traffic infractions and decided to
conduct a traffic stop. Defendant was the
owner and operator of that vehicle. After
performing a license plate check, the officers learned that Defendant had outstanding warrants and arrested him. The officers
performed a search incident to arrest and
discovered imitation controlled substances
and drug paraphernalia.
{4}Defendant filed a pretrial motion to
suppress all of the evidence underlying
the charges. In that motion, Defendant
cited Sections 66-8-124(A) and -125(C)
and argued that these statutes require law
enforcement officers to be in uniform when
they make traffic stops and arrests. Defendant asserted that the officers violated these
statutes, claimed that the officers were not
in uniform when they stopped and arrested
him, and argued that suppression was required. Alternatively, Defendant argued
that the arrest was the result of a pretextual
stop and that the evidence should be suppressed for this independent reason. The
State responded that the statutes Defendant
cited were inapplicable and countered that
the stop was not pretextual.
{5}In its order on Defendant’s motion,
the district court concluded that Sections
66-8-124(A) and -125(C) were applicable
and that these statutes required the officers
be in uniform at the time they conducted
the traffic stop and arrested Defendant. The
district court then concluded that the BDUs
the officers were wearing at that time did
not constitute uniforms as contemplated
by the statutes and granted the motion to
suppress. The district court did not address
Defendant’s pretext argument. The State
appeals.
II.DISCUSSION
{6} This matter comes to us from the district
court’s ruling on the Defendant’s motion
to suppress. Our standard of review in that
context is well settled—a trial court’s ruling
on a motion to suppress presents us with a
mixed question of fact and law whereby
“[t]his Court reviews factual findings under
a substantial evidence standard, viewing
the facts in the light most favorable to the
prevailing party, and we review de novo
whether the district court correctly applied
the law to the facts.” State v. Slayton, 2009NMSC-054, ¶ 11, 147 N.M. 340, 223 P.3d
337. In this case, the district court’s decision
to grant Defendant’s motion was based on
its interpretation of Sections 66-8-124(A)
and -125(C). “Statutory interpretation is a
question of law, which this Court reviews
de novo.” State v. Torres, 2006-NMCA-106,
¶ 5, 140 N.M. 230, 141 P.3d 1284 (internal
quotation marks and citation omitted). “The
fundamental rule in construing statutes is to
ascertain and give effect to the intention of
the [L]egislature.” State v. Archuleta, 118
N.M. 160, 162, 879 P.2d 792, 794 (Ct. App.
1994) (internal quotation marks and citation
omitted).
{7}Section 66-8-124(A) provides that
“[n]o person shall be arrested for violating
the Motor Vehicle Code . . . or other law
relating to motor vehicles punishable as a
misdemeanor except by a commissioned,
salaried peace officer who, at the time of
arrest, is wearing a uniform clearly indicating the peace officer’s official status.” The
portions of Section 66-8-125(C) pertinent
here provide that “[m]embers of the New
Mexico state police, sheriffs, and their salaried deputies and members of any municipal
police force may not make arrest for traffic
violations if not in uniform[.]”
{8}Although the State argued below that
these statutes are inapplicable because there
was no arrest, on appeal, the State recognizes that the term “arrest” also includes
temporary detentions. See Slayton, 2009-
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 25
NMSC-054, ¶¶ 18-20 (holding that the term
“arrest,” as used in Section 66-8-124(A), includes temporary detentions). Consequently,
the State’s contention is that the BDUs worn
by the officers in this case are uniforms and
that the district court erred in concluding
otherwise. We therefore restrict our analysis
to the narrow issue presented by the State’s
argument: whether BDUs are uniforms as
that term is used in Sections 66-8-124(A)
and -125(C). The State also argues, in the
alternative, that the exclusionary rule is
inapplicable even if the statutes in question
were violated. We do not reach the State’s
second argument because, as we explain
below, we hold that the BDU worn by the
officers in this case is a “uniform.”
{9}We previously examined the uniform
requirement of Sections 66-8-124(A) and
-125(C) in Archuleta, 118 N.M. at 16264, 879 P.2d at 794-96. The defendant in
Archuleta was convicted of speeding. Id. at
161, 879 P.2d at 793. He appealed, asserting
that the speeding citation he received was
issued in violation of Sections 66-8-124(A)
and -125(C). Archuleta, 118 N.M. at 161,
879 P.2d at 793. The defendant claimed
that the off-duty officer who issued the citation was not wearing a uniform but only a
windbreaker with the words “Albuquerque
Police” printed on it. Id. Interpreting the
statutes, we first discerned that the Legislature intended that officers wear uniforms
plainly indicating their official status so as
to enable motorists to be certain that any
officers who stop them are, in fact, police
officers. Id. at 162, 879 P.2d 795. Additionally, we concluded that the statutory history
of Section 66-8-124 shows that “the [L]egislature intended the definition of ‘uniform’ to
be less restrictive, no doubt recognizing that
modern day police officers may have more
than one uniform or may on occasion wear
combinations thereof.” Id. at 163, 879 P.2d
at 795. We then adopted two alternative and
independent tests for determining whether
an officer is in uniform. Id. The first of these
tests is “whether there are sufficient indicia
that would permit a reasonable person to
believe the person purporting to be a peace
officer is, in fact, who he claims to be[.]” Id.
The second is “whether the person stopped
and cited either personally knows the officer
or has information that should cause him
to believe the person making the stop is an
officer.” Id.
{10}In Archuleta, we concluded that both
tests were satisfied. Id. First, we determined
that a reasonable person would have understood that the off-duty officer was in
fact a policeman because he was wearing a
26 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
windbreaker with clear police markings on it
and was driving a marked police car. Id. As
to the second test, we observed that it was
clear the defendant understood that the offduty officer was a police officer because the
defendant, who was himself a former police
officer, confronted the off-duty officer at
one point, asserted that he had familiarity
with police procedures, and protested that
the off-duty officer had no authority to issue
a citation because the off-duty officer was
not wearing a uniform. Id. We apply the
Archuleta analysis to the present case.
{11} Here, the district court made findings
regarding the stop and described the BDU
based on the exhibit of a photo of one of
the arresting officers in this case wearing
his BDU. The district court then concluded
that the “uniform” referenced in the applicable statutes does not include the clothing
the officer was wearing at the time of this
incident—the BDU. The exhibit and the
court’s description reflect that the BDU is
comprised of the following: black pants;
black boots; a black vest to which is attached an electronic communication device
with a chord; a black long-sleeve shirt with
the words “STATE POLICE” in large bold
yellow lettering on the sleeves, the word
“POLICE” in large bold white lettering on
the right shoulder area, a smaller triangular
cloth patch with the words “STATE POLICE” also on the right shoulder; and, on
the back of the shirt, the word “POLICE”
in large bold white lettering in two places;
an equipment belt, holster, and firearm; and
a metal police badge hung from one of the
front pockets. Evaluating this outfit in light
of Archuleta, we apply the first test and
conclude that a reasonable person would
believe that an individual wearing a BDU is,
in fact, a police officer. The word police is
printed in large lettering in several locations
on the garments comprising a BDU and an
individual donning a BDU has equipment
on their person consistent with what a police
officer would possess. Accordingly, we hold
that a BDU is a uniform as that term is used
in Sections 66-8-124(A) and -125(C) and
that the district court erred in concluding
otherwise.
{12} Defendant contends that the time
of day, in this case night, and the type of
police vehicle, in this case an unmarked
police vehicle, affect the analysis regarding the uniform. Defendant focuses on the
difficulty in seeing black uniforms at night
and that the flashing lights on the vehicle
were not sufficient to lead a reasonable
person to the conclusion that the people in
the vehicle were law enforcement officers.
While we agree that black uniforms might
be difficult to see at night, it is the markings on the uniforms in yellow and white
that indicate the status of the wearer. There
is no evidence that the markings were not
visible. Additionally, whether the vehicle
was marked or unmarked does not affect
our conclusion that the BDU is a uniform.
{13} Further, it appears that the district
court reached the conclusion that a BDU is
not a uniform because it found the equipment belt and badge were not visible enough
and because the uniform could, in the district
court’s judgment, be easily manufactured by
someone wishing to impersonate a police
officer. As discussed above, the Legislature
intended the definition of the term “uniform”
to be unrestrictive. Archuleta, 118 N.M. at
163, 879 P.2d at 795 (observing that the Legislature intended the definition of “uniform”
to be less restrictive). The district court’s
analysis appears to have taken the opposite
view and considered the term uniform in its
most restrictive form. This was error. We
also addressed the district court’s second
concern—that a BDU could be fabricated—
in Archuleta where the defendant argued
that the term “uniform” must be construed
narrowly so as to protect the public from potential police impersonators. Id. at 163-64,
879 P.2d at 795-96. We were unpersuaded
and concluded that this argument did not
withstand scrutiny. Id. Law enforcement
uniforms, we explained, are now readily
available and, thus, there is little reason to
suspect that even a full officer’s attire could
not be easily purchased. Id. In light of this
precedent, we conclude that the district court
erred to the extent that it decided that a BDU
is not a uniform because part of the uniform
was not sufficiently visible and because a
BDU can be fabricated.
{14} In conclusion, we hold that the district
court erred in granting Defendant’s motion
to suppress. A BDU is a uniform as that
term is used in Sections 66-8-124(A) and
-125(C). Neither statute was violated here.
In light of this conclusion, we need not address the State’s argument concerning the
applicability of the exclusionary rule.
III.CONCLUSION
{15} For the foregoing reasons, the district
court’s order granting Defendant’s motion
to suppress is reversed.
{16} IT IS SO ORDERED.
CELIA FOY CASTILLO,
Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
LINDA M. VANZI, Judge
Certiorari Denied, May 6, 2011, No. 32,956
From the New Mexico Court of Appeals
Opinion Number: 2011-NMCA-065
Topic Index:
Constitutional Law: Due Process; and Ex Post Facto
Criminal Law: Accessory; Aiding or Abetting; and Vehicular Homicide
Statutes: Interpretation
STATE OF NEW MEXICO,
Plaintiff-Appellant,
versus
ALFRED LOVATO,
Defendant-Appellee.
No. 30,399 (filed: March 18, 2011)
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge
Gary K. King
Attorney General
Santa Fe, New Mexico
Ralph E. Trujillo
Assistant Attorney General
Albuquerque, New Mexico
for Appellant
Opinion
Linda M. Vanzi, Judge
{1}The State appeals from the district
court order dismissing with prejudice
one count of homicide by vehicle, NMSA
1978, Section 66-8-101(C) (2004), and
one count of accident involving death or
personal injuries, NMSA 1978, Section
66-7-201(C) (1989). Although Defendant was not the driver of the vehicle,
Defendant was charged pursuant to the
parties to a crime provision of the Motor
Vehicle Code. See NMSA 1978, § 668-120 (1978). In dismissing the charges
against Defendant, the district court
concluded that this Court’s decision in
State v. Marquez, 2010-NMCA-064, 148
N.M. 511, 238 P.3d 880, cert. quashed,
2010-NMCERT-006, 148 N.M. 584, 241
P.3d 182, was an unforeseeable interpretation of Section 66-8-120, could not be
retroactively applied to Defendant, and
passengers would not have had fair notice,
prior to Marquez, that the conduct Defendant engaged in exposed him to criminal
prosecution. On appeal, the State contends
that Section 66-8-120 “provided a person
Sam Bregman
Eric Loman
Bregman & Loman, P.C.
Albuquerque, New Mexico
for Appellee
of ordinary intelligence fair notice that
it was a crime to aid and abet vehicular
homicide[,]” and application of Section
66-8-120 to the facts of Defendant’s case
would not violate due process. Having
considered the arguments raised by the
State on appeal, we reverse the district
court and remand for the charges against
Defendant to be reinstated.
BACKGROUND
{2}The State alleges that on the evening
of November 25, 2008, and in the early
morning hours of November 26, 2008,
Carlos Fierro and Defendant went out
drinking. According to the State, it was
Defendant’s idea to go out and get a few
drinks and smoke a cigar. The two men
first consumed alcohol at the Rio Chama
Steakhouse, and then Fierro drove the
two of them to Willie’s Blues Bar at Defendant’s encouragement. The two men
consumed more alcohol at Willie’s Blues
Bar—alcohol purchased by Defendant.
After leaving the bar, Fierro struck William Tenorio with his vehicle as Tenorio
was crossing the street outside of the
bar. Witnesses testified that Fierro and
Defendant drove away from the scene of
the accident. Fierro was later identified as
the driver, and Defendant was identified
as the passenger of the vehicle that struck
Tenorio. After Fierro’s car was stopped by
police, the police concluded that Fierro
was intoxicated. Tenorio later died from
the injuries he sustained from being hit by
Fierro’s vehicle.
{3}On June 3, 2009, subsequent to this
Court issuing its opinion in Marquez,
the State filed charges against Defendant
on a theory of accomplice liability under Section 66-8-120. The district court
dismissed the charges on the basis that
Marquez could not be retroactively applied
to Defendant. The district court found that
Defendant did not have fair notice that his
conduct, which occurred prior to Marquez
being decided, exposed him to the possibility of criminal prosecution.
DISCUSSION
This Court’s Decision in Marquez
{4}We begin our analysis by first examining this Court’s decision in Marquez.
In Marquez, we were presented with the
issue of whether there was “such a charge
as party to the crime of homicide by a vehicle and great bodily injury by a vehicle.”
Marquez, 2010-NMCA-064, ¶ 1. We
looked to the statutory language of Section 66-8-101(C) and Section 66-8-120,
established case law regarding accessory
liability under the criminal code, and case
law and commentary defining the requisite
mens rea for homicide by vehicle, and
concluded that a defendant could aid and
abet in the crime of homicide by vehicle
or great bodily injury by vehicle. Marquez,
2010-NMCA-064, ¶¶ 8-15.
{5}Section 66-8-101(C) provides:
A person who commits homicide
by vehicle or great bodily harm
by vehicle while under the influence of intoxicating liquor or
while under the influence of any
drug or while violating [NMSA
1978, Section 66-8-113 (1987)]
is guilty of a third degree felony.
{6}Section 66-8-120 provides:
Every person who commits,
attempts to commit, conspires
to commit or aids or abets in the
commission of any act declared
herein to be a crime, whether individually or in connection with
one or more other persons or as
a principal, agent or accessory,
shall be guilty of such offense,
and every person who falsely,
fraudulently, forcibly or willfully induces, causes, coerces,
requires, permits or directs another to violate any provision of
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 27
the Motor Vehicle Code [Section
66-1-1] or any other law of this
state pertaining to motor vehicles
is likewise guilty of such offense.
{7}We pointed out in Marquez that Section 66-8-120 makes it a crime to aid or
abet in violation of any provision of the
Motor Vehicle Code. Marquez, 2010NMCA-064, ¶ 8. Further, in defining how
a person goes about aiding or abetting
in homicide by vehicle or great bodily
injury by vehicle, our analysis relied on
pre-existing case law discussing accessory
liability. We stated that we had previously
“interpreted the accessory provisions of
the Criminal Code as requiring that the
accessory share the criminal intent of the
principal and that there be a community
of purpose and partnership in the unlawful
undertaking.” Id. ¶ 9 (internal quotation
marks and citation omitted). We further
noted that in order to constitute a “community of purpose and partnership” someone
who aids and abets must do more than
merely be present; instead, that person’s
“[p]resence must be accompanied by some
outward manifestation or expression of approval, or shared purpose.” Id. ¶¶ 11, 13.
Finally, we acknowledged that prior case
law identified the requisite criminal intent
for homicide by vehicle as conscious
wrongdoing or the “purposeful doing of
an act that the law declares to be a crime.”
Id. ¶ 12 (internal quotation marks and citation omitted). Consequently, in Marquez,
this Court concluded that based on the
defendant’s knowledge that the driver was
intoxicated, evidenced by the fact that they
were refused service at two bars and by the
defendant’s admissions after the accident
that he knew the driver was drunk, the
defendant’s encouragement of the driver
to drive his vehicle although intoxicated,
and the defendant’s purchase of alcohol
consumed in the vehicle just prior to the
accident, the defendant had aided and
abetted in the crime of homicide by vehicle
or great bodily injury by vehicle. Id. ¶ 17.
The District Court Erred in Dismissing
the Charges Against Defendant
{8}In the district court order granting
Defendant’s motion to dismiss the charges
against him, the district court concluded:
[P]assengers simply could not
have been on notice or had fair
warning of the standards set
forth in Marquez. Assuming
for purposes of this [o]rder that
Defendant’s actions were the
same as those of the defendant
in Marquez, that he shared the
driver’s criminal intent, and that
28 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
all factual issues were resolved
in favor of the State, he could
not have had fair notice prior to
Marquez of the criminal liability
defined by the standards set forth
in that case.
In support of its ruling, the district court
stated that, prior to Marquez, there were
no established standards as to the requisite
mens rea for homicide by vehicle or as to
what level of participation would subject
a passenger to criminal prosecution, and
it was only by means of this Court’s decision in Marquez that these standards were
established.
{9}“We have previously considered the
due process implications of retroactively
applying the interpretation of a criminal
statute to a defendant whose conduct, at
the time of the alleged offense, did not fall
under the statute.” State v. Myers, 2010NMCA-007, ¶ 16, 147 N.M. 574, 226 P.3d
673, cert. granted, 2010-NMCERT-001,
147 N.M. 674, 227 P.3d 1056; see also
State v. Alderette, 111 N.M. 297, 298, 804
P.2d 1116, 1117 (Ct. App. 1990). In doing
so, we have adhered to the basic principle
that “a criminal statute must give a person
of ordinary intelligence fair notice of the
conduct that the statute criminalizes or it
will violate the Due Process Clause of the
Fourteenth Amendment.” Myers, 2010NMCA-007, ¶ 15. In Myers, we looked
to Bouie v. City of Columbia, 378 U.S.
347 (1964), for guidance in determining
whether a subsequent judicial interpretation applied retroactively can offend due
process. Myers, 2010-NMCA-007, ¶ 15.
There, we stated, “an unforeseeable judicial enlargement of a criminal statute,
applied retroactively, operates precisely
like an ex post facto law, such as Art. I,
§ 10, of the Constitution forbids.” Myers,
2010-NMCA-007, ¶ 15 (internal quotation
marks and citation omitted). “An ex post
facto law has been defined . . . as one that
makes an action done before the passing
of the law, and which was innocent when
done, criminal; and punishes such action,
or that aggravates a crime, or makes it
greater than it was, when committed.”
Alderette, 111 N.M. at 300, 804 P.2d at
1119 (alteration in original) (internal
quotation marks and citation omitted).
Thus, we stated in Myers that “[i]f a state
legislature is forbidden from passing
such a law, it must follow that a [court]
is barred by the Due Process Clause from
achieving precisely the same result by
judicial construction.” 2010-NMCA-007,
¶ 15 (internal quotation marks and citation
omitted). We further stated,
If a judicial construction of a
criminal statute is unexpected
and indefensible by reference to
the law which had been expressed
prior to the conduct in issue, it
must not be given retroactive effect. Otherwise, a criminal defendant is deprived of due process of
law in the sense of fair warning
that his contemplated conduct
constitutes a crime.
Id. (internal quotation marks and citations
omitted).
{10} In determining whether application
of a new construction of a criminal statute
would violate due process, our task is to
determine whether the new interpretation
was foreseeable. Id. ¶ 18; see State v. Johnson, 2001-NMSC-001, ¶ 14, n.4, 130 N.M.
6, 15 P.3d 1233 (“The test in determining
whether such an interpretation and retroactive application of a statute offends due
process is whether the construction actually given the statute was foreseeable.”).
If this Court’s interpretation of Section 668-120 in Marquez was foreseeable, then
Defendant was on notice that his conduct
was arguably in violation of the law and
there is no due process violation. On the
other hand, if our interpretation was unforeseeable, the retroactive application of
that interpretation to Defendant’s conduct
would violate his right to due process.
{11} The State argues that, unlike other
cases in which a judicial interpretation
has been held to violate due process if
retroactively applied, this Court’s decision
in Marquez neither overturned preexisting case law nor constituted a judicial
enlargement of a criminal statute. We
find the State’s argument persuasive. In
Alderette, this Court overruled a previous
judicial interpretation of the escape from
jail statute. 111 N.M. at 298, 804 P.2d at
1117. The earlier decision of this Court
had held that the escape from jail statute
only applied to those persons committed
on a criminal charge. Id. We subsequently
overruled that decision and held that “[i]f
a person is committed to a jail by lawful
authority and thereafter escapes from that
jail, he can be charged with escape from
jail.” Id. at 299, 804 P.2d at 1118. Because
this Court’s interpretation of the escape
from jail statute in Alderette created a new
base of conduct that fell within the statute,
we held that its interpretation of the statute
could not be retroactively applied to the
defendant. Id. at 300, 804 P.2d at 1119.
{12} Similarly, in Bouie, the United
States Supreme Court held that the South
Carolina Supreme Court’s interpretation
of a statute regarding criminal trespass
could not be retroactively applied to the
defendants where the language of the
statute did not proscribe the petitioner’s
conduct. 378 U.S. at 362-63. The language
prohibited persons from entering the property of another after notice not to enter,
but the South Carolina court interpreted
the statute as also criminalizing the act
of remaining on the premises after being
asked to leave. Id. at 355, 360. There, the
United States Supreme Court held that
“[t]he crime for which the[] petitioners
stand convicted was not enumerated in the
statute at the time of their conduct.” Id. at
363 (internal quotation marks omitted).
Accordingly, the South Carolina Supreme
Court’s interpretation of its criminal trespass statute acted as a judicial enlargement
of the statute, criminalizing a new base of
conduct, thus violating due process. Id. at
362-63.
{13} Such a judicial enlargement did not
occur in the present case. Here, the plain
language of the statute indicates that it is
a crime to aid and abet in a violation of
the Motor Vehicle Code. This Court in
Marquez neither changed a previous interpretation of Section 66-8-120 nor enlarged
the scope of the conduct criminalized by
our Legislature’s enactment of Section
66-8-120. Instead, this Court relied on
pre-existing case law to define common
terminology contained in the statute. Our
interpretation of Section 66-8-120 was
neither “unexpected” nor “indefensible
by reference to the law which had been
expressed prior to the conduct in issue[.]”
Myers, 2010-NMCA-007, ¶ 15 (internal
quotation marks and citation omitted).
Thus, we conclude that this Court’s interpretation of Section 66-8-120 as set forth
in Marquez was foreseeable. See Johnson,
2001-NMSC-001, ¶ 14, n.4 (“The Court
engages in an impermissible interpretation
of a statute when the interpretation is so
unexpected, and so outlandish, that no
reasonable person could have expected
it.” (alteration, internal quotation marks,
and citation omitted)).
{14} To the extent the district court concluded that, prior to Marquez, passengers
were not on “notice that they would be
subject to criminal liability as a party to
the crime of homicide by vehicle while
under the influence of intoxicating liquor,”
we construe the district court’s order as
concluding that Section 66-8-120 was
unconstitutionally vague. Similar to our
analysis above of whether Marquez was a
foreseeable interpretation of Section 66-8120, “[t]he vagueness doctrine is based on
the principle of fair notice in that no one
may be held criminally responsible and
subject to criminal sanctions for conduct
without fair warning as to the nature of
the proscribed activity.” Santillanes v.
State, 115 N.M. 215, 221 n.5, 849 P.2d
358, 364 n.5 (1993). “[A] statute denies
constitutional due process if it is so vague
that persons of common intelligence must
necessarily guess at its meaning.” State v.
Rogers, 94 N.M. 527, 529, 612 P.2d 1338,
1340 (Ct. App. 1980) (internal quotation
marks and citation omitted).
{15} Section 66-8-120 clearly sets out
that it is a crime for a person to aid and
abet in a violation of the Motor Vehicle
Code. Section 66-8-101(C), which provides that it is a third degree felony to
commit homicide by vehicle or great
bodily injury by vehicle while under the
influence of intoxicating liquor or drug,
is contained in the Motor Vehicle Code.
To the extent Marquez set forth standards
for applying Section 66-8-120 by examining how we have interpreted accessory
provisions under the Criminal Code, the
Legislature’s failure to define these
standards within Section 66-8-120 does
not render the statute unconstitutionally
vague. To the contrary, “[t]he [L]egislature
is not required to write statutes for the
understanding of persons who cannot or
will not apply ordinary meanings to plain
words[.]” Rogers, 94 N.M. at 529, 612
P.2d at 1340. “If the language used makes
the statute understandable and sensible,
that is all that is necessary to uphold it
as valid.” Id. We therefore conclude that
Section 66-8-120 provided fair notice that
the conduct Defendant engaged in could
expose him to criminal prosecution.
{16} Finally, the fact that Marquez was
the first time Section 66-8-120 had been
interpreted by an appellate court in this
state is of little consequence to our decision. “A judicial construction of a statute
is an authoritative statement of what the
statute meant before as well as after the
decision of the case giving rise to that
construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994).
When this Court engages in the judicial
construction of a statute “it is explaining
its understanding of what the statute has
meant continuously since the date when it
became law.” Id. at 313, n.12. Because we
conclude that this Court’s interpretation of
Section 66-8-120 in Marquez was foreseeable, we reverse the district court order
dismissing the charges against Defendant
with prejudice.
CONCLUSION
{17} For the foregoing reasons, we
reverse and remand to the district court
for the charges against Defendant to be
reinstated.
{18} IT IS SO ORDERED.
LINDA M. VANZI, Judge
WE CONCUR:
CELIA FOY CASTILLO, Chief Judge
JAMES J. WECHSLER, Judge
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 29
Certiorari Denied, May 11, 2011, No. 32,963
From the New Mexico Court of Appeals
Opinion Number: 2011-NMCA-066
Topic Index:
Associations and Societies: Associations, General
Civil Procedure: Summary Judgment
Government: Counties
Insurance: Uninsured or Underinsured Motorist
Statutes: Interpretation; Legislative Intent; and Rules of Construction
CLARA ROMERO,
Plaintiff-Appellant,
versus
BOARD OF COUNTY COMMISSIONERS OF COUNTY OF TAOS,
and the NEW MEXICO ASSOCIATION OF COUNTIES,
Defendants-Appellees.
No. 29,524 (filed: March 21, 2011)
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Sam B. Sanchez, District Judge
Samuel M. Herrera
The Herrera Firm, P.C.
Taos, New Mexico
for Appellant
Opinion
James J. Wechsler, Judge
{1}We address in this appeal whether the
requirements of NMSA 1978, Section 665-301(A) (1983), pertaining to uninsured
and underinsured motorist (UM/UIM)
coverage, apply to a group of counties
that pool their financial resources under
NMSA 1978, Section 3-62-1 (1986) and
NMSA 1978, Section 3-62-2 (1986) to
satisfy claims against the individual counties of the group. We hold that Section
66-5-301(A) does not apply and affirm the
district court’s grant of summary judgment.
BACKGROUND
{2}Plaintiff Clara Romero, an employee
of Defendant Taos County (the County),
was injured in a motor vehicle accident
while she was driving a vehicle belonging to the County in the course of her
employment. She was struck by another
vehicle and was not at fault. Plaintiff
received a settlement for the policy limits
of the insurance policy of the driver of the
other vehicle. She also received workers’
compensation benefits. Plaintiff made a
30 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
William D. Slease
Jonlyn M. Martinez
Slease & Martinez, P.A.
Albuquerque, New Mexico
for Appellees
claim for UM/UIM coverage against the
County’s insurance coverage.
{3}The County provided coverage for its
losses through a coverage agreement with
Defendant New Mexico Association of
Counties (the Association of Counties).
Through the Association of Counties,
member counties pool contributions to
a fund (the multi-line fund or pool) to
provide coverage for property and liability
losses. The coverage agreement specified
the coverage provided by the Association
of Counties through the multi-line pool.
The coverage agreement did not include
UM/UIM coverage.
{4}Plaintiff filed a declaratory judgment
action against the County and the Association of Counties, requesting in part a
determination that, based on Section 66-5301(A), the County had coverage for, and
the Association of Counties was obligated
to pay, UM/UIM benefits to Plaintiff.
Defendants filed a motion for summary
judgment, arguing that the County did
not have UM/UIM insurance and that the
Association of Counties was immune from
suit. Plaintiff filed a counter-motion, contending in part that Section 66-5-301(A)
and public policy required the Association
of Counties to provide UM/UIM coverage,
and the County did not waive such coverage. The district court denied Plaintiff’s
motion and granted Defendants’ motion.
It stated that the County was neither obligated to purchase nor could it purchase
UM/UIM coverage to compensate Plaintiff for her injuries. Plaintiff appeals from
the district court’s order.
APPLICATION OF SECTION 66-5301(A) TO THE ASSOCIATION OF
COUNTIES
{5}Plaintiff contends that the district
court erred in granting Defendants’ motion
for summary judgment and in denying
her motion. We review the district court’s
grant of a motion for summary judgment
de novo to determine whether the district
court was correct that there was no genuine
issue of material fact and that the moving
party was entitled to judgment as a matter
of law. Tafoya v. Rael, 2008-NMSC-057,
¶ 11, 145 N.M. 4, 193 P.3d 551.
{6}Plaintiff states that the issue in this
case is whether the Association of Counties is obligated to offer UM/UIM coverage to the County and, if so, whether the
County waived UM/UIM coverage. She
argues that the law of New Mexico, as
stated in Section 66-5-301(A), requires
an insurance provider to offer UM/UIM
coverage in all automobile insurance
policies unless the named insured rejects
such coverage. Thus, Plaintiff concludes
that because the County did not reject
UM/UIM coverage, the County had such
coverage as a result of its coverage agreement with the Association of Counties.
{7}Plaintiff is correct that Section 66-5301(A) generally requires an insurer to
provide UM/UIM coverage as part of an
automobile liability insurance policy unless rejected by the insured. See Romero
v. Dairyland Ins. Co., 111 N.M. 154, 156,
803 P.2d 243, 245 (1990) (stating that
public policy embodies making uninsured
motorist overage part of automobile liability insurance policies and that an insured
may reject such coverage). We therefore
agree with Plaintiff that our focus should
be on whether Section 66-5-301 applies
to the Association of Counties. Plaintiff
made this argument to the district court,
and, although the district court did not
expressly rule on this issue, we can affirm
if the district court was correct for any
reason that was before it on the basis of
the presentations of the parties. See Meiboom v. Watson, 2000-NMSC-004, ¶ 20,
128 N.M. 536, 994 P.2d 1154 (noting that
an appellate court may “affirm a district
court ruling on a ground not relied upon
by the district court, but will not do so
if reliance on the new ground would be
unfair to appellant” (alteration, internal
quotation marks, and citation omitted)).
{8}We view the matter as one of legislative intent. See Jordan v. Allstate Ins. Co.,
2010-NMSC-051, ¶ 15, 149 N.M.162, 245
P.3d 1214 (stating that the “primary goal
when interpreting statutes is to further
legislative intent”). To ascertain legislative
intent, we look to the words used by the
Legislature in the statutes at issue as “the
primary indicator of legislative intent.”
High Ridge Hinkle Joint Venture v. City of
Albuquerque, 1998-NMSC-050, ¶ 5, 126
N.M. 413, 970 P.2d 599 (internal quotation marks and citation omitted). We seek
to harmonize our reading of the relevant
statutes to give effect to each of them.
See State v. Davis, 2003-NMSC-022, ¶
12, 134 N.M. 172, 74 P.3d 1064 (“All of
the provisions of a statute, together with
other statutes in pari materia, must be read
together to ascertain legislative intent.”).
We interpret the UM/UIM statute liberally to implement its remedial purpose.
Marckstadt v. Lockheed Martin Corp.,
2010-NMSC-001, ¶ 14, 147 N.M. 678,
228 P.3d 462.
{9}The statutes relevant to our analysis
are Section 66-5-301(A), Section 3-621, Section 3-62-2(A), and NMSA 1978,
Section 66-5-207(A) (1998). Section
66-5-301(A) requires automobile liability
insurance policies to provide UM/UIM
coverage and reads, in relevant part:
No motor vehicle or automobile liability policy insuring
against loss . . . shall be delivered
or issued for delivery in New
Mexico with respect to any motor
vehicle registered or principally
garaged in New Mexico unless
coverage is provided . . . for the
protection of persons insured
thereunder who are legally entitled to recover damages from
owners or operators of uninsured
motor vehicles . . . , according to
the rules and regulations promulgated by, and under provisions
filed with and approved by, the
superintendent of insurance.
Sections 3-62-1 and 3-62-2(A) address the
manner in which public bodies, including
counties, may provide for their insurance needs. Section 3-62-1 permits New
Mexico counties to self-insure through
self-insurance reserves as an alternative
to, or in combination with, insurance se-
cured by “any other method provided by
law.” Section 3-62-2(A) permits two or
more counties to pool their self-insured
reserves, claims, or losses. Section 3-622(A) provides that such pooling “shall not
be construed to be transacting insurance
or otherwise subject to the provisions of
the laws of this state regulating insurance
or insurance companies.” Section 66-5207(A) exempts a motor vehicle owned
by a political subdivision of a state, such
as the County, from the Mandatory Financial Responsibility Act (MFRA), NMSA
1978, Sections 66-5-201 to -239 (1978, as
amended through 2003).
{10} Sections 3-62-1 and 3-62-2(A)
are inconsistent with Plaintiff’s position
that Section 66-5-301(A) requires the
Association of Counties to provide the
County UM/UIM coverage. The Association of Counties provides the mechanism
by which its member counties self-insure
through their pooled reserves. The Legislature recognized that this type of
self-insurance coverage afforded by the
Association of Counties is not the same as
other liability insurance by exempting it
from state laws that regulate insurance and
insurance companies. Section 3-62-2(A).
In the general sense, Section 66-5-301(A)
is such a law because it regulates the terms
of a motor vehicle or automobile liability
policy by requiring insurance companies
to provide UM/UIM coverage. With this
reading of Section 66-5-301(A), the Association of Counties has no obligation
to provide UM/UIM coverage to its selfinsuring members.
{11} We acknowledge that the Legislature’s use of the word “regulating” with
respect to laws regulating insurance and
insurance companies may be ambiguous
in that it might arguably only refer on its
face to laws establishing administrative
regulation. However, when we read Section 66-5-301(A) not only in conjunction
with Sections 3-62-1 and 3-62-2(A) but
also with the provisions of the MFRA, the
legislative intent is clear that Section 66-5301(A) does not apply to the Association
of Counties coverage. See Dewitt v. RentA-Ctr., Inc., 2009-NMSC-032, ¶ 29, 146
N.M. 453, 212 P.3d 341 (stating that to the
extent statutory language is ambiguous,
courts can consider principles of statutory construction to ascertain legislative
intent).
{12} The purpose of the MFRA “is to
require residents of New Mexico who own
and operate motor vehicles upon the highways of the state either to have the ability
to respond in damages to accidents arising
out of the use and operation of a motor vehicle or to obtain a motor vehicle insurance
policy.” Section 66-5-201.1. The MFRA
requires motor vehicle owners to have
insurance in specified minimum amounts
or evidence of financial responsibility in
specified minimum amounts to permit
anyone to operate a motor vehicle on the
streets or highways of the state. Sections
66-5-205(A), -208, and -215(A). It specifically exempts motor vehicles owned by
“any state or any political subdivision of
a state.” Section 66-5-207(A). The County
is a political subdivision of the state of
New Mexico. El Dorado at Santa Fe,
Inc. v. Bd. of Cnty. Comm’rs of Santa Fe
Cnty., 89 N.M. 313, 317, 551 P.2d 1360,
1364 (1976) (“A county is but a political
subdivision of the [s]tate, and it possesses
only such powers as are expressly granted
to it by the Legislature, together with those
necessarily implied to implement those
express powers.”).
{13} By virtue of its exemption from
the MFRA, the County is not required to
purchase motor vehicle liability insurance
or have evidence of financial responsibility in order to permit its vehicles to operate on New Mexico roads. Because the
Legislature exempted the County from
any obligation to purchase any motor
vehicle liability insurance, the Legislature
certainly did not intend that the County
have any obligation to acquire UM/UIM
coverage.
{14} This conclusion, however, does not
fully address Plaintiff’s argument because
Section 66-5-301(A) places the burden
on the insurance provider to include UM/
UIM coverage and, arguably, even though
the County as the recipient of the coverage had no obligation to obtain UM/UIM
coverage, the Association of Counties
still had the obligation to provide it. To
be sure, Section 66-5-301(A) does not
contain an exemption for insurance policies issued to political subdivisions of the
state. Nevertheless, when we construe
Section 66-5-301(A) in connection with
the MFRA, the County’s exemption under
the MFRA indicates that the Legislature
did not intend the Association of Counties to have any obligation under Section
66-5-301(A) to offer UM/UIM coverage
to the County.
{15} “The rule that statutes in pari materia should be construed together has
the greatest probative force in the case
of statutes relating to the same subject
matter passed at the same session of the
Legislature.” Davis, 2003-NMSC-022,
¶ 12. Even though Section 66-5-301(A)
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 31
is not part of the MFRA, both the MFRA
and Section 66-5-301(A) were originally
enacted in 1978 and address required
motor vehicle liability insurance. Both
are designed to protect persons who are
injured in motor vehicle accidents. The
MFRA requires insurance or evidence of
financial responsibility for motor vehicle
owners and drivers so that they will be able
to respond in damages to those injured in
motor vehicle accidents. Sections 66-5201.1, -205. Section 66-5-301(A) further
fulfills the MFRA purpose by requiring
insurance coverage for uninsured and
underinsured motorists unless the insured
rejects such coverage.
{16} When we read these statutes together, we believe that the Legislature
intended the requirement of Section 66-5301(A) to apply to the insurance required
under Section 66-5-205. Indeed, Section
66-5-301(A), in stating the necessary UM/
UIM coverage, specifically references
the minimum limits of the MFRA. Thus,
Section 66-5-301(A) does not specifically
exempt the County because it need not
32 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
do so. The Legislature focused on the actions of the insurance provider in Section
66-5-301(A), not on those of the insured.
Because the County was exempt from the
MFRA requirements, even if the Association of Counties was an insurance provider
under Section 66-5-301(A), an issue we do
not decide, it was not required to offer the
County UM/UIM coverage.
{17} Contrary to our conclusion, Plaintiff
makes the additional argument that public
policy requires the Association of Counties to provide UM/UIM coverage. As a
general matter, the public policy stated
in Section 66-5-301(A) is “to make uninsured motorist coverage a part of every
automobile liability insurance policy issued in this state, with certain limited exceptions.” Romero, 111 N.M. at 156, 803
P.2d at 245. Indeed, Section 66-5-301(A)
was “intended to expand insurance coverage and to protect individual members of
the public against the hazard of culpable
uninsured motorists.” Progressive Nw.
Ins. Co. v. Weed Warrior Servs., 2010NMSC-050, ¶ 5, 149 N.M. 157, 245 P.3d
1209 (internal quotation marks and citation omitted). However, the Legislature
stated in Section 66-5-301(A) that there
were limited exceptions to the required
coverage, and it set forth countervailing
public policy with respect to governmental
entities in the MFRA and Sections 3-62-1
and 3-62-2(A). In the context of this case,
involving a political subdivision of the
state, the Legislature did not intend the
general policy of Section 66-5-301(A) to
apply.
CONCLUSION
{18} Section 66-5-301(A) does not
require the Association of Counties to
provide UM/UIM coverage to the County.
We affirm the district court’s grant of summary judgment to Defendants.
{19} IT IS SO ORDERED.
JAMES J. WECHSLER,
Judge
WE CONCUR:
MICHAEL E. VIGIL, Judge
LINDA M. VANZI, Judge
Certiorari Denied, May 20, 2011, No. 32,970
From the New Mexico Court of Appeals
Opinion Number: 2011-NMCA-067
Topic Index:
Appeal and Error: Preservation of Issues for Appeal;
and Standard of Review
Criminal Law: Fraud
Jury Instructions: Criminal Jury Instructions;
and Improper Jury Instructions
STATE OF NEW MEXICO,
Plaintiff-Appellee,
versus
YVETTE RODARTE,
Defendant-Appellant.
No. 29,956 (filed: April 18, 2011)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Carl J. Butkus, District Judge
Gary K. King
Attorney General
Andrew S. Montgomery
Assistant Attorney General
Santa Fe, New Mexico
for Appellee
Opinion
Celia Foy Castillo, Chief Judge
{1}Defendant challenges her conviction
for fraudulent refusal to return leased
property, in violation of NMSA 1978, Section 30-16-40(A)(3) (2006), on grounds
that the jury instructions did not include
a definitional instruction clarifying the
meaning of the term “intent to defraud.”
We affirm.
BACKGROUND
{2}In June 2006, Defendant leased home
furnishings from Aaron’s Sales & Lease
Ownership (Aaron’s) in Albuquerque,
New Mexico. Aaron’s delivered the furniture to Defendant but never received
payment. A manager at Aaron’s contacted
Defendant and instructed her to either
provide payment or return the furniture.
Defendant did neither. Aaron’s then attempted to repossess the furniture but
discovered that Defendant had moved
from the address she provided. Aaron’s
contacted the police in July 2006 and
reported the furniture as stolen or fraudulently taken.
Chief Public Defender
Karl Erich Martell
Assistant Appellate Defender
Santa Fe, New Mexico
for Appellant
{3}Defendant was indicted in June 2007
on one count of fraudulent acts to obtain
or retain possession of leased personal
property with a value over $500 but not
exceeding $2,500, in violation of NMSA
1978, Section 30-16-39(C) (2006) and,
in the alternative, one count of fraudulent
refusal to return leased property with a
value over $500 but not exceeding $2,500,
in violation of Section 30-16-40(A)(3).
Defendant was tried before a jury in May
2009 and was found guilty of fraudulent
refusal to return leased property. Defendant was acquitted on the other charge.
She was sentenced to a conditional discharge and now appeals her conviction.
DISCUSSION
{4}On appeal, Defendant “claims error
with the jury instruction for the charge
on which she was convicted.” That charge
was based on Section 30-16-40(A)(3),
which provides:
A person who, after leasing . . .
personal property under a written
agreement that provides for the
return of . . . property to a particular place at a particular time
and who, with intent to defraud
the lessor of the . . . property, fails
to return the . . . property to the
place within the time specified, is
guilty of a:
....
fourth degree felony if the
property . . . has a value of over
five hundred dollars ($500) but
not more than two thousand five
hundred dollars ($2,500)[.]
There is no uniform jury instruction for
this offense. At Defendant’s trial, both
parties proposed instructions purporting
to set forth the essential elements of this
offense. The court rejected Defendant’s
proposed instruction and included the
State’s instruction. That instruction directed the jury in the following manner:
For you to find [D]efendant
guilty of fraudulent refusal to return leased property . . . , the [S]
tate must prove to your satisfaction beyond a reasonable doubt
each of the following elements
of the crime:
1. [D]efendant rented or
leased furniture through a written
agreement that provided for the
return of the personal property to
a particular place at a particular
time;
2. [D]efendant with intent
to defraud Aaron’s of the property failed to return the personal
property to the place within a
specified time;
3. The furniture had a value
over $500 but not more than
$2,500;
4. This happened in New
Mexico on or about the 9th day
of June, 2006.
{5}Defendant argues on appeal that
this instruction was insufficient because the term “intent to defraud” was
not defined. She claims that a reasonable juror would have been confused
by the meaning of that term. She asks
that we reverse her conviction and
remand for a new trial.
{6}“The standard of review we apply
to jury instructions depends on whether
the issue has been preserved. If the error has been preserved[,] we review the
instructions for reversible error. If not,
we review for fundamental error.” State
v. Benally, 2001-NMSC-033, ¶ 12, 131
N.M. 258, 34 P.3d 1134 (citation omitted).
{7}The State contends that the arguments
Defendant now makes on appeal were not
preserved in the district court. According
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 33
to the State, Defendant did not ask the trial
court to issue a definitional instruction.
Rather, the State claims Defendant asked
the court to graft elements associated with
the crime of fraud, see NMSA 1978, Section 30-16-6 (2006), onto the instructions
for the crime with which Defendant was
charged. This request, the State claims,
was properly rejected by the trial court and
is different and distinct from Defendant’s
argument on appeal.
{8}Our review of the record reveals that
the State’s assertions are correct. Defendant’s proposed instruction included
language from UJI 14-1640 NMRA, the
uniform jury instruction for the crime of
fraud. Defendant’s proposed instruction
included the following:
For you to find [D]efendant
guilty of fraudulent refusal to
return leased property . . . , the
[S]tate must prove . . . :
1. [D]efendant[,] by way
of words or conduct[,] made a
promise she had no intention
of keeping or misrepresented a
fact to Aaron’s . . . , intending to
deceive or cheat Aaron’s . . . ;
2. Because of the promise
and Aaron[’s] reliance on it, [D]
efendant obtained the furniture[.]
These are not elements of the offense
of fraudulent refusal to return leased
property but are elements of the crime of
fraud. Compare Section 30-16-40 with
UJI 14-1640. Discussing this proposed
instruction, Defendant stated the following at trial:
With intent to defraud, I don’t
believe that is sufficient to suggest
that there is a specific intent and
I would ask you to use my . . .
proposed instruction number 2 because it adds the elements of fraud
. . . . So I believe that you need to
add the fraud language because it
is included in the statute.
The trial court rejected this request and
gave the following explanation:
It seems to me that what the [d]
efense is essentially asking is
that we engraved [sic] common
law fraud concepts onto what’s
a statutory offense. And I think
the best thing and safest thing to
do when we’re dealing with a
statutory offense is to track the
language of the statute and the
State’s instruction does essentially that[.]
{9}We conclude that Defendant failed
to preserve the argument she raises on
34 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
appeal. See State v. Jernigan, 2006NMSC-003, ¶ 10, 139 N.M. 1, 127 P.3d
537 (“Generally, to preserve error on a
trial court’s refusal to give a tendered
instruction, the Appellant must tender a
legally correct statement of the law.”).
We observe that Defendant’s tendered
instruction requires the State to prove
that she committed fraud in obtaining the
property, as well as in refusing to return
the property. The charge relates only to
the failure of Defendant to return the
property. Further, we find no support in
the record that would allow us to conclude
that the district court understood that Defendant wanted a definitional instruction
clarifying the term “intent to defraud.”
See id. (“[I]f the record reflects that the
judge clearly understood the type of instruction the [d]efendant wanted and understood the tendered instruction needed
to be modified to correctly state the law,
then the issue is deemed preserved for appellate review.”). Accordingly, we review
Defendant’s argument for fundamental
error. Benally, 2001-NMSC-033, ¶ 12
(stating that, if an issue regarding jury
instruction has not been preserved, we
review for fundamental error).
{10} We will not “uphold a conviction if
an error implicated a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.”
State v. Barber, 2004-NMSC-019, ¶ 18,
135 N.M. 621, 92 P.3d 633 (internal
quotation marks and citation omitted).
The specific issue before us is whether the
absence of a definitional instruction as to
the term “intent to defraud” caused such a
“fundamental unfairness” in Defendant’s
trial. Id. (internal quotation marks and
citation omitted). To answer this question,
we evaluate “whether a reasonable juror
would have been confused or misdirected
by the jury instruction.” Id. ¶ 19.
{11} Before examining Defendant’s
arguments, we express our doubts that
a jury would be confused or misdirected
by the term “intent to defraud.” In State
v. Probert, 19 N.M. 13, 16, 140 P. 1108,
1109 (1914), superseded by statute as
recognized by State v. Peke, 70 N.M. 108,
371 P.2d 226 (1962), our Supreme Court
reached the unremarkable conclusion that
“[t]o do an act fraudulently is to do it with
intent to cheat and defraud.” Probert, 19
N.M. at 16, 140 P. 1109. This somewhat
circular reasoning does not reveal an
analytical flaw. Rather, it illustrates that
the terms “fraud” and “defraud” are readily understandable. In our view, Probert
supports the conclusions that a reasonable
juror would understand what the term
“defraud” means and would, therefore,
understand what must be present to have
an “intent to defraud.” See id. at 16, 140
P. at 1109. We find further support for
this conclusion in the crime of fraud by
worthless checks and the uniform jury
instruction associated with that offense.
Intent to defraud is an essential element
of fraud by worthless checks. See NMSA
1978, § 30-36-4 (1963). The uniform jury
instruction associated with that offense
defines “intent to defraud” as, simply,
“[intent] to cheat or deceive.” UJI 141670 NMRA. A reasonable juror would
not struggle to discern what the phrase
“intent to defraud” means. We now turn
to Defendant’s arguments.
{12} Defendant presents five arguments
on appeal. First, she observes that the
uniform jury instruction for the crime
of embezzlement, UJI 14-1641 NMRA,
includes the term “fraudulently intended”
and provides a definition for this term.
This observation does little to resolve the
question before us: whether a reasonable
juror would be confused by the term “intent to defraud.” Defendant has provided
us no authority that the term “fraudulently
intended” in the embezzlement statute
was defined because jurors could not
reasonably be expected to understand the
meaning of that term. Defendant’s first
argument is unavailing.
{13} Defendant’s second argument is
premised on State v. Clifford, 117 N.M.
508, 873 P.2d 254 (1994) and State v.
Green, 116 N.M. 273, 861 P.2d 954
(1993). She argues that these cases support her claim that the district court’s
failure to provide a definitional instruction for the term “intent to defraud” was
error. These cases do not so hold. In both
Clifford and Green, the defendants were
charged with embezzlement. Clifford,
117 N.M. at 510, 873 P.2d at 256; Green,
116 N.M. at 274, 861 P.2d at 955. One
of the essential elements of this offense
is “fraudulent intent.” Green, 116 N.M.
at 277-78, 861 P.2d at 958-59. The jury
instructions issued in both cases failed
to include any reference to this essential
element. Clifford, 117 N.M. at 511, 873
P.2d at 257; Green, 116 N.M. at 277-79,
861 P.2d at 958-60. Our Supreme Court
concluded, in both cases, that this was
reversible error. Clifford, 117 N.M. at
511-12, 873 P.2d at 257-58; Green, 116
N.M. at 277-79, 861 P.2d at 958-60.
Green and Clifford do not apply here. At
Defendant’s trial, all of the essential elements of the crime of fraudulent refusal
to return leased property were included in
the jury instructions. Defendant does not
argue to the contrary. She instead claims
that a further definitional instruction
clarifying the term “intent to defraud”
should have been issued. Neither Clifford
nor Green stands for the proposition.
{14} Defendant’s final argument is
that jurors are neither appellate judges
nor lawyers and, therefore, cannot be
expected to understand what the term
“intent to defraud” means. We disagree.
Our inquiry is whether a reasonable juror
would have been confused or misdirected
by the instruction proffered. Barber,
2004-NMSC-019, ¶ 19. For the reasons
previously stated, we are persuaded that
a reasonable juror would understand the
meaning of these words. In addition, Defendant has failed to direct us to any concrete evidence that the jury at Defendant’s
trial was confused by the instructions.
CONCLUSION
{15} For the foregoing reasons, Defendant’s conviction is affirmed.
{16} IT IS SO ORDERED.
CELIA FOY CASTILLO,
Chief Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
LINDA M. VANZI, Judge
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 35
Certiorari Denied, May 20, 2011, No. 32,981
From the New Mexico Court of Appeals
Opinion Number: 2011-NMCA-068
Topic Index:
Appeal and Error: Standard of Review
Constitutional Law: Confession; and Double Jeopardy
Criminal Law: Sexual Exploitation of Children
Criminal Procedure: Confession; Judgment and Sentence;
Merger of Offenses; and Mistrial
STATE OF NEW MEXICO,
Plaintiff-Appellee,
versus
JOHN LEESON,
Defendant-Appellant.
No. 29,716 (filed: April 18, 2011)
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Jane Shuler Gray, District Judge
Gary K. King
Attorney General
Santa Fe, New Mexico
James W. Grayson
Assistant Attorney General
Albuquerque, New Mexico
for Appellee
Opinion
Celia Foy Castillo, Chief Judge
{1} Defendant John Leeson was convicted
of sixteen counts of sexual exploitation
of children in violation of NMSA 1978,
Section 30-6A-3(D) (2007). On appeal,
he claims that the district court erred in
denying his motion to merge the counts,
that the district court wrongly determined
his confession was voluntary, and that the
district court should have granted his motion for mistrial. We find no error in the
proceedings below and affirm.
BACKGROUND
{2}Between February and October 2007,
Defendant took numerous digital photographs of his live-in girlfriend’s two
daughters. The children were under the age
of thirteen at the time the photographs were
taken. The photographs were not admitted
into the record proper, but we discern from
the record that they were highly sexually
suggestive and involved, in part, close-ups
of the children’s genitalia and buttocks.
Defendant’s girlfriend inadvertently discov36 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
Liane E. Kerr
Albuquerque, New Mexico
for Appellant
ered several of the images and reported the
matter to the police. Defendant was arrested
and, during a police interview, confessed to
taking the photographs and further admitted
that he had a “problem” and needed “counseling.” A subsequent search of Defendant’s
computer revealed that he possessed many
other sexualized images of children.
{3}The State brought two separate cases
against Defendant. The matter before us
concerns only the photographs that Defendant took of the child victims. As to
those photographs, Defendant was charged
by amended criminal information with
twenty counts of “Sexual Exploitation of
Children (Manufacturing),” in violation of
Section 30-6A-3(D). This statute provides,
in relevant part, that “[i]t is unlawful for a
person to intentionally manufacture any
obscene visual or print medium depicting
any prohibited sexual act or simulation of
such an act if one or more of the participants
in that act is a child under eighteen years of
age.” Id.
{4} Prior to trial, Defendant moved to have
the twenty counts merged into one count
citing the double jeopardy clauses of the
United States and New Mexico Constitutions and also filed a motion calling into
question the voluntariness of his confession.
The court reserved ruling on the merger
issue, apparently persuaded that the issue
would be best addressed after trial, and
denied Defendant’s motion concerning the
confession, concluding that Defendant’s
statements to the police were voluntary.
{5} At trial, a video of Defendant’s confession was played for the jury. In that video,
Defendant was heard making references to
past drug use. This prompted Defendant to
move for a mistrial, but the court denied that
motion and instructed the jury to disregard
any alleged criminal acts that were not
charged.
{6}At the close of trial, the district court
denied Defendant’s motion to merge the
counts and concluded that it was up to
the jury to decide whether Defendant had
committed each of the twenty violations
charged. The jury determined that Defendant was guilty of only sixteen of the twenty
counts. The court entered judgment and
sentenced Defendant. Defendant appeals.
DISCUSSION
{7}On appeal, Defendant challenges the
district court’s denial of his motion to merge
the counts, asserts that the court erred in
determining that his confession was voluntary, and claims that the court should have
granted his motion for mistrial. We address
these arguments in turn but first discuss a
problem we have identified with the court’s
judgment and sentence.
Judgment and Sentence
{8}Defendant was initially charged by
criminal information with twenty counts of
violating Section 30-6A-3(C). As noted, the
State amended the criminal information and
charged Defendant with twenty counts of
violating Section 30-6A-3(D). At trial, the
jury was properly instructed on the essential
elements relating to Section 30-6A-3(D).
However, for reasons that are not at all clear,
the judgment and sentence indicates that
Defendant was convicted of three counts of
violating Section 30-6A-3(D) and thirteen
counts of violating Section 30-6A-3(C). In
addition, Defendant was sentenced on three
counts of sexual exploitation (manufacturing), a violation of Section 30-6A-3(D),
and thirteen counts of sexual exploitation
(recording), a violation of Section 30-6A3(C).
{9}The significance of the discrepancy
between the charges and the judgment
and sentence is unclear to us. We cannot
determine whether the discrepancy between
the charges and the judgment is merely a
scrivener’s error or something more sig-
nificant. The parties do not appear to have
recognized the inconsistency and have not
raised it in their briefs. Although remand
is necessary to clarify the matter, this issue
does not interfere with our ability to address
the issues on appeal as they are unrelated
to, and unaffected by, the discrepancy.
Merger
{10} Citing the double jeopardy clauses of
the United States and New Mexico Constitutions, Defendant argues that the district
court erred when it denied his motion to
merge the counts. “A double jeopardy
claim is a question of law that we review de
novo.” State v. Bernal, 2006-NMSC-050, ¶
6, 140 N.M. 644, 146 P.3d 289.
{11} “The double jeopardy clause of the
[F]ifth [A]mendment, made applicable to
the states by the [F]ourteenth [A]mendment due process clause, provides: ‘[N]
or shall any person be subject for the same
offen[s]e to be twice put in jeopardy of life
or limb[.]’” Swafford v. State, 112 N.M. 3, 7,
810 P.2d 1223, 1227 (1991) (fifth alteration
in original) (citation omitted). “Our courts
long have held that the state and federal
constitutional prohibitions against double
jeopardy are of such similarity that they
should be construed and interpreted in the
same fashion.” Herron v. State, 111 N.M.
357, 358-59 n.2, 805 P.2d 624, 625-26 n.2
(1991). The United States Supreme Court
has previously “stated a tripartite model
of the double jeopardy clause: It protects
against a second prosecution for the same
offense after acquittal. It protects against
a second prosecution for the same offense
after conviction. And it protects against
multiple punishments for the same offense.”
Swafford, 112 N.M. at 7, 810 P.2d at 1227.
Defendant has invoked the last of these
three protections.
{12} “In multiple punishment cases there
are two types of potential issues: ‘(1) multiple violations of the same statute, referred
to as ‘unit of prosecution’ cases; and (2)
violations of multiple statutes, referred to
as ‘double-description’ cases.’” State v.
Collins, 2007-NMCA-106, ¶ 18, 142 N.M.
419, 166 P.3d 480 (citation omitted). We are
concerned here with the former of these two
types, a unit of prosecution case.
{13} The relevant inquiry in a unit of prosecution case “is whether the [L]egislature
intended punishment for the entire course
of conduct or for each discrete act.” Swafford, 112 N.M. at 8, 810 P.2d at 1228. “For
unit-of-prosecution challenges, the only
basis for dismissal is proof that a suspect
is charged with more counts of the same
statutory crime than is statutorily authorized.” Bernal, 2006-NMSC-050, ¶ 13. This
is because “the only function the Double
Jeopardy Clause serves in cases challenging multiple punishments is to prevent the
prosecutor from bringing more charges, and
the sentencing court from imposing greater
punishments, than the Legislative Branch
intended.” Herron, 111 N.M. at 359, 805
P.2d at 626 (internal quotation marks and
citation omitted).
{14} The unit-of-prosecution analysis is
done in two steps. “First, we review the
statutory language for guidance on the unit
of prosecution.” Collins, 2007-NMCA-106,
¶ 19 (internal quotation marks and citation
omitted). “If a statute’s unit of prosecution
is clearly defined, we must look no further
than the face of the statute.” State v. Boergadine, 2005-NMCA-028, ¶ 15, 137 N.M. 92,
107 P.3d 532. A statute’s unit of prosecution
is determined by the statutory definition
of the crime; in other words, we ask “how
the [L]egislature has defined the scope of
conduct composing one violation of [the]
statute.” State v. Thompson, 200 P.3d 22, 28
(Kan. 2009). This is essentially a matter of
statutory construction. Herron, 111 N.M.
at 359, 805 P.2d at 626. “If the statute does
not clearly define the unit of prosecution,
we must determine whether the different
offenses are separated by sufficient indicia of distinctness[.]” State v. Castañeda,
2001-NMCA-052, ¶ 13, 130 N.M. 679, 30
P.3d 368 (alteration in original) (internal
quotation marks and citation omitted). In
doing so, we rely on the six factors set out
in Herron. State v. Barr, 1999-NMCA081, ¶ 16, 127 N.M. 504, 984 P.2d 185. As
described below, we conclude that the unit
of prosecution for Section 30-6A-3(D) is
clear from the face of the statute.
{15} As previously stated, Section 30-6A3(D) states that “[i]t is unlawful for a person
to intentionally manufacture any obscene
visual or print medium depicting any prohibited sexual act or simulation of such
an act if one or more of the participants in
that act is a child under eighteen years of
age.” The Legislature has provided specific
definitions for several of the terms within
this statute, and our Supreme Court has
previously discussed at least one of those
specific definitions.
{16} To “manufacture” is to engage in “the
production, processing, copying by any
means, printing, packaging or repackaging
of any visual or print medium depicting any
prohibited sexual act or simulation of such
an act if one or more of the participants in
that act is a child under eighteen years of
age.” NMSA 1978, § 30-6A-2(D) (2001)
(internal quotation marks omitted). The
term “obscene” refers to “any material,
when the content if taken as a whole[]
(1) appeals to a prurient interest in sex, as
determined by the average person applying
contemporary community standards; (2)
portrays a prohibited sexual act in a patently
offensive way; and (3) lacks serious literary, artistic, political or scientific value.”
Section 30-6A-2(E) (internal quotation
marks omitted). In State v. Myers, 2009NMSC-016, ¶ 39, 146 N.M. 128, 207 P.3d
1105, our Supreme Court explained that
“[a]ll child pornography, not just hardcore child pornography, is unacceptable
and intolerable to New Mexico citizens
and, therefore, obscene under the [Sexual
Exploitation of Children] Act.” (Emphasis
omitted.) Finally, the terms “visual or print
medium” means
(1) any film, photograph, negative, slide, computer diskette,
videotape, videodisc or any computer or electronically generated
imagery; or
(2) any book, magazine or
other form of publication or photographic reproduction containing
or incorporating any film, photograph, negative, slide, computer
diskette, videotape, videodisc or
any computer generated or electronically generated imagery[.]
Section 30-6A-2(B) (internal quotation
marks omitted).
{17} We conclude, based on the foregoing, that the unit of prosecution for Section 30-6A-3(D)—the scope of conduct
composing one violation of the statute—is
readily discernible. A violation of the statute
occurs where a criminal defendant intentionally produces or copies a photograph,
electronic image, or video that constitutes
child pornography. As applied in the present
matter, it is clear to us that each photograph
Defendant took of the child victims was a
discrete violation of the statute. We observe
that there has never been any question that
the photographs Defendant took of the
victims constituted child pornography. Accordingly, double jeopardy did not require
the counts against Defendant to be merged.
The State was free to charge Defendant for
each photograph he manufactured of the
child victims as this is exactly what Section
30-6A-3(D) permits. We cannot say exactly
how many photographs were manufactured.
Defendant did not include the photographs
in the record proper, but it is clear that there
were at least twenty photographs.
{18} Defendant disagrees with our conclusion and relies on State v. Olsson, 2008NMCA-009, 143 N.M. 351, 176 P.3d 340,
as support for his claim that the unit of
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 37
prosecution is not clear from the face of
the statute. In Olsson, the defendant was
charged with sixty counts of possession of
child pornography in violation of Section
30-6A-3(A) after law enforcement discovered three binders in his vehicle which contained sixty photographs constituting child
pornography. Olsson, 2008-NMCA-009, ¶
1. As in the present matter, the defendant
argued that double jeopardy concerns required that the counts merge. Id. On appeal,
we laid out the unit of prosecution analysis
and determined that we were unable to
discern the Legislature’s intended unit of
prosecution with respect to Section 30-6A3(A) from the face of the statute. Olsson,
2008-NMCA-009, ¶ 9. Section 30-6A-3(A)
provides the following:
It is unlawful for a person to
intentionally possess any obscene
visual or print medium depicting
any prohibited sexual act or simulation of such an act if that person
knows or has reason to know that
the obscene medium depicts any
prohibited sexual act or simulation of such act and if that person
knows or has reason to know that
one or more of the participants in
that act is a child under eighteen
years of age.
{19} We are unpersuaded that the conclusion in Olsson applies here. Section 30-6A3(D) is significantly different from Section
30-6A-3(A). As explained above, the unit
of prosecution for Section 30-6A-3(D) is
apparent from the face of the statute— producing or copying a single image of child
pornography is sufficient to constitute a
violation of Section 30-6A-3(D). We were
less confident in Olsson about the meaning
of the statutory language in Section 30-6A3(A). Specifically, we were troubled by
what the Legislature intended by the word
“possess” and questioned whether the Legislature meant to criminalize the possession
of a collection of child pornography or the
possession of each individual image within
that collection. Olsson, 2008-NMCA-009, ¶
8. We see no similar complexity as regards
Section 30-6A-3(D). Olsson is inapposite.
{20} We hold that the unit of prosecution
for Section 30-6A-3(D) is clear on its face
and that double jeopardy was not violated
when Defendant was charged with twenty
counts. We reject Defendant’s arguments to
the contrary and affirm the district court on
this issue.
Voluntariness of Confession
{21} Defendant argues that his confession
was involuntary because it was elicited
by false or implied promises and threats.
“We review de novo the voluntariness of
confessions.” State v. Evans, 2009-NMSC027, ¶ 32, 146 N.M. 319, 210 P.3d 216. “In
doing so, we examine the totality of the
circumstances surrounding the confession
in order to decide the ultimate question of
voluntariness.” State v. Fekete, 120 N.M.
290, 298, 901 P.2d 708, 716 (1995) (internal
quotation marks and citation omitted).
{22} “Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning
of the Due Process Clause of the Fourteenth
Amendment.” State v. Munoz, 1998NMSC-048, ¶ 21, 126 N.M. 535, 972 P.2d
847 (internal quotation marks and citation
omitted). “For the confession to be involuntary, there must be an essential link between
coercive activity of the State . . . and a
resulting confession by a defendant.” Id.
(alteration in original) (internal quotation
marks and citation omitted). “If the state
fails to prove voluntariness by a preponderance of the evidence, the trial court must
rule that the confession was involuntary as
a matter of law.” Aguilar v. State, 106 N.M.
798, 800, 751 P.2d 178, 180 (1988). “Evidence of express promises of leniency . . .
renders a confession involuntary as a matter
of law.” State v. Tindle, 104 N.M. 195, 199,
718 P.2d 705, 709 (Ct. App. 1986). “[T]
hreats that merely highlight potential real
consequences, or are ‘adjurations to tell the
truth,’ are not characterized as impermissibly coercive.” Evans, 2009-NMSC-027,
¶ 43 (citation omitted).
{23} On November 17, 2007, officers began investigating the incidents that gave rise
to the charges against Defendant. Detective
Scott London testified that, because he did
not have a recording device at Defendant’s
residence, he asked Defendant to come to
the police department to be interviewed.
Defendant agreed to do so, and another
officer transported Defendant to the police
department. He was not handcuffed either in
the car or in the interview room and was not
placed under arrest. Detective London did
not consider Defendant to be in custody but,
nonetheless, informed him of his Miranda
rights. Defendant was not actually arrested
until July 14, 2008.
{24} Detective Chris Kohler interviewed
Defendant on November 17, 2007, and
again on July 14, 2008.1 The district court’s
order on Defendant’s motion to determine
the voluntariness of his admissions concluded that Detective Kohler made one express
promise during the first interview when the
officer promised Defendant that he would
not be going to jail that night. At the hearing on the motion, Defendant testified that
Detective Kohler had told him that, if he
did not admit to anything, he would not go
home that night. The district court, having
reviewed the DVD of the November 17,
2007 interview, rejected Defendant’s assertion that avoiding jail that night was conditioned on his making admissions. The court
quoted Detective Kohler as having stated,
“[r]ight now, no matter what happens, no
matter what you tell me, and I swear to this,
I have no intentions of putting you in jail
tonight.” The express promise did not concern long term leniency, only the avoidance
of jail that night and provided no incentive
or disincentive to make admissions. The
district court noted that the detective kept
this promise, even though Defendant made
certain admissions.
{25} The district court also concluded
that Defendant could have inferred an implied promise to get help for him if he was
cooperative. At the hearing on his motion,
Defendant pointed to the following statements Detective Kohler made in the first
interview as implied promises. “If you have
a problem, we can help you. . . . I promise
you, I will do everything I can to help you
. . . . That might be something we can help
you with.” We addressed similar statements
regarding possible treatment in State v.
Lobato, 2006-NMCA-051, ¶ 1, 139 N.M.
431, 134 P.3d 122, where the defendant was
charged with criminal sexual penetration of
a minor. We agreed that the statements in
that case gave the impression that the defendant would get treatment if he confessed,
but we did not find any promise that the
defendant would get treatment instead of
prison time or would get a lesser sentence of
imprisonment. Id. ¶ 20. We concluded that
the defendant’s confession was not rendered
involuntary by the officer’s discussion of
possible treatment. Id. We reach the same
conclusion here.
{26} Defendant also alleges that, in the
course of the second interview, Detective
Kohler made a statement to the effect that
he (Detective Kohler) was the only thing
standing between Defendant and the federal government. Defendant testified that
1The video recording of the November 17, 2007 interview was played for the jury, but is very difficult to understand on the recordings of the trial. The record proper does not contain a separate DVD of the interview alone. As mentioned below, the recording
of July 14, 2008, was not played at trial due to difficulties with redaction.
38 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
he understood this as both a threat and a
promise that, if he confessed, he would
not be charged with violation of child pornography laws by the federal government.
The context of Detective Kohler’s statement
includes Defendant’s having already made
admissions approximately eight months
earlier at the first interview, his awareness
that an arrest warrant had been issued, and
his having turned himself in upon learning
of the warrant.
{27} On its face, Detective Kohler’s statement contains neither an implied promise
nor a threat, although Defendant might have
interpreted it as the detective’s opinion that
prosecution by the State would result in a
better outcome for Defendant than prosecution in the federal courts. “It is not per se
coercive for police to truthfully inform an
accused about the potential consequences of
his alleged actions.” Evans, 2009-NMSC027, ¶ 43. Defendant does not argue that
Detective Kohler’s comment, to the extent
that it may be taken as an implied warning,
was untruthful. Accordingly, we see no
coercion.
{28} As discussed above, the voluntariness
of a confession is reviewed under a totality
of the circumstances standard. Fekete, 120
N.M. at 298, 901 P.2d at 716. In its order on
Defendant’s motion, the district court recited the following additional circumstances
as the basis for its conclusion: “Defendant
in this case is not a minor; his mental state
has not been questioned; he was not under
the influence of drugs or alcohol; and the
length of the interview was not excessive[.]” We agree with the district court
that, under the totality of circumstances,
Defendant’s confession was not coerced,
and his admissions were voluntary.
Mistrial
{29} Finally, Defendant argues that the
district court should have declared a mistrial
after the jury heard references to his past
drug use. We begin by further discussing
the facts underlying this claim.
{30} The DVD video recording of Defendant’s November 17, 2007 interview was
played at trial for the jury. Because Defendant was facing additional charges based
on other images in a separate case and because the recording mentioned those other
charges, the parties stipulated in limine that
any reference to other misconduct would
be redacted from the recording. Detective
Kohler informed the court before trial that
he had made the redactions, but had some
technical difficulties in doing so regarding
the match between the audio and video.
{31} When the recording was played at
trial, there was no mention of the charges
in the separate case, but certain references
to Defendant’s alleged past drug use remained and were heard by the jury. Upon
the first of these, which apparently consisted
of Detective Kohler’s observation that
Defendant was not on drugs, Defendant
asked for a bench conference and moved
for a mistrial. Observing that the motion
in limine had concerned the charges in the
separate case and not Defendant’s past drug
use, the district court denied the mistrial but,
nevertheless, instructed the jury to disregard
any mention of acts that might be a crime,
but were not charged. Defendant did not
immediately object after two more mentions of drug use but renewed his motion
for mistrial based on the cumulative effect
of the references. The context of these additional drug references was that Defendant
had been clean since rehabilitation and that
he had been falsely accused of drug dealing.
The court denied the motion for mistrial
but instructed Detective Kohler to redact
any remaining drug references from the
recording. Ultimately, the State was unable
to show the DVD of the second interview,
as redaction was not possible.
{32} We review a district court’s denial of
a motion for mistrial for an abuse of discretion. State v. McDonald, 1998-NMSC-034,
¶ 26, 126 N.M. 44, 966 P.2d 752. “An
abuse of discretion occurs when the ruling
is clearly against the logic and effect of the
facts and circumstances of the case.” State v.
Sutphin, 107 N.M. 126, 130, 753 P.2d 1314,
1318 (1988). “The overwhelming New
Mexico case law states that the prompt sustaining of the objection and an admonition
to disregard the answer cures any prejudicial effect of inadmissible testimony.” State
v. Gonzales, 2000-NMSC-028, ¶ 37, 129
N.M. 556, 11 P.3d 131 (internal quotation
marks and citation omitted).
{33} We begin with the circumstances
under which the purported evidence of
prior misconduct was presented. First, it
consisted of Defendant’s own prior statement and was not deliberately elicited by
the State. Second, the circumstances in
which the jury heard this evidence resulted
in part from a failure of communication
among the parties. There appears to have
been no clear understanding between the
State and Defendant as to what they agreed
to redact, and Defendant did not specifically
move for redaction of the drug references.
Third, the State left the redaction process
to Detective Kohler, who might reasonably
have understood that he was to remove only
the mention of the charges in the separate
case. Fourth, Defendant did not review
or request to review the redacted version
of the interview before trial. Finally, the
references were to Defendant’s denial of
drug dealing and to his drug use in the past,
including the fact that he had been through
rehabilitation and was now clean.
{34} The New Mexico Supreme Court
addressed a similar factual setting in McDonald. 1998-NMSC-034. There, a witness
in a murder trial testified that he had smoked
a marijuana cigarette with the defendant.
Id. ¶ 22. The trial court offered to give a
cautionary instruction, which the defendant
refused. Id. ¶ 25. The trial court denied the
defendant’s motion for mistrial. Id. ¶ 28.
Our Supreme Court cited two factors in
holding that the trial court did not abuse its
discretion. Id. ¶¶ 27-28. First, the mention
of smoking marijuana was inadvertent and
was not emphasized by either party. Id.
Second, the defendant refused a cautionary
instruction, which might have cured any
potential prejudice. Id.
{35} In the present case, the references to
Defendant’s past drug use were not too emphasized by either party. In addition, after
the first reference, the district court gave a
cautionary instruction, which we conclude
cured any prejudice that might have resulted. We base this conclusion in part on
the fact that the first reference was Detective
Kohler’s comment on Defendant’s non-use
of drugs. As for the two subsequent references, we note that Defendant did not immediately object to them and that they also
concerned Defendant’s non-use of drugs,
which the jury had already been instructed
to disregard.
{36} For the reasons set out above, we
conclude that the district court did not abuse
its discretion in denying Defendant’s motion for mistrial.
CONCLUSION
{37} The district court did not err in rejecting Defendant’s request to merge the
charges, in determining that Defendant’s
confession was voluntary, and in denying
Defendant’s motion for mistrial. However,
this matter is remanded to the district court
to correct the judgment and sentence.
{38} IT IS SO ORDERED.
CELIA FOY CASTILLO,
Chief Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
LINDA M. VANZI, Judge
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 39
Certiorari Not Applied For
From the New Mexico Court of Appeals
Opinion Number: 2011-NMCA-069
Topic Index:
Appeal and Error: Standard of Review; and Remand
Courts: Metropolitan Court
Criminal Law: Driving While Intoxicated; and Reckless Driving
Criminal Procedure: Dismissal of Charges; and wStatute of Limitations
Statutes: Interpretation; Legislative Intent; and Rules of Construction
STATE OF NEW MEXICO,
Plaintiff-Appellant,
versus
JAVIER TREVIZO,
Defendant-Appellee.
No. 30,482 (filed: May 10, 2011)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Albert S. “Pat” Murdoch, District Judge
Gary K. King
Attorney General
Andrew S. Montgomery
Assistant Attorney General
Santa Fe, New Mexico
for Appellant
Opinion
James J. Wechsler, Judge
{1}We consider in this appeal whether
driving under the influence (DWI) (first
offense), in violation of NMSA 1978,
Section 66-8-102(E) (2005) (amended
2010), and reckless driving, in violation
of NMSA 1978, Section 66-8-113 (1987),
have an applicable statute of limitations
of one, two, or three years. We conclude
that the applicable statute of limitations
for both crimes is one year. We therefore
affirm the district court order remanding to
the metropolitan court for dismissal of the
charges against Defendant with prejudice.
BACKGROUND
{2}Defendant Javier Trevizo was arrested
and charged with DWI (first offense), reckless driving, and other violations of the
Motor Vehicle Code, NMSA 1978, Sections 66-1-1 to -8-141 (1978, as amended
Chief Public Defender
Lisa Bozone
Assistant Appellate Defender
Albuquerque, New Mexico
for Appellee
through 2010), that are not relevant to this
appeal. Defendant’s arrest occurred on October 13, 2005. A criminal complaint was
filed against Defendant in metropolitan
court on April 12, 2007. The time between
Defendant’s arrest and the filing of the
criminal complaint was one day short of
eighteen months.
{3}Defendant moved to dismiss, arguing
that the charges were barred because the
complaint was filed outside the applicable
limitations period. The metropolitan court
denied Defendant’s motion, concluding
that a two-year statute of limitations applied and, therefore, the charges against
Defendant were not time-barred. Defendant was subsequently convicted of DWI
(first offense) and reckless driving. He
appealed his convictions to the district
court.
{4}The district court reversed the metropolitan court’s decision and remanded
for the charges against Defendant to be
dismissed with prejudice. The district
court concluded that DWI (first offense)
and reckless driving were petty misdemeanors and subject to a one-year statute
of limitations. The State appeals.
APPLICABLE STATUTE OF
LIMITATIONS
{5}This Court must determine whether a
one, two, or three-year statute of limitations applies to the charges of DWI (first
offense) and reckless driving. NMSA
1978, Section 30-1-8 (2005) (amended
2009) of the Criminal Code provides for
the following relevant time limitations for
commencing prosecution:
C. for a misdemeanor, within two years from the time the
crime was committed;
D. for a petty misdemeanor,
within one year from the time the
crime was committed;
....
G. for any crime not contained in the Criminal Code or
where a limitation is not otherwise provided for, within three
years from the time the crime was
committed[.]1
{6}The State contends that the Legislature
has designated all violations of the Motor
Vehicle Code to be misdemeanors unless
otherwise designated as a felony and, thus,
a two-year statute of limitations applies.
Alternatively, the State argues that because
the crimes of DWI and reckless driving are
found outside of the Criminal Code, the
three-year statute of limitations provided
for in Subsection (G) applies. Defendant
contends that both DWI (first offense) and
reckless driving are petty misdemeanors
pursuant to NMSA 1978, Section 301-6(C) (1963) and, thus, the limitations
period is only one year.
{7}The limitations provisions relied on
by the parties are statutory in nature.
“Statutory interpretation is an issue of
law, which we review de novo.” State v.
Duhon, 2005-NMCA-120, ¶ 10, 138 N.M.
466, 122 P.3d 50. “Our primary goal when
interpreting statutory language is to give
effect to the intent of the [L]egislature.”
State v. Torres, 2006-NMCA-106, ¶ 8,
140 N.M. 230, 141 P.3d 1284. “We do
this by giving effect to the plain meaning
of the words of [the] statute, unless this
leads to an absurd or unreasonable result.”
State v. Marshall, 2004-NMCA-104, ¶ 7,
1The Legislature’s 2009 amendment to Section 30-1-8 added a provision providing a statute of limitations of five years for
identity theft once discovered. The amendment did not change the substance of Section 30-1-8(G), but the numbering for the statute
changed. The provision is now codified as Section 30-1-8(H). We refer to the provision herein as Section 30-1-8(G).
40 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
136 N.M. 240, 96 P.3d 801. We therefore
engage in a de novo review of “whether a
particular statute of limitations applies.”
Jaramillo v. Gonzales, 2002-NMCA-072,
¶ 8, 132 N.M. 459, 50 P.3d 554.
{8}In Robinson v. Short, 93 N.M. 610,
603 P.2d 720 (1979), our Supreme Court
considered the applicability of the threeyear statute of limitations for crimes not
contained in the Criminal Code. The Court
determined that the crime of falsely obtaining unemployment benefits, contrary
to NMSA 1978, Section 51-1-38 (1993),
was subject to a one-year statute of limitations, not a three-year statute of limitations, even though it was “uncontroverted
that the crimes with which [the defendant
was] charged [were] not contained in the
Criminal Code.” See Robinson, 93 N.M.
at 611, 603 P.2d at 721. In making this
determination, the Court looked to Section
30-1-8(G)2 and concluded that because the
sentence authorized for a violation of Section 51-1-38 was consistent with characterizing the crime as a petty misdemeanor,
a limitation was otherwise provided for,
thus, making the three-year statute of
limitations contained in Section 30-1-8(G)
inapplicable. Robinson, 93 N.M. at 611,
603 P.3d at 721. The Court determined
that, because the crime charged carried
“an authorized penalty of imprisonment
for not longer than thirty days, or a fine of
not over one hundred dollars or both,” and
Section 51-1-38 did not specifically delineate the degree of crime, the definition for
petty misdemeanors provided by Section
30-1-6(C) should control. Robinson, 93
N.M. at 611, 603 P.2d at 721; see § 30-16(C) (providing that “[a] crime is a petty
misdemeanor if it is so designated by law
or if upon conviction thereof a sentence
of imprisonment for six months or less
is authorized”). The Court therefore held
that the one-year statute of limitations for
petty misdemeanors contained in Section
30-1-8(D) should apply. See Robinson, 93
N.M. at 611-12, 603 P.2d at 721-22.
{9}Implicit in our Supreme Court’s treatment of Section 30-1-8(G) was its decision
to read the provisions conjunctively. Thus,
our Supreme Court determined that the
fact that “the crimes with which [the defendant was] charged [were] not contained
in the Criminal Code” was insufficient to
make the three-year statute of limitations
apply. See Robinson, 93 N.M. at 611, 603
P.2d at 721 (“It is uncontroverted that the
crimes with which [the defendant was]
charged [were] not contained in the Criminal Code. What we concern ourselves
with is whether a limitation is ‘otherwise
provided for.’”). To the extent the State
argues that the three-year statute of limitations applies because the crimes charged
are contained in the Motor Vehicle Code
and not the Criminal Code, we are bound
by our Supreme Court’s interpretation of
Section 30-1-8(G) in Robinson. See State
v. Travarez, 99 N.M. 309, 311, 657 P.2d
636, 638 (Ct. App. 1983) (stating that the
Court of Appeals must follow applicable
precedents of the Supreme Court).
{10} Furthermore, to the extent the State
contends that Robinson is no longer good
law, we disagree. The State points out that,
following the Supreme Court’s decision
in Robinson, the Legislature amended
Section 30-1-8 and included a section
providing that violations of Section 511-38 are subject to a three-year statute of
limitations. We agree that this amendment
indicated a legislative intent contrary to
what our Supreme Court had determined
to have been the legislative intent in Robinson. See Robinson, 93 N.M. at 612, 603
P.2d at 722 (“To interpret the statutes [to
apply a three-year statute of limitations]
would result in an inconsistency we do
not believe the Legislature intended.
Crimes with an authorized maximum
penalty of less than six months which do
not expressly state the degree of the crime
would have the same length of limitation as a third or fourth degree felony.”).
However, although with the amendment
the Legislature provided a specific statute
of limitation for violations of Section 511-38, it chose not to alter the language in
Section 30-1-8(G) interpreted by our Supreme Court. As a result, the Legislature’s
subsequent amendment of Section 30-1-8
did not abrogate our Supreme Court’s
reading of Section 30-1-8(G) in Robinson.
{11} Moreover, to interpret Section 301-8(G) as the State suggests would result
in a three-year statute of limitations for
all violations of the Motor Vehicle Code.
A three-year statute of limitations would
therefore apply not only to DWI (first
offense) and reckless driving, but to
speeding violations, parking violations,
failure to signal, following too closely,
and other traffic violations. See NMSA
1978, § 66-7-301 (2002); NMSA 1978,
§ 66-7-352 (1978); NMSA 1978, § 66-
7-325 (1978); NMSA 1978, § 66-7-318
(1978). Thus, crimes generally subject to
penalty assessments in the Motor Vehicle
Code would have a statute of limitations
longer than all crimes other than felonies.
See generally § 30-1-8(C), (D). We do not
believe that the Legislature intended such
a result. For these reasons, we reject the
State’s argument that a three-year statute
of limitations should apply to all violations
of the Motor Vehicle Code.
{12} We now turn to the State’s argument that a two-year statute of limitations
should apply to DWI (first offense) and
reckless driving. The State relies on Section 30-1-6, which provides:
B. A crime is a misdemeanor if it is so designated by law or
if upon conviction thereof a sentence of imprisonment in excess
of six months but less than one
year is authorized.
C. A crime is a petty misdemeanor if it is so designated by
law or if upon conviction thereof
a sentence of imprisonment for
six months or less is authorized.
{13} The State contends that Section
66-8-7(A) designates all violations of the
Motor Vehicle Code as misdemeanors
“unless the violation is declared a felony.”
Section 66-8-7(A) provides that “[i]t is a
misdemeanor for any person to violate
any provision of the Motor Vehicle Code
[Section 66-1-1] unless the violation is
declared a felony.” The State argues that,
in selecting between these two means of
defining a misdemeanor or petty misdemeanor, the Legislature’s designation of
violations of the Motor Vehicle Code as
misdemeanors takes precedence over the
authorized punishment for the violation.
The State relies on cases holding that a
statute must not be construed to render any
part of it surplusage. See State v. Rivera,
2004-NMSC-001, ¶ 18, 134 N.M. 768,
82 P.3d 939 (“We are generally unwilling
to construe one provision of a statute in a
manner that would make other provisions
null or superfluous.”). We understand the
State to argue that, because all criminal
violations will have a specific punishment
associated with them, if this Court does
not give the legislative designation priority, that provision of the statute will be
rendered superfluous. The State therefore
asserts that the Legislature’s classification of all violations of the Motor Vehicle
2At the time Robinson was decided, the three-year statute of limitations for crimes outside of the Criminal Code was codified
as Section 30-1-8(F). We note that the language in Section 30-1-8(G) is the same as when the Court decided Robinson. To avoid
confusion, we continue to refer to this provision as Section 30-1-8(G) in the text of the opinion.
Bar Bulletin - July 20, 2011 - Volume 50, No. 28 41
Code as misdemeanors, unless specifically
designated as felonies, results in the application of a two-year statute of limitations.
{14} We disagree with the State that, if
this Court were to rely on the Legislature’s
designation of violations of the Motor Vehicle Code as “misdemeanors” in Section
66-8-7(A), our inquiry would be complete.
Misdemeanor is defined as “[a] crime that
is less serious than a felony and is usually
punishable by fine, penalty, forfeiture,
or confinement . . . in a place other than
prison.” Black’s Law Dictionary 1089 (9th
ed. 2009) (emphasis added). Based on
this definition, a misdemeanor would encompass any crime that was not a felony,
including petty misdemeanors. We read
the Legislature’s use of “misdemeanor”
in Section 66-8-7 as merely making this
distinction and not as precluding treatment
of violations of the Motor Vehicle Code
as petty misdemeanors. Cf. Incorporated
Cnty. of Los Alamos v. Johnson, 108 N.M.
633, 636, 776 P.2d 1252, 1255 (1989)
(Baca, J., specially concurring) (“‘[M]
isdemeanor’ . . . includes ‘petty misdemeanors’ as it historically always has.”).
{15} Section 66-8-7(B) provides further
support for our interpretation of these
provisions:
Unless another penalty is specified in the Motor Vehicle Code,
every person convicted of a
misdemeanor for violation of any
provision of the Motor Vehicle
Code shall be punished by a fine
of not more than three hundred
dollars ($300) or by imprisonment for not more than ninety
days or both.
The Legislature has therefore set the penalty for violations of the Motor Vehicle
Code to be consistent with the classification of petty misdemeanors found in the
Criminal Code. See § 30-1-6(C) (“A crime
is a petty misdemeanor if it is so designated by law or if upon conviction thereof
a sentence of imprisonment for six months
or less is authorized.”).
{16} To the extent the State argues that
42 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
there are “persuasive policy considerations
based on which the Legislature could
rationally treat the particular offenses of
DWI and reckless driving as more serious
than petty misdemeanors[,]” we agree.
However, it does not appear that the Legislature has chosen to do so with respect
to DWI (first offense) and reckless driving. Instead, the punishment designated
by the Legislature for reckless driving
and DWI (first offense) indicates the
legislative intent to treat these crimes as
petty misdemeanors. See § 66-8-113(B);
§ 66-8-102(E); cf. Lewis v. United States,
518 U.S. 322, 326 (1996) (stating that the
maximum penalty attached to an offense
“is considered the most relevant with
which to assess the character of an offense, because it reveals the legislature’s
judgment about the offense’s severity”);
Frank v. United States, 395 U.S. 147, 148
(1969) (“The most relevant indication of
the seriousness of an offense is the severity
of the penalty authorized for its commission.”).
{17} The State also relies on City of Santa
Fe v. Martinez, 2010-NMSC-033, 148
N.M. 708, 242 P.3d 275. In Martinez, our
Supreme Court recognized the compelling public interest in eradicating DWI
occurrences and the potentially deadly
consequences when DWI is committed.
Id. ¶ 13. The State argues that the same
interests support a limitations period
longer than that of a petty misdemeanor.
The misdemeanor arrest rule has its origins
in the common law. State v. Ochoa, 2008NMSC-023, ¶ 11, 143 N.M. 749, 182 P.3d
130. As our Supreme Court explained,
the original purpose of the [misdemeanor arrest] rule was to
minimize the harm historically
associated with lengthy custodial detentions for minor crimes.
Ochoa, 2008-NMSC-023, ¶ 12
[(alteration in original) (internal
quotation marks and citation
omitted)]. Although the continued viability of the misdemeanor
arrest rule has been questioned
generally, see Cave v. Cooley, 48
N.M. 478, 483-84, 152 P.2d 886,
890 (1944), we conclude that
DWI investigations, in particular,
fall outside the original purpose
of the rule.
{18} The case before us, involves a criminal statute of limitations imposed by the
Legislature. Criminal statutes of limitation
“are to be liberally construed in favor of
a defendant because their purpose ‘is to
limit exposure to criminal prosecution to
a certain fixed period of time following the
occurrence of those acts the [L]egislature
has decided to punish by criminal sanctions.’” State v. Kerby, 2007-NMSC-014,
¶ 13, 141 N.M. 413, 156 P.3d 704 (quoting
Toussie v. United States, 397 U.S. 112, 114
(1970)). Because the purposes of the misdemeanor arrest rule and criminal statutes
of limitations are distinct, we decline the
State’s invitation to use the reasoning in
Martinez to expand the limitation period
set by the Legislature.
{19} If the State is correct and the Legislature intended to treat these crimes more
seriously by providing for a longer limitations period, the Legislature may explicitly
do so by providing a specific limitation
period for these crimes in Section 30-1-8
as it did following our Supreme Court’s
decision in Robinson. However, based on
the current legislation, we conclude that
the Legislature intended for these crimes
to be treated as petty misdemeanors. We
further conclude that, pursuant to Section
30-1-8(D), a one-year statute of limitations
applies.
CONCLUSION
{20} We affirm the district court and remand to the metropolitan court to dismiss
the charges with prejudice.
{21} IT IS SO ORDERED.
JAMES J. WECHSLER,
Judge
WE CONCUR:
CELIA FOY CASTILLO, Chief Judge
LINDA M. VANZI, Judge
Please join us in celebrating David H. Kelsey’s
retirement from the firm and 50 years of law practice
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Thursday August 4th 2011
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RSVP by Wednesday, July 21, 2011 to [email protected] or (505) 552-2074
Classified
Positions
Attorney
The civil litigation firm of Atkinson, Thal
& Baker, P.C. seeks an attorney with strong
academic credentials and 2-10 years experience
for successful, established complex commercial
and tort litigation practice. Excellent benefits.
Tremendous opportunity for professional development. Salary D.O.E. All inquiries kept
confidential. Send resume and writing sample
to Atkinson, Thal & Baker, P.C., Attorney
Recruiting, 201 Third Street NW, Suite 1850,
Albuquerque, NM 87102.
New Mexico Legal Aid
Attorney Position (Grant Funded)
New Mexico Legal Aid (NMLA) has an opening for a Staff Attorney in its Albuquerque Law
Office. This position provides services to victims
of domestic violence and will require the person
to be physically present at the Family Advocacy
Center. This position will be for the grant year
beginning 7/11/11 thru 6/30/12. Continued
employment with NMLA is contingent on
continued funding by the grantor. Qualifications: NMLA seeks attorney to provide advice,
brief service, and representation in domestic
relations proceedings focusing on domestic
violence to low income persons. Work: handling
cases in family law; utilizing a computerized
case management system; handling telephone
intake; participating in community education
and outreach to domestic violence victims and
providers. Applicant must pass a background
check to work in the Family Advocacy Center
building. Candidates must be admitted to the
State Bar of New Mexico or have admission
pending. Candidates must possess excellent
writing and oral communication skills, ability to
manage a caseload and to build collaborative relationships with the community. Requirements:
Dedication and commitment to serving the needs
of domestic violence victims and persons living
in poverty, excellent research, writing and interviewing skills. Proficiency in Spanish is a plus.
New Mexico bar license required. Send letter of
intent, resume, and two references to: Gloria A.
Molinar, NMLA, PO Box 25486, Albuquerque,
NM 87125-5486 or email to: [email protected]
org. Closing Date: 7/30/11; Salary: DOE
Receptionist/Legal Assistant
Martinez, Hart & Thompson, P.C. is a local personal injury law firm, looking for a
motivated individual to function both as a
receptionist and legal assistant. Past experience
in a legal office preferred. Knowledge in Excel,
Word and Outlook required. Must be courteous, organized, detail oriented and have strong
communication skills. Offer competitive salary
and benefits depending on experience. E-mail
resume to David B. Martinez ([email protected]) & Renée L. Diamond ([email protected]
osolawfirm.com) or mail to 1801 Rio Grande
Blvd. NW, Albuquerque, NM 87104.
Request for Applications
City of Albuquerque
City Attorney Position
Advertisement # 11345, extended
expiration date: 08/17/2011
CITY ATTORNEY: Attorney shall communicate, meet and work closely with Mayor
and City Council on matters of concern to the
governing body; provides legal advice when
requested or required on personnel matters;
pending or potential litigation facing the City;
during City Council meeting on matters listed
on the agenda and also during executive session. Shall avoid all conflicts of interest and
shall not practice law privately. Qualifications:
Requires a Juris Doctorate Degree from an
accredited law school; shall be licensed to practice law in the State of New Mexico; requires
experience in Municipal Law with knowledge
of City Ordinances; City personnel Rules
and Regulations; City Purchasing Regulations; State Statutes; Experience in the area of
public law, public speaking and negotiations.
Prior applicants for this position will remain
under consideration. Salary will be based upon
experience and knowledge. All applicants must
submit, by expiration date, a City Application.
Resumes may attached to the application in
Microsoft Word or PDF format. The On-line
Application Process can be accessed at web
site www.cabq.gov/jobs. Applications are also
available at the City of Albuquerque Human
Resources Department 400 Marquette NW
7th Floor Suite 703, Albuquerque NM 87102.
Copies of required certifications, registrations,
and /or licenses, if not attached on-line, must
be provided at the time of interview
Consumer Advocate
The Consumer Protection Division of the NM
Attorney General’s Office, an EEO employer, is
accepting resumes for an “exempt” (not classified) Las Cruces Consumer Advocate position.
The consumer advocate investigates consumer
complaints and negotiates with businesses to
resolve the complaint. Other responsibilities
include: assisting with consumer telephone
intake, review of consumer complaints for
violations of the Unfair Practices Act, consumer education and outreach to the public,
legal research and analysis of complaints, file
maintenance in both electronic and hard copy
files and document management. The ability
to communicate clearly and effectively, both
in writing and orally, is preferred. Experience
working with the public, as a paralegal, advocate or mediator is preferred as are negotiations
or dispute resolution. An Associate’s degree in
an appropriate field is preferred or a certificate
of completion from a recognized paralegal
training program. Resume, writing sample
and minimum of three professional references
must be received at the Office of the Attorney
General by 5 p.m. on July 29, 2011. Send all information to: Dennis Martinez, HR Manager,
P.O. Drawer 1508, Santa Fe, NM 87504-1508.
New Mexico Legal Aid
Staff Attorney-Santa Fe Office
NMLA has an opening for a Staff Attorney
in its Santa Fe Law Office. NMLA represents
low-income individuals and families in a wide
variety of poverty law areas including family
law, housing, public benefits, consumer and
Native American issues. Expectation is that
attorney will be active in local bar and community activities. NMLA seeks attorney to
provide representation in domestic relations
proceedings (with a focus in domestic violence),
low income housing proceedings, tribal court
matters, and other poverty law proceedings to
low income persons. Work requires handling
general poverty law cases, utilizing a computerized case management system, participating
in community education and outreach to
domestic violence victims and providers, to
those in need of housing and other benefits,
and participating in recruitment of pro bono
attorneys. The position also includes work with
Pueblo people on cases and matters involving
Federal Indian and Tribal law issues, including
representation of low income individuals in
the northern Pueblo Courts. A percentage of
the attorney’s time will be devoted to NMLA’s
Native American Program issues. Requirements: Candidates must possess excellent
writing and oral communication skills, ability to manage multiple tasks, skills sufficient
to implement an array of advocacy strategies,
ability to manage a caseload, and the ability
to build collaborative relationships within the
community. Proficiency in Spanish is a plus.
Reliable transportation required. New Mexico
bar license is preferred. Send letter of intent,
resume, and two references to: Gloria Molinar,
New Mexico Legal Aid, PO Box 25486, NM
87125-5486, or email [email protected]
Salary: DOE; NMLA is an EEO/AA employer.
Deadline: July 30, 2011
Office of the State Engineer/Interstate Stream Commission (Ose/Isc)
State of New Mexico
The Litigation & Adjudication Program seeks
two (2) New Mexico licensed attorneys to
represent the State Engineer & the State in
water rights adjudications & other matters in
the federal & state courts & at administrative
hearings. The positions are located in Santa
Fe. The candidates must have a Juris Doctorate from an accredited law school & 5 years
experience in the practice of law. A demonstrated interest in water law & experience in
litigation, water rights, natural resources or
Indian law preferred. Lawyer – Advanced: job
id #26406 and #26408. Salary range - $43,056
to $76,544. Applications are being accepted by
the State Personnel Office from July 20, 2011
to August 3, 2011. The OSE/ISC is an Equal
Opportunity Employer
Bar Bulletin - July 20 2011 - Volume 50, No. 28 45
Real Estate Paralegal
Real Estate Paralegal with experience. Call
Sylvain Segal at (505) 888-8888.
Executive Legal Assistant
Law firm in Albuquerque, NM seeks individual
for Executive Legal Assistant position. Must
have at least 3 years of law firm administration
experience. Experience in defense litigation a
must. Regular full time position. Competitive
benefits offered. EOE. Please send resumes to
[email protected]
Legal Secretaries / Paralegals
High Desert Staffing seeks candidates with
2-5+ years experience for both permanent and
temporary positions. Call for interview: (505)
881-3449
Legal Secretary
Small busy law firm seeking full-time Legal
Secretary, knowledge of Microsoft Word necessary. Salary negotiable. Send Resume to Margo
Danoff, Office Manager, 604 Chama, NE, Albuquerque, NM 87108, Fax to (505) 266-4330
or email to [email protected]
Legal Secretary/Assistant
Legal secretary/assistant w/extensive commercial civil litigation and practice management
experience for established law firm. Seeking
professional, organized, and highly skilled
individual with attention to detail. Excellent
computer/word processing skills required. All
inquiries confidential. Competitive benefits.
Office Manager, Atkinson, Thal, & Baker,
P.C. 201 Third Street NW, Suite 1850, Albuquerque, NM 87102 or Fax to 505-764-8374.
Services
Freelance Paralegal
Paralegal with 20+ years experience in all
aspects of civil litigation. Excellent references.
(505) 503-6322. Email [email protected]
Briefs, Research, Appeals:
Leave the writing to me. Experienced, Reasonable. Contact [email protected]
(505) 281 6797
Office Space
www.nmbar.org
Two Offices Available
Best location in town, one block or less from
the federal, state, metropolitan courts. Includes
secretarial space, phones and service, parking,
library, janitorial, security, receptionist, daily
runner, etc. Contact Thomas Nance Jones,
(505) 247-2972
Office Space for Rent
Sun Valley Commercial Center, 320 Osuna
NE. Office with separate secretarial area.
Includes utilities, janitorial services, conference rooms, copier, scanner, fax, kitchenette
& security system. Telephone & high-speed
internet connections available. Call Sue @
883-2702 or [email protected]
Need Office Space Downtown,
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Available immediately: **1250 sq. ft. brand
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SUBMiSSioN DeADliNeS
All advertising must be submitted via e-mail by 4:00 p.m. Wednesday,
two weeks prior to publication (Bulletin publishes every Wednesday).
Advertising will be accepted for publication in the Bar Bulletin in
accordance with standards and ad rates set by the publisher and
subject to the availability of space. No guarantees can be given as to
advertising publication dates or placement although every effort will
be made to comply with publication request. The publisher reserves
the right to review and edit ads, to request that an ad be revised prior
to publication or to reject any ad. Cancellations must be received
by 10 a.m. on Thursday, 13 days prior to publication.
For more advertising information, contact:
Marcia C. Ulibarri at 505.797.6058
or e-mail [email protected]
46 Bar Bulletin - July 20, 2011 - Volume 50, No. 28
Office Building perfect for legal offices. Approximately 1500 Square feet at $15 per sq.
ft. 5 to 8 offices. Reception Room, Conference Room, Library, Breakroom. Clerestory
windows, refrigerated air. Building Signage
Possible. Contact Monique Feldman (505)
220-5633.
Professional Office Downtown
Office with Separate Secretarial Area if Needed, Office Furnishings Optional, Free Client
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CONSTITUTION DAY
Seeking attorney volunteers across
New Mexico to teach 5th graders about the Constitution!
Constitution Day is designated by Public Law 108-447 Sec. 111 Division J - SEC. 111(b) which states
that all levels of educational institutions receiving federal funds are required to educate students about the
U.S. Constitution.
Constitution Day is an event taking shape across the country designed to teach 5th graders about the
Constitution.
During the week of September 12-16, volunteer attorneys will be partnered with 5th grade teachers in
their area to co-teach a lesson on the Constitution. Suggested course materials will be provided, as well as
pocket-sized Constitutions. Each presentation should last 1–1.5 hours per classroom.
Volunteer attorneys will be given the teacher’s name and contact information in advance so that specific
planning may take place.
❏ YES! I’d like to be a Constitution Day Volunteer!*
($30 donation from each attorney to cover classroom materials requested
from volunteers)
❏ I am unable to volunteer my time but I would like to donate toward the
effort of putting a pocket-size constitution in the hands of all New Mexico
fifth graders (Amount $________ )
NAME_____________________________________________________ Bar ID ____________
ADDRESS ___________________________________________________________________
____________________________________________________________________________
(city)
(state)
(zip)
____________________________________________________________________________
(phone)
(fax)
(email)
Send this completed form to Marilyn Kelley
Email: [email protected]; or fax (505) 797-6074; or US mail:
New Mexico State Bar Foundation, Public & Legal Services Department
Attention Marilyn Kelley
PO Box 92860, Albuquerque, NM 87199
Bar Bulletin - July 20 2011 - Volume 50, No. 28 47
For Attorneys Only
Increase your visibility to the public
Premium Listing
Premium listings pop up first and
are the most frequently viewed.
For information on how you can set up
your Premium Listing contact:
Marcia C. Ulibarri
Direct 505.797.6058 • Cell 505.400.5469
[email protected]