Bar Bulletin - June 27, 2012 - Volume 51, No. 26 1

Spring Break, by Kandy Tate (see page 3) Weems Art Gallery, Albuquerque

Special InsertCLE At-a-Glance

Inside This Issue

June 27, 2012 • Volume 51, No. 26

Table of Contents ................................................3

Eleventh Judicial District Court Nominating Committee .................................4

US District Court for the District of NM Upcoming Judicial Vacancy ............................4

Justice Serna Retiring .............................................6

2012 State Bar of New Mexico Annual Award Recipients ................................6

Hearsay/In Memoriam ........................................7

Rules/Orders

No. 12-8300-016: In the Matter of the Amendments to Rules 5-208 and 5-211 NMRA of the Rules of Criminal Procedure for District Courts ....16

Proposed Amendments to the Rules of Criminal Procedure for the Magistrate and Metropolitan Courts and the Rules of Procedure for the Municipal Courts .........19

From the New Mexico Supreme Court

2012-NMSC-013, No. 31,934: State v. Arrendondo .......................................24

2012-NMSC-014, No. 31,973: State v. Guerra ...............................................31

2012-NMSC-015, No. 32,055: State v. Largo .................................................37

2 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) withthe Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. TheCollective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, moststate and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may beobtained by calling (866) 812-1510, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142,Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of theCollective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of theCollective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such stateor other jurisdiction. The Program is available through the State Bar of New Mexico as a member benefit. However, this does not constitute an offer to purchase, and is in no way arecommendation with respect to, any security that is available through the Program.

C12-0201-010 (2/12)

Who’s Watching Your Firm’s 401(k)?

YES NO

If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at www.abaretirement.com or by email joinus@abaretirement.comto learn how we keep a close watch over your 401(k).

At the end of the day...

Who’s Really WatchingYour Firm’s 401(k)?And, what is it costing you?

Please visit the ABA Retirement Funds Booth at the upcoming State Bar of New Mexico Annual Meeting for a freecost comparison and plan evaluation. July 12–14, 2012 • Hyatt Regency Tamaya Resort & Spa, Santa Ana Pueblo, NM

Does your firm’s 401(k) feature no out-of-pocket fees?

Does your firm’s 401(k) include professional investment fiduciary services?

Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors?

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 3

Notices ................................................................................................................................................................4Justice Serna Retiring ........................................................................................................................................62012 State Bar of New Mexico Annual Award Recipients ..................................................................6Hearsay/In Memoriam ....................................................................................................................................7Legal Education Calendar ......................................................................................................................... 10Writs of Certiorari ......................................................................................................................................... 11List of Court of Appeals’ Opinions ........................................................................................................... 13Recent Rule-Making Activity ..................................................................................................................... 14Rules/Orders

No. 12-8300-016: In the Matter of the Amendments to Rules 5-208 and 5-211 NMRA of the Rules of Criminal Procedure for District Courts .............................................. 16

Proposed Amendments to the Rules of Criminal Procedure for the Magistrate and Metropolitan Courts and the Rules of Procedure for the Municipal Courts .......... 19

From the New Mexico Supreme Court

2012-NMSC-013, No. 31,934: State v. Arrendondo .................................................................. 24

2012-NMSC-014, No. 31,973: State v. Guerra ............................................................................. 31

2012-NMSC-015, No. 32,055: State v. Largo ............................................................................... 37

Advertising ...................................................................................................................................................... 41

Officers, Board of Bar Commissioners Hans Voss, President Andrew J. Cloutier, President-Elect Erika Anderson, Vice President Martha Chicoski, Secretary-Treasurer Jessica A. Pérez, Immediate Past President

Board of Editors Ian Bezpalko Danny W. Jarrett Cynthia A. Christ Maureen S. Moore Kristin J. Dalton Tiffany L. Sanchez Jocelyn C. Drennan Michael J. Thomas Jennifer C. Esquibel Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago 505-797-6030•notices@nmbar.org Graphic Designer Julie Schwartz jschwartz@nmbar.org Account Executive Marcia C. Ulibarri 505-797-6058•mulibarri@nmbar.org Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo ©2012, State Bar of New Mexico. No part of this publica-tion 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:address@nmbar.org.•www.nmbar.org

June 27, 2012, Vol. 51, No. 26

State Bar WorkShopS

June

27 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

28 Consumer Debt/Bankruptcy Workshop 5:30 p.m., Law Office of Kenneth Egan, Las Cruces

July

11 Divorce Options Workshop 6–8 p.m., State Bar Center Albuquerque

25 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

28 Consumer Debt/Bankruptcy Workshop 9 a.m., Law Office of Kenneth Egan, Las Cruces

auguSt

1 Divorce Options Workshop 6–8 p.m., State Bar Center, Albuquerque

MeetingS

June

27 Intellectual Property Law Section BOD, noon, Lewis and Roca LLP

29 Immigration Law Section BOD, noon, via teleconference

July

5 Real Property, Trust and Estate Section 11 a.m., via teleconference

10 LPLI Committee, noon, State Bar Center

11 Children’s Law Section BOD, noon, Juvenile Justice Center

11 Criminal Law Section BOD, noon, State Bar Center

11 Paralegal Division CLE Series, noon, State Bar Center

12 Elder Law Section BOD, noon, State Bar Center

Cover Artist: Kandy Tate is a full-time artist living in Placitas. She works primarily in oil, using bold brush strokes with emphasis on color and sunlight. Her paintings have hung in the White House and have been used in movies (www.kandytate.com).

taBle of ContentS

4 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

notiCeS

With respect to parties, lawyers, jurors and witnesses:

I will be considerate of the time constraints and pressures imposed on lawyers by the demands of trial practice.

profeSSionaliSM tip

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 Exhibits in civil, criminal, children’s court, domestic relations 1970–1998 July 2 505-455-8275 guardianship and conservatorship, and probate cases 10th Judicial District Court Exhibits in domestic relations cases 1985–2011 July 2 County of Quay 575-461-2764

Court neWSNM Supreme CourtProposed Rule RevisionsProposed Revisions to the Rules of Civil Procedure for the District Courts The Domestic Relations Rules Commit-tee has recommended proposed amendments to the Domestic Relations Rules in the Rules of Civil Procedure for the District Courts for the Supreme Court’s consideration. Proposed Revisions to the District Court Civil Forms The Domestic Relations Rules Com-mittee has recommended proposed amend-ments to Civil Forms for the Supreme Court’s consideration. To comment on the proposed amend-ments before they are submitted to the Court for final consideration, either submit a com-ment electronically through the Supreme Court’s website at http://nmsupremecourt.nmcourts.gov/ or send written comments to:

Joey D. Moya, ClerkNew Mexico Supreme CourtPO Box 848Santa Fe, NM 87504-0848

Comments must be received by the clerk on or before July 4 to be considered by the Court. Note that any submitted comments may be posted on the Supreme Court’s website for public viewing.

Second Judicial District CourtSettlement Week 2012 The 2nd Judicial District Court’s 24th

Annual Settlement Week is scheduled for Oct. 22–26. Settlement Week for Family Court has been suspended for 2012 pending revision of the program. Settlement Week

for Civil Court is to proceed as usual. The deadline for requesting a referral of a civil case to Settlement Week 2012 is June 29. For complete details regarding referral requests, refer to LR2-602, Section C, of the 2nd Ju-dicial 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/seconddistrict-court/calt2.html. Note: 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 involved (especially pro se parties) and any other individuals requiring notice of the settlement facilitation. For more information, call Court Alternatives, 505-841-7412.

Eleventh Judicial District CourtNominating Committee Two applications have been received in the Judicial Selection Office as of 5 p.m., June 29, for the judicial vacancy on the 11th Judicial District Court due to the resignation of the Honorable Thomas J. Hynes. The District Judicial Nominating Committee will meet at 9 a.m., June 29, at the Aztec District Court 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:Mario GonsalvesDaylene Marsh

US District Court for the District of New MexicoUpcoming Judicial Vacancy United States District Court Chief Judge Bruce D. Black has announced his intention to retire from active service in October. Senators Jeff Bingaman and Tom Udall will submit recommendations to the President regarding qualified candidates for the soon-to-be vacant position in Las Cruces. To apply, go to http://www.bingaman.senate.gov/judicial_applicants/application.doc. The application must be completed and returned no later than July 9. For further information, email Sunalei Stewart, sunalei_stewart@bingaman.senate.gov, or Matt Nelson, matt_nelson@tomudall.senate.gov.

State Bar neWSAttorney Support Group • July 16, 7:30 a.m.

Morning groups meet on the third Monday of the month.

• July 2, 5:30 p.m. Afternoon groups meet 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.

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 5

www.nmbar.org

Support Group for Legal Professionals • July 11, 5:30 p.m. The group meets regularly on the second Wednesday of the month at the Unitarian Universalist Church, 107 West Barcelona Rd., Santa Fe. For information, call Diego Zamora, 505-629-7343.

Committee on Women and the Legal ProfessionAccepting Nominations Reminder: Nominations are now being accepted for the 2012 Justice Pamela B. Minzner Outstanding Advocacy for Women Award. The award recognizes attorneys who have distinguished themselves during the prior year by providing legal assistance to women who are underrepresented or under-served or by advocating for causes that will ultimately benefit and/or further the rights of women. Submit a letter of nomination summarizing the work and efforts of the individual you are recommending to Jennifer Anderson, 201 Third St. NW, Suite 1950, Albuquerque, NM 87102-4388; fax to (505) 764-5486; or email jmanderson@lrlaw.com. The nomination deadline is July 6.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and attend Understanding Employment Insur-ance (1.0 general CLE credit) presented by Richard L. Branch. The program will be held from noon–1 p.m., July 11, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Registration begins at the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-247-0411, or Krista Gianes, 505-222-9356. Webcasts:

• Santa Fe: Montgomery & Andrews, 325 Paseo de Peralta. Contact Donna Ormerod, 505-986-2520.

• Roswell: Hinkle, Hensley, Shanor & Martin LLP, 400 N. Pennsylvania, Ste. 700. Contact Dora Paz, 575-622-6510.

• Farmington: Titus & Murphy, 2021 E. 20th Street. Contact Heather Parmley, 505-326-6503.

Intellectual Property Law SectionSeeking Input for Upcoming CLE The Intellectual Property Law Section will be hosting a CLE in advanced IP law in December and is seeking speakers

and topic ideas. Attorneys experienced in intellectual property law are needed to present updates or current trends in the areas of patent, trademark and/or copyright law; e.g., including but not limited to the America Invents Act and how it affects patent litigation, PTO proceedings, and first-to-file provisions. Intellectual prop-erty considerations for small technology companies and start-ups might also be of general interest. The section is also looking for IP-related topics with a specific focus on privacy matters. Contact RBlanch@da2nd.state.nm.us.

Young Lawyers DivisionSan Juan CountyLuncheon With Justice Chávez The Young Lawyers Division will host a luncheon with Justice Edward Chávez of the New Mexico Supreme Court from noon–1:30 p.m., July 27, at the 11th Judicial District Court, 103 South Oliver, Aztec. Join YLD for this ongoing series of informal discussions with Justice Chávez about the practice of law. Space is limited to the first 14 YLD members who respond. Lunch will be provided and preference will be given to those who have not previously attended. R.S.V.P. by July 18 to Ken Stalter, kstalter@da.state.nm.us, or Martha Chicoski, mar-tha@chicoskilaw.com.

other BarSAlbuquerque Bar AssociationJune Luncheon The Albuquerque Bar Association’s Member Luncheon will be held at noon, July 10, at the Embassy Suites Hotel, 1000 Woodward Place NE, Albuquerque. Lun-cheon speakers are Past Presidents Bill Car-penter, Roberta Cooper Ramo, and Art and Terri Beach. Immediately following lunch, Tom Popejoy will present Trusts for the General Lawyer (2.0 general CLE credits), from 1:15 p.m. to 3:15 p.m. Lunch only: $30 members/$40 non-members, $5 walk-up fee; Lunch/CLE: $90 members/$120 non-members, $5 walk-up fee; CLE only: $60 members/$80 non-members. Register for lunch by noon, July 6. To register:

1. log on to www.abqbar.org;2. email abqbar@abqbar.org;3. call (505) 842-1151 or

(505) 243-2615; or4. mail to PO Box 40,

Albuquerque, NM 87103.

unMLaw Library Hours to Aug. 19Building & Circulation

Monday–Thursday 8 a.m.–9 p.m.Friday 8 a.m.–6 p.m.Saturday 8 a.m.–5 p.m.Sunday noon–8 p.m.

ReferenceMonday–Friday 9 a.m.–6 p.m.Saturday–Sunday Closed

Independence Day, July 4 Closed

other neWSNM Legal AidFree Legal Clinics Free legal clinics to qualified low-income New Mexico residents, 301 Gold Avenue SW, Albuquerque:

• Divorce Clinic Every other Friday afternoon 1 p.m., June 29

Contact New Mexico Legal Aid to apply and schedule a date to attend one of the clinics. For further information, call 505-243-7871. Also contact the office with legal questions involving housing, consumer and public benefits. Victims of domestic vio-lence or sexual assault can call the hotline, 505-243-4300 or 1-877-974-3400.

Meeting Bridge• Easy-to-useteleconferencingforlawfirms.• One-stepsetupandnotification.• Clientcodesprovideforeasytracking.• Operatorassistanceavailableoneverycall.

ContactDaveMartindmartin@meetingbridge.comor1-888-723-1200x627.

Visitwww.meetingbridge.com.

6 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

2012 State Bar of New Mexico aNNual award recipieNtS

Justice Pamela B. Minzner Professionalism AwardHenry A. Kelly

Justice Seth D. Montgomery Distinguished Judicial Service AwardJustice Patricio M. Serna

Robert H. LaFollette Pro Bono AwardJared G. Kallunki

Distinguished Bar Service Award–Non-LawyerSandra Bauman

Distinguished Bar Service Award–LawyerJohn D. Robb, Jr.

Outstanding Young Lawyer of the Year AwardRobert L. Lucero, Jr.

Outstanding Program AwardUnited South Broadway Corporation, Foreclosure Defense Project

Awards Presentation 5 p.m., July 13,

State Bar Annual Meeting and Bench & Bar Conference Hyatt Regency Tamaya Resort & Spa,

Santa Ana Pueblo, New Mexico.

For Annual Meeting programs, events, and registration information, see the April 4 (Vol 51, #14) Bar Bulletin or visit www.nmbar.org.

Justice Serna RetiringSANTA FE–The Su-preme Court of New Mexico announced that Justice Patricio M. Serna will retire at midnight, Aug. 31. Born in the small town of Reserve, New Mexico, Justice Serna

was the first of his eight siblings to graduate from college. He attended the College of St. Joseph on the Rio Grande (Bachelor of Science, Business Administration, with honors, 1962), the University of Denver School of Law (Juris Doctor), and Harvard Law School (LL.M.). He also received an honorary doctor of laws degree from the University of Denver School of Law. After Harvard, Justice Serna moved to Wash-ington, D.C., to become special assistant to Commissioner R. Telles of the Equal Employment Opportunity Commission. He also taught as an adjunct professor at Georgetown University Law School and Columbus School of Law at Catholic Uni-versity of America, where he taught courses in constitutional law. In 1975, Justice Serna returned to New Mexico and served as an assistant attorney general for four years and then worked in private practice for about six years. In 1985, he was appointed by then-Governor Toney Anaya to serve as a district court judge for the 1st Judicial District in Santa Fe, serving for over 11 years from 1985–1996. His service included a term as chief judge and as president of the New Mexico District Judges Associa-tion. Justice Serna was elected to serve on the New Mexico Supreme Court and was sworn into office on Dec. 5, 1996. Five years later, he was elected by his colleagues on the Court to serve a two-year term as chief justice from 2001 through 2002. In addition to authoring and participating in hundreds of decisions during his almost 16 years on the Supreme Court, Justice Serna also serves as the Court’s liaison to the Board of Bar Examiners, the Tribal-State Judicial Consortium, and the Court Interpreters Advisory Committee.

New Mexico Lawyers and Judges

Assistance Program

Helpandsupportareonlyaphonecallaway.

24-Hour Helplines

Attorneys/LawStudents505-228-1948•800-860-4914

Judges888-502-1289

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Bar Bulletin - June 27, 2012 - Volume 51, No. 26 7

Hearsay www.nmbar.org

Editor’s Note: The contents of Hearsay and In Memoriam are submitted by members or derived from news clippings. Email announcements to notices@nmbar.org.

Aida Medina Adams has joined the Jeff Diamond Law Firm’s Rio Rancho office. Her practice areas include Social Security disabil-ity, personal injury and short- and long-term disability. Adams attended the University of Texas at El Paso (bachelor’s degree, psychol-ogy), Texas Tech University (master’s degree, educational psychology), Texas Tech (Ph.D., Educational Psychology, 2000) and the UNM School of Law (2011). She was an assistant professor at the Cleveland State University College of Education and an instructor at

Texas Tech and the University of Texas at El Paso. From 2003–2008, she worked as a Social Security disability advocate. She was the first UNM law student to complete an externship in immigration court in El Paso and she worked as a student legal assistant in the Reinhart Law Firm.

Erica Boutté Scott has joined Miller Stratvert PA as an associate in the Albuquerque office. She attended Emory University (B.A., Inter-national Studies, 2007) and the Boyd School of Law, University of Nevada, Las Vegas (J.D., 2011). Her practice areas are products and professional liability and legal malpractice. She is also a certified mediator.

Robert A. Corchine joined Miller Stratvert PA in January as of

counsel in the Albuquerque office. He at-tended the University of Missouri, Kansas City (B.A., 1983) and Southern Methodist University School of Law (J.D., 1987). He is also a member of the State Bar of Texas. His practice areas are construction law, insurance coverage and bad faith, products and profes-sional liability and legal malpractice. He is a member of the American Board of Trial Ad-vocates, the Albuquerque Bar Association, the New Mexico Defense Lawyers Association, and the Defense Research Institute (DRI).

The New Mexico Association of Legal Administrators has elected its 2012–2013 board of directors: Cathy Lopez, Rodey, Dickason, Sloan, Akin & Robb, PA, president; Jessica Via, Bannerman & Johnson, PA, president-elect; Karen Kalinowski, Nordhaus Law Firm LLP, secretary; Connie Roybal, Moody & Warner PC, trea-surer; Malaquias (JR) Rael, Robles Rael & Anaya PC, program coordinator; and Chandra Manning, Miller Stratvert PA, past president.

Davis & Gilchrist 2012 Southwest Super Lawyer “Rising Star”: Bryan Davis, Health Care Law. He is the only New Mexico lawyer in this category.

Jeanne A. Hamrick has been appointed to the Presbyterian Health Plan, Medicare Plans Consumer Advisory Board. In 2011, she was elected as a director for Disability Rights New Mexico. She serves on

Aida Medina Adams

Christopher A. Holland

An Albuquerque pilot who thought he could stop flying after being shot down in a Bernalillo County Sheriff’s Department helicopter in 2005 did not, after all, hang up his wings. He flew again—a lot—saving countless lives and earning a bronze star. Sutin, Thayer & Browne is proud to welcome home from Afghanistan one of its senior lawyers, Christopher A. Hol-land. He is a lieutenant colonel in the

New Mexico Army National Guard, serving as commander of Company C, 1-171st Aviation Regiment. Holland and Charlie Company returned to Albuquerque in April after a yearlong deployment. Charlie Company is a medical evacu-ation unit that saved lives on the battlefields of Helmand Province, Afghanistan, by transporting the wounded in UH-60 Black Hawk helicopters. During that time, the soldiers participated in more than 1,450 missions and transported more than 1,800 patients. The 109-soldier unit operated 17 Black Hawks from four locations within Helmand Province. Holland logged more than 150 combat flight hours as a helicopter pilot. Albuquerqueans might remember Holland’s harrowing experience in 2005 flying a sheriff’s helicopter. He was assisting deputies in a burglary call when someone shot a gun at his aircraft, piercing the windshield and forcing him to crash-land with a major injury. His passenger was unhurt. The mayor, sheriff and police chief hailed him as a hero, but he credited his quick reflexes to his military training. He had already been to the Gulf War and to Iraq. Being shot down in Albuquerque caused him to pledge to his wife Maureen that he was done with his flying hobby. That was then. In early 2011, he returned to the Middle East to fly rescue missions for more than a year.

Robert A. Corchine

Erica Boutté Scott

the State Bar Disability Committee and the Committee on Women and the Legal Profession. In September 2011, she stepped down as the long-time chair of the National Multiple Sclerosis Society, Rio Grande Government Relations and Advocacy Committee. Under her leadership, the committee became the model of activism for the south central region of the National MS Society. Hamrick has MS and stopped practicing actively in 1998 although she maintains her license. She practiced in the areas of bankruptcy and commercial litigation and hopes that a cure will be found so that she can return to active practice. She attended Washington and Lee University School of Law (J.D. 1990). She is admitted to practice before the U.S. District Court for the District of New Mexico and the 10th Circuit Court of Appeals.

Scheuer, Yost & Patterson Martindale-Hubbell peer rating of “AV Preeminent”: Tony F. Ortiz. Ortiz practices in the areas of educa-tion law, employment law, personal injury, civil rights, and general civil litigation.

Sapien Law LLC 2012 Southwest Super Lawyer “Rising Star”: Joseph A. Sapien, Personal Injury Law.

8 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

Douglass K. Fischer, Sr.,

Douglass K. Fischer, Sr., 94, a 50-year veteran of the State Bar of New Mexico, died peacefully in his sleep at his Los Lunas home April 30. His passing brought to a close a rich and active life as a lawyer, rancher, real-tor, builder, sailor, chemist, toastmaster, and animal rights advocate. Born in Algonac, Michigan, on Oct. 25, 1917, the scion of Great Lakes sailors and ship captains, he graduated from Wayne State University and served as a chemist in WWII. He attended Wayne State University Law School (1945)

and for many years practiced law in Detroit, specializing in real property law, trusts, estates, and syndication. From these disciplines, he branched out to become a prominent realtor and builder in southeastern Michigan. His true love, however, was the courtroom. As a gifted trial attorney, he successfully tried countless criminal and non-criminal cases, often for clients who could not pay him. For relaxation he could often be found piloting his sailboat on Lake St. Clair, the waters his ancestors had piloted before him; backpacking on Isle Royal and in other wilderness areas; or riding his favorite horse Silver on his farm near Ann Arbor. Fischer and his wife Jane fell in love with New Mexico on a trip in the early 1950s. He passed the New Mexico bar and purchased a ranch in Catron County and later purchased the Torrance County Title Company. He com-muted between Michigan and New Mexico for many years until permanently relocating to Los Lunas circa 1990. In Los Lunas he was active with the Valencia County Bar Association, Toastmasters, and the calling for which he devoted the rest of his life—animal rights advocacy. Whether providing legal representation to the Valencia County Humane Society, financially supporting animal rights organizations, or rescuing abandoned pets and sharing his

home with them, Fischer pursued this calling with the same dogged zeal he devoted to all his life’s work. Fischer leaves behind his three children: Douglass K. Fischer, Jr., financial planner; Sally Fischer Blum, rancher; and Kendall Fischer, attorney at law. Inscribed on his tombstone placed over his grave at his beloved Catron County ranch are the final lines from his favorite poem by Robert Louis Stevenson: “Here he lies where he longed to be;/Home is the sailor, home from the sea,/And the hunter home from the hill.”

Sherry Tippett passed away May 16. Born Nov. 2, 1952, in Wash-ington D.C., Tippett lived the first half of her life in the Maryland suburbs. She graduated from George Washington University and the University of South Dakota Law School. She lived for over 20 years in New Mexico, where she fully embraced the outdoor beauty and opportunities this wonderful area afforded. Tippett’s successful law practice included New Mexico Office of State Engineer, water attorney for the City of Santa Fe, attorney for Grant Country, at-torney for Children Youth and Families Department, attorney for the Village of Los Ranchos, attorney in private practice in Silver City and subsequent private practice in Albuquerque. Her many interests and pursuits included music, travel and lifelong learning. Tippett was a volunteer and activist for numerous organizations and causes: domestic violence, civil rights, gun control, children’s rights, environmental issues, wilderness protection, Santa School Board and her most recent cause, overturning the Supreme Court decision of Citizen’s United. Her passion for life and commitment to positive change made a difference in many lives and organiza-tions. Tippett is survived by her beloved son Matt; her former husband Matteo; sister Kate; and brothers Rick, Frank, and Chris. She was predeceased by her brother Mark. She is also survived by her four-legged companions Daisy and Buddy. Her positive impact and spirit lives on.

Erin Langenwalter has been named a partner with Lewis and Roca LLP. Langenwalter is a member in the firm’s litigation practice group, focusing on commercial litigation and employment law. Her commercial litigation practice includes representation of small and large companies in a wide variety of tort, contract and business disputes. Her employment law practice serves clients in a variety of industries, providing advice and representation regarding class action suits, discrimination and harassment claims, agree-ments, handbooks, wage and hour issues, and wrongful termination. Langenwalter also provides training to employers and supervi-sors and is a regular presenter on employment law topics. She received her J.D. from the UNM School of Law.

Howard Raab, a shareholder of Raab & Raab PC in Taos, was appointed to serve as the domestic relations hearing officer for the

Erin Langenwalter

8th Judicial District Court in Taos. Raab was a founding partner of Raab & Raab in Fort Lauderdale, Florida, and is licensed to practice in New York, Florida, and New Mexico.

Guebert Bruckner PC 2012 Southwest Super Lawyers “Rising Stars”: Alisa Wigley-DeLara and Christopher J. DeLara.

The Rodey Law Firm 2012 Chambers USA–America’s Leading Lawyers for Business top rankings in: Corporate/Commercial; Litigation: General Commercial; Labor and Employment; and Real Estate; and second highest ranking in Environment, Natural Resources, and Regulated Industries. Mark K. Adams: Environ-ment, Natural Resources and Regulated Industries and Water Law; Rick Beitler: Litigation–Medical Malpractice and Insurance Defense; Henry M. Bohnhoff: Litigation–General Commer-cial; Nelson Franse: General Commercial Litigation–Medical Malpractice and Insurance Defense; Catherine T. Goldberg: Real Estate; Scott D. Gordon: Labor and Employment; Alan Hall: Corporate/Commercial; Bruce Hall: Litigation–General Commercial; Justin A. Horwitz: Corporate/Commercial; W. Robert Lasater, Jr.: Litigation–Medical Malpractice and Insur-ance Defense; Donald B. Monnheimer: Corporate/Commercial;

Howard Raabcontinued on next page

www.nmbar.orgHearsay

in MeMoriaM

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 9

Julie P. Neerken: Labor and Employment–Employee Benefits and Compensation; Sunny J. Nixon: Environment, Natural Resources and Regulated Industries–Water Law; Theresa W. Parrish: Labor and Employment; John P. Salazar: Real Estate; Andrew G. Schultz: Litigation–General Commercial; Tracy Sprouls: Corporate/Commercial: Tax; and Thomas L. Stahl: Labor and Employment.

Brownstein Hyatt Farber Schreck 2012 Chambers USA Guide: Ranked a top New Mexico corporate and commercial practice. Perry E. Bendicksen III and David P. Buchholtz, Top Attorneys; Bonnie J. Paisley and Jill K. Sweeney, Corporate and Commercial; Steven O. Sims, Environment, Natural Resources and Regulated Industries–Water Law; and Shareholder Timothy R. Van Valen, Corporate and Commercial–Tax.

Modrall Sperling 2012 Chambers USA-America’s Leading Lawyers for Business: Top tier rankings in: Corporate/Commercial, Envi-ronment, Natural Resources and Regulated Industries, Litigation-General Commercial, Native American Law and Real Estate. Larry P. Ausherman, Environment, Natural Resources and Regulated Industries; Duane E. Brown, Corporate/Commercial; Stuart R. Butzier, Environment, Natural Resources and Regulated Industries; John R. Cooney, Environment, Natural Resources and Regulated Industries; Dale W. Ek, Real Estate; Peter L. Franklin, Corporate/Commercial; Kenneth L. Harrigan, Litigation–General Com-mercial; George R. McFall, Labor and Employment; Margaret L. Meister, Real Estate; Christopher P. Muirhead, Corporate/Commercial; Maria O’Brien, Environment, Natural Resources and Regulated Industries–Water Law; James M. Parker, Corporate Commercial–Tax and Employee Benefits; Ruth M. Schifani, Real Estate; William C. Scott, Environment, Natural Resources and Regulated Industries and Native American Law; Lynn H. Slade, Star Individual in Native American Law; and Walter E. Stern III, Environment, Natural Resources and Regulated Industries and Native American Law.

Keleher & McLeod PA, which supports many activities in the community, maintains a special relationship with Jefferson Middle School. Since 1989, the firm has sponsored the annual 8th Grade Leadership Award and plays an active role in selecting the award winner. The selection process for the coveted Leadership Award is rigorous. Students are nominated by their teachers on the basis of grades, community service participation and other extra-curricular activities. The students then submit a résumé, a one-page summary statement and a lengthy essay on leadership. The finalists are chosen from the field of applicants, who then meet with a panel of attorneys at the firm offices for an extensive interview. Finalists this year were Kamea Pino, Dominic Gonzales, Fiona Wohrer, Marley Roberts and Erin Meadors. Pino was chosen for the 2012 Leadership Award from this very excellent field. Kameo’s parents are Tammy James-Pino and Ryan Pino. Pino is on the honor roll and volunteers with sports groups and Native American cultural support. She is an excellent basketball player and a champion girl’s Fancy Shawl dancer. Pino wrote in her essay about Kenny Dobbs, a Native American role model she credited with inspiring her to fulfill her goals, regardless

of negative influences. She wrote of her vision to strive to inspire others that they, too, can overcome obstacles. Pino and the other finalists were each given a cash award and honored at an evening school assembly attended by their families. Keleher & McLeod sponsors a number of school initiatives, including Jefferson Middle School’s Mock Trial Program. In addition, the firm annually adopts a needy family from the school for holiday support.

Conklin, Woodcock & Ziegler PC Chambers USA–Americas Leading Lawyers for Business 2012: A leading law firm in the area of Employment. Robert C. Conklin, Jacqueline Woodcock and John K. Ziegler, Labor and Employment Law.

Susan Roth, a retired appellate defender with the New Mexico State Public Department, received the 2012 Charles Driscoll Award June 8 for the “revolutionary method of appellate advocacy she brought to New Mexico” according to last year’s winner, Trace Rabern. Roth was an appellate defender from 1990 to her retirement in 2011. She is probably best known for taking the case of State of New Mexico v. Bullcoming to the United States Supreme Court and her significant confrontation clause victory there. Roth is also known for the case of 18-year-old Jake Schoonmaker, convicted of child abuse. Roth was a key part of the team and argued in the New Mexico Supreme Court that both consultation with his own expert and full interviews of the prosecution’s are “the basic tools of an adequate defense.” The award is given annually to an outstanding member of the criminal defense bar who has shown extraordinary courage and determination in protecting the rights of people charged with crimes. The award commemorates Charles Driscoll, a longtime criminal defense lawyer who later became a Catholic priest and whose passion and zeal to improve criminal defense in New Mexico has served as an example to generations of attorneys.

Deborah E. Mann, special counsel in the area of health care at Ban-nerman & Johnson PA, has been designated as a state chair for the Council on Litigation Management. Mann practices in the areas of professional liability defense, commercial litigation, and health law.

Law Office of George “Dave Giddens 2012 Southwest Super Lawyers: Dave Giddens.

Rodey Law Firm 2012 Southwest Super Lawyers: Nelson Franse, Catherine T. Goldberg, Bruce D. Hall, Theresa W. Parrish, Charles “Kip” Purcell, and Andrew G. Schultz.

The New Mexico Chapter of the Public Relations Society of America awarded a Silver Cumbre Award to the Bernalillo County Metro-politan Court for its Courts to School Program in the category of Public Service to the Community. The court was recognized for its effort to educate a targeted group or audience about an important social issue (DWI). Also recognized for their efforts were Probation Manager Jill Ingraham and Public Information Officer Janet Blair. The Courts to School Program was started in 2010 and has been presented to more than a dozen high schools in the Albuquerque Metro area.

www.nmbar.orgHearsay

10 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

legal education

June

29 Recusal: A Hot New Legal Ethics Topic 2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

29 Bench and Bar Substance Abuse and Other Misjudgments

2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

July

3 Indian Law 101 5.9 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

3 Medicine of Personal Injury 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

3 Planning for Your Client’s Biggest Assets: Personal Residences and Vacation Homes

1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

6 Arbitration: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

8 Implications and Ethics of Social Media and Your Law Practice

1.0 G, 2.0 EP Albuquerque New Mexico Women’s Bar Association www.nmbar.org

10 Fiduciary Standards in Business Transactions: Understanding Sources of Liability in Transaction Negotiations and Drafting

1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

11 Compatibility of Legal and Judicial Ethics

2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

12 Admissible Evidence: Computer Forensics Investigation

2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

12 Ethics and Dishonest Clients 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

12–14 2012 Annual Meeting–Bench and Bar Conference

10.2 G, 2.0 EP Hyatt Regency Tamaya Resort and Spa Santa Ana Pueblo, New Mexico

16 Mediation: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

17 2012 Ethics Professionalism: The Disciplinary Process

2.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17 9th Annual Spring Elder Law 3.5 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17 Practical Issues in Trust Administration

1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17 The Relevance and Risks of Evidence and e-Discovery for Everyday Practice

4.7 G, 2.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 11

Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

effeCtive June 15, 2012

Writs of certiorarias updated By tHe clerk of tHe neW Mexico supreMe court

petitions for Writ of certiorari filed and pending: Date Petition FiledNo. 33,669 State v. Senior COA 31,722 06/15/12No. 33,668 State v. Godoy COA 30,407 06/15/12No. 33,667 N.M. Taxation and Revenue

Department v. Smith COA 32,079 06/14/12No. 33,665 State v. Trujillo COA 30,281 06/13/12No. 33,663 Cordova v. KSL-Union COA 30,870 06/12/12No. 33,664 State v. Reza COA 31,799 06/11/12No. 33,630 Utley v. State 12-501 06/7/12No. 33,662 State v. Garcia COA 31,768 06/06/12No. 33,658 Serna v. N.M. Taxation and

Revenue Department COA 32,022 06/05/12No. 33,656 State v. Richardson COA 31,928 06/04/12No. 33,655 Foster v. Sun Healthcare COA 31,389 06/01/12 Response filed 6/14/12No. 33,653 Bustos v. Zia Park LLC COA 32,068 05/31/12 Response filed 6/15/12No. 33,652 State v. Armendiaz COA 29,101 05/31/12No. 33,651 Madrid v. Chama COA 30,764 05/31/12No. 33,650 Farmington v.

Pinon-Garcia COA 30,888 05/31/12No. 33,647 Moola v. Moolamalla COA 30,290 05/29/12No. 33,646 State Engineer v.

Mayorga COA 30,584 05/29/12 Response filed 6/7/12No. 33,645 Hinkle v. Abeita COA 30,577 05/29/12 Response filed 6/11/12No. 33,644 Reilly v. Nob Hill COA 30,084 05/29/12No. 33,643 State v. Flores COA 31,205 05/29/12 Response filed 6/13/12No. 33,640 Farfan v. Barncastle COA 31,742 05/29/12No. 33,639 Santillanes v. Geo COA 31,525 05/24/12No. 33,619 Serna v. Romero COA 31,745 05/23/12No. 33,629 State v. Ross COA 31,735 05/21/12 Response ordered; due 7/2/12No. 33,628 State v. Wells COA 31,066 05/18/12No. 33,627 N.M. Taxation and

Revenue Department v. BarnesandNoble.com COA 31,231 05/15/12

Response filed 5/29/12No. 33,621 Jacobs v. Nance 12-501 05/10/12No. 33,615 State v. Martinez COA 30,318 05/04/12No. 33,587 State v. Hernandez 12-501 04/24/12 Response ordered; due 6/19/12No. 33,523 Salas v. State 12-501 04/24/12 Response filed 5/31/12No. 33,454 Holly v. State 12-501 03/23/12 Response filed 5/21/12

certiorari granted But not yet suBMitted to tHe court:(Parties preparing briefs) Date Writ IssuedNo. 32,742 State v. Martinez COA 30,637 01/31/11No. 32,804 State v. Servantez COA 30,414 02/07/11No. 32,895 State v. Gonzales COA 30,541 04/04/11No. 33,001 State v. Rudy B. COA 27,589 06/08/11No. 33,014 State v. Crane COA 29,470 06/08/11No. 33,046 State v. Munoz COA 30,837 07/21/11No. 33,133 Spencer v. Barber COA 29,390 09/09/11No. 33,143 State v. Owelicio COA 30,461 09/09/11No. 33,154 State v. Carillo COA 29,258 09/12/11No. 33,139 State v. Polson COA 31,138 09/20/11No. 33,134 Martinez v. Bustos 12-501 09/22/11No. 33,184 State v. Guthrie COA 29,863 10/03/11No. 33,203 State v. Davis COA 28,219 10/04/11No. 33,147 Prather v. Lyons COA 29,812 10/25/11No. 33,217 State v. Ramos COA 29,514 10/25/11No. 33,224 Bank of New York v.

Romero COA 29,945 10/25/11No. 33,226 State v. Olsson COA 29,713 10/27/11No. 33,257 State v. Boyse COA 30,656/30,657 11/04/11No. 33,265 State v. Garcia COA 29,338 11/17/11No. 33,287 State v. Urioste COA 30,110 12/07/11No. 33,342 State v. Urquizo COA 30,337 01/06/12No. 33,332 Partida v.

Motor Vehicle Division COA 31,460 01/06/12No. 33,324 State v. Evans COA 31,331 01/06/12No. 33,322 Resource Lighting v.

Rohde COA 30,013 01/06/12No. 33,304 State v. Hardy COA 29,583 01/06/12No. 33,182 Moongate Water Co. v.

City of Las Cruces COA 27,889 01/09/12No. 33,362 Convisser v. Ecoversity COA 30,100 01/17/12No. 33,353 Flemma v.

Halliburton Energy COA 29,933 01/17/12No. 33,296 State v. Gutierrez COA 29,997 01/25/12No. 33,372 Schultz v. Pojoaque Tribal COA 28,508 01/30/12No. 33,364 Nettles v. Ticonderoga COA 31,342 02/06/12No. 33,380 City of Rio Rancho v.

Palenick COA 30,136 02/06/12No. 33,382 N.M. Human Services v.

Starko, Inc. COA 29,016/27,922 02/13/12No. 33,375 State v. Cobrera COA 29,591 02/14/12No. 33,376 State v. Gonzales COA 29,843 02/16/12No. 33,441 State v. Torres COA 28,234 03/02/12No. 33,466 State v. Puliti COA 29,509 03/20/12No. 33,483 State v. Consaul COA 29,559 03/23/12No. 33,275 State ex rel. Solsbury Hill v.

Liberty Mutual Insurance COA 30,068 03/23/12No. 33,383 Presbyterian Health Plan v.

Starko, Inc. COA 29,016/27,922 03/30/12No. 33,384 Cimarron Health Plan v.

Starko, Inc. COA 29,016/27,922 03/30/12No. 33,487 State v. Martinez COA 30,580 04/13/12

12 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

Writs of certiorari http://nmsupremecourt.nmcourts.gov.

No. 33,540 State v. Sanders COA 30,671 05/02/12No. 33,548 State v. Marquez COA 30,565 05/02/12No. 33,565 State v. Ballard COA 30,187 05/02/12No. 33,571 State v. Miller COA 29,244 05/11/12No. 33,568 State v. Chung COA 30,384 05/11/12No. 33,567 State v. Leticia T. COA 30,664 05/11/12No. 33,566 State v. Leticia T. COA 30,664 05/11/12No. 33,594 Fallick v. Montoya COA 30,172 05/23/12No. 33,589 Zhao v. Montoya COA 30,172 05/23/12No. 33,579 Avalos v.

N.M. Counseling COA 30,611 05/23/12No. 33,592 State v. Montoya COA 30,470 05/24/12No. 33,611 Bank of America v.

Quintana COA 30,354 06/05/12No. 33,604 State v. Ramirez COA 30,205 06/05/12No. 33,632 First Baptist Church of Roswell v.

Yates Petroleum COA 30,359 06/13/12

certiorari granted and suBMitted to tHe court:

(Submission Date = date of oral argument or briefs-only submission) Submission DateNo. 32,524 Republican Party v. Taxation and

Revenue Department COA 28,292 03/14/11No. 32,695 Diamond v.

Diamond COA 30,009/30,135 05/10/11No. 32,690 Joey P. v. Alderman-Cave

Milling and Grain Co. COA 29,120 05/11/11No. 32,756 Lenscrafters, Inc. v. Kehoe COA 28,145 07/18/11No. 32,589 State v. Ordunez COA 28,297 08/31/11No. 32,776 Sais v. N.M. Department

of Corrections COA 30,785 09/12/11No. 32,707 Smith LLC v. Synergy

Operating LLC COA 28,248/28,263 09/12/11No. 32,696 Herbison v. Chase Bank COA 30,630 09/13/11No. 32,483 State v. Jackson COA 28,657 09/28/11No. 32,697 State v. Amaya COA 28,347 09/28/11No. 32,868 Nunez v. Armstrong

General Contractors COA 29,522 10/11/11No. 32,844 Gonzalez v.

Performance Paint, Inc. COA 29,629 10/11/11No. 32,713 Bounds v. D’Antonio COA 28,860 10/13/11No. 32,717 N.M. Farm and Livestock

Bureau v. D’Antonio COA 28,860 10/13/11No. 32,942 Schuster v. Taxation and

Revenue Department COA 30,023 11/14/11No. 32,704 Tri-State v. State Engineer COA 27,802 11/14/11No. 32,915 State v. Collier COA 29,805 11/15/11No. 32,430 State v. Muqqddin COA 28,474 11/16/11

No. 32,632 State v. Dominguez-Meraz COA 30,382 11/16/11

No. 32,941 Titus v. City of Albuquerque COA 29,461 11/16/11

No. 32,800 State v. Spearman COA 30,493 11/30/11No. 33,011 Felts v. CLK

Management, Inc. COA 29,702/30,142 12/12/11No. 33,013 Felts v. CLK

Management, Inc. COA 29,702/30,142 12/12/11No. 32,968 Sunnyland Farms, Inc. v.

Central N.M. Electric COA 28,807 12/12/11No. 32,985 Helena Chemical Co. v.

Uribe COA 29,567 12/13/11No. 32,987 Helena Chemical Co. v.

Uribe COA 29,567 12/13/11No. 32,937 Santa Fe Pacific Trust v.

City of Albuquerque COA 30,930 12/14/11No. 32,876 Gonzales v. State 12-501 01/09/12No. 32,860 State v. Stevens COA 29,357 01/10/12No. 32,939 United Nuclear Corp. v.

Allstate Insurance Co. COA 29,092 01/30/12No. 33,070 Montoya v.

City of Albuquerque COA 29,838 01/30/12No. 33,023 State v. Gurule COA 29,734 01/30/12No. 33,135 Horne v. Los Alamos

National Security COA 29,822 03/13/12No. 32,943 State v. Hall COA 29,138 03/26/12No. 32,605 State v. Franco COA 30,028 03/28/12No. 33,083 Martinez v. Department

of Transportation COA 28,661 04/09/12No. 32,976 State v. Olson COA 29,010 04/09/12No. 33,057 State v. Turrietta COA 29,561 04/30/12No. 33,331 Strausberg v.

Laurel Healthcare COA 29,238 05/14/12No. 33,136 State v. Bent COA 29,227 05/16/12No. 33,077 State v. Gonzales COA 28,700 05/16/11

petition for Writ of certiorari denied:Date Order Filed

No. 33,636 State v. Knight COA 31,981 06/15/12No. 33,631 State v. Cabrera COA 31,732 06/15/12No. 33,624 State v. Aguirre COA 30,460 06/14/12No. 33,623 State v. Valencia COA 30,625 06/14/12No. 33,613 Dion v. Rieser COA 30,699 06/14/12No. 33,536 Groh v. City of Aztec COA 30,719 06/14/12No. 33,555 State v. Carlos A. COA 30,670 06/12/12No. 33,620 Derringer v. Derringer COA 32,113 06/11/12No. 33,617 Thompson v. Hatch 12-501 06/11/12No. 33,560 Rodriguez v. Rodriguez COA 31,532 06/11/12

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 13

puBlisHed opinions

Date Opinion FiledNo. 30862 AD AD ADM-10-1, LA MESA v NM GAMING CONTROL (affirm) 6/12/2012

No. 31156 AD AD ADM-10-2, LA MESA v NM GAMING BOARD (affirm) 6/12/2012

unpuBlisHed opinions

No. 31544 13th Jud Dist Valencia JQ-08-25, CYFD v REGINA M (affirm) 6/12/2012

No. 31863 13th Jud Dist Sandoval DM-10-252, J MARTINEZ v D MARTINEZ (affirm) 6/13/2012

No. 31864 3rd Jud Dist Dona Ana DV-03-433, H TORRES v P VILLA (reverse) 6/13/2012

No. 31194 AD AD AD-11-09, TAX & REV v TINDALL CORP (affirm) 6/14/2012

No. 31970 2nd Jud Dist Bernalillo JQ-10-36, CYFD v NATASHA S (affirm) 6/14/2012

No. 32112 11th Jud Dist McKinley CR-12-2, STATE v P BENALLY (affirm) 6/15/2012

No. 31381 2nd Jud Dist Bernalillo PB-10-394 C CABALLERO v E WAGGONER (affirm) 6/15/2012

opinionsas updated By tHe clerk of tHe neW Mexico court of appeals

Wendy F. Jones, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925

effeCtive June 15, 2012

Slip Opinions for Published Opinions may be read on the Court’s website:

http://coa.nmcourts.gov/documents/index.htm

14 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

recent rule-Making activityas updated By tHe clerk of tHe neW Mexico supreMe court

effeCtive June 27, 2012

pending proposed rule cHanges open for coMMent:

Comment Deadline1-125 Domestic Relations Mediation

Act Programs 07/04/124-967 Custody, support and division of property

order attachment 07/04/124-968 Application to modify, terminate or extend

the order of protection from domestic abuse 07/04/12

recently approved rule cHanges since release of 2012 nMra:

Effective Date

rules of civil procedure for tHe district courts

1-096 Challenge of nominating petition 03/01/121-030 Depositions pon oral argument 02/17/12 1-001 Scope of rules; definitions 02/06/121-004 Process 02/06/12

rules of criMinal procedure for tHe district courts

5-826 Appeals from magistrate or municipal court 08/03/125-827 Appeals from metropolitan court 08/03/125-828 Appeals from magistrate, metropolitan or

municipal court; dismissals for failure to comply with rules or failure to appear 08/03/12

5-829 Audio recordings of proceedings; appeals on the record 08/03/12

5-830 Statement of appellate issues; appeals on the record 08/03/12

5-831 Scope of review by district court; appeals on the record 08/03/12

5-208 Issuance of warrant for arrest and summons 06/29/125-211 Search warrants 06/29/125-502 Disclosure by the defendant 02/06/12

rules of criMinal procedure for tHe Magistrate courts

6-702 Advising defendant of right to appeal 08/03/126-703 Appeal 08/03/126-705 Withdrawn-Appeals; dismissals for failure

to comply with rules or failure to appear 08/03/126-503 Disposition without hearing 01/31/12

rules of criMinal procedure for tHe Metropolitan courts

7-702 Advising defendant of right to appeal 08/03/127-703 Appeal 08/03/127-705 Withdrawn-Tape recordings of proceedings;

appeals on the record 08/03/127-706 Withdrawn-Statement of appellate issues;

appeals on the record 08/03/127-707 Withdrawn-Scope of review by district court;

appeals on the record 08/03/12

7-709 Withdrawn-Appeals; dismissals for failure to comply with rules or failure to appear 08/03/12

7-503 Disposition without hearing 01/31/12

rules of procedure for tHe Municipal courts

8-702 Advising defendant of right to appeal 08/03/128-703 Appeal 08/03/128-705 Withdrawn-Appeals; dismissals for failure

to comply with rules or failure to appear 08/03/128-503 Disposition without hearing 01/31/12

criMinal forMs

9-104B Appearance, plea and waiver 01/31/12

cHildren’s court rules and forMs

10-223A Physical restraints in the courtroom 04/09/12

rules of evidence

11-102 Purpose and construction 06/16/1211-103 Rulings on evidence 06/16/1211-104 Preliminary questions 06/16/1211-105 Limiting evidence that is not admissible

against other parties or for other purposes 06/16/1211-106 Reminder of or related writings or recorded

statements 06/16/1211-107 Comment by court 06/16/1211-201 Judicial notice of adjudicative facts 06/16/1211-301 Presumptions in civil cases generally 06/16/1211-302 Presumption in criminal cases 06/16/1211-401 Test for relevant evidence 06/16/1211-402 General admissibility of relevant evidence 06/16/1211-403 Excluding relevant evidence for prejudice,

confusion, waste of time, or other reasons 06/16/1211-404 Character evidence; crimes or other acts 06/16/1211-405 Methods of proving character 06/16/1211-406 Habit; routine practice 06/16/1211-407 Subsequent remedial measures 06/16/1211-408 Compromise offers and negotiations 06/16/1211-409 Offers to pay medical and similar expenses 06/16/1211-410 Pleas, plea discussions, and related

statements 06/16/1211-411 Liability insurance 06/16/1211-412 Sex crimes; testimony; limitations;

in camera hearing 06/16/1211-413 Use of evidence obtained under immunity

order precluded 06/16/1211-601 Competency to testify in general 06/16/1211-602 Need for personal knowledge 06/16/1211-603 Oath or affirmation to testify truthfully 06/16/1211-604 Interpreter 06/16/1211-605 Judge’s competency as a witness 06/16/1211-606 Juror’s competency as a witness 06/16/1211-607 Who may impeach a witness 06/16/1211-608 A witness’s character for truthfulness

or untruthfulness 06/16/1211-609 Impeachment by evidence of a

criminal conviction 06/16/12

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 15

rule-Making activity http://nmsupremecourt.nmcourts.gov.

11-610 Religious beliefs or opinions 06/16/12 11-611 Mode or order of examining witnesses

and presenting evidence 06/16/1211-612 Writing used to refresh a witness’s memory 06/16/1211-613 Witness’s prior statement 06/16/1211-614 Court’s calling or examining a witness 06/16/1211-615 Excluding witnesses 06/16/1211-701 Opinion testimony by law witnesses 06/16/1211-702 Testimony by expert witnesses 06/16/1211-703 Bases of an expert’s opinion testimony 06/16/1211-704 Opinion on an ultimate issue 06/16/1211-705 Disclosing the facts or data underlying

an expert’s opinion 06/16/1211-706 Court-appointed expert witnesses 06/16/1211-707 Polygraph examinations 06/16/1211-801 Definitions that apply to this article;

exclusions from hearsay 06/16/1211-802 The rule against hearsay 06/16/1211-803 Exceptions to the rule against hearsay–

regardless of whether the declarant is available as a witness 06/16/12

11-804 Exceptions to the rule against hearsay– when the declarant is unavailable as a witness 06/16/12

11-805 Hearsay within hearsay 06/16/1211-806 Attacking and supporting the declarant’s

credibility 06/16/1211-807 Residual exception 06/16/1211-901 Requirement of authentication or

identification 06/16/1211-902 Evidence that is self-authenticating 06/16/1211-903 Subscribing witness’ testimony 06/16/1211-1001 Definitions that apply to this article 06/16/1211-1002 Requirement of the original 06/16/1211-1003 Admissibility of duplicates 06/16/1211-1004 Admissibility of other evidence of content 06/16/1211-1005 Copies of public records to prove content 06/16/1211-1006 Summaries to prove content 06/16/1211-1007 Testimony or statement of a party

to prove content 06/16/1211-1008 Functions of the court and jury 06/16/1211-1101 Applicability of the rules 06/16/1211-1102 Title 06/16/12

rules of appellate procedure

12-212 Exhibits and depositions; general calendar cases 08/03/1212-603 Appeals in actions challenging candidates

or nominating petitions; primary or general elections; school board recalls and recalls of elected county officials 03/05/12

12-405 Opinions 03/01/1212-309 Motions effective 04/20/12

uJi–civil

13-2304 Retaliatory discharge 05/26/1213-2006 All jurors to participate 05/19/1213-2320 Special verdict form for wrongful

discharge cases 05/19/1213-832 Good faith and fair dealing 05/12/12

rules governing adMission to tHe Bar

15-301.2 Legal services provider limited law license 01/01/12

rules governing discipline

17-206 Types of discipline 03/05/1217-209 Resignation by attorneys under investigation 04/05/1217-210 Reciprocal discipline 04/05/1217-212 Resigned, disbarred or suspended attorneys 04/05/1217-213 Appointment of counsel 04/05/1217-214 Reinstatement 04/05/1217-306 Required presence of attorney;

subpoena power 04/05/1217-307 Investigation of complaints 04/05/1217-313 Hearings 04/05/12

rules governing tHe client protection fund

17A-005 Composition and officers of the commission 01/01/12

rules of legal specialization

19-101 Board of Legal Specialization; title 01/01/12

rules governing tHe recording of Judicial proceedings

22-101 Scope; definitions; title 01/27/1222-203 Application; qualifications;

renewal of certification 01/27/1222-501 Examination standards 01/27/12

rules for revieW of Jsc27-401 Disposition 03/05/12

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.

J U N E

2 0 1 2

CLE AT-A-GLANCEContinuing Legal Education Guide

CENTER FOR LEGAL EDUCATION

On the cutting edge of technology and relevant legal education content

www.nmbarcle.org • 505.797.6020

2 • CLE At-A-Glance www.nmbarcle.org

also available viaLIVE WEBCAST

BANKRUPTCY JURISDICTION IN THE WAKE OF STERN v. MARSHALLFriday, August 10, 2012 • State Bar Center, Albuquerquer Standard Fee $79 r Bankruptcy Law Section Member, Government, Legal Services Attorney, Paralegal $69Co-Sponsor: SBNM Bankruptcy Law Section

9:30 a.m. Registration10:00 a.m. Evolution of Bankruptcy Jurisdiction Before 1978

Jurisdiction under the Bankruptcy Act of 1978 and Post 1978 Supreme Court Cases Leading Up to Stern v Marshall

Stern v. Marshall – facts, holding and rationale Hon. Robert H. Jacobvitz, US Bankruptcy Judge,

District of New Mexico10:50 a.m. Oral Argument – Bankruptcy courts lack jurisdiction

to hear and determine fraudulent transfer claims Gail Gottlieb, Esq., Sutin, Thayer & Browne PC

11:05 a.m. Oral Argument – Bankruptcy courts have jurisdiction to hear and determine fraudulent transfer claims

James A. Askew, Esq., Arland & Associates, LLC11:20 a.m. Other Issues Raised by Stern v Marshall Hon. Robert H. Jacobvitz, James A. Askew and Gail GottliebNoon Lunch (provided at the State Bar Center)

2.0 G

2012 TAX SYMPOSIUMwith Keith Schiller, Esq., Schiller Law GroupAuthor of Estate Planning At The Movies® — Art of the Estate Tax Return($199 value included as part of the 2012 Tax Symposium)

Friday, September 7, 2012 • State Bar Center, Albuquerquer Standard Fee $279 r Tax Law Section Member, Government, Legal Services Attorney, Paralegal $229 Co-Sponsor: SBNM Tax Law Section

8:30 a.m. Registration9:00 a.m. Overview of the Strategic Form 706 •Gettingthemostoutofyourtextbook,Estate Planning At

The Movies® — Art of the Estate Tax Return •Identifyissuesyouwanttodiscuss •Reduceauditrisk •Filingrequirements •DSUEA •Protectingdiscountsandelection •Adjustedtaxablegifts •Line5—Isthenormyoursituation?10:00 a.m. Break10:15 a.m. Real Estate, Closely Held Businesses,

and Promissory Notes •IRC§6166andAVDateelections •Fairmarketvaluestandard •Selectingappraisers •“Safeharbors” •Built-ingaindiscounts •SCorporationvalues •Promissorynotes:Giftsorbonafide;valuationNoon Lunch (provided at the State Bar Center) Tax Section Meeting1:00 p.m. Selected Other Assets in the Gross Estate •Lifeinsuranceandrecentdevelopments •Jointtenancytraps •FLPandFamilyLLCs •Unfundedtrusts •Usesandabusesofpowersofattorney •Grossing-uptheestate •Generalpowersofappointment

2:30 p.m. Marital and Charitable Deductions •ExpandedusesofQTIPtrusts •Interrelationshipofmaritaldeductionwith“swing-items” •AlternativeapproachestocompletingScheduleM •Split-interestgifts •Valuationonfundingmaritalandcharitablegifts3:15 p.m. Break3:30 p.m. Administrative Expenses and Schedule R •Workingwiththenewregulations •Protectiverefundclaims •“Swing”items •ReverseQTIPelections •MaximizingbenefitsoftheGSTelection5:00p.m. Adjourn

also available viaLIVE WEBCAST

6.5 G

www.nmbarcle.org CLE At-A-Glance • 3

also available viaLIVE WEBCAST

also available viaLIVE WEBCAST

2012 ANIMAL LAW CLE

23rd ANNUAL APPELLATE PRACTICE INSTITUTE

Friday, September 13, 2012 • State Bar Center, Albuquerquer Standard Fee $189 r Animal Law Section Member, Government, Legal Services Attorney, Paralegal $159Co-Sponsor: SBNM Animal Law Section Moderator: Helga Schimkat, Animal Law Section Chair

Friday, September 14, 2012 • State Bar Center, Albuquerquer Standard Fee $229 r Appellate Practice Section Member, Government, Legal Services Attorney, Paralegal $199Co-Sponsor: SBNM Appellate Practice Section

9:00 a.m. Registration9:30 a.m. Breed Specific Legislation Marsha Baum, Professor, UNM School of Law10:30 a.m. Break10:45 a.m. Handling Dangerous Dog Cases in New Mexico Doris Duhigg, Esq., Assistant City Attorney,

City of Albuquerque Legal Department Judith L. Durzo, Esq., Judith L. Durzo Attorney at Law11:45 a.m. The Colorado Perspective on Dangerous Dogs Diane Balkin, Esq., Animal Legal Defense FundNoon Breed Specific Legislation and Dangerous Dog Q&A Panel Marsha Baum, Doris Duhigg, Judith Durzo, and Diane Balkin12:30 p.m. Lunch (provided at the State Bar Center) 1:30 p.m. The Link Between Cruelty to Animals and Violence

Towards Humans Diane Balkin, Esq.

2:30 p.m. Hot Legislative Issues Involving Animal Cruelty: Who Pays? (Cost of Care and Financial Bonding); Ag Gag Laws; Pets in Protective Orders; and Animal Abuser Registries

Diane Balkin, Esq.3:30 p.m. Break3:45 p.m. Animal Cruelty in NM — Panel Discussion ad Q&A Diane Balkin, Marsha Baum, Doris Duhigg, Theresa Whatley, Assistant District Attorney, 2nd Judicial

District Attorney’s Office John Walker, Esq., Office of the Public Defender Moderator: Judith L. Durzo4:45p.m. AdjournandReception(StateBarLobby)5:15p.m. Presentation:TomLinney,AnimalLegalDefenseFund

8:00 a.m. Registration8:15 a.m. Welcome & Introduction Larry Montano, Esq., Holland & Hart, L.L.P.

Chair, Appellate Practice Section8:30 a.m. Recent Developments in Appellate Practice Sue A. Herrmann, Esq. Edward Ricco, Esq., Rodey, Dickason, Sloan, Akin & Robb, P.A. 9:15 a.m. Perspectives on Preservation Judge Paul J. Kelly, United States Court of Appeals for the

Tenth Circuit Staff Attorney, Prehearing Division,

New Mexico Court of Appeals Steven L. Tucker, Esq., Tucker Law Firm, P.C.10:15 a.m. Break10:30 a.m. At the Podium: An Oral Argument Toolbox Irv Gornstein, Esq., Executive Director, Supreme Court

Institute at Georgetown Law12:00 p.m. Lunch (provided at the State Bar Center) Annual Appellate Practice Section Meeting

1:15 p.m. A Conversation with the Chief Clerks of the New Mexico Supreme Court and the New Mexico

Court of Appeals Joey Moya, Esq., New Mexico Supreme Court Wendy Jones, Esq., New Mexico Court of Appeals2:00 p.m. Needles and Haystacks: Digital Legal Research and

Disorienting Change Robert A. Mead, State Law Librarian2:45 p.m. Break3:00 p.m. The Art of Judicial Decision-Making Justice Edward L. Chavez, New Mexico Supreme Court Chief Judge Cynthia Foy Castillo,

New Mexico Court of Appeals Judge James Miles Hanisee, New Mexico Court of Appeals4:00 p.m. Appellate Practitioner Quandaries: How to Resolve

Them Ethically and Professionally Jane B. Yohalem, Esq., Law Offices of Jane B. Yohalem Scott M. Davidson, Esq., Law Office of Scott Davidson5:00p.m. Adjourn

5.7 G

1.0 G6.0 G

NATIONAL SERIES National Teleseminars • 11 a.m. MDT Must register for teleseminars online at www.nmbarcle.org

JULY3 Estate PlanningPlanning for Your Client’s Biggest Assets: Personal Residences and Vacation Homes This program will cover the range of practical tax, estate planning and easement issues that surround owning, operating and transferring a vacation homeorotherdistinctive family-ownedproperty. The integrationof incometax planning with estate and trust planning will be discussed, including what happenswhenwell-laidplansmustbeunwoundwhenthepropertyissolddueto economic distress.1.0 G CLE Credit r $67

10 BusinessFiduciary Standards in Business Transactions: Understanding Sources of Liability in Transaction Negotiations and DraftingBusiness transactions gone bad – whether they close and subsequently gobad or never reach the closing table – often give rise to recriminations and to litigationorthreatsoflitigation. Partiesnegotiatingorstructuringatransactionsare subject tocertainfiduciaryobligationswhich, ifviolated,cangive rise tolitigationand liability.Thisprogramwillprovideyouwitha real-worldguidetofiduciary standards inbusiness transactions anddiscussbestpractices foravoiding liability. 1.0 G CLE Credit r $67

continued on page 4

TWO WAYS TO REGISTER:INTERNET: www.nmbarcle.org FAX:(505)797-6071,24houraccessPlease Note: For all WEBCASTS and TELESEMINARS, you must register online at www.nmbarcle.org

Name ________________________________________________________________________________ NM Bar # _____________

Street _______________________________________________________________________________________________________

City/State/Zip _____________________________________________________________________________________________

Phone ______________________________________________ Fax _______________________________________________

E-mail____________________________________________________________________________________________________

Seminar _______________________________________________________________ Dateof Seminar __________________

CLE Materials: r FLASHDriver Printed

r VISA r MC r AmericanExpress r Discover

Credit Card # __________________________________________________________________________________________________

Exp.Date ___________________________________________ Billing ZipCode _____________________CVV# ___________

AuthorizedSignature______________________________________________________________________________________

REGISTER EARLY! Advance registration is recommended as it guarantees admittance and course materials. If space and materials are available, paid registrations will be accepted at the door. PAYING BY CHECK/PURCHASE ORDER: If you will be paying by check or government issued Purchase Order, please complete this registration form and present it at the registration desk with your check/purchase order on the day of the seminar. CANCELLATIONS & REFUNDS: If you find that you must cancel your registration, send a written notice of cancellation via fax by 5 p.m., one week prior to the program of interest. A refund, less a $50 processing charge will be issued. Registrants who fail to notify CLE by the date and time indicated will receive a set of course materials via mail following the program. MCLE CREDIT INFORMATION: Courses have been approved by the New Mexico MCLE Board. CLE of SBNM will provide attorneys with necessary forms to file for MCLE credit in other states. A separate MCLE filing fee may be required. ATTENTION PERSONS WITH DISABILITIES: Our meetings are held at facilities which are fully accessible to persons with mobility disabilities. If you plan to attend our program and will need an auxiliary aid or service, please contact the CLE of SBNM office one week prior to the program. PROGRAM CANCELLATION: Pre-registration is recommended. Program will be cancelled one week prior to scheduled date if attendance is insufficient. Pre-registrants will be notified by phone and full refunds given. TAPE RECORDING OF PROGRAMS IS NOT PERMITTED. CLE AUDIT POLICY: Members of the State Bar of New Mexico (to include attorneys and paralegals) and other legal staff (legal staff being defined as legal assistants and staff of members of the State Bar of New Mexico) may audit State Bar CLE courses at a cost of $10, space permitting. Course materials, breaks and/or lunch, if applicable, may be purchased at an additional cost of $29. Auditors should contact the CLE office in advance and notify staff of their intent to audit. “Walk-in” auditors will also be permitted on a space available basis. Auditors will not receive CLE credits for the audit fee. If an auditor chooses to receive CLE credit for attending the course, the request and payment must be made to CLE staff on the day of the program. Attendees who request CLE credit prior to the program will not be allowed to change to audit. No exceptions will apply. This policy applies to live seminars only and excludes special events. SCHOLARSHIPS: Please note, scholarships are available on an ‘as needed’ basis for up to 10% of any given seminar. The amount of the scholarship is equivalent to a 50% reduction of the standard fee for each seminar. To qualify, recipients are required to sign a financial assistance form available from the CLE department. For further information, please call (505) 797-6020. NOTE: Programs subject to change without notice.

CLE REGISTRATION FORM For more information about our programs visit www.nmbarcle.org • 505.797.6020 C

EL

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NATIONAL SERIES continued from page 3...

JULY12 EthicsEthics and Dishonest ClientsThis program will cover the ethical challenges and potential liability of attorneyswhohaveclientsthataredishonest. Theprogramwilldiscusshowto discover when a client is dishonest, the ethical thicket that exists when confronting clients with dishonesty, the range of steps that attorneys may take to correct the dishonesty, including withdrawal from the case, potential ethical trapsforlawyersandbestpracticesforavoidingliability. 1.0 EP CLE Credit r $67

17 Estate PlanningPractical Issues in Trust AdministrationThisprogramwillprovideyouwithapracticaloverviewofmajor issuesthatattorneysdraftingatrustoractingasanadvisortoafiduciaryadministeringa trust must know about trust administration. Among other topics, the programwillcovercommondraftingerrorsthatgiverisetofiduciaryliability,establishing objective and measurable standards for administration, and aguidetothefundamentaldutiesoffiduciaries.1.0 G CLE Credit r $67

19 EmploymentEmployee Separation Agreements: Reducing Risk and Liability When Employees Are Discharged or LeaveThe real market continues to work through vast tracts of distressed real estate with lenders, developers, investors and others seeking to restructure existing loans and other arrangements, and make the underlying real estate viableagain. Thisprogramwilldiscusstheprocessofworkingoutdistressed

commercial real estate from the perspective of property owners and new investorsseekingtoacquiretheproperties. Amongothertopics,theprogramwill cover work out strategies depending on the type of loan (relationship loan v. securitized) and lender involved, essential duediligence,determining therange of viable restructuring alternatives, documenting the deal and more. 1.0 G CLE Credit r $67

24-25 BusinessCommercial Real Estate Workouts: Making Broken Deals Work Again, Parts 1-2The real market continues to work through vast tracts of distressed real estate with lenders, developers, investors and others seeking to restructure existing loans and other arrangements, and make the underlying real estate viableagain. Thisprogramwilldiscusstheprocessofworkingoutdistressedcommercial real estate from the perspective of property owners and new investorsseekingtoacquiretheproperties. Amongothertopics,theprogramwill cover work out strategies depending on the type of loan (relationship loan v. securitized) and lender involved, essential duediligence,determining therange of viable restructuring alternatives, documenting the deal and more. 2.0 G CLE Credits r $129

31 Estate PlanningSpecial Needs TrustsThis program will provide practical guidance on structuring and drafting special needs trusts. The program will cover the types of SNTs available,eligibility standards, integration of SNTs with larger estate plans, selecting trustees, pooled trusts, and more. 1.0 G CLE Credit r $67

16 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

rules/ordersFrom the New Mexico Supreme Court

http://www.nmcompcomm.us/

no. 12-8300-016

in tHe Matter of tHe aMendMents to rules 5-208 and 5-211 nMra of tHe rules of criMinal procedure for district courts

order

WHEREAS, this matter came on for consideration by the Court upon recommendation of the Rules of Criminal Procedure for District Courts Committee to amend Rules 5-208 and 5-211 NMRA, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Petra Jimenez Maes, Justice Patricio M. Serna, Justice Richard C. Bosson, Justice Edward L. Chávez, and Charles W. Daniels concurring: NOW, THEREFORE, IT IS ORDERED that the amendments to Rules 5-208 and 5-211 NMRA are APPROVED; IT IS FURTHER ORDERED that the amendments to Rules 5-208 and 5-211 NMRA shall be effective for all cases pending or filed on or after June 29, 2012; and IT IS FURTHER ORDERED that the Clerk of the Court is authorized and directed to give notice of the above-referenced amendments by posting them on the New Mexico Compilation Commission web site Dwww.nmcompcomm.us/nmrulesE and publishing them in the Bar Bulletin and NMRA. IT IS SO ORDERED. WITNESS, Honorable Petra Jimenez Maes, Chief

Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 7th day of May, 2012.

______________________________________ Joey D. Moya, Chief Clerk of the Supreme Court

of the State of New Mexico_______________________________5208. Issuance of warrant for arrest and summons. A. Time. Upon the docketing of any criminal action the court may issue a summons or arrest warrant. B. Form for warrant. The warrant shall be signed by the court and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged. It shall command that the defendant be arrested and brought before the court. C. Form for summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place. A summons or arrest warrant shall be substantially in the form approved by the court administrator. D. Basis for warrant. The court may issue a warrant for ar-rest upon an indictment or a sworn written statement of the facts showing probable cause for issuance of a warrant. The showing of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Before ruling on a request for a warrant the court may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such additional

evidence shall be reduced to writing and supported by oath or af-firmation. The court also may permit a request for an arrest warrant by any method authorized by Paragraph F of Rule 5-211 NMRA for search warrants and may issue an arrest warrant remotely provided the requirements of Paragraph F of Rule 5-211 NMRA and this rule are met.[As amended by Supreme Court Order No. 12-8300-016, effective for all cases pending or filed on or after June 29, 2012.] Committee commentary. C When a criminal action is docketed in the magistrate court by the filing of a complaint, Rule 6204, substantially identical to this rule, will govern the procedure. Para-graph A of Rule 6204 adds to Paragraph A of this rule by indicating a preference for the use of summons when practicable. See also, 3116 NMSA 1978. Paragraphs B and C of this rule were derived from Rule 4(c) of the Federal Rules of Criminal Procedure. See 62 F.R.D. 27172 (1974). Paragraph D of this rule requires a written showing of probable cause before an arrest warrant may be issued. The constitutional basis for this requirement is Section 10 of Article 2 of the New Mexico Constitution, although that provision does not expressly mention arrest warrants. Cf. State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967). See also, commentary to Rule 5209. Paragraph D of this rule codified case law allowing the issuance of a warrant on probable cause based on hearsay evidence. This provision was taken from Rule 4(b) of the Federal Rules of Criminal Procedure. See 48 F.R.D. 553, 55860 (1970) and 62 F.R.D. 27172 (1974). Neither the proposed federal rule nor this rule attempts to establish what constitutes probable cause based on hearsay as that determination can only be made on a case by case basis, taking into account the unlimited variation and sources of information and the varying reliability of the information received by the affiant from others. 62 F.R.D. 271, 27374 (1974). The fact that the informa-tion may involve double hearsay does not mean that the affidavit fails to provide probable cause. State v. Alderete, 88 N.M. 14, 536 P.2d 278 (Ct. App. 1975). Paragraph D was amended in 2012 to permit alternate methods for requesting and issuing arrest warrants. See Rule 5-211(F) and the related committee commentary for more information. [As amended by Supreme Court Order No. 12-8300-016, effective for all cases pending or filed on or after June 29, 2012.]_________________________________5211. Search warrants. A. Issuance. A warrant may be issued by the court to search for and seize any (1) property which has been obtained or is possessed in a manner which constitutes a criminal offense; (2) property designed or intended for use or which is or has been used as the means of committing a criminal offense; (3) property which would be material evidence in a criminal prosecution; or (4) person for whose arrest there is probable cause or who is unlawfully restrained. A warrant shall issue only on a sworn written statement of the facts showing probable cause for issuing the warrant. B. Contents. A search warrant shall be executed by a fulltime salaried state or county law enforcement officer, a municipal police officer, a campus security officer, an Indian tribal or pueblo law enforcement officer or a civil officer of the United States authorized

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 17

to enforce or assist in enforcing any federal law. The warrant shall state the date and time it was issued by the judge and shall contain or have attached the sworn written statement of facts showing probable cause for its issuance and the name of any person whose sworn written statement has been taken in support of the warrant. A search warrant shall direct that it be served between the hours of 6:00 a.m. and 10:00 p.m., according to local time, unless the issuing judge, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at any time. C. Execution. A search warrant shall be executed within ten (10) days after the date of issuance. The officer seizing property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the affidavit for search warrant, and the search warrant and a copy of the inventory of the property taken or shall leave the copies of the affidavit for search warrant, the search warrant and inventory at the place from which the property was taken. D. Return. The return of the warrant, or any duplicate original, shall be made promptly after execution of the warrant. The return shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be signed by the officer and the person in whose presence the inventory was taken. The court shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. E. Probable cause. As used in this rule, “probable cause” shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. F. Methods for requesting warrant. A request for a search warrant may be made using any of the following methods: (1) by hand-delivery of an affidavit substantially in the form approved by the Supreme Court with a proposed search warrant attached; (2) by oral testimony in the presence of the judge provided that the testimony is reduced to writing, supported by oath or af-firmation, and served with the warrant; or (3) by transmission of the affidavit and proposed search warrant required under Subparagraph (1) of this paragraph to the judge by telephone, facsimile, electronic mail, or other reliable electronic means. G. Testimony, oaths, remote transmissions and signatures. (1) Before ruling on a request for a warrant the judge may require the affiant to appear personally, telephonically, or by audio-video transmission and may examine under oath the affiant and any witnesses the affiant may produce, provided that such additional evidence shall be reduced to writing, supported by oath or affirma-tion and served with the warrant. (2) If the judge administers an oath or affirmation remotely to the affiant or any witnesses the affiant may produce, the means used must be designed to ensure that the judge confirms the identity of the affiant and any witnesses the affiant may produce. (3) If the judge issues the warrant remotely, it shall be transmitted by reliable electronic means to the affiant and the judge shall file a duplicate original with the court. Upon the affiant=s acknowledgment of receipt by electronic transmission, the electroni-cally transmitted warrant shall serve as a duplicate original and the affiant is authorized, but not required, to write the words “duplicate

original” on the transmitted copy. The affiant may request that the duplicate original warrant filed by the judge be sealed or lodged in accordance with Rule 5-123 NMRA. (4) Any signatures required under this rule by the judge or affiant may be by original signature, a copy of an original signature, a computer generated signature or any other signature otherwise authorized by law.[As amended, effective October 1, 1974 and July 1, 1980; as amended by Supreme Court Order No. 12-8300-016, effective for all cases pending or filed on or after June 29, 2012.] Committee commentary. C This rule is patterned after Rule 41 of the Federal Rules of Criminal Proced re. For other court rules governing issuance, etc., of search warrants by the magistrate court, see Rule 6208, Rule 7208, and Rule 8208. These rules are substantially identical and are based upon the New Mexico constitutional requirements. See N.M. Const., Art. 2, ‘ 10. The court rules replaced the former search warrant statute, repealed in 1972. See N.M. Laws 1967, ch. 245, ‘’ 1 and 2, formerly com-piled as 41181 and 41182, 1953 Comp. “Property” in Paragraph A of this rule is defined in Rule 41(h) of the Federal Rules of Criminal Procedure “to include documents, books, papers and any other tangible objects.” The committee is of the opinion that this would include such things as blood, finger-prints, and handwriting samples. See Sanchez v. Attorney General, 93 N.M. 210, 598 P.2d 1170 (Ct. App. 1979). As amended in 1979, this rule provides a procedure for the obtaining of a search warrant to conduct a search of premises for a person even when a warrant is not required. As stated in the advi-sory committee note to Rule 41 of the Federal Rules of Criminal Procedure: That part of the amendment which authorizes issuance of a search warrant to search for a person unlawfully restrained is consistent with ALI Model Code of PreArraignment Procedure ‘ SS 210.3(1)(d) (Proposed Official Draft, 1975), which specifies that a search warrant may issue to search for >an individual * * * who is unlaw-fully held in confinement or other restraint.= As noted in the Commentary thereto, id. at p. 507:

Ordinarily such persons will be held against their will and in that case the persons are, of course, not subject to >seizure.= But they are, in a sense, >evidence= of crime, and the use of search warrants for these purposes presents no conceptual difficulties.

In United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), the Court . . . alluded to “the still unsettled question” of whether, absent exigent circumstances, officers acting without a warrant may enter private premises to make an arrest. Some courts have indicated that probable cause alone ordinarily is sufficient to support an arrest entry, United States v. Fernandez, 480 F.2d 726 (2d Cir. 1973); United States ex rel. Wright v. Woods, 432 F.2d 1143 (7th Cir. 1970). There exists some authority, however, that except under exigent circumstances a warrant is required to enter the defendant’s own premises, United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976); United States v. Lindsay, 506 F.2d 166 (D.C. Cir. 1974); Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970), or, at least to enter the premises of a third party, Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974); Fisher v. Volz, 486 F.2d 333 (3d Cir. 1974); Huotari v. Vanderport, 380 F. Supp. 645 (D. Minn. 1974). A warrant must be served between the hours of 6:00 a.m. and 10:00 p.m. unless for reasonable cause shown the issuing judge authorizes the execution at any time. The time periods designated were taken from the definition of “day time” in Rule 41(h) of the Federal Rules of Criminal Procedure. Paragraph E of this rule was derived in part from Rule 41(c) of

18 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

the Federal Rules of Procedure. On the use of hearsay evidence to establish probable cause, see State v. Perea, 85 N.M. 505, 513 P.2d 1287 (Ct. App. 1973). See also, 48 F.R.D. 553, 630 (1970). Uncorroborated information given by an unknown informant to support an affidavit for probable cause may be found to be reliable if the information is personal to the informant and other informa-tion given by the informant has been corroborated by information supplied by a reliable confidential informant. State v. Turkal, 93 N.M. 248, 599 P.2d 1045 (1979). The tests for evaluating the supporting affidavit for probable cause were set forth in State v. Perea, supra: (1) technical requirements of elaborate specificity are not required; (2) any inferences to be drawn from statements of the affiant must be drawn by the judge and not the police officer; (3) affidavits are tested by less rigorous standards than those governing the admissibility of evidence at trial; and (4) where affiant is relying on an informant, the affidavit must set forth some of the underlying circumstances supporting the affiant=s conclusion that the information is credible or reli-able. Only a probability of criminal conduct need be established and common sense should control the magistrate=s determination of probable cause, which should be shown great deference by the reviewing court. State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct. App. 1974). See also, State v. Alderete, 88 N.M. 14, 536 P.2d 278 (Ct. App. 1975). As in the federal rule, any additional evidence received by the court when the affiant appears personally must be made a part of the facts showing probable cause. In addition, under this rule, the additional evidence must be reduced to writing and sworn to in order to comply with the constitutional requirement of a “written showing of probable cause.” For cases showing examples of the sufficiency of descriptions in warrants, see State v. Ferrari, 80 N.M. 714, 460 P.2d 244 (1969) (instrumentalities of the crime in a murder case); State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct. App. 1970) (sufficiency of the descrip-tion of the place to be searched); State v. Quintana, 87 N.M. 414, 534 P.2d 1126 (Ct. App. 1975), cert. denied, 88 N.M. 29, 536 P.2d 1084, cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975) (sufficiency of description of controlled substances). Absent a showing of prejudice, defects in the return of service will not invalidate the warrant. See State v. Wise, 90 N.M. 659, 567

P.2d 970 (Ct. App.), cert. denied, 91 N.M. 4, 569 P.2d 414 (1977); State v. Baca, 87 N.M. 12, 528 P.2d 656 (Ct. App.), cert. denied, 87 N.M. 5, 528 P.2d 649 (1974). In 2012, Paragraphs F and G were added to permit multiple methods for requesting and issuing warrants. Beyond the traditional in-person submission of a written affidavit and proposed warrant, Paragraph F permits requesting a search warrant through oral testi-mony in the presence of the judge or by submission of the affidavit and proposed search warrant in person, over the telephone, by fax, by email, or by other electronic means. A judge is not required to accept requests for warrants by alternative methods, but, if the judge decides to do so, the judge must ensure that any oath or affirma-tion administered by remote means is done in a way that allows the judge to confirm the identity of the affiant. For example, the oath or affirmation may be accomplished by audio-visual means that allows the judge to see the person to whom the oath or affirmation is administered. Or the oath or affirmation may be accomplished by telephone or other audio method if done in a way that allows the judge to confirm identity, such as by having the call made through a known law enforcement telephone number with a verifiable badge number given by the officer requesting the warrant. See, e.g., Rule 11-901(A) NMRA. If the judge accepts a request for warrant by remote means, the judge must ensure that the sworn statement of facts offered in support of the warrant is reduced to writing to be served along with the warrant. And if the judge issues the warrant by remote means, the judge must file a duplicate original warrant with the court and the affiant may request that the warrant and affidavit be sealed upon an adequate showing under Rule 5-123 NMRA. Paragraph B was amended to require that the warrant include the date and time of its issuance. All duplicate originals shall reflect the date and time as indicated by the judge. Any signatures required under this rule by the judge or affiant may be by original signature, a copy of an original signature, a computer generated signature or any other signature otherwise authorized by law. See, e.g., NMSA 1978, Sections 14-15-1 to -6 (Electronic Authentication of Docu-ments Act); or Rule 5-103.2(D) NMRA (recognizing possibility for future electronic filing of documents in criminal cases).[As amended by Supreme Court Order No. 12-8300-016, effective for all cases pending or filed on or after June 29, 2012.]

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 19

rules/ordersFrom the New Mexico Supreme Court

http://nmsupremecourt.nmcourts.gov

proposed aMendMents to tHe rules of criMinal procedure for tHe Magistrate and Metropolitan courts and tHe rules of procedure for tHe Municipal courts

The Supreme Court is considering whether to approve proposed amendments that would conform the warrant rules for courts of limited jurisdiction to the recently adopted amendments to the Rules of Criminal Procedure for the District Courts regarding electronic warrants. See Rules 5-208 and 5-211 NMRA (approved May 7, 2012, effective June 2, 2012). If you would like to comment on the proposed amendments set forth below before they are submit-ted to the Court for final consideration, you may do so by either submitting a comment electronically through the Supreme Court’s website at http://nmsupremecourt.nmcourts.gov/ or sending your written comments to:

Joey D. Moya, ClerkNew Mexico Supreme CourtP.O. Box 848Santa Fe, New Mexico 87504-0848

Your comments must be received on or before July 18, 2012, to be considered by the Court. Please note that any submitted comments may be posted on the Supreme Court’s web site for public viewing. ________________________________6-204. Issuance of warrant for arrest and summons. A. Issuance. Upon the docketing of any criminal action the court may issue a summons or arrest warrant. The court may issue an arrest warrant or summons only upon a sworn statement of the facts showing probable cause that an offense has been committed. The showing of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing there is a factual basis for the information furnished. Before ruling on a request for a warrant, the court may require the affiant to appear personally and may examine under oath the affiant and any witnesses produced by the affiant, provided that such additional evidence shall be reduced to writing and supported by oath or affirmation. The court also may permit a request for an arrest warrant by any method authorized by Paragraph G of Rule 6-208 for search warrants and may issue an arrest warrant remotely provided the requirements of Paragraph G of Rule 6-208 and this rule are met. B. Preference for summons. If the offense is within magistrate court trial jurisdiction, the court shall issue a summons, unless in its discretion and for good cause shown, the court finds that the interests of justice may be better served by the issuance of a warrant for arrest. C. Form. The warrant shall be signed by the court and shall contain the name of the defendant or, if [his] the defendant’s name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged. It shall command that the defendant be arrested and brought before the court. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place. A summons or arrest warrant shall be substantially in the form approved by the Supreme Court. [As amended, effective July 1, 1988; as amended by Supreme Court Order No. , effective .] Committee commentary - Paragraph A was amended in 2012

to permit alternate methods for requesting and issuing arrest war-rants. See Rule 5-211(F) and the related committee commentary for more information.[As amended by Supreme Court Order No. , effective .]________________________________6-206. Arrest warrants. A. To whom directed. Whenever a warrant is issued in a criminal action, including by any method authorized by Paragraph G of Rule 6-208, it shall be directed to a full-time salaried state or county law enforcement officer, a municipal police officer, a cam-pus security officer or an Indian tribal or pueblo law enforcement officer. The warrant may limit the jurisdictions in which it may be executed. A copy of the warrant shall be docketed in the case file. The person obtaining the warrant shall cause it to be entered into a law enforcement information system. Upon arrest the defendant shall be brought before the court without unnecessary delay. B. Arrest. The warrant shall be executed by the arrest of the defendant. If the warrant is in the possession of the arresting officer at the time of the arrest, a copy shall be served on the defendant upon arrest. If the warrant is not in the officer’s possession at the time of arrest, the officer shall inform the defendant of the offense and of the fact that a warrant has been issued and shall serve the warrant on the defendant as soon as practicable. C. Return. The arresting officer shall make a return of the war-rant, or any duplicate original, to the court which issued the warrant and notify immediately all law enforcement agencies, previously advised of the issuance of the warrant for arrest, that the defendant has been arrested. The return shall be docketed in the case file. D. Duty to remove warrant. If the warrant has been entered into a law enforcement information system, upon arrest of the defendant, the person executing the warrant shall cause it to be removed from the system. If the court withdraws the warrant, the court shall cause the warrant to be removed from the warrant information system. [As amended, effective July 1, 1999; March 1, 2000; as amended by Supreme Court Order No. , effective .] Committee commentary - Paragraph A was amended in 2012 to permit alternate methods for requesting and issuing arrest war-rants. See Rule 5-211(F) and the related committee commentary for more information.[As amended by Supreme Court Order No. , effective .]________________________________6-208. Search warrants. A. Issuance. A warrant may be issued by the court to search for and seize any of the following: (1) property [which] that has been obtained or is possessed in a manner which constitutes criminal offense; (2) property designed or intended for use or which is or has been used as the means of committing a criminal offense; (3) property [which] that would be material evidence in a prosecution for a criminal offense; or (4) a person for whose arrest there is probable cause or who is unlawfully restrained. A warrant shall issue only on a sworn written statement of the facts showing probable cause for issuing the warrant. B. Contents. A search warrant shall be executed by a full-time salaried state or county law enforcement officer, a municipal police officer, a campus security officer, an Indian tribal or pueblo law enforcement officer or a civil officer of the United States authorized to enforce or assist in enforcing any federal law. The warrant shall

20 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

state the date and time it was issued by the judge and shall contain or have attached the sworn written statement of facts showing probable cause for its issuance and the name of any person whose sworn written statement has been taken in support of the warrant. A search warrant shall direct that it be served between the hours of 6:00 a.m. and 10:00 p.m., according to local time, unless the issuing judge, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at any time. C. Form. A search warrant shall be substantially in the form approved by the supreme court. D. Execution. A search warrant shall be executed within ten (10) days after the date of issuance. The officer seizing property un-der the warrant shall give to the person from whom or from whose premises the property was taken a copy of the affidavit for search warrant, a copy of the search warrant and a copy of the inventory of the property taken or shall leave the copies of the affidavit for search warrant, the search warrant and inventory at the place from which the property was taken. E. Return. The return of the warrant, or any duplicate original, shall be made promptly after execution of the warrant to the mag-istrate court issuing the warrant. The return shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken and shall be signed by the officer and the person or persons in whose presence the inventory was taken. The court shall upon request deliver a copy of the inventory to the person from whom or whose premises the property was taken and to the applicant for the warrant. F. Probable cause. As used in this rule, “probable cause” shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. G. Methods for requesting warrant. A request for a search warrant may be made using any of the following methods: (1) by hand-delivery of an affidavit substantially in the form approved by the Supreme Court with a proposed search warrant attached; (2) by oral testimony in the presence of the judge provided that the testimony is reduced to writing, supported by oath or af-firmation, and served with the warrant; or (3) by transmission of the affidavit and proposed search war-rant required under Subparagraph (1) of this paragraph to the judge by telephone, facsimile, electronic mail, or other reliable electronic means. H. Testimony, oaths, remote transmissions and signatures. (1) Before ruling on a request for a warrant the [court] judge may require the affiant to appear personally, telephonically, or by audio-video transmission and may examine under oath the affiant and any witnesses [he] the affiant may produce, provided that such additional evidence shall be reduced to writing, supported by oath or affirmation and served with the warrant. (2) If the judge administers an oath or affirmation remotely to the affiant or any witnesses the affiant may produce, the means used must be designed to ensure that the judge confirms the identity of the affiant and any witnesses the affiant may produce. (3) If the judge issues the warrant remotely, it shall be transmitted by reliable electronic means to the affiant and the judge shall file a duplicate original with the court. Upon the affiant’s acknowledgment of receipt by electronic transmission, the electroni-cally transmitted warrant shall serve as a duplicate original and the affiant is authorized, but not required, to write the words “duplicate

original” on the transmitted copy. The affiant may request that the duplicate original warrant filed by the judge be sealed or lodged in accordance with Rule 6-114 NMRA. (4) Any signatures required under this rule by the judge or affiant may be by original signature, a copy of an original signature, a computer generated signature or any other signature otherwise authorized by law. [As amended by Supreme Court Order , effective .]Committee commentary - In 2012, Paragraphs G and H were added to permit multiple methods for requesting and issuing war-rants. See Rule 5-211(F) and the related committee commentary for more information.[As amended by Supreme Court Order No. , effective .]________________________________7-204. Issuance of warrant for arrest and summons. A. Issuance. The court may issue an arrest warrant or summons only upon a sworn statement of the facts showing probable cause that an offense has been committed. The showing of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing there is a factual basis for the information furnished. Before ruling on a request for a warrant, the court may require the affiant to appear personally and may examine under oath the affiant and any witnesses produced by the affiant, provided that such additional evidence shall be reduced to writing and supported by oath or affirmation. The court also may permit a request for an arrest warrant by any method authorized by Paragraph F of Rule 7-208 for search warrants and may issue an arrest warrant remotely provided the requirements of Paragraph F of Rule 7-208 and this rule are met. B. Preference for summons. The court shall issue a summons, unless in its discretion and for good cause shown, the court finds that the interests of justice may be better served by the issuance of a warrant for arrest. C. Form. The warrant shall be signed by the court and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged. It shall command that the defendant be arrested and brought before the court. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place. A summons or arrest warrant shall be substantially in the form approved by the supreme court. [As amended by Supreme Court Order No. , effective .]Committee commentary - Paragraph A was amended in 2012 to permit alternate methods for requesting and issuing arrest war-rants. See Rule 5-211(F) and the related committee commentary for more information.[As amended by Supreme Court Order No. effective .] ________________________________7-206. Arrest warrants. A. To whom directed. Whenever a warrant is issued in a criminal action, including by any method authorized by Paragraph F of Rule 7-208, it shall be directed to a full-time salaried state or county law enforcement officer, a municipal police officer, a cam-pus security officer or an Indian tribal or pueblo law enforcement officer. The warrant may limit the jurisdictions in which it may be executed. A copy of the warrant shall be docketed in the case file. The person obtaining the warrant shall cause it to be entered into a law enforcement information system. Upon arrest the defendant shall be brought before the court without unnecessary delay. B. Arrest. The warrant shall be executed by the arrest of the defendant. If the warrant is in the possession of the arresting officer at the time of the arrest, a copy shall be served on the defendant

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 21

upon arrest. If the warrant is not in the officer’s possession at the time of arrest, the officer shall inform the defendant of the offense and of the fact that a warrant has been issued and shall serve the warrant on the defendant as soon as practicable. C. Return. The arresting officer shall make a return of the war-rant, or any duplicate original, to the court which issued the warrant and notify immediately all law enforcement agencies, previously advised of the issuance of the warrant for arrest, that the defendant has been arrested. The return shall be docketed in the case file. D. Duty to remove warrant. If the warrant has been entered into a law enforcement information system, upon arrest of the defendant, the person executing the warrant shall cause it to be removed from the system. If the court withdraws the warrant, the court shall cause the warrant to be removed from the warrant information system. [As amended, effective July 1, 1999; March 1, 2000; as amended by Supreme Court Order No. , effective .]Committee commentary - Paragraph A was amended in 2012 to permit alternate methods for requesting and issuing arrest warrants. See Rule 5-211(F) and the related committee commentary for more information.[As amended by Supreme Court Order No. , effective .]________________________________7-208. Search warrants. A. Issuance. A warrant may be issued by the court to search for and seize any: (1) property which has been obtained or is possessed in a manner which constitutes a criminal offense; (2) property designed or intended for use or which is or has been used as the means of committing a criminal offense; (3) property which would be material evidence in a criminal prosecution; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained. A warrant shall issue only on a sworn writ-ten statement of the facts showing probable cause for issuing the warrant. B. Contents. A search warrant shall be executed by a full-time salaried state or county law enforcement officer, a municipal police officer, a campus security officer or an Indian tribal or pueblo law enforcement officer or a civil officer of the United States authorized to enforce or assist in enforcing any federal law. The warrant shall state the date and time it was issued by the judge and shall contain or have attached the sworn written statement of facts showing probable cause for its issuance and the name of any person whose sworn written statement has been taken in support of the warrant. A search warrant shall direct that it be served between the hours of 6:00 a.m. and 10:00 p.m., according to local time, unless the issuing judge, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at any time. C. Execution. A search warrant shall be executed within ten (10) days after the date of issuance. The officer seizing property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the affidavit for search warrant and the search warrant, and a copy of the inventory of the property taken or shall leave the copies of the affidavit for search warrant, the search warrant and inventory at the place from which the property was taken. D. Return. The return of the warrant, or any duplicate original, shall be made promptly after execution of the warrant to the clerk of the court which issued the warrant. The return shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person

other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be signed by the officer and the person in whose presence the inventory was taken. The court shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. E. Probable cause. As used in this rule, “probable cause” shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. F. Methods for requesting warrant. A request for a search warrant may be made using any of the following methods: (1) by hand-delivery of an affidavit substantially in the form approved by the Supreme Court with a proposed search warrant attached; (2) by oral testimony in the presence of the judge provided that the testimony is reduced to writing, supported by oath or af-firmation, and served with the warrant; or (3) by transmission of the affidavit and proposed search warrant required under Subparagraph (1) of this paragraph to the judge by telephone, facsimile, electronic mail, or other reliable electronic means. G. Testimony, oaths, remote transmissions and signatures. (1) Before ruling on a request for a warrant the [court] judge may require the affiant to appear personally, telephonically, or by audio-video transmission and may examine under oath the affiant and any witnesses [he] the affiant may produce, provided that such additional evidence shall be reduced to writing, supported by oath or affirmation and served with the warrant. (2) If the judge administers an oath or affirmation remotely to the affiant or any witnesses the affiant may produce, the means used must be designed to ensure that the judge confirms the identity of the affiant and any witnesses the affiant may produce. (3) If the judge issues the warrant remotely, it shall be transmitted by reliable electronic means to the affiant and the judge shall file a duplicate original with the court. Upon the affiant’s acknowledgment of receipt by electronic transmission, the electroni-cally trasmitted warrant shall serve as a duplicate original and the affiant is authorized, but not required, to write the words “duplicate original” on the transmitted copy. The affiant may request that the duplicate original warrant filed by the judge be sealed or lodged in accordance with Rule 7-113 NMRA. (4) Any signatures required under this rule by the judge or affiant may be by original signature, a copy of an original signature, a computer generated signature or any other signature otherwise authorized by law. [As amended by Supreme Court Order No., effective .]Committee commentary - In 2012, Paragraphs F and G were added to permit multiple methods for requesting and issuing war-rants. See Rule 5-211(F) and the related committee commentary for more information.[As amended by Supreme Court Order No. effective .]________________________________8-203. Issuance of warrant for arrest and summons. A. Issuance. Upon the docketing of any action, the court may issue an arrest warrant or summons. No warrant or summons shall issue except upon a sworn statement of the facts showing probable cause that an offense has been committed. The showing of prob-able cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing there is a factual basis for the information furnished. Before ruling on a request for a warrant, the court may require the affiant to appear

22 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

personally and may examine under oath the affiant and any witnesses produced by the affiant, provided that such additional evidence shall be reduced to writing and supported by oath or affirmation. The court also may permit a request for an arrest warrant by any method authorized by Paragraph G of Rule 8-207 for search warrants and may issue an arrest warrant remotely provided the requirements of Paragraph G of Rule 8-207 and this rule are met. B. Preference for summons. The court shall issue a summons, unless in its discretion and for good cause shown, the court finds that the interests of justice may be better served by the issuance of a warrant for arrest. [As amended by Supreme Court Order No. effective .]Committee commentary - Paragraph A was amended in 2012 to permit alternate methods for requesting and issuing arrest war-rants. See Rule 5-211 (F) and the related committee commentary for more information.[As amended by Supreme Court Order No. effective ________________________________8-205. Arrest warrants. A. To whom directed. Whenever a warrant is issued in an ac-tion, including by any method authorized by Paragraph G of Rule 8-207, it shall be directed to a municipal police officer, a full-time salaried state or county law enforcement officer, a campus security officer or an Indian tribal or pueblo law enforcement officer. The person obtaining the warrant shall cause it to be entered into a law enforcement information system. A copy of the warrant shall be docketed in the case file. Upon arrest, the defendant shall be brought before the court without unnecessary delay. B. Arrest. The warrant shall be executed by the arrest of the defendant. If the warrant is in the possession of the arresting officer at the time of the arrest, a copy shall be served on the defendant upon arrest. If the warrant is not in the officer’s possession at the time of arrest, the officer shall inform the defendant of the offense and of the fact that a warrant has been issued and shall serve the warrant on the defendant as soon as practicable. C. Return. The arresting officer shall make a return of the war-rant, or any duplicate original, to the court which issued the warrant and notify immediately all law enforcement agencies previously advised of the issuance of the warrant for arrest that the defendant has been arrested. The return shall be docketed in the case file. D. Duty to remove warrant. If the warrant has been entered into a law enforcement information system, upon arrest of the defendant, the person executing the warrant shall cause it to be removed from the system. If the court withdraws the warrant, the court shall cause the warrant to be removed from the warrant information system. [As amended, effective July 1, 1999; March 1, 2000; as amended by Supreme Court Order No. , effective .]Committee commentary - Paragraph A was amended in 2012 to permit alternate methods for requesting and issuing arrest war-rants. See Rule 5-211(F) and the related committee commentary for more information.[As amended by Supreme Court Order No. , effective .]________________________________8-207. Search warrants. A. Issuance. A warrant may be issued by the court to search for and seize any: (1) property which has been obtained or is possessed in a manner which constitutes a violation of a municipal ordinance; (2) property designed or intended for use or which is or has been used as the means of committing a violation of a municipal ordinance; (3) property which would be material evidence in a prosecu-tion for a violation of a municipal ordinance; or

(4) person for whose arrest there is probable cause or who is unlawfully restrained. A warrant shall issue only on a sworn writ-ten statement of the facts showing probable cause for issuing the warrant. B. Contents. A search warrant shall be executed by a municipal police officer, a full-time salaried state or county law enforcement officer, a campus security officer, an Indian tribal or pueblo law enforcement officer or a civil officer of the United States authorized to enforce or assist in enforcing any federal law. The warrant shall state the date and time it was issued by the judge and shall contain or have attached the sworn written statement of facts showing probable cause for its issuance and the name of any person whose sworn written statement has been taken in support of the warrant. A search warrant shall direct that it be served between the hours of 6:00 a.m. and 10:00 p.m., according to local time, unless the issuing judge, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at any time. C. Form. A search warrant shall be substantially in the form approved by the supreme court. D. Execution. A search warrant shall be executed within ten (10) days after the date of issuance. The officer seizing property under the warrant shall give to the person from whose possession or premises the property was taken a copy of the affidavit for search warrant, and the search warrant and a copy of the inventory of the property taken or shall leave the copies of the affidavit for search warrant, the search warrant and inventory at the place from which the property was taken. E. Return. The return of the warrant, or any duplicate original, shall be made promptly after execution of the warrant to the mu-nicipal court issuing the warrant. The return shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken. The inventory shall be signed by the officer and the person or persons in whose presence the inventory was taken. The court shall upon request deliver a copy of the inventory to the person from whose possession or premises the property was taken and to the applicant for the warrant. F. Probable cause. As used in this rule, “probable cause” shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. G. Methods for requesting warrant. A request for a search warrant may be made using any of the following methods: (1) by hand-delivery of an affidavit substantially in the form approved by the Supreme Court with a proposed search warrant attached; (2) by oral testimony in the presence of the judge provided that the testimony is reduced to writing, supported by oath or af-firmation, and served with the warrant; or (3) by transmission of the affidavit and proposed search warrant required under Subparagraph (1) of this paragraph to the judge by telephone, facsimile, electronic mail, or other reliable electronic means. H. Testimony, oaths, remote transmissions and signatures. (1) Before ruling on a request for a warrant the [court] judge may require the affiant to appear personally, telephonically, or by audio-video transmission and may examine under oath the affiant and any witnesses produced by the affiant, provided that such additional evidence shall be reduced to writing, supported by oath or affirmation and served with the warrant.

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 23

(2) If the judge administers an oath or affirmation remotely to the affiant or any witnesses the affiant may produce, the means used must be designed to ensure that the judge confirms the identity of the affiant and any witnesses the affiant may produce. (3) If the judge issues the warrant remotely, it shall be transmitted by reliable electronic means to the affiant and the judge shall file a duplicate original with the court. Upon the affiant’s acknowledgment of receipt by electronic transmission, the electroni-cally transmitted warrant shall serve as a duplicate original and the affiant is authorized, but not required, to write the words “duplicate original” on the transmitted copy. The affiant may request that the duplicate original warrant filed by the judge be sealed or lodged in accordance with Rule 8-112 NMRA.

(4) Any signatures required under this rule by the judge or affiant may be by original signature, a copy of an original signature, a computer generated signature or any other signature otherwise authorized by law.[As amended by Supreme Court Order No. , effective .]Committee commentary - In 2012, Paragraphs G and H were added to permit multiple methods for requesting and issuing war-rants. See Rule 5-211(F) and the related committee commentary for more information.[As amended by Supreme Court Order No. , effective .]________________________________

24 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

advance opinions http://www.nmcompcomm.us/

froM tHe neW Mexico supreMe court and court of appeals

From the New Mexico Supreme Court

Opinion Number: 2012-NMSC-013

Topic Index:Appeal and Error: Fundamental Error; Preservation of Issues for Appeal;

Standard of Review; Sua Sponte Issue on Appeal; and Substantial or Sufficient Evidence

Attorneys: Effective Assistance of CounselConstitutional Law: Speedy Trial

Criminal Law: Assault; Child Abuse and Neglect; Intoxication; Jury Instructions; Murder; Self-Defense; Shooting Offences; Specific Intent;

and Tampering with EvidenceCriminal Procedure: Continuance; Prejudice; Stipulations;

and Substantial or Sufficient EvidenceEvidence: Admissibility of Evidence; and Authentication of Evidence

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusANGEL ARRENDONDO,Defendant-Appellant.

Defendants-Respondents.No. 31,934 (filed May 7, 2012)

APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTYCamille Martinez-Olguin, District Judge

opinion

edWard l. cHávez, Justice

1 Defendant Angel Arrendondo testified during his trial that he shot and killed Alfego “Ace” Aragon in self-defense. Arrendondo claimed that Aragon shot at him numerous times, wounding him once in the shoulder. Witnesses Gloria Rael and Emilio Quin-tana, Aragon’s wife and son-in-law, respec-tively, testified that Aragon did not own a gun and was not armed. They testified that they both saw Arrendondo shooting into their house. Emilio testified that he saw Arrendondo shoot Aragon in the stomach, and then walk up to Aragon and shoot him a second time in the head, fatally wounding him. The jury found Arrendondo guilty of

JACQUELINE L. COOPERChief Appellate Defender

J.K. THEODOSIA JOHNSONAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

GARY K. KINGAttorney General

RALPH E. TRUJILLOAssistant Attorney General

Santa Fe, New Mexicofor Appellee

first-degree murder, assault with intent to commit a violent felony, negligent child abuse, tampering with evidence, and shoot-ing at a dwelling.2 Arrendondo appeals his convictions, raising several issues, which we discuss in four categories. First, did the trial court abuse its discretion by (a) denying Ar-rendondo a fifth continuance, which was requested one week before trial to allow defense counsel an opportunity to examine an unidentified hard fragment found in the lining of the jacket Arrendondo wore on the day of the shooting, and (b) by declining to admit the fragment into evidence? Sec-ond, was there sufficient evidence to prove Arrendondo’s convictions for assault with intent to commit a violent felony against Nicole Rael, Aragon’s daughter; negligent

child abuse; tampering with evidence; and shooting at a dwelling? Third, was defense counsel ineffective because (a) she failed to timely investigate the unidentified hard fragment in the jacket, and (b) she did not pursue a defense that Arrendondo was so intoxicated by heroin use that he could not form the specific intent to commit first-degree murder? Fourth and finally, was Arrendondo denied his right to a speedy trial under the Sixth Amendment of the United States Constitution, a claim he raises for the first time on appeal?I. THE TRIAL COURT DID NOT

ABUSE ITS DISCRETION IN DE-NYING ARRENDONDO’S FIFTH MOTION FOR A CONTINUANCE AND REFUSING TO ADMIT THE UNIDENTIFIED FRAGMENT INTO EVIDENCE.

A. The Trial Court Reasonably Denied the Motion for a Con-tinuance Because of the Number of Previous Continuances, the Likely Length of Delay, and the Lack of an Explanation for De-fense Counsel’s Failure to Timely Discover and Test the Jacket Evidence.

3 A week before trial, it came to defense counsel’s attention that the State was in possession of a Nike jacket that Arrendondo had been wearing on the day of the murder. Lodged in a hole in the back shoulder of the jacket was a small unidentified lump of hard material that has been described during the trial as, among other things, a “fragment,” a “hard lump,” and a “fragment of something hard, a bullet, a rock, we don’t know.” (For the sake of convenience, we will describe the object found in the jacket as an “unidentified fragment” throughout this opinion.) Defense counsel moved for a continuance of the trial setting to test the jacket and the unidentified fragment in an attempt to bolster Arrendondo’s claim of self-defense. This motion was argued on the morning of trial after a jury had been seated. The trial court denied the motion, citing the numerous prior continuances granted at Arrendondo’s request, and also because the trial judge was not persuaded that the unidentified fragment was relevant to the defense.4 We review a trial court’s denial of a motion for a continuance under an abuse of discretion standard. See State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. An abuse of discretion is a

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ruling that is “clearly against the logic and effect of the facts and circumstances of the case.” State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P.3d 363 (internal quotation marks and citation omitted). The factors we consider when reviewing the denial of a motion for continuance include

the length of the requested delay, the likelihood that a delay would accomplish the movant’s objec-tives, the existence of previous continuances in the same matter, the degree of inconvenience to the parties and the court, the legiti-macy of the motives in requesting the delay, the fault of the movant in causing a need for the delay, and the prejudice to the movant in denying the motion.

State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20.5 Assessing the trial court’s decision under the Torres factors, we conclude that the court did not abuse its discretion. The trial court had already continued four trial settings at Arrendondo’s request. Each continuance resulted in several intervening months before the next trial setting. In addition, Arrendondo’s counsel did not offer any explanation regarding why the jacket and the unidentified fragment had not been discovered sooner or tested before the day of trial.6 Finally, as an alternative to the continu-ance, defense counsel asked that the jacket be admitted into evidence and Arrendondo be permitted to argue that the hole in the jacket corroborated his testimony that Aragon shot him in the shoulder. The trial court admitted the jacket into evidence and defense counsel argued that the hole in the jacket supported Arrendondo’s claim that he shot and killed Aragon in self-defense. In light of these considerations, we affirm the trial court’s denial of the motion for a continuance. B. The Trial Court Acted Reason-

ably in Refusing to Admit the Unidentified Fragment into Evidence Because Arrendondo Failed to Provide Evidence that It Might Have Been a Bullet.

7 After defense counsel examined the jacket and discovered the unidentified fragment lodged within it, counsel moved to admit both the jacket and the uniden-tified fragment into evidence. The trial court admitted the jacket but excluded the unidentified fragment, reasoning that an insufficient foundation had been laid to identify the unidentified fragment and how it might be relevant. Arrendondo argues that the trial court abused its discretion in failing to admit the unidentified fragment

that was found in the jacket into evidence because it supported his self-defense claim. Arrendondo reasons that the fact that an unidentified fragment that could have been metal was found in the jacket that he wore on the day of the shooting is evidence that he was shot by Aragon during a gun fight.8 This Court reviews a trial court’s deci-sion whether to admit or deny objects into evidence for abuse of discretion. State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. The defendant must show that there is a reasonable possi-bility that the failure to admit the evidence contributed to his conviction. State v. Gar-cia, 100 N.M. 120, 123, 666 P.2d 1267, 1270 (Ct. App. 1983).9 We conclude that the trial court reason-ably denied admission of the unidentified fragment into evidence because Arrendondo did not lay a foundation for its admissibility. Foundation goes to conditional relevancy. Under Rule 11-901(A) NMRA, “The re-quirement of authentication . . . as a condi-tion precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Absent authenticating evidence, a trial court may reasonably conclude that the evidence in question is not relevant. See State v. Kenny, 112 N.M. 642, 650, 818 P.2d 420, 428 (Ct. App. 1991). Because Arrendondo did not present any evidence to authenticate the unidentified fragment, the trial court reasonably concluded that Arrendondo did not show how the unidentified fragment would be relevant to his self-defense claim. Thus, we affirm the trial court’s exclusion of the unidentified fragment.II. SUFFICIENCY OF THE

EVIDENCE CLAIMS10 Arrendondo argues that the following convictions were not supported by sufficient evidence: assault with intent to commit a violent felony against Nicole, negligent child abuse of Jasmine Q. and Adrian A., tampering with evidence, and shooting at a dwelling. In reviewing for sufficiency of the evidence, this Court views the evidence in the light most favorable to the verdict. State v. Cabezuela, 2011-NMSC-041, ¶ 42, 150 N.M. 654, 265 P.3d 705. We must assess “whether substantial evidence of either a direct or circumstantial nature exists to sup-port [the] verdict.” Id. (internal quotation marks and citation omitted). Substantial evidence is evidence acceptable to a reason-able mind as adequate to support a conclu-sion. State v. Mailman, 2010-NMSC-036, ¶ 24, 148 N.M. 702, 242 P.3d 269. A. Sufficient Evidence Supports

Arrendondo’s Conviction for Assault with Intent to Commit a Violent Felony Against Nicole

as Instructed; However, the Jury Instruction was Erroneous.

11 The State presented eyewitness tes-timony that Arrendondo fired shots into a house occupied by Nicole and others. How-ever, Arrendondo contends that the State failed to present evidence that he “knew that Nicole was in the house, let alone had any sort of disagreement with her so to desire to maim or kill her” or that Nicole subjectively feared being hit by a bullet. Therefore, Ar-rendondo argues that the conviction is not supported by sufficient evidence. To sup-port a conviction for assault with intent to commit a felony against Nicole, the State had to prove beyond a reasonable doubt that (1) Arrendondo shot a firearm into the house in which Nicole resided; (2) Ar-rendondo’s conduct caused Nicole to believe that he was about to intrude on her bodily integrity or personal safety by touching or applying force to her in a rude, insolent or angry manner; (3) a reasonable person in the same circumstances as Nicole would have had the same belief; (4) Arrendondo’s act was unlawful [because it was not justified by self-defense]; (5) Arrendondo intended to kill Nicole or commit murder on Nicole; and (6) this happened in New Mexico on or about November 22, 2003. See UJI 14-312 NMRA; NMSA 1978, § 30-3-3 (1963).12 Police Chief Jerry Stevens, Sergeant Shane Arthur, and Katerina Babcock, a forensic scientist, testified that all of the bul-lets from the crime scene, including those that landed in the house, came from Arren-dondo’s 9 mm handgun. Gloria testified that Nicole was in the house during the shooting. This testimony supports a jury finding that Arrendondo shot into the house in which Nicole resided. In addition, Sergeant Arthur testified that the trajectory of the bullets that landed in the house indicates that the shooter was aiming directly at the house. This testimony supports the fourth element: that Arrendondo acted unlawfully, rather than in self-defense. There is no dispute regarding the date of these events. 13 The next question is whether there is sufficient evidence to support a finding that Nicole subjectively believed she would be assaulted and whether that belief was ob-jectively reasonable. The jury was instructed, in pertinent part, that the State had to prove both that “[t]he defendant’s conduct caused [the victim] to believe the defendant was about to intrude on [the victim’s] bodily integrity or personal safety by touching or applying force to [the victim] in a rude, insolent or angry manner,” and that “[a] reasonable person in the same circumstances as [the victim] would have had the same belief.” UJI 14-312(2) & (3).14 The requirement that the victim

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must actually believe, and that a reasonable person in the victim’s circumstances also would believe, that he or she was about to be assaulted indicates a dual subjective and objective test. We have previously contrasted a subjective standard with the objective reasonable person standard based on a per-son’s actual perceptions. See State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144 N.M. 305, 187 P.3d 170 (interpreting a focus on the person’s actual perception as subjective and deeming an “acted reasonably” requirement as objective). Therefore, the State’s evidence must satisfy both a subjective and an objec-tive standard.15 Our law of assault generally re-quires evidence that the victim actually, subjectively comprehended that he or she was going to receive unwelcome physical contact. See Baca v. Velez, 114 N.M. 13, 15, 833 P.2d 1194, 1196 (Ct. App. 1992). In prosecuting an assault charge, the State must present some evidence of the victim’s actual “belie[f that] he was in danger of receiving an immediate battery.” State v. Mata, 86 N.M. 548, 550-51, 525 P.2d 908, 910-11 (Ct. App. 1974).16 Arrendondo argues that because Ni-cole did not testify during his trial, “there is no way to know, without speculating, if she believed that [Arrendondo] was about to injure her.” However, Gloria testified that Nicole was in the house with her when Arrendondo started shooting. Gloria could hear the gunshots. A reasonable jury could infer from this testimony that the shooting was audible to people in Aragon’s house, including Nicole.17 Gloria also testified, without objec-tion, that Nicole said that a bullet passed in front of her and Jasmine, her baby. Gloria told Nicole to hide. It is unclear which of these events happened first. After Gloria told Nicole to hide, Nicole fled to a closet in Glo-ria’s son’s bedroom. From this evidence, a reasonable jury could find that a reasonable person in Nicole’s shoes, having heard the gunshots and witnessed a bullet pass next to her and her baby, would have feared for her life. Therefore, the State presented enough evidence to satisfy both the subjective and the objective prongs of this test.18 However, the controlling question is whether Arrendondo intended to commit murder or mayhem against Nicole. See State v. Highfield, 113 N.M. 606, 609, 830 P.2d 158, 161 (Ct. App. 1992) (providing that an essential element of the crime of assault

with the intent to commit a violent felony is the intent to commit the violent felony against such person). We note that the jury was instructed that for it to find Arrendondo guilty of assault with intent to commit a violent felony, in addition to the other ele-ments, it had to find that he intended to kill Nicole or any other person or commit murder or mayhem on Nicole or any other person. The State correctly argues that the “[j]ury instructions become the law of the case against which the sufficiency of the evidence is to be measured.” State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 1986).19 There was sufficient evidence to find Arrendondo guilty under the instruction as given because there was sufficient evidence that he intended to commit murder against Aragon. Although the State asserts that there was evidence at the trial that Arrendondo knew that Nicole was in the house, our review of the record does not support this assertion. The testimony relied upon by the State established only that Arrendondo had been at the Aragon residence before the shooting, although he never entered their residence. The testimony also established that the Aragons, including Nicole, had been to Arrendondo’s residence, although Nicole never entered his residence. We fail to understand how this evidence supports an inference that, at the time in question, Arrendondo knew that Nicole was in the Aragons’ house.20 However, the instruction, to which Arrendondo did not object either at trial or on appeal, misstated the law regarding assault with intent to commit a violent felony. As a preface to discussing why the instruction is erroneous, it is important to note that a majority of the Court, excluding the author, have opted to raise the issue of the erroneous instruction sua sponte. The majority does so because of this Court’s inherent authority to raise an issue sua sponte when it is necessary to protect a party’s fundamental rights. State v. Jade G., 2007-NMSC-010, ¶ 24, 141 N.M. 284, 154 P.3d 659.1 Although as a general rule propositions of law not raised in the trial court should not be raised sua sponte by the appellate court, there are exceptions. One exception is when doing so is necessary to protect a party’s fundamental rights. Id. We also have the responsibility to question sua sponte a conviction for a nonexistent crime, because otherwise fundamental error would

not be corrected. State v. Johnson, 103 N.M. 364, 371, 707 P.2d 1174, 1181 (Ct. App. 1985). The question is whether the jury may have convicted Arrendondo of a crime that does not exist because of the way they were instructed. The majority answers this question affirmatively.21 When reviewing a jury instruction for fundamental error, “we seek to determine whether a reasonable juror would have been confused or misdirected by the jury instruc-tion.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and citation omitted). An instruction that, through omission or misstatement, gives the juror an inaccurate rendition of the relevant law, may confuse or misdirect a juror. See id. In this case, the jury instruction as it was submitted to the jury misdirected or confused the jury, because it may have allowed the jury to conclude that whether Arrendondo intended to murder Nicole was irrelevant because he shot into the house intending to murder Aragon. Therefore, under the erroneous jury instruc-tion, the jury may have found Arrendondo guilty of assault with intent to commit a violent felony against Nicole without find-ing that Arrendondo intended to murder Nicole. If the jury found Arrendondo guilty of assaulting Nicole because he had the intent to commit a violent felony against Aragon, but not Nicole, the jury would have found Arrendondo guilty of a crime that does not exist. The majority agrees with the Court of Appeals’ holding in Highfield that an essential element of the crime of assault with the intent to commit a violent felony is the intent to commit the violent felony against such person. The jury should have been instructed to consider only whether the State proved beyond a reasonable doubt that Arrendondo assaulted Nicole with the intent to commit a violent felony against her. Having failed to do so, the jury may have convicted Arrendondo of a crime that does not exist, and we cannot let such fundamental error go uncorrected. See State v. Maestas, 2007-NMSC-001, ¶ 26, 140 N.M. 836, 149 P.3d 933 (a conviction for a nonexistent crime constitutes fundamental error).22 Although this conviction is reversed, the State is not barred from retrying Ar-rendondo under this count because his suf-ficiency of the evidence argument fails under the instruction as given. State v. Mascareñas, 2000-NMSC-017, ¶ 31, 129 N.M. 230, 4

1I decline to raise the issue sua sponte because of the concern that we may be missing important legal considerations. In this case, it may be that transferred intent can support a conviction of assault with intent to commit a violent felony. See Culler v. State, 594 S.E.2d 631, 635 (Ga. 2004). I prefer that an appellate court be sparing in its exercise of authority to raise issues sua sponte. Although perhaps it would be more difficult, the defendant may raise the issue in a habeas corpus proceeding.

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P.3d 1221 (providing that retrial following an appeal is not barred if the evidence below was sufficient to support a conviction under the erroneous jury instruction). B. Is There Sufficient Evidence to

Support the Convictions for Negligent Child Abuse of Jasmine and Adrian?

23 The State argued that Arrendondo fired at least two gunshots into the home where Jasmine and Adrian, both minors, were situated at the time of the shooting. The jury convicted Arrendondo of negligent child abuse of both Jasmine and Adrian. Arrendondo contends that the State failed to prove beyond a reasonable doubt that he knew of the children’s presence in the house, and therefore he could not have had the requisite mens rea to endanger them. To prove negligent child abuse, the State had to prove beyond a reasonable doubt that (1) Arrendondo caused Jasmine and Adrian to be placed in a situation which endangered their lives; (2) Arrendondo acted with reckless disregard and without justification, meaning that Arrendondo “knew or should have known that [his] conduct created a substantial and foresee-able risk” to Jasmine and Adrian and he was wholly indifferent to the consequences of his conduct toward them; (3) Jasmine and Adrian were both under the age of eighteen; and (4) this happened in New Mexico on or about November 22, 2003. UJI 14-604 NMRA; NMSA 1978, § 30-6-1 (1973, as amended through 2001).24 The following evidence would support the elements for both counts of negligent child abuse. Regarding the endan-germent element, eyewitnesses testified that they observed Arrendondo fire his weapon into the house. Chief Stevens, Sergeant Arthur, and Ms. Babcock testified that the bullets that landed in the house matched those fired from Arrendondo’s handgun. This testimony supports a jury finding that Arrendondo shot into the house, thereby placing both Jasmine and Adrian in a situa-tion that endangered their lives. Gloria and Emilio testified that Jasmine was only two or three weeks old at the time of the shooting. Adrian was eleven years old at that time. These facts support the fourth element on both counts, that both children were under the age of eighteen. Finally, there is no dispute as to when the shooting occurred. Thus, the crux of Arrendondo’s argument rests upon whether there was sufficient evidence for a jury to reasonably find that Arrendondo acted with a reckless disregard with respect to the children’s safety.25 The mens rea element requires the State to prove that Arrendondo “knew or should have known that [his] conduct

created a substantial and foreseeable risk” to Jasmine and Adrian, a risk which he recklessly disregarded. UJI 14-604. This ele-ment may be proven with evidence that the defendant was or should have been aware that the child was present within the zone of danger. State v. Gonzales, 2011-NMCA-081, ¶¶ 1, 32, 150 N.M. 494, 263 P.3d 271, cert. granted on unrelated issue, 2011-NM-CERT-008, ___ N.M. ___, 268 P.3d 514. In Gonzales, the Court of Appeals concluded that the State failed to prove negligent child abuse with respect to a drunk driver who, while driving recklessly, hit a car that was occupied by two children. Id. ¶¶ 4, 27. The Court of Appeals determined that although the State proved that the defendant had accidentally endangered two children while driving recklessly, this proof was insufficient to support the mens rea element of crimi-mens rea element of crimi-nal negligence. Id. ¶¶ 15, 27. The Court of Appeals concluded that unless it read Section 30-6-1(D)(1) to require the State to prove that the defendant was aware that the child victims were present in the zone of danger, the statute would create a strict liability crime, contrary to the statutory language requiring a mental state of at least negligence. Gonzales, 2011-NMCA-081, ¶¶ 29-31. The Court therefore held that “it is insufficient for the State to prove a substantial and foreseeable risk by simply establishing that the possibility exists that a hypothetical child will be injured thereby . . . even though that child was not known to be endangered at the time.” Id. ¶ 31. Instead, the Court held that the criminal negligence “mental state requires that De-fendant know, or at least should know, that her conduct is endangering a child.” Id. ¶ 30.26 Therefore, the question we must answer is whether the State proved beyond a reasonable doubt that Arrendondo knew or should have known that the child victims were present in the zone of danger he cre-ated. Otherwise, the neglect of the children would be accidental or unknowing rather than negligent, and accidental conduct cannot support a conviction for negligent child abuse. Id. ¶ 26. 1. There Is Sufficient Evidence

to Support a Conviction for Negligent Child Abuse of Jasmine.

27 Regarding Jasmine, there is sufficient evidence to affirm the conviction for neg-ligent child abuse. On the issue of whether Arrendondo acted with reckless disregard of Jasmine’s safety, Gloria testified that she told Arrendondo before the shooting that there was a “newborn baby” in the house. This would allow a reasonable jury to have found that Arrendondo knew or should have

known that his conduct created a substantial risk to Jasmine, who was approximately three weeks old at the time of the shooting. The jury could have also reasonably found that Arrendondo disregarded that risk by shooting into the house, despite having been informed of a baby’s presence in the house. Therefore, the State presented suf-ficient evidence to support the conviction for negligent child abuse of Jasmine, and we affirm this conviction. 2. There Is Not Sufficient

Evidence to Uphold the Conviction for Negligent Child Abuse of Adrian Be-cause There Is No Evidence that Arrendondo Was Aware that Adrian Was in the House.

28 Regarding Adrian, the record does not contain evidence from which a jury could have found that Arrendondo “knew or should have known” that Adrian was inside the house. The State did not present any evidence that Arrendondo had been made aware of Adrian’s presence, that Adrian was eleven years old, or that he should have known about Adrian’s presence inside the house. We have previously reversed convic-tions for insufficient evidence where, “[f ]or the jury to have reached [the conclusions necessary to the verdict, it] had to specu-late.” State v. Vigil, 2010-NMSC-003, ¶ 20, 147 N.M. 537, 226 P.3d 636 (second alteration in original) (internal quotation marks and citation omitted). Consequently, the State failed to provide sufficient evidence to support the conviction for negligent child abuse of Adrian, and we reverse this convic-tion. C. There Is Not Sufficient Evidence

to Support the Conviction for Tampering with Evidence Because the State Provided No Proof that Arrendondo Hid or Disposed of His Gun.

29 The State presented evidence that the police could not find the 9 mm handgun that Arrendondo used in the shooting when they searched his house. The jury convicted Arrendondo of tampering with this gun. Arrendondo contends that the evidence is insufficient to support the guilty verdict be-cause the State did not present any evidence that Arrendondo actively hid or disposed of the gun. To support the conviction of tampering with evidence, the State had the burden of proving beyond a reasonable doubt that (1) Arrendondo disposed of or hid “the 9mm handgun or any other gun”; (2) Arrendondo intended to prevent the apprehension, prosecution, or conviction of himself; and (3) this happened in New Mexico on or about November 22, 2003.

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See UJI 14-2241 NMRA; NMSA 1978, § 30-22-5 (2003).30 The parties agree that the only evi-dence that Arrendondo tampered with his 9 mm handgun is that the police could not find the gun when they searched Arren-dondo’s house. The State contends that the simple fact that the police could not find the 9 mm handgun when they searched Ar-rendondo’s house means that “[Arrendondo] undertook the overt act of removing the gun from the scene of the shooting and disposed of it in such a way that it took law enforcement several weeks to find it.” The State concedes that “[i]t is not clear exactly how [Arrendondo] disposed of the gun.” We conclude that this evidence is insufficient to support a guilty verdict of tampering with evidence.31 We have previously held that the State must provide some evidence, either direct or circumstantial, that the defendant commit-ted an overt act with respect to the evidence in question with the intent to disrupt the police investigation. See State v. Silva, 2008-NMSC-051, ¶¶ 17-19, 144 N.M. 815, 192 P.3d 1192. In Silva, the State alleged that the defendant had tampered with the mur-der weapon because “(1) [the d]efendant had a gun at the scene of the crime; (2) a gun was used to murder [the victim]; (3) the murder weapon was removed from the scene; and (4) the murder weapon was never recovered.” Id. ¶ 17. We held that “absent both direct evidence of a defendant’s specific intent to tamper and evidence of an overt act from which the jury may infer such intent, the evidence cannot support a tampering conviction.” Id. ¶ 18.32 In Silva, we concluded that the State had failed to meet its burden of proof be-cause the State did not offer evidence “of an overt act on Defendant’s part from which the jury could infer [the specific] intent” to disrupt the investigative process. Id. ¶ 19. We concluded that “the State effectively asked the jury to speculate that an overt act of . . . hiding [the murder weapon] had taken place, based solely on the fact that such evidence was never found.” Id. (altera-tion in original) (internal quotation marks and citation omitted).33 Here, as in Silva, the State provided evidence that Arrendondo took the gun when he left the crime scene, but it offered no evidence that Arrendondo actively hid or disposed of it. Rather, Arrendondo claims that he left his 9 mm handgun at his house and fled the State without it. The police recovered the gun in question from someone else during a traffic stop a few weeks after the shooting. However, the State did not offer any evidence regarding how the person from whom they recovered the gun came

to have it in their possession. We are left to speculate whether this person found the gun in an area that might suggest purposeful disposal, or whether he was sold the gun, loaned the gun, or was asked to help hide the gun from the authorities. In summary, just as in Silva, the jury was left to speculate that an overt act of hiding or disposing of the weapon took place, based solely on the fact that the gun was not found at either the crime scene or Arrendondo’s home when the police searched for it. Therefore, consistent with Silva, Arrendondo’s conviction for tampering with the gun must be reversed.34 At trial and on appeal, both parties have focused solely on the 9 mm handgun as the relevant evidence with respect to this conviction. Neither party has raised, and therefore it is not before this Court, whether the tampering conviction would be valid with respect to any other evidence in ques-tion. State v. Ferguson, 111 N.M. 191, 196, 803 P.2d 676, 681 (Ct. App. 1990) (stat-ing that “[c]ourts should not take it upon themselves to raise, argue, and decide legal issues overlooked by the lawyers”). Because Arrendondo’s 9 mm handgun is the only gun proved to be involved in this case, and it fails as sufficient evidence to support a conviction for tampering, we reverse this conviction. D. There Is Sufficient Evidence

to Uphold the Conviction for Shooting at a Dwelling.

35 Arrendondo contends that there is in-sufficient evidence that he shot intentionally into the house, and therefore his conviction for shooting at a dwelling must be reversed. We disagree. To support a conviction for shooting at a dwelling, the State had to prove beyond a reasonable doubt that (1) Arrendondo willfully shot a firearm at a dwelling; (2) Arrendondo knew that the building was a dwelling; (3) Arrendondo was not a law enforcement officer engaged in the lawful performance of duty; and (4) this happened on or about November 22, 2003 in New Mexico. See UJI 14-340 NMRA; NMSA 1978, § 30-3-8 (1993).36 We conclude that the State presented sufficient evidence to support the jury’s ver-dict on this count. Sergeant Arthur testified that the trajectory of the bullets that landed in the house indicates that the shooter was aiming directly at the house. This evidence, combined with the testimony that Ar-rendondo aimed the gun downward when he shot at Aragon, provided the jury with sufficient evidence to find that Arrendondo intentionally shot at the house.37 There is also evidence that supports a reasonable inference that Arrendondo not only had reason to shoot into the house, but that he intentionally did so. First, there is

testimony that Arrendondo was expressing hostility towards Gloria, whom he knew was inside the house. Second, there is evidence that at least two bullets entered the house. Finally, there is evidence that the trajectory of the bullets that entered the house was different from the trajectory of the bul-lets that entered Aragon’s body. The jury, in considering all of this evidence in the aggregate, could have reasonably inferred that Arrendondo intentionally shot into the house. We conclude that there was suf-ficient evidence to support Arrendondo’s conviction for shooting at a dwelling, and therefore affirm his conviction.III. MR. ARRENDONDO HAS NOT

SHOWN THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

38 Arrendondo contends that his coun-sel was ineffective because she (1) failed to timely investigate both the jacket and the small unidentified fragment, which was key evidence necessary to support his claim of self-defense, and (2) failed to pursue the defense of voluntary intoxication, which provides a defense to specific-intent crimes such as first-degree murder. “For a success-ful ineffective assistance of counsel claim, a defendant must first demonstrate error on the part of counsel, and then show that the error resulted in prejudice.” State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. The record is frequently insuf-ficient to establish whether an action taken by defense counsel was reasonable or if it caused prejudice. Id. ¶ 33. Thus, instead of remanding the matter to the trial court, this Court prefers that these claims be brought under habeas corpus proceedings so that the defendant may actually develop the record with respect to defense counsel’s actions. See Duncan v. Kerby, 115 N.M. 344, 346-47, 851 P.2d 466, 468-69 (1993). For this Court to remand to the trial court on this issue, the defendant must present a prima facie case of ineffective assistance of counsel. State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. Without such prima facie evidence, the Court presumes that defense counsel’s performance fell within the range of reasonable representation. Id. ¶ 21.39 In this case, Arrendondo has failed to establish a prima facie case of ineffec-tive assistance of counsel with either claim. Regarding the first claim, Arrendondo contends that his counsel was ineffective because she failed to timely investigate the source of the unidentified fragment to establish that it was a bullet from a gun, which would have supported his claim of self-defense. It is unreasonable for counsel not to investigate a significant issue raised

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by the client. State v. Hunter, 2006-NMSC-043, ¶ 14, 140 N.M. 406, 143 P.3d 168. In this case, the record does not contain any evidence that counsel either intentionally or negligently failed to investigate the un-identified fragment in the jacket. The record reflects the fact that defense counsel only became aware of the jacket itself one week before commencement of trial. Therefore, we would have to speculate about the reason for her delay in learning about the jacket’s existence.40 We would also have to speculate about the cause of any prejudice to Arrendondo as a result of his counsel’s alleged failure to timely investigate the unidentified fragment found in the jacket’s lining. Defense counsel was given latitude to argue that the jacket, which was in evidence, was circumstantial evidence that Aragon shot at Arrendondo and Arrendondo shot back in self-defense. The record also suggests that despite Arren-dondo’s claims to the contrary, Aragon may not have shot at Arrendondo; eyewitnesses testified that Aragon did not have a gun. In addition, the record reveals that during her interview with police, Arrendondo’s girl-friend, Erin Gillespie, told Officer Arthur Mike Cruz that Arrendondo had been shot in the back by Aragon. She told police that there was a large amount of blood on the t-shirt Arrendondo was wearing, and that she had taken out the bullet lodged in his back with a butter knife. Officer Cruz testified that the investigation team attempted to locate the bullet, the butter knife, and the bloody t-shirt, but they were unsuccessful in their attempts. Moreover, during the testimony of Officer Cruz, defense counsel objected to the officer’s testimony regarding Gillespie’s statement on hearsay grounds, informing the trial court that Gillespie’s “statement ha[d] been discredited . . . she was lying trying to protect [my client].”41 We note that the jury may have been more likely to credit Arrendondo’s theory of self-defense if the unidentified fragment found in Arrendondo’s jacket was in fact a bullet that came from a gun owned by Aragon. Without a more developed re-cord, however, we are unable to determine whether Arrendondo can present evidence to support the theory that there was an inef-fective assistance of counsel error resulting in prejudice toward him.42 Arrendondo’s second claim is that defense counsel was ineffective for not rais-ing the defense of voluntary intoxication, which provides a defense to specific-intent crimes such as first-degree murder. State v. Hernandez, 2003-NMCA-131, ¶ 20, 134 N.M. 510, 79 P.3d 1118. The State main-tains that defense counsel’s decision not to present a voluntary intoxication defense

was not error, but rather a rational defense theory, because voluntary intoxication is inconsistent with a self-defense theory, which requires an intent to kill the victim. See State v. Garcia, 2011-NMSC-003, ¶ 37, 149 N.M. 185, 246 P.3d 1057 (holding that counsel acts reasonably in not seeking a voluntary intoxication instruction when it could undermine a defendant’s credibility with the jury). However, because the record is void of any testimony from defense coun-sel regarding the reason for her decision, we do not know her motivation, and thus we cannot speculate regarding the reasonable-ness of that decision.43 Moreover, Arrendondo has not established that he was prejudiced by the lack of a voluntary intoxication instruction. Arrendondo testified that he consumed heroin twice during the day before Aragon’s murder. However, for a defendant to be entitled to a voluntary intoxication instruc-tion, the defendant must present evidence that (1) he or she consumed intoxicants, (2) he or she was actually intoxicated, and (3) the degree of intoxication interfered with his or her ability to develop the requisite intent to commit the charged crime. See Garcia, 2011-NMSC-003, ¶ 35. There is no evidence in the record that Arrendondo was intoxicated to such a degree that he was unable to form the intent necessary to commit murder, and therefore there was no evidence suggesting that he was prejudiced. See Roybal, 2002-NMSC-027, ¶ 25 (hold-ing that prejudice requires defendant to show that there was a reasonable probability that, absent the errors, the jury would have reached a different result).44 Because we do not have enough evidence to properly address either of these two claims, we affirm the trial court’s denial of Arrendondo’s motion for a new trial. However, Arrendondo is free to pursue habeas corpus proceedings where he may actually develop the record with respect to these issues. See Duncan, 115 N.M. at 346-47, 851 P.2d at 468-69 (discussing that a defendant who raises an ineffective assistance of counsel claim on direct appeal is not precluded from raising such a claim in a habeas proceeding).IV. REVERSAL BASED ON

ARRENDONDO’S UNPRESERVED SPEEDY TRIAL CLAIM IS NOT WARRANTED BECAUSE THE DELAY DOES NOT AMOUNT TO FUNDAMENTAL ERROR.

45 The grand jury indicted Arrendondo on October 27, 2004, almost a year after the shooting, at which time he was in custody in California. Arrendondo’s trial did not occur until October 27, 2008, exactly four years after he was indicted. Arrendondo

claims for the first time on appeal that his Sixth Amendment right to a speedy trial was violated by this delay, and that this violation thereby denied him the opportunity to serve his New Mexico and California sentences concurrently.46 When analyzing a speedy trial viola-tion, the court must review four factors: “(1) the length of delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right, and (4) the actual prejudice to the defendant . . . .” State v. Maddox, 2008-NMSC-062, ¶ 7, 145 N.M. 242, 195 P.3d 1254 (citation omitted). First, the defendant must show that the length of delay is presumptively prejudicial. See State v. Garza, 2009-NMSC-038, ¶¶ 15-22, 146 N.M. 499, 212 P.3d 387 (holding “that a ‘presumptively prejudicial’ length of delay is simply a triggering mechanism, requiring further inquiry into the Barker factors”). In this case, the four-year delay is both presumptively prejudicial and sufficient to trigger examination of the other factors. Id. ¶¶ 48-49 (recognizing that even the most complex cases are only given eighteen months before further inquiry into a speedy trial violation claim is warranted).47 Regarding the second factor, Arren-dondo stipulated that the delay in bringing the case to trial was not the State’s fault. Although defense counsel stated on the record that she was not waiving her cli-ent’s right to a speedy trial, Arrendondo’s stipulation still controls. See State v. Collins, 2007-NMCA-106, ¶ 27, 142 N.M. 419, 166 P.3d 480 (allowing a party “to invite error and to subsequently complain about that very error would subvert the orderly and equitable administration of justice” (internal quotation marks and citation omitted)). Because Arrendondo stipulated below that the delay in bringing the case to trial was not the State’s fault, he is estopped from now claiming that “[t]he majority of [the] delay is attributable solely to the state.”48 The third factor acts as a preservation mechanism by requiring a defendant to as-sert his right to a speedy trial throughout the process. The only time that Arrendondo asserted his right to a speedy trial was in the standard demand filed with the trial court when defense counsel entered her appear-ance. Arrendondo never raised the issue again. He never filed a motion to dismiss due to a speedy trial violation. He never in-sisted on an early trial date so that, if he were found guilty, he could pursue serving any sentence imposed in New Mexico concur-rent with his sentence in California. Indeed, we have already noted the four continuances in which Arrendondo asked the trial court to continue trial settings. Therefore, the trial court never had an opportunity to make a

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ruling on the issue, and it was not preserved for appellate review.49 Given the history of this case, Ar-rendondo’s stipulation, his failure to assert his right to a speedy trial, and his failure to preserve the issue in this case, we do not find any fundamental error with respect to the speedy trial claim. See State v. Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d 829 (“nothing in the record suggests such a striking violation of the constitutional right to a speedy trial that it would be appropri-ate to consider that issue for the first time

on appeal” (internal quotation marks and citation omitted)); see also Rule 12-216(B)(2) NMRA (an appellate court, in its dis-cretion, may consider questions involving fundamental error).V. CONCLUSION50 Because the State failed to provide sufficient evidence to support Arrendondo’s conviction for negligent child abuse of Adrian and his conviction for tampering with evidence, we reverse these two convic-tions. We reverse his conviction for assault with intent to commit a felony against Ni-

cole and remand for a new trial consistent with this opinion. We affirm Arrendondo’s remaining convictions. With respect to the convictions that are affirmed, we remand to the trial court to amend the judgment and sentence consistent with this opinion.51 IT IS SO ORDERED. EDWARD L. CHÁVEZ, Justice

WE CONCUR:PETRA JIMENEZ MAES, Chief JusticePATRICIO M. SERNA, JusticeRICHARD C. BOSSON, JusticeCHARLES W. DANIELS, Justice

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 31

From the New Mexico Supreme Court

Opinion Number: 2012-NMSC-014

Topic Index:Appeal and Error: Standard of Review

Criminal Law: Capital Felony ; Murder; Self-Defense; and Specific IntentCriminal Procedure: Cumulative Error; Jury Instructions;

New Trial; and NoticeEvidence: Documentary Evidence; and Expert Witness

Jurisdiction: Subject Matter; and Supreme CourtMental Competency: Mental Illness and Competency Statutes

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusGRACIELA GUERRA,

Defendant-Appellant.No. 31,973 (filed May 10, 2012)

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTYJAMES WAYLON COUNTS, District Judge

opinion

cHarles W. daniels, Justice

1 A jury found Defendant Graciela Guer-ra guilty of first-degree murder for the stab-bing death of her daughter-in-law, Brenda Guerra, in an Alamogordo motel room. The district court sentenced Defendant to a mandatory term of life imprisonment, giv-ing this Court exclusive jurisdiction to hear her direct appeal. See N.M. Const. art. VI, § 2 (“Appeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court.”); accord Rule 12-102(A)(1) NMRA.2 We address Defendant’s arguments that the district court: (1) erred by denying De-fendant’s self-defense instruction; (2) abused its discretion when it excluded, for lack of notice under Rule 5-602(F) NMRA, expert testimony about Defendant’s incapacity to form specific intent; (3) abused its discretion when it excluded expert testimony related to whether the victim’s wounds would have been fatal if treated; (4) abused its discretion when it excluded letters Defendant wrote

ROBERT E. TANGORARobert E. Tangora LLCSanta Fe, New Mexico

for Appellant

GARY K. KINGAttorney General

NICOLE BEDERAssistant Attorney General

Santa Fe, New Mexicofor Appellee

while in prison; (5) and abused its discretion when it denied Defendant’s motion for a new trial. Defendant also makes a claim of cumulative error. We affirm her conviction.I. BACKGROUND3 Defendant’s son Christian and Chris-tian’s wife, the victim, were going through a divorce at the time of the killing. Through-out the divorce proceeding, Christian and the victim vacillated about whether to reconcile. On May 13, 2008, Christian and the victim attended a divorce hearing in Alamogordo. Christian had expected the victim’s attorney to withdraw from the case at that hearing to allow both parties to proceed in the divorce without representa-tion, but the victim changed her mind about giving up her lawyer. The couple argued for much of the afternoon following the hear-ing.4 After the hearing, Christian dropped off the victim at her motel, went to his house, and told Defendant, who was living with Christian and the children, about what hap-pened at the hearing. Later in the day, after Christian had dropped off the children at the victim’s motel, he told Defendant that he and the victim had agreed to reconcile

and that Defendant could either stay and help them with the children or move out. Defendant replied to Christian that she would “fix it for [him].” Christian indicated that he did not want Defendant talking to the victim; he wanted Defendant to stay home and “cool down.” After this exchange, Christian drove to the victim’s motel.5 Defendant followed Christian to the motel. Christian saw Defendant in her car behind him and called her cellular phone to tell her not to follow him. Christian eventually lost sight of Defendant’s car and continued driving to the motel. After Christian entered the room and while he was seated on the bed, Defendant knocked on the door. The victim opened the door and asked, in Spanish, “what is that doing here?” A hair-pulling fight then broke out between the two women.6 Christian rose from the bed to break up the fight but stopped when he saw that Defendant was armed with a large knife and that the victim was falling to the floor, bleeding. Christian grabbed his older son, covered the boy’s eyes, and ran to put the child in his car. When he returned to the room to get his younger son, the door was locked. Christian could hear Defendant say-ing “bad” things in Spanish and could hear the victim screaming “God, God, God!” Eventually Defendant, covered in blood and holding a knife, opened the door and told Christian “take [your] kids, [you’re] free.” Christian took his younger son, drove home with the children, and called 911.7 A motel guest saw Defendant enter the victim’s room and saw Christian leave with the children about ten minutes later. The witness was able to see Defendant inside the room with blood on her hands and the victim lying on the floor. As the witness entered the room, Defendant was shouting obscenities and kicking the victim’s body. Defendant told the witness not to call the police. The witness went to the motel office, asked an employee to call the police, and returned to his own room to call the police.8 When the police arrived, they found Defendant standing in the open doorway of the victim’s room, covered in blood. The police took Defendant into custody. They found the victim lying on the floor and exhibiting no signs of life. While they investigated the scene, Defendant repeat-edly said in Spanish, “I killed her!” On the way to the police station, Defendant made a number of additional volunteered admis-sions. She said that she told Christian she intended to kill the victim, but Christian did not believe her. She claimed that she and the victim “had some words,” that she told Christian to take the children and leave, that

32 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

a scuffle ensued, and that she stabbed the victim several times. She told the police that she was tired of the way the victim treated Christian and the children.9 In the motel room, investigators found two knives covered with blood, a kitchen knife with a bent four-inch blade and a butcher’s knife with a bent seven-inch blade. DNA analyses confirmed that the blood came from the victim. In the kitchen of Christian’s residence, where Defendant had been living, investigators found a knife block with one of the matching steak-knives missing.10 An autopsy of the victim revealed forty-one injuries, thirty-one of which were stab wounds. The knives found at the scene were consistent with these wounds. One of the stab wounds in the back of the victim’s neck cut her jugular vein. The victim had four stab wounds in her right back, two of which punctured her right lung. She also had many stab wounds in her chest, five of which punctured her left lung. The forensic pathologist who conducted the autopsy testified that the cause of death was multiple stab wounds and the manner of death was homicide.11 The State introduced three letters Defendant wrote while in custody awaiting trial. In one, Defendant acknowledged at-tacking the victim. In another, she admitted killing the victim, whom she described as sick and obsessed, and wrote that on the day of the killing, she entered the motel room, told Christian to take the children and leave, and “pulled [out] the knife and . . . did what [she] did.” In a third letter, Defendant indicated she felt no remorse for what she did, describing the victim as “trash.”II. DISCUSSION A. The District Court Properly

Refused a Self-Defense Instruction.

12 Defendant argues that the district court erred in denying her requested self-defense instruction. Although there appears to have been no evidence that the victim had previously threatened Defendant, the defense presented evidence that the victim had a “short temper,” that the victim once said she would rather see Christian dead than with another woman, and that the victim once told Christian she could eas-ily buy a gun and shoot him. Defendant testified that she did not intend to kill the victim when she came to the motel room and only brought the two knives from her house in case she needed to defend herself. She also testified that when the hair-pulling fight started, she was afraid the victim would strangle or hit her, although she acknowl-edged that she expected Christian would

not have allowed the victim to really harm her. She claimed that she did not know how she came to stab the victim the first time but admitted that after she first stabbed the victim in the stomach, the victim let go of Defendant’s hair and asked if they could “talk.” Defendant testified that upon hearing the victim’s request to “talk,” Defendant lost control of herself. The next thing Defendant claimed she remembered was kneeling over the victim, her hands covered in blood.13 “The propriety of denying a jury instruction is a mixed question of law and fact that we review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.2d 438. The applicable standards have been addressed thoroughly in our case law.

A defendant is not entitled to a self-defense instruction unless it is justified by sufficient evidence on every element of self-defense. Those elements are that (1) the defendant was put in fear by an apparent danger of immediate death or great bodily harm, (2) the killing resulted from that fear, and (3) the defendant acted reasonably when he or she killed. The first two requirements, the appearance of immediate danger and actual fear, are subjective in that they focus on the perception of the defendant at the time of the incident. By contrast, the third requirement is objective in that it focuses on the hypothetical behavior of a reason-able person acting under the same circumstances as the defendant.

State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144 N.M. 305, 187 P.3d 170 (internal quotation marks and citations omitted). A self-defense instruction is warranted only when the evidence is “sufficient to allow reasonable minds to differ as to all [three] elements of the defense.” State v. Lopez, 2000-NMSC-003, ¶ 23, 128 N.M. 410, 993 P.2d 727 (internal quotation marks and citation omitted).14 In determining whether a jury should be permitted to consider the issue of self-defense, it is essential for both trial and appellate courts to honor the constitutional rights of the accused to have the jury decide whether the prosecution has proven legal guilt in accordance with the reasonable doubt and unanimity requirements that are fundamental to our system of justice. See Rudolfo, 2008-NMSC-036, ¶ 22. The test is not how the judge would weigh the self-defense evidence as a factfinder; the true test is whether any juror could be justified in having a reasonable doubt about whether the accused acted in self-defense. See id. ¶ 27. “For a court to issue a self-defense

instruction, there need be only enough evidence to raise a reasonable doubt in the mind of a juror about whether the defen-dant lawfully acted in self-defense. If any reasonable minds could differ, the instruc-tion should be given.” State v. Sandoval, 2011-NMSC-022, ¶ 17, 150 N.M. 224, 258 P.3d 1016 (internal quotation marks and citation omitted). If the jury’s role as factfinder is not respected, the consequences include reversals and retrials. See, e.g., State v. Hill, 2001-NMCA-094, ¶¶ 10-11, 31, 131 N.M. 195, 34 P.3d 139 (reversing a convic-tion for battery on a peace officer because whether the defendant was the instigator was a question that should have been left to the jury); State v. Cooper, 1999-NMCA-159, ¶¶ 18, 24, 128 N.M. 428, 993 P.2d 745 (reversing a conviction because conflicts in a defendant’s testimony regarding his fear of the victim presented “a classic issue for the jury to decide”); State v. Branchal, 101 N.M. 498, 504, 684 P.2d 1163, 1169 (Ct. App. 1984) (holding that the judge’s belief that the defendant was “under no threat of imminent harm” did not justify denial of jury resolution of the contested issue).15 In Rudolfo, the defendant shot and killed an occupant of a vehicle driving away from a house where there had been a violent struggle over a gun. 2008-NMSC-036, ¶¶ 5-6. We upheld the district court’s rejection of a self-defense instruction because “[n]one of the three required components of self-defense [were] present.” Id. ¶¶ 18, 26. We reach the same conclusion in this case. As in Rudolfo, there was no appearance in this case that Defendant was threatened with death or great bodily harm at the time of the killing. Necessarily, if the first element is not present, Defendant could not have killed as a result of that threat. And finally, as in Rudolfo, even viewing the evidence in the light most favorable to the defendant, the circumstances of this case presented “no basis for the jury to have any doubt that a reasonable person would have found the [killing] to be unnecessary.” Id. ¶ 26.16 The facts of this case are similar to those in Lopez, in which we rejected a de-fendant’s claim to a self-defense instruction because the defendant’s act of killing was not objectively reasonable. 2000-NMSC-003, ¶ 26. In that case, the victim pulled a knife on the defendant after the defendant told the victim to leave the premises. See id. ¶ 3. In response, the defendant grabbed a knife from the kitchen and inflicted twenty-one stab wounds on the victim’s neck and head, seventeen stab wounds on the victim’s hands and arms, and sixteen stab wounds on his torso. Id. The defendant then crushed the victim’s skull with a rock. Id. This Court held that the number of stab wounds and

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 33

the crushing of the victim’s skull exhibited, as in this case, “conduct fueled by hatred or by rage or other strong emotion, but not by fear,” and that there was no jury issue as to whether the defendant killed in fear or acted reasonably in killing. Id. ¶ 26.17 Defendant’s act of repeatedly stab-bing an unarmed woman who was lying on the ground and pleading for an op-portunity to talk is the kind of attack that no reasoning juror could doubt was objectively unreasonable. “The law simply does not recognize any right to an acquittal based on a wholly unreasonable claim of a self-defense justification for taking the life of another.” Rudolfo, 2008-NMSC-036, ¶ 20; see also State v. Sutphin, 2007-NMSC-045, ¶ 24, 142 N.M. 191, 164 P.3d 72 (concluding that the defendant’s actions were not reasonable and did not support a self-defense instruction when he beat an initial attacker to death after rendering him unconscious). “If at any point Defendant was put in fear by an appearance of im-mediate death or great bodily harm, that fear could not have been present when the [fatal injuries were inflicted].” State v. Jacob Gonzales, 2007-NMSC-059, ¶ 22, 143 N.M. 25, 172 P.3d 162.18 In this case, as in Lopez, Rudolfo, and Jacob Gonzales, the response of the accused to any potential threat was in-disputably unreasonable. Accordingly, we hold that Defendant was not entitled to a self-defense instruction.B. The District Court Did Not Abuse

Its Discretion in Denying Admission of Untimely-Noticed Psychologist’s Testimony.

19 Defendant was indicted on an open count of murder on May 28, 2008, and arraigned two weeks later. On May 8, 2009, just one month before trial, Defendant filed and gave the court and the prosecution notice of a trial witness list that included a previously undisclosed forensic psychologist. At the same time, the defense disclosed the expert’s written report, dated March 2009 but based on a November 2008 evaluation of Defendant, concluding that Defendant had the capac-ity to form specific intent to kill. But when the State was finally able to interview the expert on June 2, 2009, nine days before trial, the expert told the prosecutor that he had changed his opinion from what was in the written report and would testify at trial that because of cultural issues and a diminished capacity to form intent to kill, Defendant was not able to commit deliberate first-degree murder. When the prosecutor asked why the expert had not disclosed this opinion in his report, the expert explained that at the time of the

2008 evaluation and report, the Defendant was claiming her son did the stabbing, so the expert did not consider Defendant’s ability to form a specific intent to kill to be important.20 The day after interviewing the expert, the State moved to exclude the testimony, arguing that the defense had not filed a notice in June 2008 that it was raising the defense of incapacity to form specific intent, as would have been required by Rule 5-602(F) NMRA, and that it was too late to do so the week before trial. Two days later, Defendant filed her first and only notice of her intention to present testimony on the lack of specific intent. The notice indicated that she preserved her argument that disclosure of the expert testimony is not required in murder cases in which extreme emotion may have played a part. The district court granted the State’s motion to exclude the expert testimony because (1) the filing of Defendant’s no-tice was outside the time limits required by Rule 5-602(F), (2) no good cause was shown for the noncompliant notice, and (3) the state was unable to prepare for or meet the expert testimony at such a late stage in the case.21 Defendant now argues that the ex-pert was to testify about Defendant’s ability to form deliberate intent instead of specific intent and that the fair and timely notice provisions of Rule 5-602(F) apply only to the latter and not to the former. Defendant does not address any of the New Mexico precedents which have consistently held that deliberate intent to kill is the spe-cific intent which distinguishes first-degree from second-degree murder. See State v. Coffin, 1999-NMSC-038, ¶ 25, 128 N.M. 192, 991 P.2d 477 (reaffirming that “the Legislature intended to distinguish first de-gree murder from second degree murder by the element of a deliberate intent to kill”). And Defendant does not develop her un-precedented construction of Rule 5-602(F) with any principled analysis. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶15, 137 N.M. 339, 110 P.3d 1076 (ex-plaining that the appellate court does not review unclear or undeveloped arguments). Defendant also cites no authority from any jurisdiction supporting her argument, so we may conclude that no such authority exists. See Lee v. Lee (In re Adoption of Doe), 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (“We assume where arguments in briefs are unsupported by cited authority [that] counsel . . . was unable to find any supporting authority.”). Finally, Defendant never articulated or preserved this argu-ment below. See Rule 12-216(A) NMRA (requiring an appellant to raise an issue

below with sufficient specificity to invoke the trial court’s ruling before the appellate court will address the issue).22 Accordingly, we address only Defen-dant’s arguments that constructive notice to the prosecution constituted good cause under the rule for dispensing with the formal notice requirement, because intent is always an element of first-degree murder and because enlisting “a well-known foren-sic psychologist gave the State notice that Defendant’s exact mental state would be in issue at trial.”23 A trial court’s decision to admit or exclude evidence for failure to comply with notice and disclosure requirements is re-viewed on appeal for an abuse of discretion. See State v. Harper, 2011-NMSC-044, ¶¶ 9, 15-16, 150 N.M. 745, 266 P.3d 25 (review-ing for an abuse of discretion the district court’s exclusion of prosecution witnesses for failure to comply with witness interview deadlines); McCarty v. State, 107 N.M. 651, 655, 763 P.2d 360, 364 (1988) (reviewing for an abuse of discretion the district court’s exclusion of defense witnesses for failure to comply with alibi notice deadlines).24 Rule 5-602(F) reads,

If the defense intends to call an expert witness on the issue of whether the defendant was inca-pable of forming the specific intent required as an element of the crime charged, notice of such intention shall be given at the time of ar-raignment or within twenty (20) days thereafter, unless upon good cause shown, the court waives the time requirement of this rule.

25 This rule is clear. Defendant was re-quired to notify the State of her intention to call an expert on the issue of specific intent either at the time of her arraignment or within twenty days after her arraignment. Defendant did not provide such notice until a year after her arraignment and approxi-mately a week before trial, and then only after the State discovered a planned specific intent defense that was disclosed neither by a Rule 5-602(F) notice nor by the misleading written report supplied with the defense’s witness disclosure.26 Defendant’s novel contention that she should be excused from the Rule 5-602(F) notice requirements because intent is always an issue in a murder prosecution is incon-sistent with the very purpose of the rule. While the nature of a defendant’s intent is always at issue in a homicide case, whether a defendant had the mental capacity to form that intent is not. This difference is precisely why Rule 5-602(F) is in place—to give notice to the State that a defendant will be raising a complex psychological issue so

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that the State may take the steps necessary to prepare to meet and counter it. Defen-dant asks us to hold, in essence, that Rule 5-602(F) is meaningless in murder cases. We will not do so.27 Defendant’s second argument of good cause for late disclosure is also an argument of constructive notice. She suggests that because she listed a forensic psychologist as a possible witness one month before trial, the State should have figured out that Defen-dant’s ability to form specific intent would be the subject of the witness’s testimony, excusing Defendant from filing the specific notice required by Rule 5-602(F).28 Although there is no New Mexico case addressing a constructive notice excuse for failing to comply with Rule 5-602(F) in particular, our Court of Appeals has rejected similar arguments in applying the counter-part insanity defense notice provisions of Rule 5-602(A) in State v. Silva, 88 N.M. 631, 631, 545 P.2d 490, 490 (Ct. App. 1976), and State v. Young, 91 N.M. 647, 650, 579 P.2d 179, 182 (Ct. App. 1978). Rule 5-602(A) governs notice of an intent to present a defense of “not guilty by reason of insanity,” and Rule 5-602(F) governs notice of an intent to present a defense that “defendant was incapable of forming the specific intent required as an element of the crime charged,” but in all other respects they are identical in requiring that notice to the prosecution must be “given at . . . arraign-ment or within twenty (20) days thereafter, unless upon good cause shown, the court waives the time requirement of this rule.”29 In Silva, the defendant argued explicit notice was not necessary under former Rule 35(a)(1)—the predecessor to Rule 5-602(A)—because he filed a motion nine days after his arraignment requesting a psychiatric examination. See Silva, 88 N.M. at 631, 545 P.2d at 490. The motion indi-cated that counsel did not know whether the defendant was sane when he committed the alleged criminal acts; the psychiatric exami-nation was sought to find that out. See id. Silva rejected the defendant’s argument that filing a request for a psychiatric examination constituted constructive notice that excused providing the required notice of intent to raise an insanity defense under the rule. See id. at 631-32, 545 P.2d at 490-91.30 Young rejected another attempt to substitute constructive notice for the re-quirements of the rule. 91 N.M. at 650, 579 P.2d at 182. Defense counsel argued that the state was on notice a month before trial because a report filed after a court-ordered mental examination “suggested a possible insanity defense,” and that he had good cause for the late notice because he could not contact the psychologist who

issued the report until the day before trial, when he first learned of the psychologist’s intended testimony. Id. Defense counsel did not notify the prosecution, even at that late date, and withheld the information until after the prosecution rested its case-in-chief. Id. The court held that “[n]otice of the [insanity] defense came too late for the prosecution to prepare to meet it” and that in those circumstances “[t]here was no abuse of discretion in excluding the tendered testimony” of the expert. Id.31 The record in this case indicates that two months after her June 9, 2008, arraign-ment, Defendant filed a motion related to her scheduled psychological examination by the forensic psychologist who later appeared on the pretrial witness list. Like the defen-dant in Silva, Defendant gave no explicit timely notice of her intention to raise any issue of her capacity to form intent. As in Young, notice of the psychological defense came too late for the prosecution to prepare to meet it, despite the fact Defendant knew about the possible psychological defense well before trial but did not provide the timely notice required by Rule 5-602.32 “A defendant’s right to present evi-dence on [her] own behalf is subject to [her] compliance with established rules of proce-dure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” State v. Sanders, 117 N.M. 452, 459-60, 872 P.2d 870, 877-78 (1994) (internal quotation marks and cita-tion omitted).33 Courts should apply the extreme sanction of exclusion of a party’s evidence sparingly. The decision to exclude evidence calls on judicial discretion to weigh all the circumstances, including willfulness in violating the discovery rule, the resulting prejudice to the opposing party, and the materiality of the precluded testimony. See McCarty, 107 N.M. at 655, 763 P.2d at 364. “Before resorting to preclusion, a trial judge should weigh not only the prejudicial effect of noncompliance on the immediate case, but also the necessity to enforce the rule to preserve the integrity of the trial process.” Id. McCarty found an abuse of discretion in a trial court’s exclusion of alibi wit-nesses where (1) the rule violation was not willful, (2) the state was able to interview and prepare for the testimony and was not prejudiced by the late notice, and (3) the precluded testimony was critical to the de-fense’s ability to confront and cross-examine the state’s key witness. Id. Accordingly, this Court held that “[n]o harm is done to the integrity of the notice-of-alibi rule by pro-hibiting the preclusion of witness testimony as a sanction under such circumstances.” Id.; see also Harper, 2011-NMSC-044, ¶¶

22, 25, 27-28 (reversing exclusion of the state’s witnesses where failure to comply with discovery requirements was not willful or in bad faith and where the defendant was not prejudiced).34 In this case, the district court held a hearing on the State’s motion to exclude and entered an order granting the motion. The order recited that Defendant made no attempt to comply with Rule 5-602(F) until two days after the State filed its motion; that the expert’s written report misled the State, which had neither actual nor constructive notice of the diminished capacity defense; that Defendant showed no good cause for the late notice; and that the inability to meet or prepare for the undisclosed defense at such a late stage prejudiced the State. Because Defendant has provided us with no record of the motion hearing to sup-port any argument that the court abused its discretion in making those findings, we must affirm the exclusion of the expert tes-timony. See State v. Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d 829 (hold-ing that where there is a “deficient record, every presumption must be indulged by the reviewing court in favor of the correctness” of the district court’s judgment (internal quotation marks and citation omitted)); Barnett v. Cal M, Inc., 79 N.M. 553, 556, 445 P.2d 974, 977 (1968) (holding that a party “desiring review of a ruling of the trial court has a duty to see that a record is made of the proceedings he desires reviewed; oth-erwise the correctness of such ruling cannot be questioned”).C. The District Court Did Not Abuse

Its Discretion in Excluding Expert Testimony That the Victim’s Wounds Were Not Immediately Fatal.

35 Defendant also argues that the court abused its discretion in refusing admis-sion of medical testimony that the victim’s “wounds were not inevitably fatal and that no vital organ was irreparably injured” as evidence that Defendant lacked the delib-erate intent to kill the victim. The district court granted the State’s pretrial motion to exclude on the grounds that the medical testimony was not relevant under Rule 11-402 NMRA and that the danger of unfair prejudice and potential to confuse the issues or mislead the jury would substantially outweigh any probative value and call for exclusion under Rule 11-403.36 We review the district court’s decision to admit or exclude evidence for an abuse of discretion. See State v. Downey, 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 (“An abuse of discretion arises when the evidentiary ruling is clearly contrary to logic and the facts and circumstances

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 35

of the case.” (quoting State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526)). In particular, rulings on matters of doubtful relevance under Rule 11-402 and the counterbalances to relevant evidence under Rule 11-403 are left to the broad discretion of the district court. See State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991) (recognizing great discretion vested in the district court in applying Rule 11-403); see also State v. Wesson, 83 N.M. 480, 482, 493 P.2d 965, 967 (Ct. App. 1972) (stating that “[w]here the materiality of the evidence is doubtful, the admission of such evidence is within the discretion of the [district] court”).37 The excluded evidence had very little, if any, probative value. The victim died quickly, before police or paramedics arrived, as a result of the thirty-one stab wounds Defendant inflicted on her, pierc-ing her lungs repeatedly from the front and the back and severing her jugular vein. The wounds were inflicted with such force that both knives were bent. The fact that the victim may have survived for a short time after Defendant’s deadly attack sheds little, if any, light on Defendant’s state of mind. See State v. Garcia, 114 N.M. 269, 275, 837 P.2d 862, 868 (1992) (explaining that evidence of what happened after the defendant stabbed the victim did not give rise to an inference as to the defendant’s state of mind before the stabbing). Because the testimony lacked significant probative value, it was not an abuse of discretion for the district court to exclude it. See State v. Blea, 101 N.M. 323, 326, 681 P.2d 1100, 1103 (1984) (“No error occurs when the judge excludes expert testimony where the probative value of that testimony is slight.”).38 Even if the evidence had any slight relevance, the danger that the jury might be confused by testimony related to whether the victim could have survived the wounds in different circumstances would have outweighed its limited probative value. “Although relevant, evidence may be ex-cluded if its probative value is substantially outweighed by the danger of . . . confusion of the issues or misleading the jury.” Rule 11-403 NMRA. Evidence suggesting that the victim’s wounds would not inevitably cause death could have led the jury to specu-late whether the victim died because she did not receive immediate medical attention for those wounds. This gives rise to complicated disputes that did not need to be addressed in this case and would not have been relevant to Defendant’s guilt or innocence. See State v. Montoya, 2003-NMSC-004, ¶¶ 11-12, 19, 133 N.M. 84, 61 P.3d 793 (explaining the differences between a “but for” and a “proximate” cause analysis under our homi-

cide jury instructions and holding that “an individual may be a legal cause of death even though other significant causes significantly contributed to the cause of death”); see also State v. Jose Ray Gonzales, 95 N.M. 636, 639, 624 P.2d 1033, 1036 (Ct. App. 1981) (upholding the exclusion of confusing evi-dence in an aggravated battery case because “[e]vidence as to who was the aggressor in later incidents would only confuse the issue of who was the aggressor when [the victim] was shot”), overruled on other grounds by Buzbee v. Donnelly, 96 N.M. 692, 701, 634 P.2d 1244, 1253 (1981). Because the district court reasonably viewed the expert’s testimony as having little relevance and as being likely to confuse the issues or mislead the jury, we hold that the district court did not abuse its discretion when it excluded the evidence.D. The District Court Did Not Abuse

Its Discretion in Denying Admission of Letters Defendant Wrote While Incarcerated.

39 The State introduced at trial three letters Defendant wrote from jail which tended to prove that Defendant killed the victim and had no remorse for doing so. The district court accepted the evidence as admissions of a party-opponent under Rule 11-801(D)(2) NMRA. Defendant introduced five other letters of the more than fifty Defendant had written from jail, which arguably indicated that at times she had expressed remorse for the killing and made claims to have acted in self-defense. Defendant argued that the letters the State introduced, which the court admitted, were taken out of context and that the rule of completeness, Rule 11-106 NMRA, allowed the admission of the letters Defendant introduced in order to provide context and show Defendant’s true state of mind during the killing.40 Rule 11-106 provides in its entirety: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporane-ously with it.”41 “The primary purpose behind the rule of completeness is to eliminate misleading or deceptive impressions created by creative excerpting.” State v. Barr, 2009-NMSC-024, ¶ 34, 146 N.M. 301, 210 P.3d 198, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37, ___ N.M. ___, ___ P.3d ___. The principle behind the rule of completeness is that “the whole of a [communication] must be taken together.” Id. (internal quotation marks and citation omitted). “The classic illustration of a viola-

tion of the rule of completeness is quoting ‘there is no God’ from the biblical phrase ‘[t]he fool hath said in his heart, there is no God.’” Id. (citation omitted).42 The rule of completeness did not apply to the letters Defendant tried to admit. This is not a case in which creative excerpting of a writing leads to deceptive or misleading impressions of the actual statement. The State admitted the entirety of three letters Defendant wrote. The fact that other letters Defendant wrote were not also admitted does not distort the context of the particular letters that were admitted. If the rule functioned the way Defendant suggests, then admission of any oral or written statement of a party-opponent would automatically require the admission of all self-serving hearsay statements of the party on the same topic. Defendant cites no authority which stands for that proposition, and we know of none. In Barr, we held that allowing the state to use the rule of completeness to introduce the entirety of a hearsay videotape was an abuse of discretion where the state failed to show any contents of the previously admitted portions that it alleged were taken out of context. 2009-NMSC-024, ¶¶ 29, 37, 45; see also State v. Sanders, 117 N.M. 452, 458, 872 P.2d 870, 876 (1994) (holding that the court did not err in denying admission of the remainder of a twenty-two-page statement of the defendant on which the prosecution had cross-examined the defendant about two particular passages).43 Accordingly, we hold that the district court did not abuse its discretion when it determined that the rule of completeness did not require the admission of Defendant’s other letters.E. The District Court Did Not Abuse

Its Discretion in Denying Defendant’s Motion for a New Trial.

44 After she was convicted, Defendant unsuccessfully moved for a new trial under Rule 5-614 NMRA. She argued that the district court erred when it excluded her expert testimony related to her capacity to form murderous intent and when it ex-cluded the letters she wrote from jail, both arguments that we have separately addressed and rejected.45 Rule 5-614(A) gives a district court authority to determine whether justice requires relief from a conviction in the cir-cumstances of a particular case. (“When the defendant has been found guilty, the court on motion of the defendant, or on its own motion, may grant a new trial if required in the interest of justice.”) In recognition of that broad discretion, an appellate court will reverse the district court’s decision only on a showing of abuse of discretion. See State v.

36 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

Chavez, 98 N.M. 682, 683, 652 P.2d 232, 233 (1982).46 Because nothing Defendant com-plains about amounted to an error at trial, the interest of justice did not require a new trial. Accordingly, the district court did not abuse its discretion when it denied Defen-dant’s motion for a new trial.F. There Is No Cumulative Error

Because There Was No Error.47 Defendant argues that the cumulative effect of the various alleged errors outlined above denied her a fair trial. “The doctrine of cumulative error requires reversal when a series of lesser improprieties throughout a trial are found, in aggregate, to be so prejudicial that the defendant was deprived

of the constitutional right to a fair trial.” State v. Duffy, 1998-NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other grounds by State v. Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828. The cumulative error doctrine is strictly applied and may not be successfully invoked if “the record as a whole demonstrates that the defendant received a fair trial.” State v. Trujillo, 2002-NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citation omitted). Cumulative error has no application if the district court commit-ted no errors and if the defendant received a fair trial. See State v. Seaton, 86 N.M. 498, 501, 525 P.2d 858, 861 (1974). Because the district court committed no error in

this case, there is no cumulative error. See State v. Salas, 2010-NMSC-028, ¶ 40, 148 N.M. 313, 236 P.3d 32.III. CONCLUSION48 Finding no error, we affirm Defen-dant’s conviction.49 IT IS SO ORDERED. CHARLES W. DANIELS,

Justice

WE CONCUR:PETRA JIMENEZ MAES, Chief JusticePATRICIO M. SERNA, JusticeRICHARD C. BOSSON, JusticeEDWARD L. CHÁVEZ, Justice

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 37

From the New Mexico Supreme Court

Opinion Number: 2012-NMSC-015

Topic Index:Appeal and Error: Substantial or Sufficient Evidence

Constitutional Law: Confrontation; and Right to ConfrontationCriminal Law: Domestic Violence; Murder; and Tampering With Evidence

Criminal Procedure: Substantial or Sufficient EvidenceEvidence: Dying Declaration; and Hearsay Evidence

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusHARRISON LARGO,

Defendant-Appellant.No. 32,055 (filed May 21, 2012)

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTYGRANT L. FOUTZ, District Judge

opinion

petra JiMenez Maes, cHief Justice

1 In this case we apply the context-specific inquiry established by the United States Supreme Court in Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143 (2011), to evaluate whether an out-of-court statement is testi-monial. Defendant Harrison Largo’s main issues concern the admission into evidence of Victim Freida Smith’s out-of-court state-ments: portions of the 911 tape in which Vic-tim communicated to the 911 operator that Defendant shot her, and a sheriff’s deputy’s testimony that Victim identified Defendant as her shooter. For the reasons that follow, we affirm Defendant’s convictions.FACTS AND PROCEDURAL HISTORY2 Defendant and Victim had been in an on-again, off-again relationship for twenty years, during which they had two children. On the morning of May 20, 2008, Defen-dant, still drunk from the day before, showed up at Victim’s trailer. Victim let him inside and Defendant told Victim that he wanted to reconcile their relationship. Victim told Defendant she was not open to reconcilia-tion. The two then went outside the trailer where an altercation ensued, and Defendant

JACQUELINE L. COOPERChief Public Defender

WILLIAM A. O’CONNELLAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

GARY K. KINGAttorney GeneralJOEL JACOBSEN

Assistant Attorney GeneralSanta Fe, New Mexico

for Appellee

shot Victim, who later died of her gunshot wounds.3 Victim’s neighbor, Stevic Jim (Stevic), witnessed the altercation and the shooting from his home. After Defendant drove away, Stevic went outside to help Victim, who was lying on the ground bleeding, while his mother, Shirleen Jim (Shirleen), called 911. Shirleen then gave the phone to Stevic and the 911 operator asked who shot Victim. With Stevic acting as a relay, Victim told the 911 operator that it was Defendant.4 Victim was still lying on the ground bleeding when McKinley County Sheriff’s Deputy Ed Marble (Deputy Marble) arrived. Victim also told Deputy Marble that De-fendant shot her. Significantly, she also told the deputy that Defendant “was headed to the school to shoot the kids.” Thoreau High School was subsequently locked down. 5 Victim was transported to a hospital in Albuquerque, where she died around six hours after being shot. Defendant was charged with one count of deliberate first-degree murder, contrary to NMSA 1978, Section 30-2-1(A) (1994), and one count of tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003).6 At trial, the district court admitted Vic-tim’s out-of-court statements in two forms. First, the district court admitted into evi-

dence portions of the 911 tape where Victim communicated to the 911 operator, through Stevic, that Defendant had shot her. Second, the district court allowed Deputy Marble to testify regarding Victim’s out-of-court state-ment in which she identified Defendant as her shooter. Deputy Marble testified: “I asked [Victim], ‘What happened?’ and she said, ‘Harrison shot me.’” The district court ruled that any evidence regarding Victim’s fear that Defendant was headed to Thoreau High School, however, was too prejudicial, and therefore was not presented at trial.7 Defendant was convicted of both counts and was given a life sentence for the murder count and three years for the tampering with evidence count. Defendant appeals his conviction directly to this Court. See N.M. Const. art. VI, § 2; see also Rule 12-102(A)(1) NMRA (providing that an appeal from a sentence of life imprisonment is taken directly to the Supreme Court). 8 Defendant raises three issues on ap-peal: (1) whether Victim’s out-of-court statements identifying Defendant as her assailant were testimonial in nature, thereby violating Defendant’s confrontation rights under the federal constitution; (2) whether Victim’s out-of-court statements identifying Defendant as her assailant were inadmissible hearsay; and (3) whether there was sufficient evidence to support a conviction for deliber-ate first-degree murder.DISCUSSIONI. Defendant’s confrontation rights

were not violated by the admission of Victim’s out-of-court statements identifying Defendant as her shooter because the statements were nontestimonial.

9 The question whether out-of-court statements are admissible under the Con-frontation Clause is a question of law, subject to de novo review. State v. Aragon, 2010-NMSC-008, ¶ 6, 147 N.M. 474, 225 P.3d 1280. The Confrontation Clause of the Sixth Amendment ensures that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; see N.M. Const. art. II, §14. The Confrontation Clause bars “[o]ut-of-court testimonial state-ments . . . unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness . . . .” State v. Zamarripa, 2009-NMSC-001, ¶ 23, 145 N.M. 402, 199 P.3d 846 (emphasis added) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). In Davis v. Washington, 547 U.S. 813 (2006), the United States Supreme Court clarified the rule it laid down in Crawford, regarding when statements are testimonial, and provided:

[S]tatements are nontestimonial when made in the course of police

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interrogation under circumstances objectively indicating that the pri-mary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the inter-rogation is to establish or prove past events potentially relevant to [a] later criminal prosecution.

Davis, 547 U.S. at 822.10 Defendant asserts that Victim’s out-of-court statements were testimonial in nature and therefore inadmissible. In response, the State argues that, because Victim’s out-of-court statements identifying Defendant as her shooter had a primary purpose of address-ing an ongoing emergency, their admission into evidence did not violate Defendant’s confrontation rights. Because there is no dispute that Defendant did not have a prior opportunity to cross-examine Victim, this dispute centers on whether her out-of-court statements were testimonial. 11 More recently in Bryant, the Supreme Court addressed whether statements made by a shooting victim to police while he was lying on the ground in severe distress wait-ing for medical attention were testimonial and should be barred from use at trial by the Confrontation Clause. In Bryant, police responded to a 911 call reporting that a man had been shot. 131 S.Ct. at 1150. When police arrived at the scene they found the victim with a gunshot wound in his abdo-men, in great pain, and speaking with much difficulty. Id. The “police asked [the victim] ‘what happened, who had shot him, and where the shooting had occurred.’” Id. The victim responded by identifying his shooter and explaining that he had been shot at another location before driving to the gas station for help. Id. The victim’s conversation with police lasted approximately five to ten minutes. Id. The victim was transported to a nearby hospital where he later died. Id.12 In Bryant, the Court reaffirmed that “the basic objective of the Confrontation Clause . . . is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial.”Id. at 1155 (emphasis added). The Court concluded that “when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the ‘primary purpose of the interrogation’ by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.” Id. at 1162 (quoting Davis, 547 U.S. at 814); accord People v. Blacksher,

259 P.3d 370, 408 (Cal. 2011)). While the Court acknowledged that there may be other circumstances “when a statement is not pro-cured with a primary purpose of creating an out-of-court substitute for trial testimony,” Bryant, 131 S.Ct. at 1155, “[t]he existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumstances that courts must take into account.” Id. at 1162; see also Blacksher, 259 P.3d at 408. Accordingly, the Court first looked to the circumstances surrounding the interrogation to determine if there was an ongoing emergency, then viewed the conduct of the interrogators and the declarant in light of that determination. See Bryant, 131 S.Ct. at 1163-66. This is a “highly context-dependent inquiry,” id. at 1158; accord Blacksher, 259 P.3d at 409, and requires courts to objectively evaluate all of the circumstances surrounding the interroga-tion, as well as the statements and actions of the parties to the encounter, see Bryant, 131 S.Ct. at 1162.13 In Bryant, the Court looked to the type and scope of the danger posed to the victim, to the public, and the police to deter-mine the existence of an ongoing emergency. Id. The Court noted that “[n]othing . . . said to the police indicated that the cause of the shooting was a purely private dispute or that the threat from the shooter had ended,” indicating that the scope of the danger to the general public could be high. Id. at 1163. The record did not reveal much about the motive of the shooter, leaving police to wonder about the scope of the danger to the public. Id. In addition, the fact that a gun was used further increased the scope of the danger, not only to the victim, but to the police and the general public as well. Id. at 1164. The Court noted that a slight physical separation, sufficient in prior cases to end an emergency such as an unarmed domestic dispute, does not create the same level of safety in a case where a gun was used, especially when the police do not know where the assailant is. Id. Based on these facts—“an armed shooter, whose mo-tive for and location after the shooting were unknown, had mortally wounded [a victim] within a few blocks and a few minutes of the location where the police found [the victim]”—the Court concluded “there was an ongoing emergency.” Id.14 The circumstances surrounding the interrogation in Bryant are very close to those in the present case. In both cases, the victims were shot and the location of the shooter was unknown. In addition, both interrogations lacked the formality involved in an interroga-tion conducted at a police station, another important consideration of the Bryant Court. Id. at 1160 (providing “formality suggests the absence of an emergency”); Blacksher, 259

P.3d at 409. In both cases the interrogations were quick, unstructured, and conducted at the location where the victim was found. In fact, the entire conversation between Victim and Deputy Marble lasted approximately 30 to 45 seconds. These types of circumstances suggest the existence of an ongoing emer-gency.15 The major difference in the circum-stances of the two cases is that the present case involved a domestic dispute, while Bry-ant did not. Generally, “[d]omestic violence cases . . . often have a narrower zone of potential victims than cases involving threats to the general public.” Bryant, 131 S.Ct. at 1158. Such is not the case here, however. Victim told Deputy Marble that Defendant “was headed to the school to shoot [their] kids.” Rather than a speculative threat to the public based on a shooter with an unknown motive on the loose as in Bryant, we have, at least, an allegation of a direct threat against specific individuals. The local high school was subsequently locked down, outwardly indicating that Deputy Marble considered the threat to the public to be very real. The threat to the public and police in this case was further compounded by the fact that Defendant was a former SWAT team member, so much so that Deputy Marble urged his fellow officers to use caution with Defendant. In light of these circumstances and their similarity to those in Bryant, we have no difficulty concluding that there was an ongoing emergency in this case.16 However, “the existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry; rather, the ultimate inquiry is whether the primary purpose of the interrogation was to enable police assis-tance to meet the ongoing emergency.” Id. at 1165 (internal quotation omitted). Even in the face of an ongoing emergency, an inter-rogation’s primary purpose “can evolve into testimonial statements.” Id. at 1159 (internal quotation marks and citation omitted); ac-cord Blacksher, 259 P.3d at 409. The actions and statements of both the interrogator and the declarant may illuminate the primary purpose of the interrogation. 17 The Bryant Court emphasized that looking at the conduct of both the interro-gator and declarant, helps to “ameliorate[ ] problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants.” Id. at 1161; accord Blacksher, 259 P.3d at 408. The Court recognized that police officers serve both as first responders and criminal inves-tigators and that they may act with different motives in quick succession. Bryant, 131 S.Ct. at 1161; Blacksher, 259 P.3d at 408. A victim could also have mixed motives,

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 39

such as wanting the immediate threat to end while not wishing the assailant be prosecuted. Bryant, 131 S.Ct. at 1161; Blacksher, 259 P.3d at 408. Accordingly, in addition to the circumstances in which an encounter occurs, a court must objectively look at the state-ments and actions of both the declarant and interrogators to make the primary purpose determination. Id.18 The Bryant Court noted that when police first arrived at the gas station where the victim was lying on the ground

they did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances [of the shooting]. The questions they asked–what had happened, who had shot him, and where the shooting occurred,–were the exact type of questions neces-sary to allow the police to assess the situation, the threat to their own safety, and possible danger to the potential victim and to the public.

Bryant, 131 S.Ct. at 1165-66 (internal quotation marks and citation omitted). The Court then concluded that the police officers “solicited the information necessary to enable them to meet an ongoing emergency.” Id. at 1166 (internal quotation marks and citations omitted).19 Even though the present case involves two separate interrogators, the 911 operator and Deputy Marble, the same can be said about each of them. Shirleen initially told the 911 operator that a “guy had shot a lady.” In response, the 911 operator asked a series of questions, similar to the questions posed by the police officers in Bryant, that were targeted to assess the seriousness of the ongoing emergency. The 911 operator asked questions regarding where the shooter went, the type of vehicle he was using, the name of the victim, the type of gun used, who the shooter was, and Victim’s medical condition. Similarly, when Deputy Marble arrived he asked Victim “What happened?” These are precisely the types of questions the Bryant Court concluded, in light of the surround-ing circumstances, “solicit[] the information necessary to enable [first responders] to meet an ongoing emergency.” Id.20 Finally, in this case, the conduct of Victim, similar to the conduct of the victim in Bryant, indicates that the statements Victim made were nontestimonial. In each case, the victim was in considerable pain, bleeding from a mortal gunshot wound to the abdomen, and had considerable difficulty breathing and talking. See id. at 1165. In this case, Victim was found on the ground in a pool of her own blood and urine, and at one point was crying out for her mother.

Such a severely injured victim suggests that the answers to the questions were merely reflexive, with no purpose at all, much less a testimonial one. See id. at 1161; Blacksher, 259 P.3d at 409. Just as the victim in Bryant interspersed questions about when medical services would arrive with his answers to police questions, here Victim repeatedly expressed fear for her children’s safety during her questioning—indicating in each instance that the victim’s primary concern was not the future prosecution of the assailant. Therefore, as the Court concluded in Bryant, “we can-not say that a person in [Victim’s] situation would have had a primary purpose to estab-lish or prove past events potentially relevant to later criminal prosecution.” Bryant, 131 S.Ct. at 1165.21 We find the relevant circumstances in this case nearly identical to those in Bryant. Accordingly, we hold Victim’s statements to Deputy Marble and the 911 operator were nontestimonial, and did not violate Defen-dant’s right to confrontation.II. Victim’s out-of-court statements

identifying defendant as the individual who shot her were properly admitted as a dying declaration exception under hearsay Rule 11-804(B)(2).

22 Because we concluded that the ad-mission of Victim’s out-of-court statements did not violate Defendant’s confrontation rights, we must now determine whether her out-of-court statements were properly admitted under Rule 11-804(B)(2). We re-view the admission of evidence pursuant to an exception or an exclusion to the hearsay rule under an abuse of discretion standard by which deference is given to the district court’s ruling. State v. Lopez, 2011-NMSC-035, ¶ 4, 150 N.M. 179, 258 P.3d 458 (citing State v. McClaugherty, 2003-NMSC-006, ¶ 17, 133 N.M. 459, 64 P.3d 486). We will not conclude that the district court abused its dis-cretion in admitting evidence pursuant to an exception or an exclusion to the hearsay rule unless “the ruling is clearly against the logic and effect of the facts and circumstances of the case.” State v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation omitted). 23 Defendant contends that Victim’s out-of-court statement in which she identified Defendant as her shooter to Deputy Marble and the 911 operator did not fall within any of the exceptions to the hearsay rule. In response, the State asserts that Victim’s out-of-court statements qualified as dying declarations. 24 Hearsay “consists of an out-of-court statement offered to prove the truth of the matter asserted, and is inadmissible as substantive evidence unless it falls within an

exclusion or exception to the hearsay rule.” Lopez, 2011-NMSC-035, ¶ 5 (internal quotation marks and citation omitted); see Rule 11-801(C) NMRA (defining hearsay as “a statement, other than one made by the declarant while testifying at the trial or hear-ing, offered in evidence to prove the truth of the matter asserted”); Rule 11-802 NMRA (providing “[h]earsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute”). 25 Victim’s out-of-court statements identifying Defendant as her shooter were clearly hearsay as defined by Rule 11-801(C) as she was not present to testify at trial, and the out-of-court statements identifying De-fendant as her shooter were offered to prove that Defendant shot her. Therefore, in order for Victim’s out-of-court statements to have been properly admitted at trial, the state-ments must have fallen within an exception or exclusion to the hearsay rule. See, e.g., Rules 11-803(A), (B), & (C) NMRA; Rule 11-804(B)(2).26 We will first address whether Vic-tim’s out-of-court statements identifying Defendant as her shooter were “dying declaration[s].” Rule 11-804(A) & (B)(2)(3) (“[S]tatement[s] made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death” are not excluded by the hearsay rule if the declarant is unavail-able as a witness.). A dying declaration, or “statement under [the] belief of impending death,” is admissible when there is a showing that the declarant made the statement while conscious and under the realization that death was approaching. State v. Quintana, 98 N.M. 17, 19, 644 P.2d 531, 533 (1982). Therefore,“[i]f it can reasonably be inferred from the state of the wound or the state of the illness that the dying person was aware of his [or her] danger, then the requirement of impending death is met.” Id. at 20, 644 P.2d at 534.27 Here, the district court considered the circumstances surrounding Victim’s statements and reasonably inferred that she was aware of her current state and believed that her death was imminent. Victim was shot multiple times. She was lying on the ground in a near fetal position, bleeding, complaining of pain in the abdominal area, and experiencing shallow breaths. She had urinated on herself and there appeared to be blood in her urine. She tried to hold her torso up with her forearms but was unable. She expressed concern for her children, and called out for her mother. She died around six hours later. Accordingly, we hold that the district court did not abuse its discretion by admitting Victim’s out-of-court statements

40 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

into evidence as a dying declaration under Rule 11-804(B)(2).28 Because we conclude that the district court did not abuse its discretion in admit-ting Victim’s out-of-court statements under Rule 11-804(B)(2), we do not address the parties’ arguments concerning the other hearsay exceptions. See State v. Combs, 2011-NMCA-107, ¶ 6, 150 N.M. 766, 266 P.3d 635 (providing when a reviewing court’s conclusion on one point resolves an issue, the reviewing court need not address the parties’ additional arguments).III. Sufficient evidence supports

Defendant’s deliberate intent to commit first-degree murder.

29 Defendant argues that this Court should reverse his conviction because there was insufficient evidence to support his conviction of deliberate, first-degree mur-der and asserts that, at most, the evidence established an “undeliberated crime of pas-sion,” which could be either manslaughter or second-degree murder. The State counters that Defendant’s “decision to aim the gun at [Victim] three separate times, overcoming some degree of physical resistance the second and third times,” indicates that Defendant did not act impulsively, but rather acted with a deliberate intent to kill. 30 “The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a rea-sonable doubt with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. In reviewing whether there was sufficient evidence to support a conviction, “we resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary.” Id. (internal quotation marks and citation omitted). “[D]etermining the sufficiency of [the] evidence does require appellate court scrutiny of the evidence and supervision of the jury’s fact-finding function to ensure that, indeed, a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.” Id. (internal quotation marks and citation omit-ted).31 The requisite state of mind for first-degree murder is a “willful, deliberate and premeditated” intention to kill. NMSA 1978, § 30-2-1(A)(1) (1994); see State v. Duran, 2006-NMSC-035, ¶ 6, 140 N.M.

94, 140 P.3d 515. New Mexico’s Uniform Jury Instruction 14-201 NMRA, defines the term deliberate as a “means arrived at or determined upon as a result of careful thought and the weighing of the consider-ation for and against the proposed course of action.” Although deliberate intent requires a “calculated judgment” to kill, the weighing required for deliberate intent “may be arrived at in a short period of time.” UJI 14-201. In determining whether the defendant made a calculated judgment to kill, the jury may infer intent from circumstantial evidence because direct evidence of the defendant’s state of mind is not required. Duran, 2006-NMSC-035, ¶ 7. 32 The jury was instructed that in order to find Defendant guilty of deliberate, first-degree murder, the State needed to prove beyond a reasonable doubt that

1. The [D]efendant killed [Victim]; 2. The killing was with the deliber-

ate intention to take away the life of [Victim];

3. The [D]efendant was not suffer-ing from intoxication at the time the offense was committed to the extent of being incapable of forming an intent to take away the life of another;

4. This happened in New Mexico on or about the 20th day of May, 2008.

The jury was also instructed on the definition of “deliberate intention.” The instruction provided:

A deliberate intention refers to the state of mind of the defendant. A deliberate intention may be inferred from all of the facts and circumstances of the killing. The word deliberate means arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of actions. A calculated judgment and decision may be arrived at in a short pe-riod of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reason for and against such choice.

33 Victim’s neighbor, Stevic, testified that from his living room window he heard a commotion and witnessed Victim kneeling on the ground as Defendant stood over her pointing a rifle at her head. Stevic reported that Victim attempted to push the rifle away from her face twice, and that after both at-

tempts Defendant repositioned the rifle so that it was pointing directly back at her face. Stevic further testified that as Defendant was pointing the rifle at Victim’s face, he observed her pleading with Defendant. Ste-vic testified that Defendant fired four close range shots directly at Victim. The State’s medical investigator also testified that the autopsy revealed five wounds on her body. Four wounds were penetrating. The fifth was a graze wound from one of the bullets before entering her body. Such evidence indicates that a reasonable jury could have concluded that Defendant weighed and considered his decision to kill, before shooting Victim four times. 34 The jury also heard testimony from Richard Johnson (Johnson), the owner of the Frontier Trading Post in Milan, who interacted with Defendant within an hour after Defendant had left the trailer park. In response to questions regarding whether Defendant appeared intoxicated, Johnson testified that Defendant was “rather loud and obnoxious” but did not appear to be intoxicated. Johnson further testified that Defendant asked to use the phone, and that during the conversation he overheard Defendant tell someone that he “wouldn’t be in to work for a week.” The State also called Debbie Olivar (Olivar), a woman Defendant called from the Frontier Trading Post, to testify regarding what was said during the phone call. Olivar testified that Defendant stated he needed a week’s vacation, and that he was in a “heap of trouble.”35 Accordingly, reviewing the evidence in the light must favorable to the verdict, there was sufficient evidence for the jury to find that Defendant acted with deliberate intent when he killed Victim.CONCLUSION36 We hold that Victim’s out-of-court statements were nontestimonial and there-fore did not violate Defendant’s confronta-tion rights; that the district court did not abuse its discretion in admitting Victim’s out-of-court statements under Rule 11-804(B)(2); and that there was sufficient evidence to support Defendant’s conviction for first-degree murder. 37 Accordingly, we affirm Defendant’s convictions.38 IT IS SO ORDERED. PETRA JIMENEZ MAES,

Chief Justice

WE CONCUR:PATRICIO M. SERNA, JusticeRICHARD C. BOSSON, JusticeEDWARD L. CHÁVEZ, JusticeCHARLES W. DANIELS, Justice

Bar Bulletin - June 27, 2012 - Volume 51, No. 26 41

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46 Bar Bulletin - June 27, 2012 - Volume 51, No. 26

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