Notes to Decisions

Generally.

District court did not err in admitting a transcript of defendant's confession into evidence where the option to redact all references to unavailable witness statements contained in the police interview transcript appropriately safeguarded defendant's Sixth Amendment right to confront the witnesses against him. State v. Jim, 2014-NMCA-089, 332 P.3d 870, 2014 N.M. App. LEXIS 32 (N.M. Ct. App.), cert. denied, 328 P.3d 1188, 2014 N.M. LEXIS 257 (N.M. 2014).

Defendant failed to establish a prima facie case of ineffective assistance of counsel where as a result of the district court's inability to provide an interpreter for a juror during voir dire, defense counsel requested a mistrial as the juror was unable to understand the proceedings and later objected to her dismissal for cause due to her Navajo heritage. State v. Jim, 2014-NMCA-089, 332 P.3d 870, 2014 N.M. App. LEXIS 32 (N.M. Ct. App.), cert. denied, 328 P.3d 1188, 2014 N.M. LEXIS 257 (N.M. 2014).

Events at trial suggested that defense counsel may have had a conflict that undermined defendant’s right to counsel’s undivided loyalty, and at a minimum the facts would demand an evidentiary proceeding on remand to determine whether a new trial would be required, as defense counsel had previously represented the officer in a matter relating to his propensity for violence. State v. Hernandez, 2004-NMCA-045, 135 N.M. 416, 89 P.3d 88, 2004 N.M. App. LEXIS 19 (N.M. Ct. App. 2004).

Trial court’s refusal to allow a defendant to cross-examine certain complaining witnesses concerning certain of their prior juvenile adjudications did not deny defendant due process of law and the right to confront witnesses against him. State v. Lasner, 2000-NMSC-038, 2000-NMSC-038, 129 N.M. 806, 14 P.3d 1282, 2000 N.M. LEXIS 425 (N.M. 2000).

Right to be present in the courtroom during one’s trial as protected by the Confrontation Clause is incorporated into Rule 5-612 NMRA. The rule requires defendant’s presence at every stage of the trial. State v. Rodriguez, 1992-NMCA-088, 114 N.M. 265, 837 P.2d 459, 1992 N.M. App. LEXIS 77 (N.M. Ct. App. 1992).

The appellate court was required to balance four factors to resolve a U.S. Const. amends. VI speedy trial claim: length of delay; reason for delay; assertion of the constitutional right to a speedy trial; and prejudice to the defendant with the length of delay measured from the time of either charge or arrest. State v. Haar, 1990-NMCA-076, 110 N.M. 517, 797 P.2d 306, 1990 N.M. App. LEXIS 79 (N.M. Ct. App.), cert. denied, 110 N.M. 330, 795 P.2d 1022, 1990 N.M. LEXIS 259 (N.M. 1990).

During defendant’s felony murder trial, he did not receive ineffective assistance of counsel in violation of U.S. Const. amends. V §§ VI, or XIV, or N.M. Const. art. II, §§ XIV or XVIII; there was no showing whatsoever that trial counsel did not use a normal and customary degree of skill under the circumstances of the case, and the trial did not result in a sham, farce, or mockery of justice. State v. Trivitt, 1976-NMSC-004, 89 N.M. 162, 548 P.2d 442, 1976 N.M. LEXIS 794 (N.M. 1976).

Defendant’s guilty pleas to armed robbery were not involuntary; he received effective assistance of counsel because he was represented by an attorney when he entered the pleas and the record did not indicate that he had inadequate time to confer with the attorney or that either he or his attorney requested additional time. State v. Bryant, 1968-NMCA-081, 79 N.M. 620, 447 P.2d 281, 1968 N.M. App. LEXIS 506 (N.M. Ct. App. 1968).

Inmate’s guilty pleas to armed robbery were not involuntary; the mere failure of police to advise him of his rights to counsel and to remain silent, without a showing of prejudice, constituted no basis for relief. State v. Bryant, 1968-NMCA-081, 79 N.M. 620, 447 P.2d 281, 1968 N.M. App. LEXIS 506 (N.M. Ct. App. 1968).

Applicability.

Defendant was properly convicted of first degree murder, false imprisonment, and tampering with evidence even though the trial court improperly admitted a witness’ taped statement as a catch-all exception to the hearsay rule under Rule 11-804 NMRA because the statement was unreliable and violated the Confrontation Clause under the Sixth Amendment. State v. Lopez, 2000-NMSC-003, 2000-NMSC-003, 128 N.M. 410, 993 P.2d 727, 1999 N.M. LEXIS 379 (N.M. 1999).

Defendant was not entitled to reversal of his conviction for first degree murder because the admission of the decedent victim’s statements did not violate his right of confrontation under the Sixth Amendment and under N.M. Const. art II § 14 because the victim’s statements whereby he greeted defendant by name and identified defendant as the shooter were trustworthy. State v. Salgado, 1999-NMSC-008, 126 N.M. 691, 974 P.2d 661, 1999 N.M. LEXIS 24 (N.M. 1999).

Where the hearsay statement of an unavailable witness had limited indicia of reliability, its admission violated defendant’s right to confront witnesses against him. State v. Lancaster, 1993-NMCA-098, 116 N.M. 41, 859 P.2d 1068, 1993 N.M. App. LEXIS 78 (N.M. Ct. App. 1993).

Where the State’s confidential informant in a drug trafficking case failed to appear at defendant’s trial, defendant’s right to confrontation did not arise, and therefore he was not denied this right. State v. Savage, 1992-NMCA-126, 115 N.M. 250, 849 P.2d 1073, 1992 N.M. App. LEXIS 147 (N.M. Ct. App. 1992).

In determining defendant’s right to a jury trial under U.S. Const. amends. VI, the trial court erred in denying defendant’s demand for a jury trial because under the objective measure of the combined, maximum statutory penalties for his driving under the influence and driving with a suspended or revoked license convictions, the penalty amounted to more than 180 days. State v. Sanchez, 1990-NMSC-012, 109 N.M. 428, 786 P.2d 42, 1990 N.M. LEXIS 37 (N.M. 1990).

Trial court’s denial of a jury trial for habitual offender proceedings did not violate defendant’s constitutional rights where there was no federal Sixth Amendment right to a jury determination in a habitual offender proceeding; the legislature no longer provide for a jury determination in habitual offender proceedings pursuant to 31-18-20 NMSA 1978. State v. Griffin, 1988-NMCA-101, 108 N.M. 55, 766 P.2d 315, 1988 N.M. App. LEXIS 108 (N.M. Ct. App. 1988).

Sixth amendment right to confrontation applies to criminal proceedings; former prison guards had no right to confrontation in disciplinary proceedings of the New Mexico Personnel Board, which were civil proceedings. Anaya v. New Mexico State Personnel Bd., 1988-NMCA-077, 107 N.M. 622, 762 P.2d 909, 1988 N.M. App. LEXIS 77 (N.M. Ct. App.), cert. denied, 107 N.M. 673, 763 P.2d 689, 1988 N.M. LEXIS 256 (N.M. 1988).

Where the trial court granted the State’s motion in limine, forbidding defendant from questioning the State’s key witness about the witness’s participation in the state penitentiary riots, defendant was denied his Sixth Amendment right of confronting the witness and of testing the witness’s credibility by cross-examination to show any motive the witness had to testify falsely in light of the indictment on murder charges against the witness arising from the riots. State v. Baldizan, 1982-NMCA-142, 99 N.M. 106, 654 P.2d 559, 1982 N.M. App. LEXIS 973 (N.M. Ct. App.), cert. denied, 99 N.M. 148, 655 P.2d 160, 1982 N.M. LEXIS 3024 (N.M. 1982).

Where the loss or destruction of witness testimony is known prior to trial, the two alternatives are exclusion of all evidence which the lost evidence might have impeached, or admission with full disclosure of the loss and its relevance and import; the choice between these alternatives must be made by the trial court, depending on its assessment of materiality and prejudice. State v. Pedroncelli, 1981-NMCA-142, 97 N.M. 190, 637 P.2d 1245, 1981 N.M. App. LEXIS 818 (N.M. Ct. App. 1981).

Defendant was improperly convicted of intentionally obtaining a controlled substance by forgery for allegedly forging a prescription where a doctor’s tape-recorded deposition was allowed at trial and defendant was denied the right to confront him; defendant’s right to confront the witness was basic to both the United States and New Mexico Constitutions. Millican v. State, 1978-NMSC-061, 91 N.M. 792, 581 P.2d 1287, 1978 N.M. LEXIS 945 (N.M. 1978).

Under U.S. Const. amends. VI defendant had the right to pretrial discovery of a prior witness statement made by a witness about which the witness was called to testify as it was a violation of defendant’s fundamental right to confront the witnesses against him not to give defendant the statement prior to trial. State v. Vigil, 1975-NMSC-013, 87 N.M. 345, 533 P.2d 578, 1975 N.M. LEXIS 802 (N.M. 1975).

Defendant’s constitutional right to be present at his first-degree murder trial was not violated where, due to defendant’s conduct that was obscene and disruptive, he lost this right. State v. Corriz, 1974-NMSC-043, 86 N.M. 246, 522 P.2d 793, 1974 N.M. LEXIS 1396 (N.M. 1974).

Assistance of counsel.

Error in not sending two exhibits to the jury was harmless and the district court did not abuse its discretion in denying defendant’s motion for a new trial on that ground; there was no reasonable probability that the jury’s verdict would have been different if the jury had access to the two exhibits during deliberation, and defendant could not demonstrate the requisite prejudice to prevail on his ineffective assistance of counsel claim. State v. Guerra, 2012-NMSC-027, 284 P.3d 1076, 2012 N.M. LEXIS 325 (N.M. 2012).

Trial court deprived defendant of his Sixth Amendment right to effective assistance of counsel because it refused to allow privately retained counsel to withdraw so that defendant, who was indigent but whose family had raised funds for private counsel, would be entitled to appointment of necessary expert witnesses. State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105, 2008 N.M. LEXIS 86 (N.M. 2008), overruled in part, State v. Consaul, 2014-NMSC-030, 332 P.3d 850, 2014 N.M. LEXIS 294 (N.M. 2014), overruled, State v. Montoya, 2015-NMSC-010, 345 P.3d 1056, 2015 N.M. LEXIS 56 (N.M. 2015).

In a sex crimes case, defense counsel’s performance was deficient where he failed to advise defendant that a plea of no contest would almost certainly result in defendant having to register as a sex offender. The case was remanded to determine whether defendant was prejudiced; if so, he would be entitled to withdraw his plea. State v. Edwards, 2007-NMCA-043, 141 N.M. 491, 157 P.3d 56, 2007 N.M. App. LEXIS 18 (N.M. Ct. App.), cert. denied, 142 N.M. 436, 166 P.3d 1090, 2007 N.M. LEXIS 368 (N.M. 2007).

Defense counsel’s statement that he intended to do nothing in aid or representation of his client, the defendant, at a habitual offender hearing predicted a performance below the standard of a reasonably competent defense attorney in contravention of defendant’s right under the Sixth Amendment; because defendant undoubtedly was prejudiced in his defense when he unwillingly and unpreparedly undertook self-representation, the trial court abused its discretion in refusing to appoint substitute counsel at the habitual hearing. State v. Lucero, 1986-NMCA-085, 104 N.M. 587, 725 P.2d 266, 1986 N.M. App. LEXIS 645 (N.M. Ct. App. 1986).

—Trial strategy.

Trial counsel’s agreeing to drop procedural motion in exchange for a significant and tangible reduction in defendant’s exposure was not an unreasonable strategy, much less a performance that fell below that of a reasonably competent attorney. State v. Stone, 2008-NMCA-062, 144 N.M. 78, 183 P.3d 963, 2008 N.M. App. LEXIS 27 (N.M. Ct. App.), cert. denied, 143 N.M. 682, 180 P.3d 1181, 2008 N.M. LEXIS 213 (N.M. 2008).

Burden of proof.

Where jurors in defendant’s trial on criminal sexual contact of a minor and criminal sexual penetration of a minor charges witnessed the judge who presided at the victim’s videotape deposition, which was played in court, hug the victim’s grandmother, the hug gave rise to a presumption of prejudice which the state was required to rebut. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, 1999 N.M. App. LEXIS 121 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 338 (N.M. 1999).

Challenges.

State’s use of its peremptory challenges during jury selection in defendant’s trial for kidnapping and criminal sexual penetration in the second degree did not violate the Equal Protection Clause of U.S. Const. amends. XIV, U.S. Const. amends. VI, or the New Mexico Constitution because defendant did not make his objection until after the venire panel had been dismissed and the petit jury sworn and preliminarily instructed. The objection was untimely because it was too late to cure any alleged error. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, 1993 N.M. App. LEXIS 160 (N.M. Ct. App. 1993).

Children.

Sixth Amendment speedy-trial right is applicable in children’s court cases; a children’s court did not err in denying a motion to dismiss based on a 15-month delay in concluding a transfer hearing in a juvenile case because the child substantially contributed to the delay, the child was not held in detention, and there was no showing that the delay had materially impaired the child’s defense. In re Darcy S., 1997-NMCA-026, 123 N.M. 206, 936 P.2d 888, 1997 N.M. App. LEXIS 17 (N.M. Ct. App. 1997).

Compliance.

Defendant was not denied his constitutional right to a speedy trial where the the delay from the time of the original charge until the time of trial was not especially long, the motivation of the State was not oppressive, the defendant did not request a speedy trial prior to the date of trial, and there was no evidence that defendant suffered substantial prejudice from the delay. State v. Valdez, 1990-NMCA-018, 109 N.M. 759, 790 P.2d 1040, 1990 N.M. App. LEXIS 20 (N.M. Ct. App. 1990).

Conditional plea agreement.

In a DWI case, defense counsel’s failure to timely appeal conditional plea agreement to district court was presumptively ineffective assistance of counsel. State v. Eger, 2007-NMCA-039, 141 N.M. 379, 155 P.3d 784, 2007 N.M. App. LEXIS 14 (N.M. Ct. App. 2007).

Conflict of interest.

In prosecution for drug trafficking, defense counsel’s representation of both defendant and of confidential informant who introduced undercover officers to defendant was per se prejudicial, as his representation of informant was both contemporaneous and relevant to defendant’s case. Therefore, defendant did not receive effective assistance of counsel, and was entitled to a writ of habeas corpus and a new trial. Rael v. Blair, 2007-NMSC-006, 141 N.M. 232, 153 P.3d 657, 2007 N.M. LEXIS 60 (N.M. 2007).

Although the juvenile claimed that her defense counsel was ineffective due to an irreconcilable conflict of interest that arose when one attorney served as both her guardian ad litem, during abuse and neglect proceedings, and then as her defense attorney during delinquency proceedings, the record did not demonstrate an actual conflict. State v. Joanna V., 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783, 2004 N.M. LEXIS 325 (N.M. 2004).

Confrontation.

Admission of testimony of the supervising pathologist did not violated the Confrontation Clause, as the report was prepared in her office under her direction and supervision, was reviewed, altered, and approve in accordance with her professional judgment, and was the product of her own independent participation in the autopsy, which was executed by a trainee pathologist. State v. Smith, 2016-NMSC-007, 367 P.3d 420, 2016 N.M. LEXIS 33 (N.M. 2016).

Autopsy photographs did not constituted testimonial statements and therefore did not invoke the Sixth Amendment. State v. Smith, 2016-NMSC-007, 367 P.3d 420, 2016 N.M. LEXIS 33 (N.M. 2016).

Defendant’s videotaped statements were non-testimonial and did not violate his right to confront witnesses, U.S. Const. amends. VI, where the trial court found that if the statements were made in response to an inquiry, it would be a very general inquiry about what was happening, not some interrogation at this point; the lack of a structured question and answer, and the fact that the statements were spontaneously given, supported this view. State v. Gutierrez, 2011-NMCA-088, 150 N.M. 505, 263 P.3d 282, 2011 N.M. App. LEXIS 67 (N.M. Ct. App.), cert. denied, 268 P.3d 513, 2011 N.M. LEXIS 337 (N.M. 2011).

Confrontation Clause did not bar admission of the recorded police station conversation between defendant and codefendant as defendant and codefendant talked freely with one another without police questioning, and both their statements were non-testimonial for Confrontation Clause purposes. State v. Telles, 2011-NMCA-083, 150 N.M. 465, 261 P.3d 1097, 2011 N.M. App. LEXIS 99 (N.M. Ct. App. 2011).

District court did not err by admitting the report of the test results of defendant’s blood-alcohol-content report into evidence; the evidence relating to the blood drawer’s identity and qualification satisfied the state’s burden for admission of the report and the toxicologist was available to be cross-examined regarding operation of the testing machine and the state laboratory division’s procedures. State v. Nez, 2010-NMCA-092, 148 N.M. 914, 242 P.3d 481, 2010 N.M. App. LEXIS 78 (N.M. Ct. App.), cert. denied, 149 N.M. 49, 243 P.3d 753, 2010 N.M. LEXIS 482 (N.M. 2010).

Defendant was granted a new trial on his convictions from twenty years ago because admission of a prior statement by an alleged accomplice violated defendant’s rights under the Confrontation Clause in that it deprived defendant of meaningful cross-examination; precedent at the time of defendant’s first case required exclusion of the alleged statement. State v. Forbes, 2005-NMSC-027, 2005-NMSC-027, 138 N.M. 264, 119 P.3d 144, 2005 N.M. LEXIS 419 (N.M. 2005), cert. denied, 549 U.S. 1274, 127 S. Ct. 1482, 167 L. Ed. 2d 244, 2007 U.S. LEXIS 2983 (U.S. 2007).

Confrontation of witnesses.

Trial court’s admission of the State's forensic expert's testimony via two-way video violated defendant's Confrontation Clause rights where he did not knowingly and voluntarily waive his right, the trial court did not conduct an evidentiary hearing or enter any findings regarding whether the use of two-way video was necessary to further an important public policy, and the State did not comply with the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. The error was not harmless because the expert was the only forensic scientist analyst who had performed measurements on the DNA sample. State v. Thomas, 2016-NMSC-024, 376 P.3d 184, 2016 N.M. LEXIS 149 (N.M. 2016).

Expert's reference to a non-testifying expert's work did not violate defendant's right to confrontation because (1) the witness had sufficient personal knowledge of the victim's injuries, the injuries' cause, and the manner of death, and (2) the admission of bite mark opinions was harmless, as the opinions were a minor part of the witness's testimony unrelated to the cause of death, and defendant admitted biting the victim. State v. Cabezuela, 2015-NMSC-016, 350 P.3d 1145, 2015 N.M. LEXIS 125 (N.M. 2015).

Although the trial court erred in admitting the chief medical investigator's testimony regarding the toxicology report on the victim's body because he did not perform the test, the error was harmless because the victim's toxicology levels were not important to the State's first-degree murder case, where the cause of death was a gunshot wound. State v. Ortega, 2014-NMSC-017, 327 P.3d 1076, 2014 N.M. LEXIS 172 (N.M. 2014).

Right of confrontation in N.M. Const. art II § 14, as with the right of confrontation guaranteed by U.S. Const. amends. VI, applies only at a criminal trial where guilt or innocence is determined; nothing in N.M. Const. art II § 14 requires affording confrontation rights at a pretrial hearing to determine probable cause to prosecute. State v. Lopez, No. 33736, 2013 N.M. LEXIS 289 (N.M. Aug. 29, 2013), op. withdrawn, sub. op., 2013-NMSC-047, 314 P.3d 236, 2013 N.M. LEXIS 355 (N.M. 2013).

Under N.M. Const. art II § 14 and U.S. Const. amends. VI, two-way video conference testimony violates the Confrontation Clause absent a showing of necessity, and the district court did not establish the requisite necessity for allowing video testimony in lieu of live testimony; the error was not harmless beyond a reasonable doubt. State v. Smith, 2013-NMCA-081, 308 P.3d 135, 2013 N.M. App. LEXIS 28 (N.M. Ct. App.), cert. denied, 304 P.3d 425, 2013 N.M. LEXIS 278 (N.M. 2013).

Violation of the Confrontation Clause occurred when a forensic pathologist related subjective observations recorded in an autopsy report as a basis for the pathologist’s trial opinions when the pathologist neither participated in nor observed the autopsy performed on the decedent. State v. Navarette, 2013-NMSC-003, 294 P.3d 435, 2013 N.M. LEXIS 57 (N.M.), cert. denied, 134 S. Ct. 64, 187 L. Ed. 2d 254, 2013 U.S. LEXIS 6618 (U.S. 2013).

Because the medical examiner’s report was prepared to document a homicide and intended for use in prosecution of a criminal case, the purpose of the autopsy report was to provide prosecutorial evidence, and thus the statements contained in the report were testimonial; admission of the medical examiner’s information through another expert’s testimony was an abuse of discretion under Rule 11-703 NMRA and inadmissible because it violated defendant’s right to confrontation. State v. Jaramillo, 2012-NMCA-029, 272 P.3d 682, 2011 N.M. App. LEXIS 129 (N.M. Ct. App. 2011), cert. denied, 291 P.3d 1290, 2012 N.M. LEXIS 40 (N.M. 2012).

During defendant’s trial for intentional child abuse, the testimony of the supervising pathologist regarding the child’s autopsy did not violate defendant’s right to confrontation; defendant had a full and fair opportunity to cross-examine the supervising pathologist to determine whether the supervising pathologist had personal, first-hand knowledge of how a forensic pathology fellow conducted the autopsy. State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705, 2011 N.M. LEXIS 499 (N.M. 2011).

Chemical forensic reports at issue were inadmissible absent confrontation because although it was the “business” of the southern crime laboratory, a public agency, to analyze substances for narcotic content, the laboratory’s purpose for preparing chemical forensic reports was for their use in court, not as a function of the laboratory’s administrative activities; these reports were precisely the type of out-of-court statement that had to be excluded because admitting them opened wide the door to avoidance of cross-examination, and as a result, the chemist’s chemical forensic report and another chemist’s testimony about her report were not admissible and violated defendant’s right of confrontation if defendant was deprived of meaningful cross-examination. State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, 2010 N.M. LEXIS 6 (N.M. 2010), overruled in part, State v. Tollardo, 2012-NMSC-008, 275 P.3d 110, 2012 N.M. LEXIS 130 (N.M. 2012), overruled in part as stated in State v. Barela, No. 32506, 2013 N.M. Unpub. LEXIS 4 (N.M. 2013).

Another chemist’s testimony regarding the preparing chemist’s report violated defendant’s right of confrontation because it introduced the preparing chemist’s opinion, not his; because it was the preparing chemist’s opinion, defendant was entitled to cross-examine her on a number of issues. State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, 2010 N.M. LEXIS 6 (N.M. 2010), overruled in part, State v. Tollardo, 2012-NMSC-008, 275 P.3d 110, 2012 N.M. LEXIS 130 (N.M. 2012), overruled in part as stated in State v. Barela, No. 32506, 2013 N.M. Unpub. LEXIS 4 (N.M. 2013).

In child abuse prosecution, defendant’s right to confrontation was not violated by the admission of codefendants’ hearsay statements, as they were merely additional evidence tending to prove what had already been demonstrated. State v. Lopez, 2007-NMSC-037, 142 N.M. 138, 164 P.3d 19, 2007 N.M. LEXIS 313 (N.M. 2007).

Defendant, who had already been convicted of killing his wife, was entitled to reversal on his convictions for various prior domestic offenses against her, because trial court’s admission of the wife’s statements to a sexual assault nurse examiner violated defendant’s rights under the Confrontation Clause where the examination occurred several weeks after the assault and with an officer’s assistance and encouragement. The trial court’s admission of the wife’s taped interview with an officer also violated defendant’s rights because it was testimonial. The case was remanded to determine whether the rule of forfeiture by wrongdoing applied such that defendant waived his right of confrontation by obtaining the victim’s unavailability to testify at trial. State v. Romero, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694, 2007 N.M. LEXIS 145 (N.M. 2007), cert. dismissed, 552 U.S. 1135, 128 S. Ct. 976, 169 L. Ed. 2d 799, 2008 U.S. LEXIS 1094 (U.S. 2008).

Admission of a “testimonial” statement given by a witness under oath in a preliminary hearing does not violate the Confrontation Clause under Crawford where: (1) the witness is unavailable; and (2) the defendant had a prior opportunity to cross-examine the statement that is now being offered into evidence against him. State v. Henderson, 2006-NMCA-059, 139 N.M. 595, 136 P.3d 1005, 2006 N.M. App. LEXIS 33 (2006), cert. denied, 136 P.3d 568, 2006 LEXIS 256 and cert. denied, Henderson v. New Mexico, 549 U.S. 999, 127 S. Ct. 503, 166 L. Ed. 2d 376, 2006 U.S. LEXIS 8117 (U.S. 2006).

Admission of the victim’s prior testimony provided at a preliminary hearing did not violate defendant’s Sixth Amendment rights under Crawford because defendant had a sufficient prior opportunity to cross-examine the victim at the preliminary hearing. State v. Henderson, 2006-NMCA-059, 139 N.M. 595, 136 P.3d 1005, 2006 N.M. App. LEXIS 33 (2006), cert. denied, 136 P.3d 568, 2006 LEXIS 256 and cert. denied, Henderson v. New Mexico, 549 U.S. 999, 127 S. Ct. 503, 166 L. Ed. 2d 376, 2006 U.S. LEXIS 8117 (U.S. 2006).

Defendant’s right of confrontation under U.S. Const. amends. VI was not violated by a trial court’s limitation of her cross-examination of two witnesses, nor did the trial court abuse its discretion under N.M. R. Ann. 11-611A, B in limiting the cross-examination to the witness’s personal knowledge and to the subject matter of the direct examination. State v. Smith, 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254, 2001 N.M. LEXIS 45 (N.M. 2001).

New Mexico’s rape shield law, 30-9-16 NMSA 1978, and the corresponding Rule 11-413 NMRA did not violate a criminal defendant’s right of confrontation under U.S. Const. amends. VI and prevented the admission of prior sexual conduct by the alleged victims in the defendant’s trial for assault and criminal penetration, where the defendant did not show that (1) the evidence was material and relevant, and (2) the evidence’s probative nature would equal or outweighed the evidence’s inflammatory or prejudicial nature. State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869, 1997 N.M. LEXIS 303 (N.M. 1997).

Defendant’s conviction on one of three counts of trafficking in a controlled substance (cocaine) was reversed because defendant’s Sixth Amendment right to confront adverse witnesses was violated because he was not permitted to inquire into any possibility that an informant was biased or motivated to fabricate testimony, even in the absence of evidence that a deal had been or could have been made exchanging her testimony for leniency. State v. Martinez, 1996-NMCA-109, 122 N.M. 476, 927 P.2d 31, 1996 N.M. App. LEXIS 91 (N.M. Ct. App.), cert. denied, 122 N.M. 416, 925 P.2d 882, 1996 N.M. LEXIS 414 (N.M. 1996).

Defendant, who was subject of a “controlled buy” operation set up by the county sheriff’s office with the help of a paid confidential informant, which operation terminated after defendant’s arrest (where defendant, in contending that the informant against him was motivated by bias, made these assertions before the district court) had his Sixth Amendment rights violated when defense counsel was not allowed to cross-examine witnesses about the informant’s subsequent arrest or charges against her and had preserved that issue for review. In New Mexico, to preserve a question for review, it had to appear that a ruling or decision by the district court had been fairly invoked, N.M. R. App. P. 12-216(A). State v. Martinez, 1996-NMCA-109, 122 N.M. 476, 927 P.2d 31, 1996 N.M. App. LEXIS 91 (N.M. Ct. App.), cert. denied, 122 N.M. 416, 925 P.2d 882, 1996 N.M. LEXIS 414 (N.M. 1996).

Defendant’s right to confront adverse witnesses was violated where he was prohibited from inquiring into any possibility that an informant was biased or motivated to fabricate testimony against him in exchange for leniency on her own charges; the Sixth Amendment to the United States Constitution, providing that in criminal prosecutions, the accused shall have the right to confront the witnesses against him, was made applicable to the states through the Fourteenth Amendment. State v. Martinez, 1996-NMCA-109, 122 N.M. 476, 927 P.2d 31, 1996 N.M. App. LEXIS 91 (N.M. Ct. App.), cert. denied, 122 N.M. 416, 925 P.2d 882, 1996 N.M. LEXIS 414 (N.M. 1996).

Admission of a social worker’s videotaped interrogation of a four-year-old girl who claimed a juvenile sexually assaulted her violated the juvenile’s right to confrontation because the videotape was admitted on the basis of the residual exception to the hearsay rule, the interviewing procedures were suggestive, the statement was not reliable, and the juvenile was not allowed to cross-examine the girl in front of the jury or outside their presence. In re Troy P., 1992-NMCA-120, 114 N.M. 525, 842 P.2d 742, 1992 N.M. App. LEXIS 106 (N.M. Ct. App. 1992).

Special procedures adopted by a trial court for taking a child’s testimony, which allowed the child to testify while defendant who was charged with criminal sexual penetration of a minor watched through close circuit television, were not provided for either by 30-9-17 NMSA 1978 or by Rule 5-504 NMRA. These procedures denied defendant his right to be present in the courtroom as guaranteed by the Sixth Amendment. State v. Rodriguez, 1992-NMCA-088, 114 N.M. 265, 837 P.2d 459, 1992 N.M. App. LEXIS 77 (N.M. Ct. App. 1992).

On review of an adjudication of a child as a delinquent after a bench trial conviction for committing criminal sexual contact of a minor victim, who was the child’s eight year old sister, the court remanded for a determination of whether the victim had needed special protection warranting her video testimony outside of the child’s presence as ordered by the trial court pursuant to its discretion under 30-9-17 NMSA 1978 and Rule 5-504 NMRA, which would otherwise have violated the child’s right to confrontation under U.S. Const. amends. VI because the record was absent of any individualized findings that the victim needed special protection and was unable to testify before the court without suffering unreasonable and unnecessary mental or emotional harm. State v. Benny E., 1990-NMCA-052, 110 N.M. 237, 794 P.2d 380, 1990 N.M. App. LEXIS 40 (N.M. Ct. App. 1990).

Defendant’s conviction of aggravated battery was proper; the right of confrontation did not embrace a situation where no prior testimony, statement, or utterance of any kind by the victim was brought to the attention of the jury, and none was offered by the state. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350, 1966 N.M. LEXIS 2668 (N.M. 1966).

—Statements of codefendants.

Defendant’s right to confrontation was violated when his codefendants’ statements were admitted. However, this constitutional error was harmless with regard to defendant’s convictions for intentional child abuse resulting in death or great bodily harm and criminal sexual penetration in the first degree as the erroneously admitted evidence was cumulative, and the statements merely tended to prove the elements already established by defendant’s confession. State v. Lopez, 2007-NMSC-049, 142 N.M. 613, 168 P.3d 743, 2007 N.M. LEXIS 494 (N.M. 2007).

Because the codefendants’ statements elicited by police were testimonial, police officers testified as to the content of the codefendants’ statements, and none of the codefendants testified, the admission of the codefendants’ statements violated defendant’s constitution right to confrontation. The error was not harmless as to defendant’s conviction of conspiracy to commit intentional child abuse, and therefore the conviction was reversed, because there was no direct evidence of conspiracy, as neither defendant or the codefendant admitted that they had entered into an agreement to commit child abuse, and the charge was not supported by physical evidence. State v. Walters, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068, 2007 N.M. LEXIS 491 (N.M. 2007).

Because the codefendants’ statements elicited by police were testimonial, police officers testified as to the content of the codefendants’ statements, and none of the codefendants testified, the admission of the codefendants’ statements violated defendant’s constitution right to confrontation. However, the error was harmless as to defendant’s conviction of negligently permitting child abuse not resulting in death or great bodily harm because the codefendant’s statement was merely cumulative of defendant’s confession, which provided sufficient evidence to establish each element of the crime; additionally, there was overwhelming physical evidence supporting defendant’s conviction. State v. Walters, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068, 2007 N.M. LEXIS 491 (N.M. 2007).

Because the codefendants’ statements elicited by police were testimonial, police officers testified as to the content of the codefendants’ statements, and none of the codefendants testified, the admission of the codefendants’ statements violated defendant’s constitution right to confrontation. However, the error was harmless as to defendant’s conviction of intentional child abuse not resulting in death or great bodily harm because the codefendants’ statements were merely cumulative of defendant’s confession, which provided sufficient evidence to establish each element of the crime; additionally, the baby’s autopsy revealed overwhelming evidence of injury that occurred prior to those injuries causing her death. State v. Walters, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068, 2007 N.M. LEXIS 491 (N.M. 2007).

Constitutional claims.

In a voluntary manslaughter case, defendant waived his right to a public trial when his counsel expressly stipulated to— and even encouraged—a partial courtroom closure. Given that counsel did not object to the closure during a minor's testimony and affirmatively encouraged it, defendant was in no position to claim that his Sixth Amendment right to a public trial was violated. State v. Hobbs, 2016-NMCA-006, 363 P.3d 1259, 2015 N.M. App. LEXIS 111 (N.M. Ct. App. 2015).

Appellate court declined to address Defendant’s equal protection, Sixth Amendment, and New Mexico constitutional claims, which were raised for the first time on his appeal from his convictions for kidnapping and criminal sexual penetration in the second degree, because no questions of fundamental error were involved, as required by Rule 12-216(B)(2) NMRA 1978. There was substantial evidence to support defendant’s convictions, and there was no other basis for invoking the concept of fundamental error. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, 1993 N.M. App. LEXIS 160 (N.M. Ct. App. 1993).

Construction.

In determining whether or not a defendant’s right to a speedy trial has been violated, the courts balance the length of the delay, the reasons for the delay, defendant’s assertion of the right, if any, and any prejudice to defendant. State v. Marquez, 2001-NMCA-062, 130 N.M. 651, 29 P.3d 1052, 2001 N.M. App. LEXIS 59 (N.M. Ct. App. 2001), cert. denied, 130 N.M. 713, 30 P.3d 1147, 2001 N.M. LEXIS 260 (N.M. 2001), abrogated in part as stated in State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, 2009 N.M. App. LEXIS 298 (N.M. Ct. App. 2009).

Distinction between 16 and 18 months was insignificant for the purpose of speedy-trial analysis because either period was significantly in excess of the presumptively prejudicial time period of nine months for a case of simple driving while under the influence. State v. Marquez, 2001-NMCA-062, 130 N.M. 651, 29 P.3d 1052, 2001 N.M. App. LEXIS 59 (N.M. Ct. App. 2001), cert. denied, 130 N.M. 713, 30 P.3d 1147, 2001 N.M. LEXIS 260 (N.M. 2001), abrogated in part as stated in State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, 2009 N.M. App. LEXIS 298 (N.M. Ct. App. 2009).

Construction with other law.

Right of a juror under N.M. Const. art VII § 3, not to be excluded from the panel for failing to understand English or Spanish is subject to a defendant’s rights under the U.S. Const. amends. VI and the N.M. Const. art II § 14, to a speedy trial. State v. Rico, 2002-NMSC-022, 132 N.M. 570, 52 P.3d 942, 2002 N.M. LEXIS 274 (N.M. 2002).

Wife was improperly awarded a share of her ex-husband’s military retirement pay because 40-4-20 NMSA 1978, which provided a party the right to seek a division and distribution of previously undivided property in a separate proceeding after the divorce, was barred by the Uniform Services Former Spouses’ Protection Act under the authority of the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2. Hennessy v. Duryea, 1998-NMCA-036, 124 N.M. 754, 955 P.2d 683, 1998 N.M. App. LEXIS 10 (N.M. Ct. App.), cert. denied, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 75 (N.M. 1998).

Fact that the state Taxation and Revenue Department lacked the authority to decide the constitutionality of the law that gave rise to the income tax on the taxpayers’ private retirement benefits did not merit invoking the Supremacy Clause because the procedure under 7-1-25 NMSA 1978 in the Tax Administration Act, 7-1-1 to 7-1-82 NMSA 1978, regarding appeals from protest determinations, the procedure under 7-1-26 NMSA 1978 regarding appeals from protest determinations, and the authority under 7-1-29B NMSA 1978 to issue refunds pursuant to a final court order gave the taxpayers the means to obtain a plain, adequate, and complete remedy. Neff v. State ex rel. the Taxation & Revenue Dep't, 1993-NMCA-116, 116 N.M. 240, 861 P.2d 281, 1993 N.M. App. LEXIS 103 (N.M. Ct. App. 1993).

Section 41-4519, 1941 Comp. (30-16-8 NMSA 1978) cannot be extended or sustained as a reasonable exercise of police power. State v. Prince, 1948-NMSC-003, 52 N.M. 15, 189 P.2d 993, 1948 N.M. LEXIS 615 (N.M. 1948).

Continuance.

Trial court abused discretion in denying defendant’s motion for continuance, where defense counsel represented to the district court that he was unprepared to go to trial, that the case was relatively new to him, and complex, thus requiring additional time for preparation, and that additionally, on the day of trial, the co-defendant entered a plea agreement with the State and agreed to testify for the State. The district court’s concern for maintaining its docket was not sufficient to support its decision, and defendant was clearly prejudiced by having to go to trial under the circumstances described by his counsel. State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d 659, 2006 N.M. App. LEXIS 46 (N.M. Ct. App.), cert. denied, 140 N.M. 224, 141 P.3d 1278, 2006 N.M. LEXIS 291 (N.M. 2006).

Conversations with jurors.

While U.S. Const. amends. VI §§ and XIV, as well as N.M. Const. art II § 14, and former NMSA 1978, Crim.P. Rule 47(a) (now Rule 5-612 NMRA), all entitled a defendant to be present at every stage of his trial, including the impaneling of the jury, a trial judge’s conversations with jurors outside the presence of defendant was a procedure invited by defense counsel and which did not prejudice defendant. Therefore, defendant was not entitled to a new trial. State v. Henry, 1984-NMCA-040, 101 N.M. 277, 681 P.2d 62, 1984 N.M. App. LEXIS 644 (N.M. Ct. App. 1984).

Defenses.

Delay of 144 days was not, in the absence of a showing of extreme circumstances, sufficient for a determination that defendant was denied his constitutional right to a speedy trial. State v. Adams, 1969-NMCA-059, 80 N.M. 426, 457 P.2d 223, 1969 N.M. App. LEXIS 583 (N.M. Ct. App. 1969).

Defendant’s guilty plea operated as a waiver of his claims, raised in his motion for postconviction relief, that he was denied his constitutional and statutory rights to a speedy trial. State v. Gonzales, 1969-NMCA-028, 80 N.M. 168, 452 P.2d 696, 1969 N.M. App. LEXIS 554 (N.M. Ct. App. 1969).

Due process.

Defendant’s conviction by a jury and his sentence for trafficking in a controlled substance were vacated because in sentencing defendant, the prior remarks of the trial judge indicated that it improperly considered defendant’s exercise of his constitutional right to a jury trial. The trial judge’s statement that it was the court’s general policy to impose the statutory penalty if a person was found guilty of a crime by a jury and the trial judge’s imposition of a harsher sentence based upon defendant’s exercise of his constitutional rights constituted an abuse of discretion. State v. Bonilla, 2000-NMSC-037, 2000-NMSC-037, 130 N.M. 1, 15 P.3d 491, 2000 N.M. LEXIS 424 (N.M. 2000).

Where the trial court conducted individual voir dire and, in the course of that process, four jurors responded that they could not vote to impose the death penalty regardless of the evidence presented at trial or the trial court’s instruction on the law, the trial court properly excluded the jurors who could not follow either the jury instructions or their oath; defendant was not denied due process because the jurors were not excused on the basis of their religious principles State v. Jacobs, 2000-NMSC-026, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, 2000 N.M. LEXIS 311 (N.M. 2000).

Denial of defendant’s motion for continuance violated his right to compulsory process; the resulting convictions were error where the evidence showed that defendant delivered a completed witness subpoena form to the sheriff at least 10 days before trial, the sheriff failed to serve the witness and did not inform defense counsel that the subpoena had not been served until the day of trial, the missing witness’s testimony was essential to the defense theory, and there was no proof that the motion was filed as a dilatory tactic. State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20, 1999 N.M. LEXIS 55 (N.M. 1999).

Where the district court denied defendant’s motion for a continuance to secure a witness that bore a striking resemblance to defendant, defendant’s right to compulsory process is not denied because it is unclear how defendant’s misidentification defense would be significantly furthered by securing the witness. Lucero v. Kerby, 133 F.3d 1299, 1998 U.S. App. LEXIS 223 (10th Cir. N.M.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821, 1998 U.S. LEXIS 3045 (U.S. 1998).

The competency statutes, 39-9-1 et seq. NMSA 1978 do not deprive a defendant of due process and equal protection because although they do not provide all the protections recommended by the American Bar Association, this in itself does not raise a constitutional issue. Furthermore, due process requires incompetent defendants to be treated differently than competent defendants because the conviction of an accused person while that person is legally incompetent violates due process, and thus incompetent defendants cannot be brought to trial in the same manner as competent defendants. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, 1990 N.M. App. LEXIS 123 (N.M. Ct. App. 1990).

Where the state had subpoenaed a party to taped telephone conversations with the defendant to appear at trial, and had arranged to pay his air fare and expenses, and the day before trial the witness advised he was ill and under doctor’s orders not to travel,.allowing the tapes in evidence did not result in a denial of the defendant’s right under U.S. Const. amends. VI and N.M. Const. art II § 14 to confront a witness because the witness was an unavailable declarant in a constitutional sense, the state made a good-faith effort, in the constitutional sense, to have the witness available, and the reliability of the statements on the tapes was not challenged. State v. Owens, 1984-NMCA-105, 103 N.M. 121, 703 P.2d 898, 1984 N.M. App. LEXIS 749 (N.M. Ct. App. 1984).

New Mexico supreme court remanded case and ordered appellate court to abide by the supreme court’s order granting an extension of time for commencing prosecution in case where defendant contented that he was not brought to trial within six months in violation of U.S. Const. amends. VI, N.M. Const. art II § 14, and the rules of criminal procedure. State v. Carter, 1975-NMCA-115, 88 N.M. 435, 540 P.2d 1324, 1975 N.M. App. LEXIS 721 (N.M. Ct. App. 1975).

Trial court’s refusal to permit defendant to use a picture of his twin brother with respect to cross-examination of a prosecution witness was not a denial of defendant’s Sixth Amendment rights because the picture had been admitted for a limited purpose, the witness’ identification of defendant had been subject to full cross-examination, and cumulative cross-examination would not have advanced the accuracy of the truth determining process. State v. Stout, 1972-NMCA-041, 83 N.M. 624, 495 P.2d 802, 1972 N.M. App. LEXIS 761 (N.M. Ct. App. 1972).

Where the only evidence that linked defendant to the murders were the hearsay statements of two young boys, defendant was denied his right to a fair trial when he was denied the right to cross-examine the boys. State v. Lunn, 1971-NMCA-048, 82 N.M. 526, 484 P.2d 368, 1971 N.M. App. LEXIS 690 (N.M. Ct. App. 1971).

Constitutional right to a speedy trial, as provided by U.S. Const. amends. VI, arises under, or becomes applicable, only upon the initiation of formal prosecution proceedings, and pre-arrest, or pre-formal prosecution delays may, however, constitute a denial of due process as guaranteed by U.S. Const. amends. XIV §§ 1, and N.M. Const. art II § 18. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, 1971 N.M. App. LEXIS 652 (N.M. Ct. App. 1971), cert. denied, 82 N.M. 377, 482 P.2d 241, 1971 N.M. LEXIS 1655 (N.M. 1971), cert. denied, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662, 1972 U.S. LEXIS 4041 (U.S. 1972).

Defendant was properly convicted of robbery, a violation of former 40A-16-2 1953 Comp. (now 30-16-2 NMSA 1978), where he was not denied due process under the sixth and fourteenth amendments when his confession was admitted; defendant was not inexperienced, illiterate, or otherwise not of normal intelligence, and he knowingly waived his rights. State v. Gammons, 1966-NMSC-044, 76 N.M. 85, 412 P.2d 256, 1966 N.M. LEXIS 2602 (N.M. 1966).

Inmate was denied his due process right to counsel under N.M. Const. art II § 14, and U.S. Const. amends. VI because he did not have counsel at the hearings on the revocation of his suspended sentence, was not advised of the right to have counsel appointed if he desired and was indigent, and did not waive that right. Blea v. Cox, 1965-NMSC-070, 75 N.M. 265, 403 P.2d 701, 1965 N.M. LEXIS 1555 (N.M. 1965), overruled, State v. Mendoza, 1978-NMSC-048, 91 N.M. 688, 579 P.2d 1255, 1978 N.M. LEXIS 933 (N.M. 1978), abrogated in part as stated in State v. Leon, 2013-NMCA-011, 292 P.3d 493, 2012 N.M. App. LEXIS 114 (N.M. Ct. App. 2012).

Error.

Defendant did not preserve Sixth Amendment objection to court’s refusal to allow him to cross-examine state witness regarding the possibility of an immunity agreement between the witness and the state. His objection was not made with sufficient specificity to call the trial court’s attention to the matter. State v. Silva, 2008-NMSC-051, 144 N.M. 815, 192 P.3d 1192, 2008 N.M. LEXIS 481 (N.M. 2008).

Defendant’s felony convictions were reversed because a trial court erred in substituting a second alternate juror after jury deliberations had begun and the alternates were excused, and the error was prejudicial to defendant’s right to a fair trial. State v. Sanchez, 2000-NMSC-021, 2000-NMSC-021, 129 N.M. 284, 6 P.3d 486, 2000 N.M. LEXIS 226 (N.M. 2000).

Cumulative error required reversing defendant’s conviction for criminal sexual contact of a minor and criminal sexual penetration of a minor where the jurors’ witnessing of the judge who presided at the victim’s videotape deposition, which was played in court, hug the victim’s grandmother and the exclusion of defense witness testimony as to the victim’s advanced level of sexual knowledge before the charged incidents deprived defendant of his fundamental right to a fair trial. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, 1999 N.M. App. LEXIS 121 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 338 (N.M. 1999).

Trial court’s refusal to remove a juror did not deprive defendants of their right to a fair trial because it was not shown that the jury was impartial, the appearance of impropriety involved the judge’s action as well as the judicial process itself, the appearance of impropriety was no less important in the context of possible contamination of the jury by outside influences, and it was possible that the in camera interview and its appearance of impropriety could have had a disruptive effect on the other members of the jury. State v. Pettigrew, 1993-NMCA-095, 116 N.M. 135, 860 P.2d 777, 1993 N.M. App. LEXIS 90 (N.M. Ct. App.), cert. denied, 116 N.M. 71, 860 P.2d 201, 1993 N.M. LEXIS 284 (N.M. 1993), cert. denied, 116 N.M. 71, 860 P.2d 201, 1993 N.M. LEXIS 285 (N.M. 1993), cert. denied, 116 N.M. 71, 860 P.2d 201, 1993 N.M. LEXIS 286 (N.M. 1993).

Defendant’s first-degree murder conviction was reversed because the cumulative impact of several errors deprived defendant of his fundamental right to a fair trial pursuant to N.M. Const. art II § 14 and U.S. Const. amends. VI and XIV. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937, 1984 N.M. LEXIS 1677 (N.M. 1984).

Evidence.

Trial court did not err in excluding testimony from a defendant’s son, who would have testified that the defendant told him that the defendant caught a co-defendant looking at child pornography on the computer, because it was objectively reasonable to believe that the statements would be used at trial. State v. Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, 2011 N.M. App. LEXIS 40 (N.M. Ct. App. 2011), rev'd, 2013-NMSC-025, 303 P.3d 838, 2013 N.M. LEXIS 180 (N.M. 2013).

—Generally.

In a burglary trial, where a co-defendant identified defendant and stated that defendant was involved in the burglary, because the trial court could reasonably have determined that the co-defendant’s statements incriminated both himself and defendant, and the statements were not made in an attempt to curry favor with the authorities, the trial court did not err in holding that the statements were admissible as statements against penal interest under Rule 11-804(B)(3) NMRA. Because this hearsay exception was a firmly rooted exception, defendant’s claim that his constitutional rights under U.S Const. amend. VI, U.S. Const. amends. XIV, and N.M. Const. art II § 14 were violated had no merit. State v. Alvarez-Lopez, 2003-NMCA-039, 133 N.M. 404, 62 P.3d 1286, 2002 N.M. App. LEXIS 130 (N.M. Ct. App. 2002), rev'd, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699, 2004 N.M. LEXIS 416 (N.M. 2004).

Application of the rape shield statute and rule often implicates the opposing principles of the protection of victims of sexual crimes and the right of the criminal defendant to cross-examine the witnesses against him as defendant’s right of confrontation is a critical limitation on the trial court’s discretion to exclude evidence a defendant wishes to admit, and the category of rape-shield statute in which a jurisdiction falls is not relevant; the Sixth Amendment right to confrontation guaranteed to all defendants protects defendant’s right to show bias. State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869, 1997 N.M. LEXIS 303 (N.M. 1997).

Where the court accepted certification to consider the scientific validity of post traumatic stress disorder evidence pertaining to victims of sexual abuse, the admission of testimony by a psychologist, who testified as to whether the children were sexually abused and as to whether they were telling the truth rather than whether they were competent to testify, was not harmless error when credibility was in issue; defendant did not have an absolute right to confront the children face-to-face. State v. Fairweather, 1993-NMSC-065, 116 N.M. 456, 863 P.2d 1077, 1993 N.M. LEXIS 340 (N.M. 1993).

—Admissible.

Parents’ due process rights were not violated in a child abuse and neglect case when the children’s court admitted hearsay testimony of the child through the testimony of the foster mother, social worker, and therapist because (1) the parents received proper notice of the intent to use the child’s statements; (2) they were each represented by able attorneys who argued vigorously on their behalf and carefully cross-examined the witnesses about the reliability and credibility of the child’s statements; (3) the children’s court initially admitted the testimony about the hearsay statements conditionally, and at the close of evidence, was satisfied that the statements were reliable and admitted them; (4) and the children’s court determined that there was clear and convincing evidence to support the amended petition before it held that the child was abused and neglected. State ex rel. Children, Youth & Families Dep't v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, 2004 N.M. App. LEXIS 149 (N.M. Ct. App. 2004).

In a prosecution of defendant for criminal sexual penetration and abuse of a child by endangerment, admission under the medical diagnosis or treatment exception, Rule 11-803D NMRA of the child’s out-of court statements to the doctor and nurse who examined her shortly after the alleged offenses took place did not violate defendant’s constitutional right to confrontation under U.S. Const. amends. V §§ VI, XIV and N.M. Const. art II § 14, 18; the statements had sufficient particularized guarantees of trustworthiness to protect defendant’s constitutional rights because they were virtually identical to the statements that the child made to her parents, and the child made the statements in a non-suggestive context. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, 2002 N.M. App. LEXIS 114 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 126, 61 P.3d 835, 2003 N.M. LEXIS 3 (N.M. 2003).

Statements of a witness were admissible under Rule 11-801(D)(2)(a) NMRA where they were offered against defendant and were defendant’s own statements to that witness; because the statements were not hearsay, defendant’s right of confrontation under U.S. Const. amends. VI was not violated. State v. Smith, 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254, 2001 N.M. LEXIS 45 (N.M. 2001).

Sixth Amendment right to confrontation guaranteed to all defendants protects defendant’s right to show bias; if application of the rape shield law or rule would conflict with defendant’s confrontation right, if it operates to preclude defendant from presenting a full and fair defense, the statute and rule must yield. Fed. R. Evid. 412, which specifically provides that evidence is admissible if its exclusion would violate defendant’s constitutional rights, states expressly what the New Mexico rule must be construed to require implicitly. State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869, 1997 N.M. LEXIS 303 (N.M. 1997).

Trial court’s order that denied defendant’s motion to suppress evidence obtained by the monitoring of telephone calls from a detention center where he was being held pending trial on a first degree murder charge, was affirmed; the monitoring of defendant’s telephone calls did not violate his right to the assistance of counsel under the U.S.Const. amend. 6 or N.M. Const. art II § 14 because defendant did not have a reasonable expectation of privacy when communicating with his attorney from the detention center’s telephone. State v. Coyazo, 1997-NMCA-029, 123 N.M. 200, 936 P.2d 882, 1997 N.M. App. LEXIS 22 (N.M. Ct. App.), cert. denied, 123 N.M. 168, 936 P.2d 337, 1997 N.M. LEXIS 96 (N.M. 1997).

In a trial on a charge of misdemeanor battery, out-of-court statements from the victim, defendant’s girlfriend, and a witness to her beating, defendant’s sister, were properly admitted against defendant because the state made diligent efforts to subpoena the witnesses, whose statements bore a high indicia of reliability; defendant’s right to confront witnesses under either U.S. Const. amends. VI or N.M. Const. art II § 14 was not abridged. State v. Lopez, 1996-NMCA-101, 122 N.M. 459, 926 P.2d 784, 1996 N.M. App. LEXIS 80 (N.M. Ct. App. 1996).

In a prosecution for criminal sexual contact of a minor, a videotaped interview between the minor and a social worker and admitted into evidence did not violate defendant’s right of confrontation under U.S. Const. amends. VI, because the minor was cross-examined about the videotape before it was played, and because defendant cross-examined the interviewer after it was played and had the opportunity to call the minor back to the stand. State v. Casaus, 1996-NMCA-031, 121 N.M. 481, 913 P.2d 669, 1996 N.M. App. LEXIS 11 (N.M. Ct. App. 1996), overruled in part, State v. Kerby, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740, 2005 N.M. App. LEXIS 98 (N.M. Ct. App. 2005).

In a prosecution for fraud and bribery of a public officer, the admission at trial of a tape recording of a board meeting of the entity that defendant was accused of defrauding did not violate the hearsay rule, Rule 11-802 NMRA, or the constitutional right to confront adverse witnesses under U.S. Const. amends. VI and N.M. Const. art II, § 14. Because the evidence of what happened at the board meeting did not constitute hearsay where it was offered into evidence solely to prove that the statements were made and not for the truth of the matters asserted, defendant’s rights under the confrontation clause were not violated because evidence that is not hearsay does not raise confrontation clause concerns. State v. Glen Slaughter & Assocs., 1994-NMCA-169, 119 N.M. 219, 889 P.2d 254, 1994 N.M. App. LEXIS 158 (N.M. Ct. App. 1994).

Where defendant was convicted of first-degree murder, insurance policies found in a briefcase were admissible and the admission of such evidence did not violate the confrontation clause of the sixth amendment and the state constitution; defendant had the opportunity to confront witnesses for the two major policies that were offered for the truth of the matter asserted. State v. Apodaca, 1994-NMSC-121, 118 N.M. 762, 887 P.2d 756, 1994 N.M. LEXIS 439 (N.M. 1994).

Where defendant was convicted of criminal sexual contact of a minor, criminal sexual penetration of a minor, and kidnapping, a new trial was ordered; videotaped depositions were properly used to protect child victims of sexual crimes from the trauma of in-court testimony. State v. Fairweather, 1993-NMSC-065, 116 N.M. 456, 863 P.2d 1077, 1993 N.M. LEXIS 340 (N.M. 1993).

Police did not violate defendant’s Sixth Amendment right to counsel by taping a conversation with a friend in order to elicit incriminating evidence before judicial proceedings had been initiated. State v. Aragon, 1990-NMCA-001, 109 N.M. 632, 788 P.2d 932, 1990 N.M. App. LEXIS 9 (N.M. Ct. App. 1990).

Defendant’s conviction for disposing of stolen property was affirmed despite his claim that the trial court erred in admitting the preliminary hearing testimony of a witness who was unavailable at trial; such testimony was properly admitted under former N.M. R. Evid. 804(b)(1) because defendant had an opportunity to cross-examine the witness at the preliminary hearing, and so his constitutional right of confrontation had not been violated. State v. Massengill, 1983-NMCA-001, 99 N.M. 283, 657 P.2d 139, 1983 N.M. App. LEXIS 675 (N.M. Ct. App. 1983).

Handwriting exemplar obtained from defendant was an identifying physical characteristic, not communication or testimony, thus was outside the protection of U.S. Const. amends. V; the taking of such an exemplar was not a “critical stage” of proceedings, thus defendant’s right to counsel did not attach under U.S. Const. amends. VI. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768, 1967 N.M. LEXIS 2612 (N.M. 1967).

—Inadmissible.

District court committed reversible error by allowing the state to impeach its own witness with otherwise inadmissible hearsay by allowing the hearsay to be admitted under the auspices of the state’s impeachment of the preliminary hearing testimony of the unavailable witness, pursuant to this amendment and Rule 11-607 NMRA. State v. Lopez, 2011-NMSC-035, 150 N.M. 179, 258 P.3d 458, 2011 N.M. LEXIS 380 (N.M. 2011).

Where defendant’s juvenile probation officer testified on rebuttal that defendant probably lied about his role in an informant’s purchase of marijuana, the testimony of impermissibly prejudicial and its admission violated defendant’s constitutional right of confrontation, because defendant could not have chosen to cross-examine without exposing his juvenile record. State v. Guess, 1982-NMCA-114, 98 N.M. 438, 649 P.2d 506, 1982 N.M. App. LEXIS 909 (N.M. Ct. App. 1982).

In a case where a juvenile was adjudicated to have committed the delinquent act of misdemeanor larceny, a dispositional finding under former 13-14-28F, 1953 Comp. (now 32A-2-16 NMSA 1978) that he was in need of care and rehabilitation, which was based solely on hearsay evidence contained in a pre-disposition report, was improper because the evidence was not competent, material, or relevant in nature, and the court explained that to use hearsay evidence to determine delinquency was constitutionally impermissible under N.M. Const. art II § 14 and U.S. Const. amend VI, as a denial of a child’s constitutional right to confront witnesses against him. Doe v. State, 1978-NMSC-068, 92 N.M. 74, 582 P.2d 1287, 1978 N.M. LEXIS 959 (N.M. 1978).

Where there was no record of a doctor’s whereabouts or inability to attend, and there was no attempt to subpoena him, admission of his deposition in a criminal trial violated defendant’s Sixth Amendment right to confrontation. State v. Barela, 1974-NMCA-016, 86 N.M. 104, 519 P.2d 1185, 1974 N.M. App. LEXIS 630 (N.M. Ct. App. 1974).

Exemption.

Defendant’s conviction for driving while intoxicated was proper where breathalyzer test results that were admitted fell under the business records exception to the hearsay rule and did not violate his right to confrontation as provided for under U.S. Const. amends. VI and N.M. Const. art II § 14. State v. Ruiz, 1995-NMCA-098, 120 N.M. 534, 903 P.2d 845, 1995 N.M. App. LEXIS 97 (N.M. Ct. App.), cert. denied, 120 N.M. 498, 903 P.2d 240, 1995 N.M. LEXIS 356 (N.M. 1995).

Expert.

Indigent defendants represented by pro bono counsel are entitled to apply for and receive expert witness fees from the New Mexico public defender department. State v. Brown, 2006-NMSC-023, 139 N.M. 466, 134 P.3d 753, 2006 N.M. LEXIS 217 (N.M. 2006).

Trial court violated defendant’s right to confrontation under U.S. Const. amends. VI §§ and XIV, and N.M. Const. art II, § 14 by refusing to allow defendant to cross-examine the state’s expert witness who was an emergency room physician who testified that in his professional opinion and based upon the complainant’s mental state the complainant had been raped. Sanchez v. State, 103 N.M. 25, 702 P.2d 345, 1985 N.M. LEXIS 1971 (1985), overruled in part on other grounds, State v. Tollardo, 2012-NMSC-008, N.M. LEXIS 130.

Findings.

—Sufficient.

Denial of defendant’s motion for post-conviction relief filed pursuant to former 21-1-1(93), 1953 Comp. (Rule 1-093 NMRA) was proper because defendant was not entitled to complain that he was denied his right to a speedy trial under U.S. Const. amends. VI, after he was committed to a mental facility despite his ability to stand trial because he did not object to the commitment and voluntarily entered guilty pleas. State v. McCroskey, 1968-NMCA-074, 79 N.M. 502, 445 P.2d 105, 1968 N.M. App. LEXIS 500 (N.M. Ct. App. 1968).

Fraud.

Indictment brought under former N.M. Comp. Laws 1131 (1897) (now 30-16-6 NMSA 1978) included counts that were not good and sufficient in law under U.S. Const. amends. VI because they were vague and general in that they did not state the ownership of the money alleged to have been obtained by false pretenses, and because no legal excuse was stated in the indictment for the omission. Territory v. Hubbell, 1906-NMSC-033, 13 N.M. 579, 86 P. 747, 1906 N.M. LEXIS 34 (N.M. 1906).

Habeas corpus.

Petitioner was denied his right to effective assistance of counsel as guaranteed by U.S. Const. amends. VI and amend. XIV where his trial counsel failed to move to suppress two especially suggestive showup identifications where there were not sufficient indicia of reliability to outweigh the suggestiveness of the identifications and where the record did not include any facts that would have led a reasonably competent attorney not to file a motion to suppress; petitioner suffered prejudice as a result because his insistence on his innocence and his desire to challenge the charges against him at trial indicated that there was a reasonable probability that he would have chosen to go to trial instead of pleading no contest had trial counsel moved to suppress the showup identification and because the case against petitioner depended in large part on the showup identifications. Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, 2001 N.M. LEXIS 114 (N.M. 2001).

Incompetency.

The benchmark for judging an incompetency claim is whether counsel’s conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result; in other words, there must be a reasonable probability that “but for” counsel’s unprofessional error, the result of the proceeding would have been different.The trial court has discretion in ruling on a motion for continuance, and not every restriction on an attorney’s time or opportunity to investigate or otherwise prepare violates a defendant’s Sixth Amendment right to counsel. State v. Taylor, 1988-NMSC-023, 107 N.M. 66, 752 P.2d 781, 1988 N.M. LEXIS 94 (N.M. 1988), overruled in part, Gallegos v. Citizens Ins. Agency, 1989-NMSC-055, 108 N.M. 722, 779 P.2d 99, 1989 N.M. LEXIS 259 (N.M. 1989).

Indictment.

Accused, though presumed to be innocent, if proven guilty of simple conversion, nevertheless is a felon under § 41-4519, 1941 Comp. (30-16-8 NMSA 1978), in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States. State v. Prince, 1948-NMSC-003, 52 N.M. 15, 189 P.2d 993, 1948 N.M. LEXIS 615 (N.M. 1948).

Ineffective assistance of counsel.

Although counsel's failure to advise defendant of the registration requirement under the Sex Offender Registration and Notification Act in his plea agreement was per se deficient performance under the first prong of the Strickland test for ineffective assistance of counsel, defendant failed to show that under Strickland's second prong he had been prejudiced by that deficient performance. Defendant did not demonstrate in a tangible way that in the absence of the mistake made by his attorney he would have rejected the plea agreement in favor of taking his arguments to trial. State v. Trammell, 2016-NMSC-030, 2016 N.M. LEXIS 157 (N.M. 2016).

In a voluntary manslaughter case, defense counsel's failure to hire a particular expert witness did not rise to the level of ineffective assistance of counsel. State v. Hobbs, 2016-NMCA-006, 363 P.3d 1259, 2015 N.M. App. LEXIS 111 (N.M. Ct. App. 2015).

Counsel was not ineffective in failing to impeach a shooting victim with evidence of her past lack of competence to stand trial. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604, 2012 N.M. LEXIS 332 (N.M. 2012).

Defense counsel’s deficient performance was prejudicial because, without clear evidence of intentional child abuse, had defendant been properly advised by defense counsel about criminal negligence and his potential sentence, there was a reasonable probability that he would have chosen to go to trial rather than plead guilty to the maximum charge of intentional child abuse resulting in death — and its mandatory life sentence — as opposed to negligent child abuse and an 18-year sentence. Garcia v. State, 2010-NMSC-023, 148 N.M. 414, 237 P.3d 716, 2010 N.M. LEXIS 322 (N.M. 2010).

Where defendant pled guilty to intentional child abuse resulting in death, because defendant was not charged with negligent child abuse resulting in death, he could have been acquitted if the jury found that he acted negligently and not intentionally; thus, defense counsel’s remark that defendant could be convicted even if the child’s death was an accident constituted deficient performance. Garcia v. State, 2010-NMSC-023, 148 N.M. 414, 237 P.3d 716, 2010 N.M. LEXIS 322 (N.M. 2010).

Defense counsel’s deficient performance was prejudicial because defendant might not have pled guilty had he known that defense counsel was unprepared to competently negotiate a plea agreement on defendant’s behalf where defense counsel’s statements and actions demonstrated that he believed that a 30-year sentence could be the only result in defendant’s case when a sentence for negligent abuse of a child that resulted in the death of the child was 18 years. Garcia v. State, 2010-NMSC-023, 148 N.M. 414, 237 P.3d 716, 2010 N.M. LEXIS 322 (N.M. 2010).

Where defendant pled guilty to intentional child abuse resulting in death, defense counsel’s remark that defendant could be convicted even if the child’s death was an accident ran a serious risk of misleading his client about his chances of conviction because use of the term “accident” to describe a crime that required proof of criminal negligence was erroneous and a clear misstatement of the law. Garcia v. State, 2010-NMSC-023, 148 N.M. 414, 237 P.3d 716, 2010 N.M. LEXIS 322 (N.M. 2010).

Defendant’s argument of ineffective assistance of counsel was without merit where even if counsel did not specifically raise prejudice from the late filing of the amended information, there existed no showing that defendant was denied adequate notice and opportunity to defend or that he was prejudiced in any way. State v. Garcia, 2009-NMCA-107, 147 N.M. 150, 217 P.3d 1048, 2009 N.M. App. LEXIS 126 (N.M. Ct. App.), cert. denied, 147 N.M. 395, 223 P.3d 940, 2009 N.M. LEXIS 948 (N.M. 2009).

Defendant failed to establish a deficiency on trial counsel’s part where, based on the record, the defense’s overall trial strategy was to maintain defendant’s innocence; trial counsel did not move for a continuance to pursue the missing witness and did not request a jury instruction on imperfect self-defense because such actions did not support the defense trial strategy. State v. Gonzales, 2007-NMSC-059, 143 N.M. 25, 172 P.3d 162, 2007 N.M. LEXIS 601 (N.M. 2007).

In a case involving criminal sexual penetration, counsel was not ineffective for failing to request a lesser included jury instruction because it might have constituted trial strategy, or by failing to request an instruction on consent since such an instruction was not required by the law at the time of trial. There were insufficient facts in the record to review a claim that counsel lacked the time to prepare or investigate. State v. Jensen, 2005-NMCA-113, 138 N.M. 254, 118 P.3d 762, 2005 N.M. App. LEXIS 103 (N.M. Ct. App.), cert. quashed, 138 N.M. 587, 124 P.3d 565, 2005 N.M. LEXIS 528 (N.M. 2005).

Ineffective assistance, failure to move to suppress evidence.

In a second degree murder case where defendant called police and reported the alleged suicide of his estranged wife, the record indicated that defendant’s trial counsel believed defendant had consented to the entry of police into his home, but that an agent was immediately suspicious and at some point realized that a search warrant would be needed; however, except to the extent that defendant apparently called the police to report the suicide and let them in when they arrived, it could not be determined the extent of defendant’s consent or the time the police needed to obtain a warrant. Even if defendant could show that his counsel’s performance fell below that of a reasonably competent attorney for failure to file a motion to suppress, he had not shown that his counsel’s failure to file the motion prejudiced his defense such that there was a reasonable probability that the outcome of the trial would have been different; thus, defendant’s claim of ineffective assistance of counsel failed. State v. Torres, 2005-NMCA-070, 137 N.M. 607, 113 P.3d 877, 2005 N.M. App. LEXIS 56 (N.M. Ct. App.), cert. denied, 113 P.3d 345, 2005 N.M. LEXIS 249 (N.M. 2005).

Instructions.

Defendant argued that he was not in attendance at the party at the time of the victim’s death, and contended in closing arguments that his alibi had been verified by police; however, for counsel to press this alibi-based argument and simultaneously request a voluntary intoxication instruction could have undermined defendant’s credibility with the jury. Counsel made a strategic decision to pursue a valid theory on defendant’s behalf, and understandably demurred from posing a contradictory theory to the jury; thus, in light of the lack of evidence supporting a voluntary intoxication instruction and counsel’s election between competing strategies, counsel was not ineffective in failing to request a jury instruction on voluntary intoxication under Rule 14-5111 NMRA. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057, 2011 N.M. LEXIS 52 (N.M. 2011).

While there was testimony to support that defendant consumed alcohol, and some indirect testimony suggesting that he smoked marijuana, no witnesses testified that defendant appeared intoxicated; because there was no evidence establishing defendant’s intoxication, there was no basis for counsel to seek a voluntary intoxication instruction. Thus, defense counsels’ strategic decision not to request a voluntary intoxication instruction under Rule 14-5111 NMRA was objectively reasonable and did not support a claim of ineffective assistance of counsel. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057, 2011 N.M. LEXIS 52 (N.M. 2011).

Under U.S. Const. amends. V §§ and VI, a defendant is entitled to have the question of materiality submitted to the jury; thus, in defendant’s trial on perjury charges, under 30-25-1 NMSA 1978, a trial court committed reversible error by failing to instruct the jury on the essential element of materiality. State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234, 1998 N.M. App. LEXIS 198 (N.M. Ct. App. 1998), different results reached on reh'g, 1999-NMCA-054, 127 N.M. 206, 979 P.2d 251, 1999 N.M. App. LEXIS 33 (N.M. Ct. App. 1999), aff'd in part and rev'd in part, vacated, 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274, 1999 N.M. LEXIS 325 (N.M. 1999).

Jurors.

Trial court did not violate defendant’s right to an impartial jury by striking prospective jurors because they were opposed to the death penalty based upon religious reasons or because they would not consider capital punishment if defendant were to be imprisoned until age 86; trial court could properly exclude a juror for cause if the juror’s views would substantially impair the performance of the juror’s duties in accordance with the instructions and oath. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793, 1999 N.M. LEXIS 278 (N.M. 1999).

Defendant was properly convicted in trial with co-defendant in a dual jury procedure because there was no evidence of prejudice, confusion, or impropriety and because the trial court acted within its discretion to resolve a Bruton problem. State v. Padilla, 1998-NMCA-088, 125 N.M. 665, 964 P.2d 829, 1998 N.M. App. LEXIS 71 (N.M. Ct. App.), cert. denied, 125 N.M. 322, 961 P.2d 167, 1998 N.M. LEXIS 249 (N.M. 1998).

Petition for a writ of habeas corpus based on a district court’s denial of a motion to dismiss the jury venire is denied because defendant failed to identify any actual prejudice on the part of any juror where a juror, who is the brother of one of defendant’s alleged victims, is removed from the panel when it was learned that he is related to an alleged victim. Lucero v. Kerby, 133 F.3d 1299, 1998 U.S. App. LEXIS 223 (10th Cir. N.M.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821, 1998 U.S. LEXIS 3045 (U.S. 1998).

Trial court did not abuse its discretion nor violate due process in denying a juvenile’s attorney the opportunity to pose fact-specific questions to potential jurors about their biases and prejudices regarding gangs. State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017, 1997 N.M. LEXIS 280 (N.M. 1997).

Defendant’s conviction for first degree murder and aggravated burglary were reversed because the state’s peremptory strikes unconstitutionally deprived him of a jury which reflected a cross-section of the community in which he was tried. State v. Aragon, 1989-NMSC-077, 109 N.M. 197, 784 P.2d 16, 1989 N.M. LEXIS 359 (N.M. 1989).

Jurors’ failure to acknowledge on a questionnaire and during voir dire that a relative had worked for a law enforcement agency did not amount to such prejudice that deprived the defendant of his rights to a fair and impartial trial under U.S. Const. amends. VI and N.M. Const. art II § 14. State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360, 1983 N.M. LEXIS 2305 (N.M. 1983).

Defendants contended that the method of selecting names for the jury wheel deprived them of a fair cross-section of the community in violation of U.S. Const. amends. VI because the names of person who were registered to vote but failed to vote were excluded from the jury wheel. When defendants offered no proof that registered voters who did not vote were a distinctive or cognizable group, their claim was without merit. State v. Lopez, 1981-NMCA-066, 96 N.M. 456, 631 P.2d 1324, 1981 N.M. App. LEXIS 729 (N.M. Ct. App. 1981).

Defendants contended that the method of selecting names for the jury wheel deprived them of a fair cross-section of the community in violation of U.S. Const. amends. VI because members of a particular political party where absent from the jury wheel. Because defendants failed to prove that the members of the political party were excluded because they were members of that party, their claim failed. State v. Lopez, 1981-NMCA-066, 96 N.M. 456, 631 P.2d 1324, 1981 N.M. App. LEXIS 729 (N.M. Ct. App. 1981).

Defendant was entitled to reversal of his conviction for trafficking in heroin because he was deprived of an impartial jury as provided by U.S. Const. amends. VI and N.M. Const. art II § 14, as jurors in his case served in other criminal proceedings where the state’s witness appeared and convictions resulted. Alvarez v. State, 1978-NMSC-042, 92 N.M. 44, 582 P.2d 816, 1978 N.M. LEXIS 952 (N.M. 1978).

Exclusion of veniremen with conscientious scruples against capital punishment from the jury in defendant’s felony murder trial did not deprive him of his Sixth Amendment right to a representative jury; their opposition to the death penalty meant they were not impartial, and defendant enjoyed a trial by a jury representative of those in the community who could impartially weigh the evidence, despite any reservations which they might have had about the death penalty. State v. Trivitt, 1976-NMSC-004, 89 N.M. 162, 548 P.2d 442, 1976 N.M. LEXIS 794 (N.M. 1976).

Exclusion for cause of three veniremen from defendant’s felony murder jury on the grounds of their attitudes toward the death penalty did not violate his rights under U.S. Const. amends. VI §§ and XIV; the veniremen testified that their opposition to the death penalty would have prevented them from finding defendant guilty of the offense with which he was charged. State v. Trivitt, 1976-NMSC-004, 89 N.M. 162, 548 P.2d 442, 1976 N.M. LEXIS 794 (N.M. 1976).

Where a juror failed to reveal his extensive familiarity with the victim and the crime scene, defendant was deprived of his right to trial by an impartial jury under U.S. Const. amends. VI and N.M. Const. art. 2, § 14, and the court remanded for a new trial. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667, 1971 N.M. LEXIS 1612 (N.M. 1971).

Jury trial.

Penalty imposed by the city’s DWI ordinance complied with the restrictions defined in N.M. Const. art X § 6D and 3-17-1C(2) NMSA 1978 and, as such, defendant was properly tried in municipal court without a jury; all appeals from municipal court to district court for violations of municipal ordinances were de novo and had to be tried before the court without a jury. City of Rio Rancho v. Mazzei, 2010-NMCA-054, 148 N.M. 553, 239 P.3d 149, 2010 N.M. App. LEXIS 67 (N.M. Ct. App.), cert. denied, 148 N.M. 575, 240 P.3d 1049, 2010 N.M. LEXIS 283 (N.M. 2010).

Defendant’s sentence for aggravated driving while under the influence was vacated and remanded for resentencing as the metropolitan court improperly exercised a blanket policy of immediately remanding to custody those defendants who chose to go to trial and were convicted while allowing those defendants who chose to plead guilty to remain out of custody pending sentencing. These actions could have been construed as impermissibly punishing defendant for exercising his constitutional rights to plead not guilty, to a jury trial, and to appeal. State v. Maestas, 2007-NMCA-155, 143 N.M. 104, 173 P.3d 26, 2007 N.M. App. LEXIS 128 (N.M. Ct. App. 2007).

Defendant’s Sixth Amendment rights were not violated by the enhancement for a kidnapping charge under 31-18-15.1 NMSA 1978, because there was no increase in the statutorily-authorized maximum sentence. State v. Cook, 2006-NMCA-110, 140 N.M. 356, 142 P.3d 944, 2006 N.M. App. LEXIS 84 (N.M. Ct. App. 2006), cert. denied, 140 N.M. 542, 144 P.3d 101, 2006 N.M. LEXIS 456 (N.M. 2006), cert. quashed, 141 N.M. 339, 154 P.3d 1239, 2007 N.M. LEXIS 74 (N.M. 2007).

Finding that a crime was a serious violent offense resulted in more time served, and did not constitute an enhancement of a sentence triggering the constitutional requirement of a jury trial; therefore, there was no constitutional challenge on this basis for a finding that child abuse convictions were serious violent offenses. State v. Ayala, 2006-NMCA-088, 140 N.M. 126, 140 P.3d 547, 2006 N.M. App. LEXIS 98 (2006), cert. denied, 142 P.3d 360, 2006 N.M. LEXIS 341; writ denied, State v. Ayala, 140 N.M. 279, 142 P.3d 360, 2006 N.M. LEXIS 341 (N.M. 2006).

Trial court’s designation of vehicular homicide as a serious violent offense pursuant to the New Mexico Earned Meritorious Deductions Act (EMDA), 33-2-34 NMSA 1978, during sentencing of defendant who had entered a guilty plea did not increase defendant’s penalty and violate his right to a jury trial, since there was no effect on the maximum sentence. However, the court noted that that full disclosure of the potential application of the EMDA and the likely effect on a particular sentence prior to a plea should be a “best practice” in New Mexico’s courts. State v. Worrick, 2006-NMCA-035, 139 N.M. 247, 131 P.3d 97, 2006 N.M. App. LEXIS 8 (N.M. Ct. App. 2006), cert. denied, 142 N.M. 436, 166 P.3d 1090, 2007 N.M. LEXIS 454 (N.M. 2007).

Defendant was not entitled to a jury trial in district court after a trial by jury in magistrate court pursuant to U.S. Const. amends. VI because the jury had acquitted him of the greater offense of aggravated battery, a violation of 30-3-5A, B NMSA 1978, and convicted him only of the lesser included offense of battery, a petty misdemeanor; if the judge in a de novo hearing is not empowered to sentence anew or if he is prohibited from enhancing the earlier penalty, then a jury need not be afforded. State v. Haar, 1980-NMCA-065, 94 N.M. 539, 612 P.2d 1350, 1980 N.M. App. LEXIS 875 (N.M. Ct. App.), cert. denied, 449 U.S. 1063, 101 S. Ct. 787, 66 L. Ed. 2d 606, 1980 U.S. LEXIS 4375 (U.S. 1980).

Juveniles.

A juvenile is not entitled to a jury trial after being charged with the commission of a petty misdemeanor offense because the offense is only a misdemeanor and an adult is also not entitled to a jury trial if charged with the same offense. State v. Doe, 1977-NMCA-092, 90 N.M. 776, 568 P.2d 612, 1977 N.M. App. LEXIS 650 (N.M. Ct. App. 1977).

Pleas.

Defendant was not entitled to post-conviction relief under former 21-1-1, 1953 Comp., on the grounds that his right to remain silent under the Fifth Amendment and his right to counsel under the Sixth Amendment had been violated and that his living quarters had been searched illegally because there was nothing in the record indicating that defendant was in fact interrogated without being advised of his rights or that his living quarters were searched. Moreover, neither the statements made in the absence of counsel nor the evidence obtained by the alleged search were used against defendant because he entered a guilty plea. State v. Elledge, 1967-NMSC-143, 78 N.M. 157, 429 P.2d 355, 1967 N.M. LEXIS 2743 (N.M. 1967).

Practice and procedure.

Right to a speedy trial is grounded in the sixth and fourteenth amendments of the United States Constitution and in N.M. Const. art II § 14. State v. Mendoza, 1989-NMSC-032, 108 N.M. 446, 774 P.2d 440, 1989 N.M. LEXIS 188 (N.M. 1989).

Defendant was wrongly convicted of murder in the first degree after he was tried jointly with a co-defendant, who was acquitted, and was represented by the same counsel. The conflict in interest that was created by joint representation was crucial and defendant’s fundamental right to the assistance of counsel under the Sixth Amendment was violated. State v. Tapia, 1966-NMSC-026, 75 N.M. 757, 411 P.2d 234, 1966 N.M. LEXIS 2582 (N.M. 1966).

Probation.

Time constraints of the speedy trial rule under Crim.P.R. 37 (now Rule 5-604 NMRA) and the constitutional right under the state and federal constitutions to a speedy trial, N.M. Const,. art. II, § 14; U.S. Const. amends. VI are inapplicable to probation revocation proceedings. State v. Chavez, 1985-NMCA-003, 102 N.M. 279, 694 P.2d 927, 1985 N.M. App. LEXIS 525 (N.M. Ct. App. 1985).

Procedure.

—Pretrial.

Defendant was deprived of his right to a speedy trial where the state offered no reason for the nine-month period of unexplained delay in indicting defendant, he did not waive or delay his right, and he was prejudiced by the pretrial incarceration and the death of a witness. State v. Kilpatrick, 1986-NMCA-060, 104 N.M. 441, 722 P.2d 692, 1986 N.M. App. LEXIS 623 (N.M. Ct. App. 1986).

Rape shield.

Trial court violated defendant's rights under the Confrontation Clause of U.S. Const. amends. VI by refusing to allow him to cross-examine the victim regarding their long-standing sexual relationship and history of engaging in “make-up sex” based on NMSA 1978, § 30-9-16(A) and Rule 11-412(A) NMRA because defendant presented an adequate theory of relevance to support admission of his proffered evidence, namely to establish a pattern of conduct in order to present a complete defense and exculpatory evidence. State v. Montoya, 2014-NMSC-032, 333 P.3d 935, 2014 N.M. LEXIS 293 (N.M. 2014).

In prosecution for rape of 16-year old girl by 15-year old defendant, trial court improperly refused to allow defendant to cross-examine girl regarding prior sexual encounter and its resulting punishment from her parents: this was relevant to her claim that the sexual encounter was not consensual, which was boy’s sole defense. State v. Stephen F., 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84, 2008 N.M. LEXIS 391 (N.M. 2008).

Requirements.

Trial court erred in dismissing defendant’s embezzlement information because of the loss or destruction of testimony of two witnesses at a preliminary hearing; when the specific taint was minor; the remedy for correction of the taint should have been suitable to the taint. State v. Pedroncelli, 1981-NMCA-142, 97 N.M. 190, 637 P.2d 1245, 1981 N.M. App. LEXIS 818 (N.M. Ct. App. 1981).

Review.

In defendant’s trial on murder charges, the state met its burden of establishing no harmful prejudice to defendant as a result of a 15-month delay in the commencement of his trial; thus, the appellate court found no violation of defendant’s right to a speedy trial. State v. Coffin, 1999-NMSC-038, 128 N.M. 192, 991 P.2d 477, 1999 N.M. LEXIS 302 (N.M. 1999).

Pursuant to U.S. Const. amends. VI and XIV and N.M. Const. art II § 14, an appellate court has to reverse any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, 1999 N.M. App. LEXIS 121 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 338 (N.M. 1999).

Right to be informed.

It is inconsonant with the case law requirement of adequate pretrial notice to hold that defendant may be convicted post-trial of a lesser-included offense where defendant was not advised of the state’s intention to seek that conviction. It was erroneous to remand convictions for violations of the New Mexico Water Quality Act [74-6-1 NMSA 1978] for the entry of judgment and resentencing on the lesser included offense of attempt where no such jury instruction was given at trial, and the evidence showed that the state failed to request the instruction as part of its trial strategy. State v. Villa, 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017, 2004 N.M. LEXIS 420 (N.M. 2004).

Right to confront witnesses.

Right of confrontation applies only at a criminal trial where guilt or innocence is determined ( Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969) is overruled insofar as it is inconsistent with this). State v. Lopez, 2013-NMSC-047, 314 P.3d 236, 2013 N.M. LEXIS 355 (N.M. 2013).

Defendant’s confrontation right was not violated by admitting forensic laboratory report into evidence at preliminary hearing, without affording defense opportunity to cross-examine laboratory analyst who prepared report, because state and federal constitutional right of confrontation applies only at criminal trial where guilt or innocence is determined. State v. Lopez, 2013-NMSC-047, 314 P.3d 236, 2013 N.M. LEXIS 355 (N.M. 2013).

Defendant did not base his objection to an officer’s testimony on constitutional grounds, but only objected to the testimony at issue on hearsay grounds. Defendant’s hearsay objection was too broad to raise a confrontation clause issue; thus, the trial court was only required to rule on the objection defendant made: that the statement was not admissible under Rule 11-803(C) NMRA hearsay exception. State v. Torres, 2005-NMCA-070, 137 N.M. 607, 113 P.3d 877, 2005 N.M. App. LEXIS 56 (N.M. Ct. App.), cert. denied, 113 P.3d 345, 2005 N.M. LEXIS 249 (N.M. 2005).

Defendant’s act of absconding after a crime did not result in a waiver of the right to confrontation under Fed. R. Crim. P. 804(b)(6) because defendant’s act did not procure the unavailability of the witness. The record showed that the witness was deported after serving time in prison. State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699, 2004 N.M. LEXIS 416 (N.M. 2004), cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162, 2005 U.S. LEXIS 1914 (U.S. 2005).

Defendant’s confrontation rights were violated when the inculpatory statement of an accomplice was admitted in a trial via an officer because defendant did not have the opportunity for cross-examination, and the error was not harmless beyond a reasonable doubt. State v. Torres, 126 N.M. 477, 971 P.2d 1267 (1998) is overruled to the extent it held custodial confessions implicating the accused fall within a firmly rooted hearsay exception and do not violate the federal Confrontation Clause. State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699, 2004 N.M. LEXIS 416 (N.M. 2004), cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162, 2005 U.S. LEXIS 1914 (U.S. 2005).

Because defendant’s accomplice’s inadmissible statement provided key evidence directly inculpating defendant, and the remaining circumstantial evidence against him, although strong, was disputed, the error was not harmless and defendant’s confrontation rights were violated. State v. Johnson, 2004-NMSC-029, 136 N.M. 348, 98 P.3d 998, 2004 N.M. LEXIS 417 (N.M. 2004), cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162, 2005 U.S. LEXIS 1913 (U.S. 2005).

Trial court erred in admitting the statement of an accomplice as a statement against penal interest because the United States supreme court had recently held that accomplice testimony was inadmissible under the Confrontation Clause to the Sixth Amendment unless the accomplice was unavailable and defendant had a prior opportunity to cross-examine the accomplice concerning the statement, even if the statement was against the accomplice’s penal interest. However even without the supreme court’s recent holding the accomplice’s statement was inadmissible because it was not necessarily against his penal interest nor was it sufficiently reliable to warrant admission in light of the fact that the accomplice’s admission that he sold the drugs provided no new information, since the police had already caught him trying to sell the drugs to an undercover officer, and the accomplice’s additional remark describing defendant’s purported role was not self-inculpatory. State v. Duarte, 2004-NMCA-117, 136 N.M. 404, 98 P.3d 1054, 2004 N.M. App. LEXIS 96 (N.M. Ct. App. 2004).

Right to counsel.

Defense counsels’ compensation was inadequate under the complex facts of defendants’ homicide case, violating defendants’ Sixth Amendment right to effective assistance of counsel; prosecution of the death penalty against defendants was stayed unless the State made adequate funds available for the defense. State v. Young, 2007-NMSC-058, 2007-NMSC-058, 143 N.M. 1, 172 P.3d 138, 2007 N.M. LEXIS 602 (N.M. 2007).

Where defendant’s three convictions for fraud were found to be supported by sufficient indicia of separateness, it could not be said that it was incompetent for his trial counsel not to argue otherwise below. Furthermore, defendant had not shown that his trial counsel was ineffective in acquiescing to the trial court’s refusal to order disclosure of an N.C.I.C. criminal report on a witness for the state because defendant pointed to nothing in the record that would indicate that the prosecution ever had such a report, and he conceded that he did not know if the witness even had any prior convictions subject to mandatory disclosure. State v. Boergadine, 2005-NMCA-028, 137 N.M. 92, 107 P.3d 532, 2005 N.M. App. LEXIS 3 (N.M. Ct. App.), cert. denied, 110 P.3d 506, 2005 N.M. LEXIS 156 (N.M. 2005).

Guardian ad litem’s representation of defendant during the delinquency proceedings did not violate any alleged conflict of interest because the record indicated that defendant desired to plead guilty and was adequately admonished of the consequences of entering into the plea bargain agreement; therefore, her ineffective assistance of counsel claim failed. State v. Joanna V., 2003-NMCA-100, 134 N.M. 232, 75 P.3d 832, 2003 N.M. App. LEXIS 55 (N.M. Ct. App. 2003), aff'd, 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783, 2004 N.M. LEXIS 325 (N.M. 2004).

Defendant’s conviction for second-degree murder was reversed and the case was remanded for a new trial because defendant’s Sixth Amendment right to effective assistance of counsel was compromised by counsel’s own self-interest, which was put in jeopardy by the appearance that counsel may have been involved in the same or a related crime. State v. Martinez, 2001-NMCA-059, 130 N.M. 744, 31 P.3d 1018, 2001 N.M. App. LEXIS 54 (N.M. Ct. App.), cert. denied, 130 N.M. 713, 30 P.3d 1147, 2001 N.M. LEXIS 271 (N.M. 2001).

In a prosecution that involved a criminal sexual penetration and kidnapping of petitioner’s ex-wife, defense counsel’s failure to make any closing argument was unreasonable patently given the circumstances of the case, in particular given that there was conflicting evidence from the alleged victim and given that petitioner’s confession was made under the influence of heroin. Elliott v. Williams, 248 F.3d 1205, 2001 U.S. App. LEXIS 8161 (10th Cir. N.M.), cert. denied, 534 U.S. 927, 122 S. Ct. 286, 151 L. Ed. 2d 211, 2001 U.S. LEXIS 7102 (U.S. 2001).

Those accused in criminal cases are entitled to effective representation by counsel. Elliott v. Williams, 248 F.3d 1205, 2001 U.S. App. LEXIS 8161 (10th Cir. N.M.), cert. denied, 534 U.S. 927, 122 S. Ct. 286, 151 L. Ed. 2d 211, 2001 U.S. LEXIS 7102 (U.S. 2001).

In granting defendant’s petition for habeas corpus, the district court erred in relying on the testimony of an “expert attorney” on the issue of effective versus ineffective assistance of counsel, as the attorney was essentially placing herself in the role of a judge and attempted to advise the district court about the proper application of the law to the facts and about the proper outcome in the case. Lytle v. Jordan, 2001-NMSC-016, 130 N.M. 198, 22 P.3d 666, 2001 N.M. LEXIS 152 (N.M. 2001).

In granting defendant’s petition for habeas corpus, the district court erred in finding that defense counsel was required to utilize expert testimony regarding a number of different issues in the case even though the issues could be reached through cross-examination. On appeal, the court refused to establish a per se rule requiring expert testimony in order to meet an objective standard of reasonableness. Lytle v. Jordan, 2001-NMSC-016, 130 N.M. 198, 22 P.3d 666, 2001 N.M. LEXIS 152 (N.M. 2001).

In a trial for criminal sexual penetration in the first degree and criminal sexual contact of a minor in the third degree, defense counsel proceeded on the assumption that the victim’s prior allegations of abuse were false, consistent with his strategy that the victim’s allegation against defendant were false. Defense counsel failed to overcome the strong presumption of effective assistance with respect to defense counsel’s failure to obtain the reports of earlier abuse. Lytle v. Jordan, 2001-NMSC-016, 130 N.M. 198, 22 P.3d 666, 2001 N.M. LEXIS 152 (N.M. 2001).

Defense counsel was not ineffective for failing to present a psychological evaluation of defendant, as in light of the fact that profile evidence relating to pedophilia had been held inadmissible in other jurisdictions, defense counsel might have decided as a matter of strategy that a profile would not have been of significant enough value to warrant an attempt to overcome the evidentiary hurdles of relevance under Rules 11-401 and 11-403 NMRA. In any event, defendant failed to demonstrate that his counsel’s failure to obtain a profile, even if admissible, rendered the result of the trial unreliable. Lytle v. Jordan, 2001-NMSC-016, 130 N.M. 198, 22 P.3d 666, 2001 N.M. LEXIS 152 (N.M. 2001).

Use of a prior uncounseled misdemeanor DWI conviction not resulting in a sentence of imprisonment to enhance a subsequent misdemeanor DWI conviction pursuant to 66-8-102F and G NMSA 1978 so that it resulted in a sentence of imprisonment does not violate either N.M. Const. art II § 14 or U.S. Const. amends. VI. State v. Woodruff, 1997-NMSC-061, 124 N.M. 388, 951 P.2d 605, 1997 N.M. LEXIS 475 (N.M. 1997).

A prior uncounseled DWI conviction that did not result in jail time could be used to enhance the defendant’s fourth DWI conviction under 66-8-102G NMSA 1978 because the defendant’s U.S. Const. amends. VI right to counsel had not been violated in the uncounseled conviction because he was not subject to jail time. State v. Aragon, 1997-NMSC-062, 124 N.M. 399, 951 P.2d 616, 1997 N.M. LEXIS 474 (N.M. 1997).

Defendant’s conviction for passing a worthless check over $50 could not be used, pursuant to 31-18-17 NMSA 1978, to enhance his sentence for a subsequent fraud conviction where defendant was not represented by counsel on the worthless check charge and did not waive his right to such representation and, thus, his rights under U.S. Const. amends. VI §§ and XIV were violated. State v. Thornton, 1997-NMCA-108, 124 N.M. 214, 947 P.2d 171, 1997 N.M. App. LEXIS 101 (N.M. Ct. App. 1997).

Juvenile failed to demonstrate that right to effective assistance of counsel was violated in trial for shooting into an occupied vehicle causing great bodily harm and aggravated assault with a deadly weapon, where defense counsel effectively represented both the juvenile and a co-defendant and the juvenile failed to show the existence of a conflict of interest. State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017, 1997 N.M. LEXIS 280 (N.M. 1997).

The issuance of a DWI citation does not amount to the “initiation of criminal proceedings” and “one-sided confrontation” in which presence of counsel is required under the Sixth Amendment to the United States Constitution. Defendant failed to demonstrate that an amendment to 66-8-102 NMSA 1978 created a type of “critical stage” requiring the presence of counsel. State v. Kanikaynar, 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091, 1997 N.M. App. LEXIS 26 (N.M. Ct. App. 1997).

Under U.S. Const. amends. VI and N.M. Const. art II § 14, to succeed on a claim of ineffective assistance of counsel, the defendant must prove that defense counsel did not exercise the skill of a reasonably competent attorney and that this incompetent representation prejudiced the defendant’s case, rendering the trial court’s results unreliable. State v. Lopez, 1996-NMSC-036, 122 N.M. 63, 920 P.2d 1017, 1996 N.M. LEXIS 213 (N.M. 1996).

Where the public defender department sought a writ of prohibition to prevent the execution of a judge’s order requiring the department to represent a criminal defendant whom the department had determined was not eligible for indigent defense services under the department’s eligibility criteria, the writ was denied; the courts retained ultimate authority under the Indigent Defense Act to determine indigence. State ex rel. Quintana v. Schnedar, 1993-NMSC-033, 115 N.M. 573, 855 P.2d 562, 1993 N.M. LEXIS 152 (N.M. 1993).

Under N.M. Const. art II § 14 and U.S. Const. amends. VI, defendant was denied effective assistance of counsel after a public defender was appointed to represent him a week before trial and was denied a continuance. State v. Brazeal, 1990-NMCA-010, 109 N.M. 752, 790 P.2d 1033, 1990 N.M. App. LEXIS 157 (N.M. Ct. App. 1990).

Under U.S. Const. amends. VI and N.M. Const. art II § 14, defendant was denied her right to effective assistance of counsel where her counsel failed to object to hearsay, an out of court accusation by her co-defendant, failed to request a limiting instruction, and failed to object to the use of psychological reports. State v. Crislip, 1989-NMCA-092, 109 N.M. 351, 785 P.2d 262, 1989 N.M. App. LEXIS 97 (N.M. Ct. App.), cert. denied, 109 N.M. 262, 784 P.2d 1005, 1989 N.M. LEXIS 372 (N.M. 1989).

Under the Sixth Amendment right to counsel, U.S. Const. amends. VI, the duty of defense counsel to reasonably investigate the facts relevant to the merits of the case and to fairly investigate and assert appropriate defenses included a responsibility to ascertain whether a defense of mental capacity was warranted where a defendant had a history of mental problems. State v. Lewis, 1986-NMCA-090, 104 N.M. 677, 726 P.2d 354, 1986 N.M. App. LEXIS 652 (N.M. Ct. App. 1986).

Defendant’s right to counsel extended to appellate proceedings under N.M. Const. art II § 14 and U.S. Const. amends. VI; where he timely requested to proceed pro se, the trial court was required to determine whether the request was intelligent, understanding, and competent. State v. Lewis, 1986-NMCA-038, 104 N.M. 218, 719 P.2d 445, 1986 N.M. App. LEXIS 603 (N.M. Ct. App. 1986).

Self-representation by a judge in a proceeding against him in another court is not incompatible with his judicial responsibilities and duties, nor does it violate public policy; a judge enjoys the right under the Sixth Amendment, U.S. Const. amends. VI, to self-representation in the first stages of a criminal action and a qualified right to appear pro se in a civil action. United States v. Martinez, 1984-NMSC-072, 101 N.M. 423, 684 P.2d 509, 1984 N.M. LEXIS 1676 (N.M. 1984).

Where an arresting officer, in administering a blood alcohol test pursuant to 66-8-107 NMSA 1978 after observing defendant’s erratic behavior and driving, failed to advise defendant of his right to counsel so that he might be apprised of his right to an additional test under 66-8-109B NMSA 1978, the failure did not deprive defendant of his right to counsel under U.S. Const. amends. VI; the issuance of a citation was not an adversarial proceeding or a “critical stage” of prosecution at which the right to counsel attached, despite the fleeting nature of the blood alcohol level as evidence that could be crucial to his defense, and no “one-sided” confrontation was shown. State v. Sandoval, 1984-NMCA-053, 101 N.M. 399, 683 P.2d 516, 1984 N.M. App. LEXIS 662 (N.M. Ct. App. 1984).

Defendant’s ineffective assistance of counsel claim lacked merit because defendant did not show that his trial attorney’s alleged malfeasance prejudiced defendant and because there was no evidence that the attorney did not exercise the skill, the judgment, and the diligence of a reasonably competent defense attorney; the appellate court heard defendant’s appeal even though the notice of appeal was untimely, defendant was allowed to present his witnesses even though the witness list was only filed five days prior to the trial, and the lack of prosecutorial misconduct justified not objecting to the State’s comments during its closing argument. State v. McGuinty, 1982-NMCA-011, 97 N.M. 360, 639 P.2d 1214, 1982 N.M. App. LEXIS 797 (N.M. Ct. App. 1982).

Pursuant to U.S. Const. amends. VI, defendant was denied effective assistance of counsel when he entered his guilty plea to the underlying charge of commercial burglary; considering counsel’s representation of defendant in the light of the Moser rule, together with her admissions as a witness, it was plain that she misrepresented her client’s precarious position to him. State v. Lucero, 1981-NMCA-143, 97 N.M. 346, 639 P.2d 1200, 1981 N.M. App. LEXIS 832 (N.M. Ct. App. 1981), cert. quashed, 98 N.M. 51, 644 P.2d 1040, 1982 N.M. LEXIS 2957 (N.M. 1982).

Defendant’s request for appointment of counsel to assist in the filing of a postconviction motion was properly denied because defendant’s claim of an illegal arrest did not raise a substantial factual issue and appointment of counsel was not required under U.S. Const. amends. VI. State v. Ramirez, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262, 1967 N.M. LEXIS 2809 (N.M. 1967).

Defendant’s former 21-1-1(93), 1953 Comp., motion to vacate a judgment and sentence previously imposed on his guilty plea to being a habitual criminal, which was based on his claim that because the sentencing court did not advise him of the possible defenses that could be raised, he could not intelligently waive his rights to the aid of counsel, was denied because the waiver of counsel was intelligently made and he was not denied his right to counsel, as guaranteed by U.S. Const. amends. VI §§ XIV. The sentencing court repeatedly cautioned defendant concerning the gravity of the charge and his answers to questions by the court were, by his own admission, voluntarily given and each of his prior convictions were freely acknowledged. State v. Coates, 1967-NMSC-199, 78 N.M. 366, 431 P.2d 744, 1967 N.M. LEXIS 2801 (N.M. 1967).

Although defendant did not have the benefit of counsel at his preliminary hearing nor at his arraignment, his motion to vacate his sentences following his convictions for incest on the ground that he had not been advised of his Sixth Amendment right to counsel as required by former 41-3-1, 1953 Comp., was denied because defendant was afforded competent counsel at trial and failed to show any prejudice in not having counsel present at his arraignment and preliminary hearing. State v. Cisneros, 77 N.M. 361, 423 P.2d 45, 1967 N.M. LEXIS 2627 (N.M. 1967).

Trial court properly revoked an inmate’s parole for violation of his parole terms after a parole hearing in which the inmate was unrepresented by an attorney because the inmate had no constitutional right to an attorney in his parole revocation proceeding under former 41-17-27, 1953 Comp., which clearly indicated that the parole board was not required to hear statements or arguments by attorneys; because parole was an act of clemency or grace extended by the parole board, ordinary procedural rules did not apply as in criminal proceedings and the requirements for a hearing on the parole violation set forth in former 41-17-28, 1953 Comp. (now 31-21-14 NMSA 1978) did not by implication give the inmate the right to effective appearance or representation by counsel as guaranteed by the U.S. Const. amends. VI. Robinson v. Cox, 77 N.M. 55, 419 P.2d 253, 1966 N.M. LEXIS 2765 (N.M. 1966).

Defendant was not denied his constitutional right to counsel under U.S. Const. amends. VI at the time he made an admission of guilt because defendant was not prejudiced by his admission and a showing of prejudice was required to show a violation of his right. State v. Raburn, 1966-NMSC-174, 76 N.M. 681, 417 P.2d 813, 1966 N.M. LEXIS 2724 (N.M. 1966).

Defendant’s right to counsel under U.S. Const. amend VI was not protected by appointment of counsel who admitted that he was intimidated by the community and did not adequately assist defendant. Roper v. Territory, 1893-NMSC-026, 7 N.M. 255, 33 P. 1014, 1893 N.M. LEXIS 27 (N.M. 1893).

Right to testify.

Self-representation.

Because defendant did not make his pro se request until three days into the trial, the trial judge did not err in denying defendant’s request to proceed pro se. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057, 2011 N.M. LEXIS 52 (N.M. 2011).

Sentence.

Court did not err in enhancing defendant’s conviction for driving while under the influence (DWI) from a misdemeanor to a felony under 66-8-102G NMSA 1978 where the State met its burden of proving that defendant voluntarily, knowingly, and intelligently waived his right to counsel under U.S. Const. amends. VI during the proceedings that resulted in three prior misdemeanor convictions for DWI. State v. Gonzales, 1997-NMSC-050, 124 N.M. 171, 947 P.2d 128, 1997 N.M. LEXIS 389 (N.M. 1997).

—Generally.

Use of a prior uncounseled misdemeanor DWI conviction not resulting in a sentence of imprisonment to enhance a subsequent misdemeanor DWI conviction so that it resulted in a sentence of imprisonment did not violate either N.M. Const. art II § 14 or U.S. Const. amends. VI. State v. Woodruff, 1997-NMSC-061, 124 N.M. 388, 951 P.2d 605, 1997 N.M. LEXIS 475 (N.M. 1997).

Sentencing.

Defendant’s aggravated sentence for second-degree murder as an accessory to the murder violated the U.S. Const. amends. VI because the sentence was not enhanced based on findings made by a jury using the reasonable doubt standard. State v. Bounds, 2007-NMCA-062, 141 N.M. 651, 159 P.3d 1136, 2007 N.M. App. LEXIS 28 (N.M. Ct. App. 2007), cert. denied, 141 N.M. 763, 161 P.3d 260, 2007 N.M. LEXIS 229 (N.M. 2007), cert. quashed, 143 N.M. 399, 176 P.3d 1131, 2008 N.M. LEXIS 35 (N.M. 2008).

In sentencing of defendant for intentional child abuse resulting in death, trial court did not err in classifying offense as a serious violent offense, and imposing a 16-year sentence; issue of whether the crime was a serious violent offense was not required to be submitted to a jury and proven beyond a reasonable doubt. State v. Bravo, 2006-NMCA-019, 139 N.M. 93, 128 P.3d 1070, 2005 N.M. App. LEXIS 158 (N.M. Ct. App. 2005), cert. quashed, 140 N.M. 847, 149 P.3d 944, 2006 N.M. LEXIS 565 (N.M. 2006).

Sodomy.

Judgment convicting defendant of sodomy was reversed because the information charging defendant was void for failure to give defendant notice of the charges against him and denied him due process of law in violation of U.S. Const. amends. VI and U.S. Const. amends. XIV. The record reflected that defendant did not in fact know which act of sodomy was charged because despite evidence revealing more than one offense the information did not specify the date of the offense pursuant to former 41-23-8A(1), 1953 Comp. (now Rule 5-202 NMRA) and failed to charge defendant with a specific act or specific acts pursuant to former 41-23-5C, 1953 Comp. (now Rule 5-201 NMRA). State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949, 1974 N.M. App. LEXIS 765 (N.M. Ct. App. 1974).

Speedy trial.

Defendant's 26 months of pretrial custody did not violated his right to a speedy trial under the Sixth Amendment where much of the delay was administrative, due to a vacancy on the bench and the unavailability of the forensic analyst for pretrial interviews for the defense, defendant initially asserted his right in a pro forma manner but made no focused assertion until almost two years later, and he failed to demonstrate any particularized prejudice. State v. Thomas, 2016-NMSC-024, 376 P.3d 184, 2016 N.M. LEXIS 149 (N.M. 2016).

Defendant's right to a speedy trial was violated where defendant asserted his right to a speedy trial multiple items and most of the delay of more than five years was attributable to, inter alia, the State's failure to prosecute, to timely respond to discovery requests, and to timely answer motions, and the trial court's administrative decision to delay obtaining a trial date to accommodate its docket weighed against the State. State v. Flores, 2015-NMCA-081, 355 P.3d 81, 2015 N.M. App. LEXIS 55 (N.M. Ct. App.), cert. denied, 369 P.3d 368, 2015 N.M. LEXIS 267 (N.M. 2015).

While the length of the delay, nine months beyond the 15-month threshold, weighed in defendant's favor and the reason for the delay and defendant's assertion of the speedy trial rights weighed slightly in his favor, defendant's right to a speedy trial, was not violated because defendant failed to demonstrate that he was prejudiced by the delay, as any anxiety he suffered was not undue and the unavailable witnesses did not prejudice the defense. State v. Suskiewich, 363 P.3d 1247, 2015 N.M. App. LEXIS 114 (N.M. Ct. App.), cert. denied, 370 P.3d 471, 2015 N.M. LEXIS 347 (N.M. 2015).

Court of Appeals of New Mexico erred by reversing the trial court’s decision dismissing criminal charges against defendant after a delay of sixteen months. Because the Supreme Court of New Mexico was unable to determine from the appellate record if prejudice resulted from the delay, an evidentiary hearing was necessary to allow defendant the opportunity to submit affidavits, testimony, or documentation in support of his allegations of lost employment and bankruptcy. State v. Spearman, 2012-NMSC-023, 283 P.3d 272, 2012 N.M. LEXIS 277 (N.M. 2012).

Delay of sixteen months without going to trial was presumptively prejudicial, triggering an inquiry into the Barker factors to determine if defendant’s right to a speedy trial under the Sixth Amendment was violated. The reason for the delay weighed heavily against the State due to its dilatory conduct in requesting four continuances. State v. Spearman, 2012-NMSC-023, 283 P.3d 272, 2012 N.M. LEXIS 277 (N.M. 2012).

Because defendant stipulated that the delay in bringing the case to trial was not the State’s fault, he failed to assert his right to a speedy trial, and he failed to preserve the issue, there was no fundamental error with respect to his Sixth Amendment speedy trial claim. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517, 2012 N.M. LEXIS 179 (N.M. 2012).

Despite a 55-month delay from defendant’s arrest to his second trial, which defendant spent in solitary confinement, defendant’s speedy trial rights were not violated because a significant portion of the delay was due to defendant’s repeated claims that his many lawyers were ineffective and to the district court’s justifiable efforts to ensure that defendant received adequate representation. State v. Fierro, 2012-NMCA-054, 278 P.3d 541, 2012 N.M. App. LEXIS 42 (N.M. Ct. App.), cert. denied, 293 P.3d 886, 2012 N.M. LEXIS 160 (N.M. 2012).

Defendant’s speedy trial right was not violated by a 13-month delay in enforcement of a sentence; the right to a speedy trial does not include delays after a defendant is sentenced. State v. Calabaza, 2011-NMCA-053, 149 N.M. 612, 252 P.3d 836, 2011 N.M. App. LEXIS 28 (N.M. Ct. App. 2011).

District court did not err in denying defendant’s motion to dismiss for the violation of his right to a speedy trial, where the absence of prejudice to defendant fulfilled the State’s burden to overcome the presumption of prejudice that arose from the delay in the case; there was a clear absence of prejudice to defendant. State v. Hayes, 2009-NMCA-008, 145 N.M. 446, 200 P.3d 99, 2008 N.M. App. LEXIS 154 (N.M. Ct. App.), cert. denied, 145 N.M. 571, 203 P.3d 102, 2008 N.M. LEXIS 940 (N.M. 2008).

Defendant’s delay in filing his Interstate Agreement on Detainers request weighed against his speedy trial claim; the trial delay was attributable in part to the state, in part to defendant, and in part to the inherent delay involved in transferring defendant to New Mexico. State v. Maddox, 2008-NMSC-062, 145 N.M. 242, 195 P.3d 1254, 2008 N.M. LEXIS 580 (N.M. 2008).

Delay of 26 months between arrest and trial deprived defendant of his right to a speedy trial under the Sixth Amendment and therefore his convictions for false imprisonment and criminal sexual penetration were reversed with instructions that the charges be dismissed because the length of the delay was extraordinarily long and gave rise to a presumption of prejudice, and the State failed to show that there were good reasons for the delay. State v. Johnson, 2007-NMCA-107, 142 N.M. 377, 165 P.3d 1153, 2007 N.M. App. LEXIS 82 (N.M. Ct. App. 2007).

Even though the delay was partially attributable to neglect by his overworked public defenders, defendant’s right to a speedy trial was violated where he was held for over three years awaiting trial. The state bore some responsibility for its failure to monitor the case and to ensure that steps were taken to bring defendant to trial in a timely manner and did not carry its burden of rebutting the assertions of cognizable prejudice. State v. Stock, 2006-NMCA-140, 140 N.M. 676, 147 P.3d 885, 2006 N.M. App. LEXIS 137 (N.M. Ct. App. 2006), cert. quashed, 141 N.M. 165, 152 P.3d 152, 2007 N.M. LEXIS 11 (N.M. 2007).

In a case involving homicide by vehicle which sat on the line between simple and intermediate complexity, perhaps giving the State some basis for the lengthy discovery delay, especially in light of defendant’s less than vigorous assertion of his right, defendant’s right to a speedy trial was not violated from the 11-month delay; most critically, however, was defendant’s failure to show he was unduly prejudiced where there was no evidence the defense was impaired or that defendant’s pretrial incarceration was unduly prejudicial. State v. Laney, 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591, 2003 N.M. App. LEXIS 104 (N.M. Ct. App.), cert. denied, 135 N.M. 51, 84 P.3d 668, 2003 N.M. LEXIS 295 (N.M. 2003).

Defendant’s right to a speedy trial was not violated by a delay of 20 months from the time the appellate court reversed one of his trafficking convictions and remanded the case for resentencing until defendant was actually resentenced where there was no showing of undue anxiety and concern rising to the level of a constitutional violation; the record did not provide proof that defendant was demonstrably or substantially prejudiced from the delay in resentencing. State v. Brown, 2003-NMCA-110, 134 N.M. 356, 76 P.3d 1113, 2003 N.M. App. LEXIS 68 (N.M. Ct. App. 2003).

The statutory language “as soon as practicable” in the life enhancement statute, 31-18-26B NMSA 1978 means that the life enhancement proceeding must be conducted without undue delay but there is no indication from the statutory language that the legislature intended to impose a specific time limitation on the commencement of life enhancement proceedings; thus, in a prosecution of defendant for criminal sexual penetration of a child, a trial court did not err by granting a continuance of the life enhancement proceeding against defendant under 31-18-25F NMSA 1978 based on defendant’s previous convictions for lewd acts on a child because defendant failed to demonstrate that he suffered actual prejudice in connection with the continuance of the life enhancement proceeding or that the delay violated his rights to due process or a speedy trial under U.S. Const. amends. V §§ VI, XIV and N.M. Const. art II § 14, 18. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, 2002 N.M. App. LEXIS 114 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 126, 61 P.3d 835, 2003 N.M. LEXIS 3 (N.M. 2003).

Appellate court balanced four factors in determining whether defendant’s right to a speedy trial, as guaranteed under U.S. Const. amends. VI §§ XIV, and N.M. Const. art II § 14 were violated: (1) the length of the delay, (2) reasons for the delay, (3) defendant’s assertion of his right, and (4) prejudice to defendant. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, 1999 N.M. App. LEXIS 121 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 338 (N.M. 1999).

Although a 12-month delay between defendant’s arrest and the date that he moved to dismiss the charges based on a violation of his right to a speedy trial was presumptively prejudicial, there was no violation of his constitutional right to a speedy trial where on balance, the reasons for the delay weighed against defendant, defendant failed to assert his speedy trial right until almost four months after the initial trial setting, and defendant suffered no prejudice as a result of the delay; although the wait for resolution may have caused him anxiety, there was no pretrial incarceration and his defense was not compromised in any way. State v. Eskridge, 1997-NMCA-106, 124 N.M. 227, 947 P.2d 502, 1997 N.M. App. LEXIS 92 (N.M. Ct. App. 1997), abrogated in part as stated in State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, 2009 N.M. App. LEXIS 298 (N.M. Ct. App. 2009).

In determining whether defendant was denied a speedy trial in violation of U.S. Const. amends. VI §§ and XIV and N.M. Const. art II § 14, the appellate court examines four factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. Town of Bernalillo v. Garcia, 1994-NMCA-111, 118 N.M. 610, 884 P.2d 501, 1994 N.M. App. LEXIS 112 (N.M. Ct. App.), cert. denied, 118 N.M. 585, 883 P.2d 1282, 1994 N.M. LEXIS 354 (N.M. 1994).

Fourteen-month delay in trying defendant for speeding and driving while intoxicated was not a denial of defendant’s right to a speedy trial under U.S. Const. amends. VI §§ and XIV and N.M. Const. art II § 14 because defendant’s pretrial incarceration was not oppressive, his defense was not prejudiced, and the delay was not due to the prosecution’s negligence or bad faith. Most all of the delay was a result of defendant’s filing numerous motions, including motions to recuse the judge and various motions to dismiss. Town of Bernalillo v. Garcia, 1994-NMCA-111, 118 N.M. 610, 884 P.2d 501, 1994 N.M. App. LEXIS 112 (N.M. Ct. App.), cert. denied, 118 N.M. 585, 883 P.2d 1282, 1994 N.M. LEXIS 354 (N.M. 1994).

Delay in holding an extradition proceeding did not deprive defendant of his right to a speedy trial pursuant to the Sixth Amendment; U.S. Const. art IV § 2, which provided the basis for extradition, did not make the right to extradition contingent on there not being a delay in holding an extradition proceeding and a demanding state was qualified to fully adjudicate and to protect defendant’s speedy trial rights. State v. Sandoval, 1980-NMSC-139, 95 N.M. 254, 620 P.2d 1279, 1980 N.M. LEXIS 2767 (N.M. 1980).

Where a final determination of defendant’s guilt to a charge of burglary was made no later than August 26, 1966, when a “Judgment and Sentence” and “Order of Probation” were entered, and where defendant subsequently violated his probation by being convicted for sexual assault, the lapse of time between the entry of defendant’s guilty plea to burglary and the imposition of sentence in July, 1968, was not unreasonable and did not deprive defendant of his right to a speedy trial, as guaranteed by U.S. Const. amends. VI and N.M. Const. art II § 14. State v. Apodaca, 1969-NMCA-020, 80 N.M. 155, 452 P.2d 489, 1969 N.M. App. LEXIS 544 (N.M. Ct. App. 1969).

Constitutional right to a speedy under U.S. Const. amends. VI and N.M. Const. art II § 14 was not denied to an inmate charged with forgery who was in custody after a conviction for escape because the inmate took no affirmative steps to make known his demand for a speedy trial, and his motions filed in the escape action did not equate to requests for a speedy trial in the forgery action. Furthermore, the inmate’s prosecution for escape, incarceration for that offense, and his plea of not guilty by reason of insanity all constituted reasons making the delay in his prosecution reasonable. Raburn v. Nash, 1967-NMSC-194, 78 N.M. 385, 431 P.2d 874, 1967 N.M. LEXIS 2794 (N.M. 1967).

Strategic or tactical decisions by counsel.

—Miscellaneous.

Defendant convicted of cocaine trafficking was not denied her right to effective representation of counsel under U.S. Const. amends. VI and N.M. Const. art II § 14 because although the attempt of defendant’s counsel to undermine an officer’s identification of defendant allowed the State to offer rebuttal testimony, by claiming an alibi defense defendant had put her identity in issue, and her counsel’s attempt to undermine the identification was the only reasonable tactic available. Furthermore, defendant’s counsel did not render ineffective assistance of counsel by failing to advocate defendant’s motion for a new trial and challenge her waiver of a jury trial on constitutional grounds because defendant knowingly, intelligently, and voluntarily waived her right to a jury trial. State v. Dean, 1986-NMCA-093, 105 N.M. 5, 727 P.2d 944, 1986 N.M. App. LEXIS 667 (N.M. Ct. App.), cert. denied, 104 N.M. 702, 726 P.2d 856, 1986 N.M. LEXIS 3058 (N.M. 1986).

Substitute counsel.

Defense counsel’s desire to withdraw and his contention that he could not effectively represent defendant in the criminal proceedings against defendant for child abuse did not mandate appointment of substitute counsel. The request to withdraw was measured by the Sixth Amendment promise of effective assistance of counsel, and it had to be shown that counsel’s performance would fall below that of a reasonably competent defense attorney and that counsel’s performance would prejudice defendant in asserting his defense, but from review of the trial record, counsel’s performance equaled that of a reasonably competent defense attorney. State v. Lucero, 1986-NMCA-085, 104 N.M. 587, 725 P.2d 266, 1986 N.M. App. LEXIS 645 (N.M. Ct. App. 1986).

Time limitations.

Where a criminal information charged the defendant with felonies that had been the subject of a criminal complaint in the magistrate court more than one year earlier, the defendant’s right to a speedy trial under U.S. Const. amends. VI was not violated because the filing of the complaint in magistrate court was insufficient to trigger the defendant’s speedy trial right for the felony charges which required an indictment or information pursuant to N.M. Const. art II § 14, and had to be preceded by a probable cause determination pursuant to Rule 5-201(C) and (D) NMRA. State v. Ross, 1999-NMCA-134, 128 N.M. 222, 991 P.2d 507, 1999 N.M. App. LEXIS 101 (N.M. Ct. App. 1999).

Trial court improperly dismissed with prejudice an amended criminal complaint that had been filed against defendant because the five-month period between arrest and trial was not a sufficient amount of time to raise even a presumption of prejudice for Sixth Amendment speedy trial purposes. State v. Jacquez, 1994-NMCA-166, 119 N.M. 127, 888 P.2d 1009, 1994 N.M. App. LEXIS 159 (N.M. Ct. App. 1994).

Defendant raised a Batson challenge after the venire panel had been dismissed and the petit jury sworn and preliminarily instructed; the objection was untimely because it was too late to cure any alleged error and there was no fundamental error because there was substantial evidence to support the defendant’s convictions. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, 1993 N.M. App. LEXIS 160 (N.M. Ct. App. 1993).

Where 26 months transpired between defendant’s indictment and trial, the state failed to extradite defendant from a state that recognized extradition provisions, and defendant repeatedly demanded a speedy resolution of the criminal charges, defendant’s constitutional right to a speedy trial was violated even though there was no showing that defendant was prejudiced by the delay. State v. Harvey, 1973-NMCA-080, 85 N.M. 214, 510 P.2d 1085, 1973 N.M. App. LEXIS 732 (N.M. Ct. App. 1973).

Underlying offense.

Denial of defendant’s motion for post-conviction relief filed pursuant to former N.M. R. Crim. P. 93, 21-1-1(93), 1953 Comp., was proper with respect to his conviction for escape contrary to former 40A-22-8, 1953 Comp. (now 30-22-8 NMSA 1978) because defendant’s argument that his underlying conviction of violating ordinances against drunkenness violated U.S. Const. amends. VI §§ and XIV was no defense to the charge of escape. State v. Lopez, 1968-NMSC-098, 79 N.M. 235, 441 P.2d 764, 1968 N.M. LEXIS 1950 (N.M. 1968).

Videotaped deposition.

Under U.S. Const. amends. VI and N.M. Const. art II § 14, a defendant’s right to confrontation was not violated when the trial court allowed the admission into evidence of a videotaped deposition of an eyewitness because defendant was given sufficient opportunity for cross-examination of the witness at the time of the deposition. State v. Martinez, 1981-NMSC-005, 95 N.M. 445, 623 P.2d 565, 1981 N.M. LEXIS 2241 (N.M. 1981), overruled, Fuson v. State, 1987-NMSC-034, 105 N.M. 632, 735 P.2d 1138, 1987 N.M. LEXIS 3706 (N.M. 1987).

Waiver.

Where defendant was charged with rape of an 11-year old child contrary to former 40A-9-4, 1953 Comp., a first-degree felony, and with rape of a 13-year old child contrary to former 40A-9-3, 1953 Comp., a third-degree felony, but eventually pled guilty to rape contrary to former 40A-9-2, 1953 Comp., a second-degree felony, defendant’s motion for relief under former 21-1-1(93), 1953 Comp., was properly denied because defendant waived the requirement that he be furnished a copy of the information at least 24 hours before being required to plead, as required by former 41-6-46, 1953 Comp. Moreover, entry of defendant’s guilty plea waived his right to a speedy trial under the Sixth Amendment, U.S. Const. amends. VI, and former 41-11-4, 1953 Comp. State v. Gonzales, 1969-NMCA-028, 80 N.M. 168, 452 P.2d 696, 1969 N.M. App. LEXIS 554 (N.M. Ct. App. 1969).

Waiver of right to testify.

Pursuant to U.S. Const. amends. VI, applied to the states by U.S. Const. amends. IV, and N.M. Const. art II § 14, a defendant has the right to testify at his own trial regardless of his counsel’s advice, but that right can be waived. A defendant may be deemed to have waived his right to testify where it is clear defendant was aware of such right, and he acquiesces in his trial counsel’s statement that he will not testify. State v. Henry, 1984-NMCA-040, 101 N.M. 277, 681 P.2d 62, 1984 N.M. App. LEXIS 644 (N.M. Ct. App. 1984).

While, pursuant to U.S. Const. amends. VI, applied to the states by U.S. Const. amends. IV, and N.M. Const. art II § 14, defendant had the right to testify at his own trial regardless of his counsel’s advice, defendant waived that right where his counsel announced that defendant had decided not to testify and defendant expressed no objection to that announcement. Under such circumstances, the trial court was not required to halt the proceedings and to interrogate defendant or his counsel to determine whether defendant had knowingly and intelligently waived the right. State v. Henry, 1984-NMCA-040, 101 N.M. 277, 681 P.2d 62, 1984 N.M. App. LEXIS 644 (N.M. Ct. App. 1984).

Warning as to risks or dangers.

Defendant was not denied his Sixth Amendment right to effectively represent himself or his right to counsel because the trial court took substantial efforts to ensure that his waiver of counsel and his no contest plea to deadly assault charges were knowing and voluntary and the trial judge carefully advised him of the difficulty in representing himself. Also defendant was not denied access to the tools necessary to prepare his defense by the actions of his standby counsel. State v. Vincent, 2005-NMCA-064, 137 N.M. 462, 112 P.3d 1119, 2005 N.M. App. LEXIS 49 (N.M. Ct. App. 2005), cert. quashed, 141 N.M. 763, 161 P.3d 260, 2007 N.M. LEXIS 211 (N.M. 2007), cert. denied, 552 U.S. 1066, 128 S. Ct. 718, 169 L. Ed. 2d 562, 2007 U.S. LEXIS 12796 (U.S. 2007).

Witnesses.

Defense counsel was not ineffective for failing to challenge the qualifications of an expert where the witness had testified as an expert in hair analysis in a dozen criminal cases. Although defense counsel might have marginally diminished the weight of the expert’s testimony by cross-examining him on his methodology and conclusions, defendant was not prejudiced by defense counsel’s failure to consult another expert concerning the hair comparison. Lytle v. Jordan, 2001-NMSC-016, 130 N.M. 198, 22 P.3d 666, 2001 N.M. LEXIS 152 (N.M. 2001).

Defendant’s right to confrontation under U.S. Const. amends. VI was not violated when the trial court restricted her cross-examination of a witness to the facts and circumstances implicated by direct examination and to matters relating to the credibility of the witness. State v. Smith, 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254, 2001 N.M. LEXIS 45 (N.M. 2001).

Defendant’s right to confrontation under U.S. Const. amends. VI was not violated when the trial court restricted her cross-examination of a witness to his personal knowledge about the recovery of evidence where she failed to show what evidence she hoped to elicit with her questions and how it would have been relevant and where she had an opportunity to cross-examine other witnesses who had direct knowledge. State v. Smith, 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254, 2001 N.M. LEXIS 45 (N.M. 2001).

In defendant’s trial on murder charges, the trial court properly admitted the hearsay declaration of an alleged co-conspirator as a statement against penal interest. The statement fell X:thin Rule 11-804(B)(3) NMRA, a firmly rooted exception to the rule against hearsay; thus, defendant’s right to confront witnesses under U.S. Const. amends. VI was not violated by the trial court’s admission of the statement. State v. Gonzales, 1999-NMSC-033, 128 N.M. 44, 989 P.2d 419, 1999 N.M. LEXIS 236 (N.M. 1999), cert. denied, 529 U.S. 1025, 120 S. Ct. 1434, 146 L. Ed. 2d 323, 2000 U.S. LEXIS 2010 (U.S. 2000).

Where a witness invoked U.S. Const. amends. V and refused to testify at defendant’s trial, the trial court had no power to confer immunity absent a written application from the state pursuant to Rule 5-116 NMRA; defendant had no right under U.S. Const. amends. VI to demand that the witness be immunized. State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066, 1997 N.M. LEXIS 329 (N.M. 1997), overruled in part, State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, 2009 N.M. LEXIS 402 (N.M. 2009).

In defendant’s trial on drug trafficking charges, defendant’s right to confront adverse witnesses, under U.S. Const. amends. VI, was violated as a result of the trial court’s refusal to allow him to inquire into any possibility that an informant was biased or motivated to fabricate testimony against him in exchange for leniency on her own charges. State v. Martinez, 1996-NMCA-109, 122 N.M. 476, 927 P.2d 31, 1996 N.M. App. LEXIS 91 (N.M. Ct. App.), cert. denied, 122 N.M. 416, 925 P.2d 882, 1996 N.M. LEXIS 414 (N.M. 1996).

The right to confrontation is not absolute; a trial court retains wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. State v. Sanders, 1994-NMSC-043, 117 N.M. 452, 872 P.2d 870, 1994 N.M. LEXIS 156 (N.M. 1994).

With there being no presence at trial of a qualified witness other than the maker of computer printouts, coupled with other indicia of reliability, the reviewing court held that a defendant’s confrontation clause rights were implicated since the state had not laid a foundation of necessity and produced out-of-court declarants so as to make introduction of the printouts into evidence permissible; the confrontation clauses of both the state, N.M. Const. art II § 14, and the federal constitution, U.S. Const. amends. VI, provided that in all criminal prosecutions, the accused had the right to be confronted with the witnesses against him. State v. Austin, 1985-NMCA-118, 104 N.M. 573, 725 P.2d 252, 1985 N.M. App. LEXIS 636 (N.M. Ct. App. 1985).

Where a defendant failed to show that witnesses from the state’s witness list, whose addresses and telephone numbers were missing but who were not called to testify, had information that would have benefited the defense, and where the defendant had about eight weeks in which to locate the witnesses, and where it was clear that the defendant lacked due diligence in attempting to obtain F.B.I. and other federal records, there was no deprivation of the right to prepare an adequate defense. State v. Pruett, 1984-NMSC-021, 100 N.M. 686, 675 P.2d 418, 1984 N.M. LEXIS 1625 (N.M. 1984).

Where a trainer was suspended by the State Racing Commission after a prohibited substance, Ritalin, was found in his horse’s urine, there was no merit to his argument that because the urine samples were fully consumed in testing, he was denied his rights to cross-examine and to be confronted by the witnesses against him; the trainer was granted and exercised at great length his right to cross-examine the commission’s witnesses, including a veterinarian and a chemist. Jamison v. State Racing Comm'n, 1973-NMSC-028, 84 N.M. 679, 507 P.2d 426, 1973 N.M. LEXIS 1225 (N.M. 1973).

—Advice as to possible sentence.

Court of appeals properly reversed an order denying defendant's motion to withdraw his guilty plea because the district court relied solely upon its advice to defendant to find that he was not prejudiced by his attorney's failure to advise him of the immigration consequences of his guilty plea; the district court's order did not indicate whether or not there was additional factual support for the decision to deny the motion. State v. Favela, 2015-NMSC-005, 343 P.3d 178, 2015 N.M. LEXIS 2 (N.M. 2015).

Judicial statements made during the plea colloquy about the immigration consequences of a plea did not cure counsel's deficient representation when evaluating whether or not a defendant proved the first prong of Strickland; because such an advisement by a judge cannot render sufficient an attorney's otherwise deficient performance in failing to advise his client of the immigration consequences of a plea, the same advisement cannot, by itself, cure the prejudice created by a failure to advise. State v. Favela, 2015-NMSC-005, 343 P.3d 178, 2015 N.M. LEXIS 2 (N.M. 2015).

Because every defendant and every case present a variety of interests and circumstances, it is inappropriate to declare that the strength of the State's evidence or judicial statements during a plea colloquy should be afforded minimal weight in assessing prejudice; it is appropriate to consider the degree to which the record contains sworn testimony that strongly indicates the defendant knowingly and voluntarily entered into a plea agreement despite potential adverse immigration consequences. State v. Favela, 2015-NMSC-005, 343 P.3d 178, 2015 N.M. LEXIS 2 (N.M. 2015).

OPINIONS OF ATTORNEY GENERAL

Duty of municipality to provide legal counsel.

Although a defendant is entitled to be represented by counsel on the appeal of a conviction to the court of appeals, a municipality is not required to provide for such legal representation because: (1) the legislature has set a comprehensive plan to furnish counsel to qualified criminal defendants; and (2) municipal budgetary restrictions preclude expenditures for items not budgeted. 1979-1982 N.M. Op. Att'y Gen. No. 210.

Research References and Practice Aids

New Mexico Law Review.

Note: Twohig v. Blackmer: New Mexico’s Broad Protection for Trial Participant Speech and the Hurdles to Cross Before Imposing Gag Orders, Denise M. Chanez, 35 N.M. L. Rev. 587 (2005).

Article: Criminal Justice and the 2003-2004 United States Supreme Court Term, Christopher E. Smith, Michael McCall and Madhavi McCall, 35 N.M. L. Rev. 123 (2005).

Article: Overbreadth Outside the First Amendment, John F. Decker, 34 N.M. L. Rev. 53 (Winter, 2004).

[Amendment VI] [Right to Speedy Trial, Witnesses, etc.].

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