June 3, 2015 • Volume 54, No. 22 · Bulletin, PO Box 92860, Albuquerque, NM 87199-2860....

Mesa Stories by Melinda Silver (see page 3) Griffin Gallery Fine Art, Edina, Minn.

Inside This Issue

June 3, 2015 • Volume 54, No. 22

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

New Mexico Board of Legal Specialization: Comments Solicited ............................................... 4

Young Lawyers Division: Volunteers Needed at Veterans Legal Clinic on June 9 .............................5

New Attorneys Sworn In, by D.D. Wolohan ........ 7

Clerk’s Certificates .................................................14

From the New Mexico Court of Appeals

2015-NMCA-031, No. 32,171: Progressive Casualty Insurance Company v. Vigil ..............................................16

2015-NMCA-032, No. 33,349: State v. Lujan ......................................................20

2015-NMCA-033, No. 32,909: State v. Carroll (author: Hon. M. Vigil) .........24

2015-NMCA-034, No. 32,909: State v. Carroll (author: Hon. J. Wechsler)....27

2 Bar Bulletin - June 3, 2015 - Volume 54, No. 22

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Bar Bulletin - June 3, 2015 - Volume 54, No. 22 3

Notices ................................................................................................................................................................4New Attorneys Sworn In, by D.D. Wolohan ................................................................................................7Legal Education Calendar .............................................................................................................................9Writs of Certiorari ......................................................................................................................................... 11Court of Appeals Opinions List ................................................................................................................. 13Clerk’s Certificates ......................................................................................................................................... 14Recent Rule-Making Activity ..................................................................................................................... 15Opinions

From the New Mexico Court of Appeals2015-NMCA-031, No. 32,171: Progressive Casualty Insurance Company v. Vigil .................................................................... 16

2015-NMCA-032, No. 33,349: State v. Lujan ............................................................................... 20

2015-NMCA-033, No. 32,909: State v. Carroll (author: Hon. M. Vigil) ................................. 24

2015-NMCA-034, No. 32,909: State v. Carroll (author: Hon. J. Wechsler) ......................... 27

Advertising ...................................................................................................................................................... 29

State Bar Workshops June

3 Divorce Options Workshop 6 p.m., State Bar Center

3 Civil Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

16 Legal Resources for the Elderly Workshop 10:30–11:30 a.m., Presentation noon–3 p.m., Clinics Bonnie Dallas Senior Center, Farmington

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

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

July

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

MeetingsJune

3 Employment and Labor Law Section BOD, Noon, State Bar Center

10 Children’s Law Section BOD, Noon, Juvenile Justice Center

10 Taxation Section BOD, 11 a.m., via teleconference

11 Business Law Section BOD, 4 p.m., via teleconference

11 Public Law Section BOD, Noon, Montgomery & Andrews, Santa Fe

12 Animal Law Section BOD, Noon, State Bar Center

12 Prosecutors Section BOD, Noon, State Bar Center

17 Real Property Trust and Estate Section: Trust and Estate Division, Noon, State Bar Center

Table of Contents

Officers, Board of Bar Commissioners Mary Martha Chicoski, President J. Brent Moore, President-Elect Scotty A. Holloman, Vice President Dustin K. Hunter, Secretary-Treasurer Erika E. Anderson, Immediate Past President

Board of EditorsMaureen S. Moore, Chair Curtis HayesJamshid Askar Bruce HerrNicole L. Banks Andrew SefzikAlex Cotoia Mark StandridgeKristin J. Dalton Carolyn Wolf

State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan 505-797-6039 • [email protected] Communications Coordinator Evann Kleinschmidt 505-797-6087 • [email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

©2015, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

505-797-6000 • 800-876-6227 • Fax: 505-828-3765 E-mail: [email protected]. • www.nmbar.org

June 3, 2015, Vol. 54, No. 22

Cover Artist: Melinda Silver is a passionate painter who works in acrylics, encaustics and mixed media, painting layers and then destroying those layers to capture the tension and mystery geological, social, political, religious and personal change. She worked many years as a commercial artist for print media. Always interested in making this world a better place, she attended and graduated from the UNM School of Law, and practiced both locally and in Washington D.C. Now she works in her newly remodeled studio in Santa Fe. For inquiries or to arrange a studio visit, contact Silver at [email protected] or at www.melindasilverfineart.com.

mailto:[email protected]




http://www.nmbar.org



http://www.melindasilverfineart.com


NoticesProfessionalism TipCourt news

New Mexico Supreme Court Statewide ADR Commission Meeting Notice The next meeting of the Statewide ADR Commission is 9–11:30 a.m., June 19, at the State Bar Center in Albuquer-que. All interested parties are welcome to attend. More information about the Com-mission is available on the New Mexico Courts website, www.nmcourts.gov > Court Services/Programs > Alternative Dispute Resolution > NM ADR Commis-sion.

New Mexico Board of Legal SpecializationComments Solicited The following attorneys are applying for certification as a specialist in the areas of law identified. Application is made under the New Mexico Board of Legal Special-ization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publication. Further, attorneys and others are encouraged to comment upon any of the applicant’s qualifications within 30 days after the publication of this notice. Address comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199.

Employment/Labor Law K. Janelle HaughtReal Estate Law

Gordon H. Rowe III

Ninth Judicial District CourtAnnouncement of Vacancy A vacancy on the Ninth Judicial District Court will exist in Curry and Roosevelt counties as of July 1, upon the retirement of Hon. Stephen K. Quinn.

The judicial vacancy is for Division 1, general jurisdiction with a heavy criminal docket. Further inquiries regarding the details or assignment of this judicial vacancy should be directed to the chief judge or the administrator of the court. The dean of the UNM School of Law, designated by the New Mexico Constitu-tion to chair the Appellate Court Judicial Nominating Committee, solicits ap-plications for this position from lawyers who meet the statutory qualifications in Article VI, Section 14 of the New Mexico Constitution. Applications and qualifica-tion information for the position, may be obtained from the Judicial Selection website: http://lawschool.unm.edu/judsel/application.php. The deadline for applications is 5 p.m., June 8. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The Judicial Nominat-ing Committee will meet at 1:30 p.m. on June 16 at the Curry County Courthouse, 700 N. Main St, Clovis, to evaluate the applicants for this position. The Com-mission meeting is open to the public and members of the public who want to be heard about any of the candidates will have an opportunity at that time.

state Bar newsAttorney Support Groups• June 8, 5:30 p.m. UNM School of Law, 1117 Stanford

NE, Albuquerque, Room 1119 (The group meets the second Monday of the month.)

• June 15, 7:30 a.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the third Monday of the month.)

• July 6, 5:30 p.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the first Monday of the month.)

For more information, contact Hilary Noskin, 505-449-7984 or Bill Stratvert, 505-242-6845.

Appellate Practice SectionBrown Bag Lunch with Justice Richard C. Bosson Justice Richard Bosson will join the Appellate Practice Section and the Young Lawyers Division for their next brown bag lunch at 12:30 p.m. on June 5 at the State Bar Center. Justice Bosson will be coming directly from the annual Judicial Conclave so he will have plenty to talk about. Justice Bosson became a member of the New Mexico Supreme Court in December 2002. Before that he served as a judge on the New Mexico Court of Ap-peals, including two years as Chief Judge (2001-02). Justice Bosson received his juris doctor from Georgetown Univer-sity Law Center in 1969 and his Master’s Degree in Judicial Process from the Uni-versity of Virginia School of Law in 1998. He is a founding member of the Mexican American Legal Defense and Education Fund in Albuquerque. In 1975 he spent a year in Colombia, South America, as a recipient of a Latin American Teaching

With respect to the courts and other tribunals:

When hearings or depositions are cancelled, I will notify opposing counsel, necessary parties, and the court (or other tribunal) as early as possible.

Judicial Records Retention and Disposition SchedulesPursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.

Court Exhibits/Tapes For Years May Be Retrieved Through10th Judicial District Court Tapes in Domestic Matters 1995-1999 July 22, 2015County of Quay575-461-2764

http://www.nmcourts.gov

http://lawschool.unm.edu/


Fellowship, sponsored by the Fletcher School of Law and Diplomacy, following which he worked with the N.M. Attorney General’s Office in the Consumer Protec-tion Division and as director of the Civil Division from 1976-78. Justice Bosson was a senior partner of Bosson & Canepa, P.A. in Santa Fe from 1981-94. During his years as a private attorney, Justice Bosson served as bond counsel for the State of New Mexico and the City of Santa Fe; New Mexico Commissioner of Bank-ing; and a member of the New Mexico Constitution Revision Commission in 1994-95. These meetings are informal and attendees are encouraged to bring their own “brown bag” lunch. Space is limited, so R.S.V.P. to [email protected].

Bankruptcy Law SectionGolf Tournament and Reception The Bankruptcy Law Section Board invites its members to play in the 15th Annual Golf Outing, noon on June 5 at the Canyon Club, formerly the Four Hills Country Club, in Albuquerque. Cost is $65 and includes a round of golf, a cart and hors d’oeuvres. A cash bar will be available. Non-golfing section members are encour-aged to attend the reception at 5 p.m. For more information, contact Gerald Velarde, 505-248-0050 or [email protected].

Criminal Law SectionSee a Game, Help the Hungry The Criminal Law Section invites its members to the Isotopes Child Hunger Benefit on June 20, with a canned food drive for Roadrunner Food Bank, tailgate party and ticket to the baseball game. Details are available by contacting Spirit Gaines, [email protected], by June 5.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites mem-bers of the legal community to bring a lunch and attend “Fundamentals of NM Administrative Agency Proceedings” (1.0 G) presented by Charles Garcia, Cuddy & McCarthy. The program will be held from noon–1 p.m., June 10, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Reg-istration begins at the door at 11:45 a.m.

For more information, contact Cheryl Passalaqua, 505-247-0411, or Carolyn Winton, 505-888-4357. Telecast to Santa Fe and Roswell. For details, visit www.nmbar.org > About Us > Divisions > Paralegal Division > CLE Programs.

Young Lawyers DivisionVolunteers Needed at Veterans Legal Clinic on June 9 The Young Lawyers Division and the New Mexico Veterans Affairs Health Care System are holding clinics for the Veterans Civil Justice Legal Initiative from 9 a.m.–noon, the second Tuesday of each month at the New Mexico Veter-ans Memorial, 1100 Louisiana Blvd. SE, Albuquerque. Breakfast and orientation for volunteers begin at 8:30 a.m. No spe-cial training or certification is required. Volunteers can give advice and counsel in their preferred practice area(s). The next clinic is June 9. To volunteer, contact Keya Koul, [email protected].

unMLaw LibraryHours Through Aug. 16Building & Circulation Monday–Thursday 8 a.m.–8 p.m. Friday 8 a.m.–6 p.m. Saturday 10 a.m.–6 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Saturday–Sunday ClosedClosure July 4: Independence Day

New Mexico Law Review‘Breaking Bad’ Subject of Special Issue The New Mexico Law Review has dedi-cated a special issue to legal questions raised by the hit TV series “Breaking Bad.” Eight articles present “quasi-traditional legal analyses of criminal law, constitutional law, business law, ethical responsibilities and professional conduct of lawyers,” said Editor-in-Chief Matthew Zidovsky. Subscrip-tion to the Law Review is available at http://lawschool.unm.edu/nmlr/subscriptions.php, and the individual “Breaking Bad” articles are posted at http://lawschool.unm.edu/nmlr/current -issue.php.

New Mexico Lawyers and Judges

Assistance Program

Help and support are only a phone call away. 24-Hour Helpline

Attorneys/Law Students505-228-1948 • 800-860-4914

Judges888-502-1289

www.nmbar.org > for Members > Lawyers/Judges Assistance

All New Mexico attorneys must notify both the Supreme Court and the State Bar of changes in contact information.

Supreme Court Email: attorneyinfochange @nmcourts.gov Fax: 505-827-4837 Mail: PO Box 848

Santa Fe, NM 87504-0848

State BarEmail: [email protected]: 505-797-6019Mail: PO Box 92860 Albuquerque, NM 87199Online: www.nmbar.org

address Changes

MeetingBridge offers easy-to-use teleconferencing especially designed for law

firms. Set up calls and notify attendees in one symple step. Client codes can be entered for

easy tracking. Operator assistance is available on every call.

Contact Dave Martin 1-888-723-1200, ext. 627

[email protected] www.meetingbridge.com/371

Member BenefitF e a t u r e d


http://www.meetingbridge.com/371

mailto:@nmcourts.gov








http://lawschool.unm.edu/nmlr/

http://lawschool.unm.edu/nmlr/current



other BarsFirst Judicial District Bar AssociationCLE and Luncheon with Joe Conte on New Mexico’s New Admission State Bar of New Mexico Executive Di-rector Joe Conte will visit the First Judicial District to discuss Rule 15-107 NMRA, a new rule eff ective June 1 expanding admis-sion to the State Bar and other issues facing the profession. Attendees will receive 1.0 hour of CLE credit at the program on June 15 from noon–1:30 p.m. at the Santa Fe Hilton. Attendance is $15 and includes a buff et lunch. For more information or to R.S.V.P. contact Lucas Conley at [email protected] or 505-986-2657.

New Mexico Criminal Defense Lawyers AssociationAnnual Meeting and Government Misconduct CLE The New Mexico Criminal Defense Lawyers Association’s annual member-ship meeting, CLE and Driscoll Award ceremony will take place on June 5 in Albuquerque. Th e CLE is titled “Govern-ment Misconduct: How to Spot it, How to Stop It” (5.7 G) and topics include: search and seizure, case law update, grand jury instructions, remedies for discovery violations, civil forfeiture and more. Af-terwards, NMCDLA members and their families and friends are invited to the an-nual membership party and silent auction. Visit www.nmcdla.org to join NMCDLA and to register for the seminar.

Call For Nominations

Nominations are being accepted for the 2015 State Bar of New Mexico Annual Awards to recognize those who have distinguished themselves or who have made exemplary contributions to the State Bar or legal profession in 2014 or 2015. Th e awards will be presented Oct. 1 during the 2015 Annual Meeting—Bench and Bar Conference at Th e Broadmoor in Colorado Springs, Colo. All awards are limited to one recipient per year, whether living or deceased. Previous recipients for the past fi ve years, descriptions of each award, and nomination submission instructions can be found in the May 5 issue of the Bar Bulletin (Vol. 54, No. 18) or online at www.nmbar.org > for Members > Annual Meeting.

Distinguished Bar Service Award-LawyerDistinguished Bar Service Award–NonlawyerJustice Pamela B. Minzner Professionalism Award Outstanding Legal Organization or Program AwardOutstanding Young Lawyer of the Year AwardRobert H. LaFollette Pro Bono AwardSeth D. Montgomery Distinguished Judicial Service Award

Deadline for Nominations: July 17

State Bar of New Mexico 2015 Annual Awards

Submitannouncementsfor publication in the Bar Bulletin to

[email protected] by noon Monday the week prior to publication.

http://www.nmcdla.org





“Good morning, colleagues,” Justice Charles W. Daniels said to an auditorium of established attorneys and those just sworn in. “This is not like a graduation. This [event] is transformational,” he said. “You have just been given the keys to the justice process; it’s a wonderful journey.”

So began the justices’ comments to the new attorneys on April 28 at the James A. Little Theater in Santa Fe. Justice Edward A. Chávez told the new admittees “You will make a material difference to society as a whole, and to our community.”

Signing the Attorney Roll Book was the first order of business.

Text and photos by D.D. Wolohan

New Attorneys Sworn In

His fellow State Supreme Court justice, Richard C. Bosson, said “People look to lawyers as leaders. You are the kind of community our society needs.”

These thoughts were echoed by State Bar President Martha Chicoski, among others.

“This is an opportunity to give back to the community,” Justice Petra Jimenez Maes told them, noting “a severe shortage” of legal representatives for low-income residents. “Look for local pro bono opportunities,” she encouraged them.

Continued on next page


Continued from previous page

Judge Cheryl Johnston, right, speaks on behalf of Alexandra Bochte.

New attorney Celedonia Munoz poses with grandmother Celedonia Rael. State Bar President Martha Chicoski, left, and Chief Justice Barbara J. Vigil

And lastly, Chief Justice Barbara J. Vigil implored the new attorneys to be honest and have integrity. “Your reputation will be established quickly. Be hardworking and diligent. Be open to changing directions.” The Chief Justice shared her own legal journey, beginning as a tax attorney, then working as a litigator before practicing in children’s court. “And always strive to achieve gracious professionalism,” she said. “Treat one another with respect and kindness,” and comfortably blend your knowledge, compassion and empathy.

The new admittees have interesting backgrounds: a female boxer, an actor in community theater, a 10-year paralegal and a man who first took the bar exam 30 years ago. Now they’re your colleagues. ■

To view more photos, visit www.nmbar.org > for Members > New Admittees



Legal EducationJune

4 “Ethical Wills”: Drafting Wills to Reflect Clients Values

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

5 Government Misconduct: How to Spot it, How to Stop it

5.7 G, 0.0 EP Albuquerque New Mexico Criminal Defense

Lawyers Association 505-992-0050 www.nmcdla.org

9 The Scope of Arbitration—Court Rulings and Legal Opinions

1.0 G Live Seminar and Telecast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

9 25th Annual Appellate Practice Institute (2014)

5.7 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

9 Technology in the Courts (2014) 5.2 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

9 Civil Procedure Update and Recent Developments in the U.S. Supreme Court (2014)

3.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

9 2015 Ethicsplaooza: The Ethics of Social Media Use

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

9–10 Ethics in Litigation Update, Parts 1–2

2.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

10–11 Great Adverse Depositions: Principles and Principal Techniques

6.0 G Webinar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

11 2015 Estate Planning Update 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

11–12 8th Annual Legal Service Providers Conference

10.0 G, 2.0 EP Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

12 Like-Kind Exchanges of Business Interests

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

16–17 Drafting LLC/Partnership Operating Agreements Parts 1–2


17 Trust and Suspense: Challenges for the Estate Planner with Oil and Gas Interests


19 Animal Law Section Legislative Roundup—Part 2


19 Ethics and Joint Representations 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

23 25th Annual Real Property Institute (2014)


23 Internet Investigative/Legal Research on a Budget and Legal Tech Tips (2014)


23 Supreme Court Case Update and New Rules Process


23 2015 Ethicspalooza: Civility and Professionalism


23-24 Estate Planning for the Elderly, Parts 1–2



http://www.nmcdla.org





















Legal Education www.nmbar.org

24–25 Attacking the Expert’s Opinion at Deposition and Trial

6.0 G Webinar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

29 Trustees: Counseling Clients About Individual and Institutional Alternatives


June

July

1 Outsourcing Agreements 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

2 Planning with Life Insurance Trusts 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

7 Business Planning with Series LLCs 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

14 The Brain-Smart Negotiator: Skills and Practices for the Effective Litigator (2015)


14 Employment and Labor Law Institute (2014)


14 New Mexico Constitution—Current Issues (2014)


14 Ethics and Professionalism: Advice from the Bench and Bar (2014)


14-15 Tax Planning for Real Estate, Parts 1–2


21 Restrictive & Protective Covenants in Real Estate


22 Fiduciary Duties & Liability of Nonprofit/Exempt Organization Directors & Officers


28 The 30th Annual Bankruptcy Year in Review Seminar (2015)


28 2014 Probate Institute 6.0 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

28 Civil Procedure Update and Recent Developments in the U.S. Supreme Court (2014)


28 Law Practice Succession: A Little Thought Now, a Lot Less Panic Later


28-29 Business Planning with S Corps, Parts 1–2





















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

Writs of CertiorariAs Updated by the Clerk of the New Mexico Supreme Court

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 35,310 State v. Jake COA 33,501 05/22/15No. 35,308 Montano v. Howes COA 34,225 05/21/15No. 35,307 State v. Maez COA 34,291 05/21/15No. 35,306 State v. Pedro M. COA 34,452 05/20/15No. 35,305 State v. Raymond M. COA 34,314 05/20/15No. 35,304 State v. Mata COA 34,153 05/20/15No. 35,303 State v. Enriquez COA 34,145 05/20/15No. 35,300 Marquez v. Herrera COA 34,142 05/19/15No. 35,299 State v. Salazar COA 34,205 05/19/15No. 35,298 State v. Holt COA 33,090 05/19/15No. 35,249 Kipnis v. Jusbasche COA 33,821 05/19/15No. 35,301 State v. Ortiz COA 33,742 05/18/15No. 35,214 Montano v. Frezza COA 32,403 05/18/15No. 35,296 State v. Tsosie COA 34,351 05/15/15No. 35,295 State v. Renteria COA 34,093 05/14/15No. 35,294 Khalsa v. Puri COA 33,622 05/13/15No. 35,290 NM Environment Dept. v. Gila

Resource COA 33,238/33,237/33,245 05/08/15No. 35,285 State v. Henderson COA 34,377 05/08/15No. 35,282 State v. Leyba COA 34,177 05/08/15No. 35,279 NM Environment Dept. v. Gila

Resource COA 33,238/33,237/33,245 05/08/15No. 35,289 NMAG v. NM Water Quality Control

Comm. COA 33,238/33,237/33,245 05/07/15No. 35,286 Flores v. Herrera COA 32,693/33,413 05/07/15 Response filed 5/21/15No. 35,284 State v. Puente COA 33,806 05/07/15No. 35,283 State v. Sanchez COA 32,664 05/07/15No. 35,278 Smith v. Frawner 12-501 05/07/15No. 35,281 State v. Pacheco COA 34,178 05/06/15No. 35,275 Firstenberg v. Monribot COA 32,549 05/06/15No. 35,271 Cunningham v. State 12-501 05/06/15No. 35,143 Simms v. State 12-501 05/06/15No. 35,276 State v. Doliber COA 34,202 05/05/15No. 35,274 State v. Miller COA 33,838 05/05/15No. 35,273 State v. Gallion COA 34,018 05/04/15No. 35,272 State v. Dinapoli COA 33,004 05/04/15No. 35,270 State v. Bersane COA 34,094 05/04/15No. 35,268 Chip v. Chip COA 33,958 05/01/15No. 35,269 Peterson v. Ortiz 12-501 04/29/15No. 35,266 Guy v. NM Dept. of Corrections 12-501 04/30/15No. 35,265 Burke v.

Jones COA 33,824/33,825/33,826 04/29/15No. 35,258 State v. Thompson COA 34,137 04/28/15No. 35,261 Trujillo v. Hickson 12-501 04/23/15No. 35,239 State v. Woodard COA 34,009 04/23/15No. 35,238 State v. Davidson COA 32,795 04/23/15No. 35,237 State v. Martinez COA 33,994 04/23/15No. 35,236 State v. Rodriguez COA 34,125 04/23/15No. 35,177 State v. Campbell COA 33,695 04/23/15No. 35,176 State v. Reyes COA 33,059 04/23/15

No. 35,175 State v. Putnam COA 34,213 04/23/15No. 35,174 State v. Davenport COA 33,546 04/23/15No. 35,173 State v. Garza COA 34,072 04/23/15No. 35,166 State v. Tohsonie COA 33,157 04/23/15No. 35,248 Duran v. Frawner 12-501 04/22/15No. 35,248 AFSCME Council 18 v. Bernalillo

County. Comm. COA 33,706 04/22/15No. 35,247 State v. Young COA 33,751 04/22/15No. 35,246 State v. Aldaco COA 33,799 04/22/15No. 35,235 State v. Campbell COA 33,693 04/22/15No. 35,234 State v. Blackwater COA 33,710 04/22/15No. 35,233 State v. Aldaco COA 33,811 04/22/15No. 35,232 State v. Shorty COA 34,049 04/22/15No. 35,172 State v. Lydia A. COA 32,877/32,884 04/22/15No. 35,171 State v. Cuffee COA 32,797 04/22/15No. 35,170 State v. Jimenez COA 33,158 04/22/15No. 35,165 State v. Hobbs COA 33,389 04/22/15No. 35,262 Sena v. Board of Finance 12-501 04/20/15No. 35,244 State v. Chico COA 33,490 04/20/15No. 35,297 Montano v. Frezza COA 32,403 04/18/15No. 35,241 Rodriguez v.

Williams COA 33,138/33,668 04/17/15 Response ordered; due 6/9/15No. 35,230 Turner v. First NM Bank COA 33,303 04/16/15 Response filed 5/4/15No. 35,169 State v. Bouldin COA 34,214 04/16/15No. 35,167 State v. Campbell COA 33,128 04/16/15No. 35,227 Romero v. Frawner 12-501 04/15/15No. 35,168 State v. Garcia COA 32,161 04/13/15No. 35,225 Baca v. State 12-501 04/09/15 Response ordered; due 5/26/15No. 35,213 Hilgendorf v. Chen COA 33056 04/06/15 Response ordered; due 5/26/15No. 35,212 Guerin v. State 12-501 04/06/15No. 35,217 Hernandez v. Horton 12-501 04/03/15No. 35,205 Sotelo v. State 12-501 04/01/15No. 35,159 Jacobs v. Nance 12-501 03/12/15No. 35,106 Salomon v. Franco 12-501 02/04/15No. 35,097 Marrah v. Swisstack 12-501 01/26/15No. 35,084 Branch v. State 12-501 01/16/15 Response ordered; filed 5/21/15No. 35,040 Montoya v. Wrigley 12-501 12/15/14No. 35,099 Keller v. Horton 12-501 12/11/14No. 35,068 Jessen v. Franco 12-501 11/25/14No. 34,937 Pittman v. NM Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,881 Paz v. Horton 12-501 10/08/14No. 34,913 Finnell v. Horton 12-501 09/22/14 Response ordered; filed 4/2/15No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,885 Savage v. State 12-501 09/08/14No. 34,878 O’Neill v. Bravo 12-501 08/26/14No. 34,680 Wing v. Janecka 12-501 07/14/14

Effective May 22, 2015


Writs of CertiorariNo. 34,777 State v. Dorais COA 32,235 07/02/14 Response filed 7/31/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14 Response ordered; due 8/22/14No. 34,793 Isbert v. Nance 12-501 06/23/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,739 Holguin v. Franco 12-501 05/21/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,563 Benavidez v. State 12-501 02/25/14 Response ordered; filed 5/28/14No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,443 Aragon v. State 12-501 02/14/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,694 State v. Salazar COA 33,232 06/06/14No. 34,669 Hart v. Otero County Prison 12-501 06/06/14No. 34,650 Scott v. Morales COA 32,475 06/06/14No. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,726 Deutsche Bank v.

Johnston COA 31,503 08/29/14No. 34,668 State v. Vigil COA 32,166 09/26/14No. 34,855 Rayos v. State COA 32,911 10/10/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,886 State v. Sabeerin COA 31,412/31,895 10/24/14No. 34,866 State v. Yazzie COA 32,476 10/24/14No. 34,854 State v. Alex S. COA 32,836 10/24/14No. 34,830 State v. Mier COA 33,493 10/24/14No. 34,826 State v. Trammel COA 31,097 10/24/14No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 12/19/14No. 34,993 T.H. McElvain Oil & Gas v.

Benson COA 32,666 12/19/14No. 34,978 Atherton v. Gopin COA 32,028 12/19/14No. 34,946 State v. Kuykendall COA 32,612 12/19/14No. 34,945 State v. Kuykendall COA 32,612 12/19/14No. 34,940 State v. Flores COA 32,709 12/19/14No. 34,929 Freeman v. Love COA 32,542 12/19/14No. 35,063 State v. Carroll COA 32,909 01/26/15No. 35,035 State v. Stephenson COA 31,273 01/26/15

No. 35,016 State v. Baca COA 33,626 01/26/15No. 34,974 Moses v. Skandera COA 33,002 01/26/15No. 35,069 Arencon v.

City of Albuquerque COA 33,196 02/27/15No. 35,049 State v. Surratt COA 32,881 02/27/15No. 35,130 Progressive Ins. v. Vigil COA 32,171 03/23/15No. 35,101 Dalton v. Santander COA 33,136 03/23/15No. 35,148 El Castillo Retirement Residences v.

Martinez COA 31,701 04/03/15No. 35,198 Noice v. BNSF COA 31,935 05/11/15No. 35,183 State v. Tapia COA 32,934 05/11/15No. 35,145 State v. Benally COA 31,972 05/11/15No. 35,121 State v. Chakerian COA 32,872 05/11/15No. 35,116 State v. Martinez COA 32,516 05/11/15No. 34,949 State v. Chacon COA 33,748 05/11/15

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 09/11/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,122 State v. Steven B. consol. w/

State v. Begaye COA 31,265/32,136 08/11/14No. 34,546 NM Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,501 Snow v. Warren Power COA 32,335 10/01/14No. 34,554 Miller v. Bank of America COA 31,463 11/10/14No. 34,516 State v. Sanchez COA 32,994 12/17/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,548 State v. Davis COA 28,219 01/14/15No. 34,526 State v. Paananen COA 31,982 01/14/15No. 34,549 State v. Nichols COA 30,783 02/25/15No. 34,798 State v. Maestas COA 31,666 03/25/15No. 34,637 State v. Serros COA 31,975 04/13/15No. 34,630 State v. Ochoa COA 31,243 04/13/15No. 34,789 Tran v. Bennett COA 32,677 04/13/15No. 34,995 State v. Deangelo M. COA 31,413 05/11/15No. 34,400 State v. Armijo COA 32,139 05/13/15No. 34,843 State v. Lovato COA 32,361 05/18/15

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,254 State v. Koreh COA 34,263 05/19/15No. 35,252 State v. Vallejos COA 33,928 05/19/15No. 35,251 State v. Padilla COA 34,069 05/19/15No. 35,250 State v. Ornelas COA 33,919 05/19/15No. 35,195 Citizen Action v.

NM Environment Dept. COA 33,517 05/19/15


OpinionsAs Updated by the Clerk of the New Mexico Court of Appeals

Mark Reynolds, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925

Effective May 22, 2015

Slip Opinions for Published Opinions may be read on the Court’s website:http://coa.nmcourts.gov/documents/index.htm

Published OpinionsNo. 32928 3rd Jud Dist Dona Ana CR-07-1711, STATE v R. FLORES (reverse and remand) 5/20/2015

Unublished OpinionsNo. 34016 6th Jud Dist Luna CR-12-189, STATE v C JIMENEZ (affirm) 5/18/2015No. 34088 2nd Jud Dist Bernalillo CR-12-2528, STATE v R COLEMAN (affirm) 5/18/2015No. 34268 11th Jud Dist San Juan LR-13-37, STATE v B MARTINEZ (affirm) 5/18/2015No. 34280 3rd Jud Dist Dona Ana CV-13-1223, CASA BANDERA v CASA BANDERA L (affirm) 5/18/2015 No. 34291 3rd Jud Dist Dona Ana CR-13-1215, STATE v D MAEZ (affirm) 5/18/2015No. 34326 2nd Jud Dist Bernalillo LR-13-79, STATE v J MILLER (affirm) 5/18/2015No. 32773 1st Jud Dist Rio Arriba CR-11-50, STATE v G LOPEZ (affirm) 5/19/2015No. 33119 2nd Jud Dist Bernalillo CR-12-2693, STATE v M MARTINEZ-THORMAN (reverse) 5/19/2015No. 34168 5th Jud Dist Lea CR-13-600, STATE v C RUIZ (reverse and remand) 5/19/2015No. 34172 1st Jud Dist Santa Fe CV-10-4375, PNC MORTGAGE v H KHALSA (dismiss) 5/19/2015No. 34228 5th Jud Dist Lea CR-13-600, STATE v C RUIZ (reverse and remand) 5/19/2015No. 34407 2nd Jud Dist Bernalillo CR-11-4660, STATE v N GARCIA (affirm) 5/19/2015No. 34173 2nd Jud Dist Bernalillo LR-13-69, STATE v D BROWN (affirm) 5/20/2015No. 34241 2nd Jud Dist Bernalillo CV-12-9749, BYZ ENTERPRISES v D ERVEN (affirm) 5/20/2015No. 34248 8th Jud Dist Taos PQ-14-2, L HONE v STATE (affirm) 5/20/2015No. 34323 2nd Jud Dist Bernalillo LR-13-86, STATE v K LOPEZ (affirm) 5/20/2015No. 34399 5th Jud Dist Eddy JQ-13-34, CYFD v JOSH C (affirm) 5/20/2015No. 33853 2nd Jud Dist Bernalillo JQ-12-98, CYFD v KIMBERLY M (affirm) 5/21/2015No. 33854 2nd Jud Dist Bernalillo JQ-12-98, CYFD v DAVID M (affirm) 5/21/2015

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Clerk’s CertificatesFrom the Clerk of the New Mexico Supreme CourtJoey D. Moya, Chief Clerk New Mexico Supreme Court

PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860


In Memoriam

As of April 28, 2015:John W. CassellPO Box 7Pago Pago, AS 96799

As of April 29, 2015:Melvin L. RobinsPO Drawer 2225Albuquerque, NM 87103

As of April 29, 2015:LeRoy Raymond Warren250 E. Alameda Street, Apt. 428Santa Fe, NM 87501

Clerk’s Certificate of Reinstatement to

Active Status

As of May 18, 2015:Angela Therese Delorme-Gaines14143 Albatross DriveColorado Springs, CO [email protected]

As of May 18, 2015:Reynold E. Romero207 Shelby StreetSanta Fe, NM 87501and6312 Calle ZanateSanta Fe, NM 87507

Clerk’s Certificate of Withdrawal

Effective May 15, 2015:James F. Law6104 Parktree Place NEAlbuquerque, NM 87111and2501 Yale Blvd. SEAlbuquerque, NM 87106

Effective April 20, 2015:Robert J. McDowellPO Box 865Asheville, NC 28802

Clerk’s Certificate of Name Change

As of May 13, 2015:Khouloud E. Pearson f/k/a Khouloud Elmasri:Office of the Twelfth Judicial District Attorney1000 New York Avenue, Room 101Alamogordo, NM 88310575-443-2630 / 575-648-2611 (fax)[email protected]

Clerk’s Certificate of Change to Inactive

Status

Effective May 11, 2015:Thomas L. Popejoy Jr.60 Juniper Hill Loop NEAlbuquerque, NM [email protected]





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

Recent Rule-Making ActivityAs Updated by the Clerk of the New Mexico Supreme Court

Effective June 3, 2015

Pending Proposed Rule Changes Open for Comment:

Comment Deadline

Recently Approved Rule Changes Since Release of 2015 NMRA:

Comment Deadline

For 2014 year-end rule amendments that became effective Decem-ber 31, 2014, and which now appear in the 2015 NMRA, please see the November 5, 2014, issue of the Bar Bulletin or visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx.

Rule No. Set/Title Effective Date

Uniform Jury Instructions-Criminal

14 602 Withdrawn 04/03/1514 603 Withdrawn 04/03/1514 604 Withdrawn 04/03/1514 605 Withdrawn 04/03/1514 610 Withdrawn 04/03/1514 611 Chart 04/03/1514 612 Child abuse not resulting in death or great

bodily harm; essential elements 04/03/1514 615 Child abuse resulting in great bodily harm;

essential elements 04/03/1514 621 Child abuse resulting in death; child at least

12 but less than 18; essential elements 04/03/1514 622 Child abuse resulting in death; reckless

disregard; child under 12; essential elements 04/03/1514 623 Child abuse resulting in death; intentional

act; child under 12; essential elements 04/03/1514 625 Jury procedure for various degrees of

child abuse resulting in death of a child under twelve years of age 04/03/15

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.

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Advance Opinions http://www.nmcompcomm.us/

From the New Mexico Supreme Court and Court of Appeals

Certiorari Granted, March 23, 2015, No. 35,130


Opinion Number: 2015-NMCA-031

PROGRESSIVE CASUALTY INSURANCE COMPANY,Plaintiff-Appellant,

v.NANCY COLLEEN VIGIL and MARTIN VIGIL,

Defendants-AppelleesDocket No. 32,171 (filed January 21, 2015)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYALAN M. MALOTT, District Judge

DANIEL J. O’BRIENO’BRIEN & PADILLA, P.C.

Albuquerque, New Mexico

LISA PERROCHETANDREA M. GAUTHIERHORVITZ & LEVY LLP

Encino, Californiafor Appellant

JANET SANTILLANESOLIVIA NEIDHARDT

JAMES T. ROACHSANTILLANES & NEIDHARDT, P.C.

Albuquerque, New MexicoFor Appellees

Opinion

Timothy L. Garcia, Judge{1} Plaintiff, Progressive Casualty Insur-ance Company (Progressive), appeals from the judgment entered in favor of Defendants, Nancy Colleen Vigil (Colleen) and her son, Martin Vigil (Martin), (col-lectively, the Vigils) following a jury trial. Progressive filed this declaratory judg-ment action against the Vigils, asking the district court to determine that the Vigils had no coverage on the day that Martin was involved in an accident, and the Vig-ils counterclaimed for bad faith. The jury found that the Vigils had coverage on the day of the accident and that Progressive acted in bad faith in not providing cover-age. The jury awarded the Vigils $37,000 in compensatory damages and $11.7 million in punitive damages for their bad faith claim. The district court then awarded the Vigils about $1.4 million in attorney fees and $35,000 in costs under NMSA 1978, Section 39-2-1 (1977).{2} Because we conclude that the district court erred when it excluded certain evidence from being admitted at trial, we

reverse the judgment as to the bad faith claim. We vacate the $37,000 compensa-tory damages award, the $11.7 million punitive damages award, the $1.4 million attorney fees award, the $35,000 costs award, and we remand to the district court for a new trial on the issue of bad faith. We affirm the verdict in favor of the Vigils regarding insurance coverage under the policy.BACKGROUND{3} In the fall of 2002, Colleen and Martin were insured under a Progressive automo-bile insurance policy. In late September 2002, Colleen called Progressive to add a car to the policy. Believing the policy premium was due on October 3, 2002, Colleen called Progressive to pay the pre-mium over the telephone. During this call, Progressive told Colleen that the premium was not due until October 15, 2002. She paid the premium on October 3 anyway. She received a notice in the mail from Progressive showing that the payment she made on October 3 was due on October 15. She later received another notice from Progressive stating that her policy would renew on November 3. Colleen testified that she called Progressive because “[t]he

date was confusing” and the automated system told her that her next premium was due on November 15. She did not pay the premium by November 3.{4} On November 4, Martin got into a car accident in which one passenger was killed and another seriously injured. Col-leen testified that on November 4, after the accident, she called Progressive’s billing department to check on her coverage and Progressive told her that she was covered through November 15. She paid the policy premium over the telephone during that call and then she reported Martin’s acci-dent to Progressive’s claims department. About two weeks later, Progressive deter-mined that the Vigils did not have coverage on the date of the accident because the policy had lapsed on November 3. The Vigils disagreed and much of the litiga-tion between the parties has involved this dispute.{5} In December 2002, Progressive filed this action in the district court seeking a declaration that the Vigils did not have insurance coverage on the date of the accident. The Vigils filed a counterclaim against Progressive alleging bad faith, among other claims. While the action was pending, Progressive settled the personal injury and wrongful death claims that the injured passenger and the deceased pas-senger’s family brought against the Vigils, paying $100,000 to each of them, subject to a reservation of rights. Progressive then amended its complaint to seek reimburse-ment from the Vigils for this $200,000 in the event that the factfinder determined that the Vigils did not have insurance coverage on the date of the accident.{6} After about two years of discovery between the parties and cross motions for summary judgment, the district court granted partial summary judgment in favor of Progressive on the coverage is-sue. It concluded as a matter of law that the Vigils did not have coverage on the date of the accident. After three more years of discovery and numerous mo-tions and other filings by both the Vigils and Progressive, a jury trial was held on Progressive’s $200,000 reimbursement claim. The jury found that Progressive was entitled to reimbursement from the Vigils, and the district court entered final judg-ment in favor of Progressive. The Vigils appealed. In 2009 we reversed the district court’s grant of partial summary judgment because the issue of whether the Vigils

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance Opinionshad coverage involved disputed material facts. Progressive Cas. Ins. Co. v. Vigil, Nos. 28,023, 28,393, memo. op. at 5 (N.M. Ct. App. Aug. 18, 2009) (non-precedential). In Progressive, we declined to consider the Vigils’ argument regarding Progressive’s reimbursement claim because we noted the claim would be moot if the jury found that the Vigils had coverage. Id. at 6. We remanded the case to the district court for further proceedings and a new trial on the coverage and reimbursement claims. Id. at 13.{7} While the appeal was pending, the case was reassigned to a different district court judge. After we remanded the case, the Vigils moved for summary judgment on the reimbursement issue. The district court granted summary judgment, concluding as a matter of law that Progressive did not have a right to seek reimbursement for the payments it made to settle the third-party claims, even if the Vigils did not have insurance coverage on the date of the ac-cident.{8} Prior to re-trial, the Vigils moved to exclude from evidence the fact that the district court had previously concluded there was no coverage. At the hearing on this motion, the district court stated that any evidence of the previous judge’s rul-ing would be excluded because it was not relevant. The court then entered an order that prohibited Progressive “from intro-ducing evidence, or making any reference before the jury in testimony, exhibits, voir dire[,] or argument, about what any prior [j]udge said, decided[,] or ruled about the facts, evidence or issues here or that a prior [j]udge ruled in a certain way in this case.”{9} Separate from its decision that the district court’s previous rulings would be inadmissible at trial, the district court held another pre-trial conference to ad-dress whether Progressive’s actions in settling the third party claims against the Vigils would be admitted into evidence. It ruled that, “as a limine matter, . . . issues concerning the payment . . . should not go to the jury.” Progressive’s counsel asked the district court whether it was “saying that the jury will not be allowed to know that Progressive . . . settled those claims for $100,000 each[.]” The district court replied, “I don’t think it’s relevant to the issues of whether there was coverage. No, I think that’s part of the reimbursement claim [that was disposed of on summary judgment]. No.” Progressive’s counsel ex-plained that given such a ruling, it could

be anticipated that the Vigils were “going to say [Progressive] should have paid these claims and [Progressive] acted in bad faith and [it] left [the Vigils] hanging out there like that.” The district court nonetheless entered an order prohibiting “all witnesses and attorneys . . . from mentioning . . . [that Progressive] . . . paid $200,000 to settle [the third-party] liability claims.”{10} The second jury trial was held in 2011. During her closing argument, the Vigils’ counsel emphasized, among other things, that “[t]his case ha[d] been going on for nine years” and that, during that time, Progressive “wouldn’t even pay for [Martin’s] truck, let alone all the other coverages they should have provided under this policy.” (Emphasis added.){11} The jury found that the Vigils had coverage on the date of the accident and Progressive acted in bad faith regarding the resulting coverage claims. In addi-tion to the award of about $40,000 in contract damages under the policy, the jury awarded the Vigils $37,000 in com-pensatory damages and $11.7 million in punitive damages for their bad faith claim. The district court later awarded the Vigils about $1.4 million in attorney fees and $35,000 in costs under Section 39-2-1.DISCUSSIONA. Evidence of the Previous Ruling{12} Progressive argues that the district court erred in prohibiting Progressive from admitting any evidence about the previous judge’s ruling that the Vigils were not covered under the policy on the date of the accident. Progressive argues that even though this ruling was reversed on appeal because it involved a disputed factual is-sue, the fact of the ruling “indicate[s] that Progressive did not act in bad faith, and certainly that it should not be liable for punitive damages.” We agree.{13} “We review the admission or exclu-sion of evidence for abuse of discretion.” Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, ¶ 39, 146 N.M. 698, 213 P.3d 1127. Generally, relevant evidence is admissible and irrelevant evidence is in-admissible. See Rule 11-402 NMRA. “Evi-dence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence, and . . . the fact is of consequence in determining the action.” Rule 11-401 NMRA; see Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 37, 127 N.M. 47, 976 P.2d 999. We will reverse a judgment based on the errone-ous exclusion of evidence only if “the complaining party on appeal . . . show[s]

the erroneous . . . exclusion of evidence was prejudicial.” Id. (alteration, internal quotations marks, and citation omitted).{14} In New Mexico, an insurer “acts in bad faith when it refuses to pay a claim of the policyholder for reasons which are frivolous or unfounded.” UJI 13-1702 NMRA; see Am. Nat’l Prop. & Cas. Co. v. Cleveland, 2013-NMCA-013, ¶ 11, 293 P.3d 954. An insurer “does not act in bad faith by denying a claim for reasons which are reasonable under the terms of the policy.” UJI 13-1702; see also Cleveland, 2013-NMCA-013, ¶ 13 ( “[A]n insurer has a right to refuse a claim without exposure to a bad faith claim if it has reasonable grounds to deny coverage.”). “Where pay-ment of policy proceeds depends on an is-sue of law or fact that is ‘fairly debatable[,]’ the insurer is entitled to debate that issue.” UJI 13-1702 comm. cmt. (citing United Nuclear Corp. v. Allendale Mut. Ins. Co., 1985-NMSC-090, ¶ 54, 103 N.M. 480, 709 P.2d 649 (Bivins, J., specially concurring)).{15} We conclude that, in this case, exclusion of the evidence of the previous judge’s ruling that there was no coverage was an abuse of discretion, see Kilgore, 2009-NMCA-078, ¶ 39, because that evi-dence was relevant to the factual issue of whether it was reasonable for Progressive to question the Vigils’ insurance coverage. We reach this conclusion for five reasons.{16} First, whether Progressive acted rea-sonably in disputing the issue of coverage is a “fact . . . of consequence in determining the action” of bad faith. Rule 11-401(B); UJI 13-1702.{17} Second, the fact that the previous judge, as a matter of law, concluded that there was no coverage, albeit mistakenly, “tend[s] to make [the] fact [that Progres-sive acted reasonably] more . . . probable than it would be without the evidence[.]” See Rule 11-401(A). It makes this fact more probable because it supports the notion that the issue of coverage was “fairly debat-able.” See UJI 13-1702 comm. cmt. If the fact of coverage is fairly debatable, then there can be no bad faith because insurers are “entitled to debate” such facts. Id.{18} Third, cases from other jurisdictions demonstrate that a district court’s previ-ous rulings on coverage, even where they were later reversed, are not only relevant to the issue of whether an insurer acted reasonably in disputing coverage, but in some cases are dispositive of that issue. See, e.g., Lennar Corp. v. Transamerica Ins. Co., 256 P.3d 635, 641 (Ariz. Ct. App. 2011) (concluding that a trial court “may decide



http://www.nmcompcomm.us/Advance Opinionsto admit relevant extrinsic evidence such as [separate] judicial decisions interpret-ing the policy language” and recognizing that such evidence “may bear on whether these insurers acted reasonably in disput-ing coverage[]”); see also Karen Kane Inc. v. Reliance Ins. Co., 202 F.3d 1180, 1190 (9th Cir. 2000) (recognizing that the insurer’s interpretation of coverage was “a reasonable one [for good faith and fair dealing pur-poses], noting that the district court [had previously] found in [the insurer’s] favor” despite partially reversing the summary judgment interpretation of the policy on appeal and remanding back to the district court for further proceedings); Morris v. Paul Revere Life Ins. Co., 135 Cal.Rptr.2d 718, 726 (Cal. Ct. App. 2003) (rejecting the insured’s argument that “any court opinion issued after the insurance company made its initial decision to deny coverage could not be considered in determining whether the decision was reasonable” because “the fact that a [different] court had interpreted the law in the same manner as did the insurer, whether before or after, is certainly proba-tive of the reasonableness, if not necessarily the ultimate correctness, of its position” (emphasis added)); but see EOTT Energy Operating Ltd. P’Ship v. Certain Under-writers at Lloyd’s of London, 59 F. Supp. 2d 1072, 1078-80 (D. Mont. 1999) (granting the plaintiff ’s motion in limine to preclude the insurer from presenting the court’s previous decision on coverage, which was later reversed, as evidence of the insurer’s reasonableness because “it is clear that, in Montana, the issue whether an insurer had a reasonable basis for denying a claim may not be decided as a matter of law, no matter that the trial court found there was no coverage[,]” and because the language of Montana’s unfair trade practices statute required a showing that the insurer had a reasonable basis to deny the claim at the time it denied the claim — not after).1

{19} Fourth, exclusion of this evidence prejudiced Progressive because it con-cealed an important part of the picture from the jury’s view—that Progressive’s de-cision to persist with its coverage position may have been reasonably influenced by the fact that a neutral decision maker had validated this position. See 14 Lee R. Russ & Thomas F. Segalla, Couch on Insurance,

§ 204:124 (3d ed. 2005) (“The reasonable person test requires a consideration of all the circumstances of the case which have any significance or probative value in de-termining whether the insurer has acted properly or not. All of the circumstances of the case when considered in aggregate [can] make it clear that the insurer has not been guilty of any vexatious refusal to pay.” (footnotes omitted)).{20} Fifth, the Vigils do not argue on appeal that any exceptions to the general rule—relevant evidence is admissible—should apply in this case. See Rule 11-402 (providing that relevant evidence is ad-missible unless “the United States or New Mexico constitution, a statute, these rules, or other rules prescribed by the Court” provide otherwise). Because the district court’s ruling is relevant to the Vigils’ bad faith claim against Progressive, we do not address any exceptions to the admissibil-ity of the relevant coverage evidence. See State v. Bent, 2013-NMCA-108, ¶ 27, 328 P.3d 677 (noting that the appellate courts generally do not address issues that have not been raised on appeal), cert. denied, 2013-NMCERT-012, 321 P.3d 126.{21} By concluding that evidence of the previous ruling was relevant and admis-sible to support Progressive’s position that it did not act in bad faith, we are not further concluding that the previous ruling in Progressive’s favor means Progressive’s conduct was reasonable as a matter of law. As with all other evidence admitted at trial, it is within the jury’s purview to determine how much weight to assign that fact. See State v. Hudson, 1967-NMSC-164, ¶ 7, 78 N.M. 228, 430 P.2d 386 (“[T]he jury [members] are the judges of the weight and credibility of evidence.”). The Vigils are free to argue that the ruling was reversed and is not dispositive of the question. See Martinez v. N.M. Dep’t of Transp., 2011-NMCA-082, ¶ 29, 150 N.M. 204, 258 P.3d 483 (noting that parties are “free to argue the weight of the evidence”), rev’d on other grounds, 2013-NMSC-005, 296 P.3d 468. We emphasize that our decision regarding the admissibility of the previous ruling is only relevant to the issue of Progressive’s reasonableness under the bad faith claim and has no application to the jury’s prior determination of coverage.

B. Evidence That Progressive Paid Third-Party Claims

{22} Progressive argues that the district court erred when it concluded on sum-mary judgment that Progressive was not entitled to be reimbursed for payments it made to the injured third parties in the event the jury found that there was no coverage. They raise this error because they argue that it led the district court to erroneously prohibit Progressive from introducing evidence or otherwise tell-ing the jury that Progressive made two $100,000 payments on behalf of the Vigils to the injured passenger and the deceased passenger’s family under a reservation of rights.{23} Before we address the evidentiary issue, we conclude that it is unnecessary to decide the issue of whether Progressive was entitled to reimbursement in the event there was no insurance coverage. The jury found that there was coverage and Progres-sive does not challenge this jury verdict regarding insurance coverage. Therefore, we affirm the verdict on the issue of in-surance coverage. As a result, the issue of whether Progressive would be entitled to reimbursement under any reservation of rights is also moot. Progressive does not argue that any exceptions should be applied regarding our inability to address issues that are moot. See Bernalillo Cnty. Health Care Corp. v. N.M. Pub. Regulation Comm’n, 2014-NMSC-008, ¶ 13, 319 P.3d 1284 (noting that an appellate court “does not address moot issues that will have no practical impact on the parties before [it unless the] issues [are] of substantial pub-lic interest or . . . are capable of repetition, yet evading review”).{24} The evidentiary relevancy of Pro-gressive’s $200,000 in settlement pay-ments to cover third-party claims against the Vigils is a different matter. We agree with Progressive’s argument that the dis-trict court abused its discretion when it excluded evidence that Progressive had settled these claims brought against the Vigils. We conclude that such evidence was relevant to the Vigils’ bad faith claim.{25} The fact that Progressive paid a total of $200,000 to the injured passenger and the deceased passenger’s family under a reservation of rights is relevant because it

1 We conclude that the reasoning used in EOTT Energy Operating Ltd. P’Ship should not be controlling in this case for two rea-sons. First, the issue of whether an insurer acted reasonably in denying coverage may not be decided as a matter of law in Montana. Second, the Vigils have not pointed to any language in New Mexico statutes or case law that requires the factfinder to exclusively consider the reasonableness of the insurer’s behavior at the time it first decided to file suit challenging coverage and to ignore all of the subsequent circumstances that may have influenced its decision to continue pursuing any challenge to coverage.



http://www.nmcompcomm.us/Advance Opinionstends to make it less probable that Progres-sive acted in bad faith over the course of the coverage dispute. See Rule 11-401(A). In making these payments, Progressive both compensated the third-party claimants and prevented the Vigils from having to defend themselves against personal injury and wrongful death claims at the same time that they were litigating the coverage issue with Progressive. The exclusion of this evidence deprived the jury of the whole picture in determining whether Progressive acted in bad faith. See Russ & Segalla, Couch on In-surance, supra, § 204:124. Progressive also apprised the district court of the material nature of this defense evidence and the po-tential abuse that the Vigils would make of its absence. This warning came to fruition when the Vigils took advantage of this ex-clusionary ruling during closing arguments and gave the jury the false impression that Progressive had failed to pay anyone dur-ing the long nine-year time period that it had taken to litigate the insurance coverage issue. We conclude that it was unfair and an abuse of discretion to exclude evidence that was relevant to rebut the Vigils’ claim that Progressive acted unreasonably over the long course of the coverage dispute, especially where this exclusion presented the jury with an incomplete and one-sided picture of Progressive’s actions. Cf. State v. Alberico, 1993-NMSC-047, ¶ 37,

116 N.M. 156, 861 P.2d 192 (recognizing that it is error to exclude expert testimony where “excluding that evidence vitiates the most basic function of a jury to arbitrate the weight and credibility of evidence”); see generally United States v. Orr, No. 92-50235, slip. op. at 2 (9th Cir. 1992) (non-precedential) (holding that the district court erred when it excluded evidence that was “highly relevant” to material issues in the case). On the basis of these erroneous evidentiary rulings, we reverse and remand to the district court for a new trial on the Vigils’ bad faith claim.{26} We also vacate the award of attorney fees and costs because that statute awards reasonable attorney fees only upon a find-ing that the insurer acted “unreasonably” in failing to pay the claim. § 39-2-1 (“In any action where an insured prevails against an insurer who has not paid a claim on any type of first-party cover-age, the insured person may be awarded reasonable attorney’s fees and costs of the action upon a finding by the court that the insurer acted unreasonably in failing to pay the claim.”). Because the reasonableness of Progressive’s actions in addressing the insurance coverage is-sue and pursuing a declaratory judgment decision remains to be resolved under the bad faith claim that is now remanded for a new trial, the award of attorney fees and

cost under Section 39-2-1 must also be redetermined after the bad faith proceed-ings are resolved.C. Other Issues{27} Because we reverse the judgment and awards concerning the bad faith claim and remand for another trial on that claim, we need not address the other issues that Progressive argues should result in reversal. See Yeager v. St. Vincent Hosp., 1999-NMCA-020, ¶ 6, 126 N.M. 598, 973 P.2d 850.CONCLUSION{28} We affirm the judgment in favor of the Vigils as to the issue of insurance coverage and the award of compensa-tory damages on that issue. We reverse the judgment on the bad faith claim and the compensatory and punitive damages awarded on that claim. We also vacate the award of attorney fees and costs under Section 39-2-1. We remand this case to the district court for a new trial on the bad faith claim and any award of attorney fees and costs under Section 39-2-1.{29} IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:RODERICK T. KENNEDY, Chief JudgeJ. MILES HANISEE, Judge



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STATE OF NEW MEXICO,Plaintiff-Appellant,

v.NODEE LUJAN,

Defendant-AppelleeDocket No. 33,349 (filed February 18, 2015)

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTYLOUIS E. DEPAULI JR., District Judge

HECTOR H. BALDERASAttorney General

Santa Fe, New MexicoRALPH E. TRUJILLO

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellant

JORGE A. ALVARADOChief Public Defender

KATHLEEN T. BALDRIDGEAssistant Appellate Defender

Santa Fe, New Mexicofor Appellee

Opinion

Timothy L. Garcia, Judge{1} Defendant Nodee Lujan was charged with two counts of criminal sexual con-tact of a minor in the fourth degree. See NMSA 1978, § 30-9-13(A),(D)(1) (2004). The State appeals the district court’s order that dismissed Defendant’s charges based upon a violation of Defendant’s right to a speedy trial under the United States and New Mexico Constitutions. We affirm.BACKGROUND{2} On March 16, 2012, the State arrested and filed a criminal complaint against De-fendant for two counts of criminal sexual contact of a minor in the fourth degree. Defendant was released on March 22, 2012, and his trial was set for October 16, 2012.{3} On August 16, 2012, Defendant noti-fied the State that he took and passed a polygraph test and that he intended to use the test results at trial. On September 24, 2012, the State filed a motion to compel Defendant to take another polygraph ex-amination, which the district court denied. On October 4, 2012, twelve days before the trial was to begin, the State notified Defendant’s counsel that the victim had also taken and passed a polygraph test. Defendant objected to the State’s motion to admit the results of the victim’s polygraph examination on the basis of late disclosure. See Rule 11-707(D) NMRA (“A party who

wishes to use polygraph evidence at trial must provide written notice no less than thirty (30) days before trial or within such other time as the district court may direct.”). The State moved to continue the trial. The district court denied the State’s continuance motion, and it scheduled a hearing to resolve the State’s motion to admit the victim’s polygraph results for the day of trial.{4} On October 15, 2012, the day before the trial was to begin, the State dismissed the charges against Defendant. It refiled identical charges eight days later. De-fendant pleaded not guilty to the refiled charges at his May 2013 arraignment. Trial on the refiled charges was set for October 15, 2013, one year after his first trial had been scheduled to begin.{5} On July 11, 2013, five months be-fore trial, Defendant moved to dismiss the charges against him on speedy trial grounds. After holding an evidentiary hearing on the motion on October 8, 2013, the district court granted the motion and dismissed the case.{6} On appeal, the State concedes that the delay presumptively prejudiced Defendant and that “the reasons for the delay should be attributed to the State.” However, it ar-gues that the district court should not have weighed the delay heavily against the State “because Defendant caused some of the delay and much of the delay was beyond the control of either party.” The State also contends that Defendant did not assert his

speedy trial right and that any prejudice he suffered was not “undue.”DISCUSSIONA. General Principles and Standard of

Review{7} The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI. The New Mexico Constitution affords a similar right: “In all criminal prosecutions, the accused shall have the right to . . . a speedy public trial.” N.M. Const. art. II, § 14. “Though speed is an important attribute of the right,” the right “does not preclude the rights of public justice”—“if either party is forced to trial without a fair opportunity for preparation, justice is sacrificed to speed.” State v. Garza, 2009-NMSC-038, ¶ 11, 146 N.M. 499, 212 P.3d 387 (altera-tion, internal quotations marks, and cita-tions omitted). We therefore analyze “the peculiar facts and circumstances of each case.” Id.{8} In determining whether a defendant’s speedy trial right was denied, our Supreme Court has adopted the balancing test that the United States Supreme Court created in Barker v. Wingo, 407 U.S. 514 (1972). Garza, 2009-NMSC-038, ¶¶ 9, 13. Under the Barker framework, we weigh “the conduct of both the prosecution and the defendant” under the guidance of four factors: (1) the length of the delay, (2) the reasons for the delay, (3) the timeliness and manner in which the defendant asserted his speedy trial right, and (4) the particu-lar prejudice that the defendant actually suffered. Garza, 2009-NMSC-038, ¶¶ 13, 32, 35. “Each of these factors is weighed either in favor of or against the State or the defendant, and then balanced to determine if a defendant’s right to a speedy trial was violated.” State v. Spearman, 2012-NMSC-023, ¶ 17, 283 P.3d 272. Because none of these factors is “talismanic[,]” we analyze speedy trial claims on a case-by-case basis. State v. Palacio, 2009-NMCA-074, ¶ 9, 146 N.M. 594, 212 P.3d 1148.{9} Before applying the balancing test, we first assess whether the length of the delay was “presumptively prejudicial,” depending on the complexity of the case. See Spearman, 2012-NMSC-023, ¶ 21; see also Garza, 2009-NMSC-038, ¶ 21 (“[A] ‘presumptively prejudicial’ length of delay is simply a triggering mechanism, requiring further inquiry into the Barker factors.”). “A delay of trial of one year is presumptively prejudicial in simple cases,



http://www.nmcompcomm.us/Advance Opinionsfifteen months in intermediate cases, and eighteen months in complex cases.” Spear-man, 2012-NMSC-023, ¶ 21. The State concedes that the length of the delay was presumptively prejudicial. We agree with the State’s concession. See State v. Urban, 2004-NMSC-007, ¶ 13, 135 N.M. 279, 87 P.3d 1061 (agreeing with the state’s con-cession that a sufficient lapse of time is presumptively prejudicial). We therefore proceed to inquire further into the Barker factors. See Garza, 2009-NMSC-038, ¶ 21.{10} Although we defer to the district court’s factual findings concerning each factor, we independently review the re-cord to determine whether a defendant was denied his speedy trial right, and we weigh and balance the Barker factors de novo. Spearman, 2012-NMSC-023, ¶ 19; Palacio, 2009-NMCA-074, ¶ 9; see also State v. Collier, 2013-NMSC-015, ¶ 41, 301 P.3d 370 (stating that the Barker factors are “factually based”).B. Discussion and Weighing of the

Factors1. Length of Delay{11} In determining what weight to give the length of any delay, we consider the extent to which the delay stretched beyond the presumptively prejudicial period. State v. Ochoa, 2014-NMCA-065, ¶ 6, 327 P.3d 1102, cert. granted, 2014-NMCERT-006, 328 P.3d 1188. “[T]he greater the delay[,] the more heavily it will potentially weigh against the [s]tate.” Garza, 2009-NMSC-038, ¶ 24. A delay that “scarcely crosses the bare minimum needed to trigger judicial examination of the claim” will “not weigh heavily in [a d]efendant’s favor.” Id. ¶¶ 23-24 (internal quotation marks and citation omitted); compare State v. Steinmetz, 2014-NMCA-070, ¶ 6, 327 P.3d 1145 (conclud-ing that a delay of twenty-eight months be-yond the presumptive threshold weighed “moderately” against the State in a case of intermediate complexity), cert. denied, 2014-NMCERT-006, 328 P.3d 1188, with Urban, 2004-NMSC-007, ¶ 20, (conclud-ing that an eighteen-month delay beyond the presumptive threshold weighed heavily against the State in a simple case); State v. Marquez, 2001-NMCA-062, ¶ 12, 130 N.M. 651, 29 P.3d 1052 (concluding that a nine-month delay beyond the presumptive threshold weighed heavily against the State in a simple case), and State v. Montoya, 2011-NMCA-074, ¶ 17, 150 N.M. 415, 259 P.3d 820 (concluding that a six-month delay beyond the presumptive threshold weighed slightly against the State in a case of intermediate complexity).

{12} The district court found that this was a simple case, because “[t]he only contested issue . . . is the credibility of the witnesses[,]” and “the issues regarding the competing polygraph test results [would] have been resolved pretrial[.]” The State disagrees. It argues that the case was “more complicated” because it “involved minor children” and the results of Defendant’s and the victim’s polygraph tests “were at odds with each other.” We defer to the dis-trict court’s finding that this was a simple case because it was in the best position to make that determination. See State v. Coffin, 1999-NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 477; State v. Johnson, 2007-NMCA-107, ¶ 7, 142 N.M. 377, 165 P.3d 1153.{13} The State and Defendant disagree on how we should calculate the length of time that Defendant’s trial was delayed. Both agree that Defendant’s speedy trial right accrued on March 16, 2012—the day that the State filed its first criminal complaint and arrested him. However, the State argues that the delay should be calculated at sixteen months because we should stop counting the delay on the date that Defendant filed his motion to dismiss. Defendant argues that the delay was nineteen months because we should stop counting the delay on the date that the charges were dismissed. We generally agree with Defendant. Under these cir-cumstances, where Defendant’s trial was set for October 15, 2013, the district court heard Defendant’s motion to dismiss on October 8, 2013, and the order dismissing the charges was entered on October 30, 2013, we conclude that the calculation of the delay extends to either the date that the charges were dismissed or the date the trial was scheduled to begin. See Marquez, 2001-NMCA-062, ¶ 11 (concluding that the length of delay includes the entire time during which criminal charges were pending against the defendant); see also Doggett v. United States, 505 U.S. 647, 651-52 (1992) (“[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay[.]” (Emphasis added)). We therefore conclude that the length of the delay was at least nineteen months—March 16, 2012 (the date of arrest and filing of charges) to October 15, 2013 (the trial setting).{14} A nineteen-month delay extends seven months beyond the twelve-month presumptive threshold for simple cases.

See Spearman, 2012-NMSC-023, ¶ 21. This delay weighs in Defendant’s favor at least slightly. See Id. ¶ 24 (noting that even though a one-to-four-month delay beyond the presumptive minimum does weigh against the state, it will not weigh heavily against the state); State v. Moreno, 2010-NMCA-044, ¶ 38, 148 N.M. 253, 233 P.3d 782 (concluding that, in a complex case, a seven-month delay beyond the presump-tive threshold “weigh[ed] against the state and in [the d]efendant’s favor[,]” but the Court did not say how heavily); Marquez, 2001-NMCA-062, ¶¶ 10, 12 (conclud-ing that, in a simple case, a nine-month delay beyond the presumptive threshold weighed heavily against the state, and that even if the delay was seven months beyond the presumptive period as the state argued, the delay was “significantly well beyond” the threshold); Montoya, 2011-NMCA-074, ¶¶ 16-17 (concluding that, in a case of intermediate complexity, a six-month delay beyond the presumptive threshold weighed slightly against the state).2. Reasons for Delay{15} We assign different weight to dif-ferent types of delay. See Spearman, 2012-NMSC-023, ¶ 25. There are three types: “(1) deliberate or intentional delay; (2) negligent or administrative delay; and (3) delay for which there is a valid reason.” Ochoa, 2014-NMCA-065, ¶ 8. “Deliberate delay is to be weighted heavily against the government.” Id. ¶ 9 (internal quotations marks and citation omitted). Negligent or administrative delay weighs against the State, though not heavily. Spearman, 2012-NMSC-023, ¶ 25. “[A] valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. (internal quotation marks and citations omitted).{16} The district court found that

[t]he State dismissed the case due to the rulings by the trial court to not continue the trial, to not compel . . . Defendant to take a second polygraph test[,] and the adverse position the State was in because of its late filed motions. These reasons are not valid rea-sons to dismiss a case. The State should have taken the case to trial in the posture it was in.

These circumstances may be viewed ad-versely against the State. See Garza, 2009-NMSC-038, ¶ 25 (stressing the point that “official bad faith in causing delay will be weighed heavily against the government” (internal quotation marks and citation omitted)). The district court also found



http://www.nmcompcomm.us/Advance Opinionsthat the other delays the State asserts were caused by Defendant and the district court were “foreseeable, if not inherent, and in any event could have been avoided had the case gone to trial as originally scheduled.” The court did not enter any findings about the State’s bare assertion that it needed more time for discovery in the first case due to Defendant’s submission of an un-timely witness list. We are unable to evalu-ate this claim because we do not have the record of the first case before us, and the State does not explain why it needed more time for discovery. See Romero v. U.S. Life Ins. Co. of Dallas, 1986-NMCA-044, ¶ 12, 104 N.M. 241, 719 P.2d 819 (stating that, without the record of facts from a related case, part of which apparently formed the basis for the district court’s decision, “no question is presented to this [C]ourt for review”); State v. Ortiz, 2009-NMCA-092, ¶ 32, 146 N.M. 873, 215 P.3d 811 (declin-ing to review an undeveloped argument on appeal). Thus, we defer to the district court’s factual determinations and find-ings, Spearman, 2012-NMSC-023, ¶¶ 19, 30, and conclude that the primary reason for the delay weighs heavily against the State because it was deliberate. See Ochoa, 2014-NMCA-065, ¶ 9.3. Assertion of the Right{17} A defendant’s failure to demand a speedy trial does not “forever waive[] his right[]” because this right is “fundamental in nature.” Garza, 2009-NMSC-038, ¶¶ 31-32 (internal quotation marks and cita-tion omitted). In determining the weight to assign to a defendant’s assertion of his speedy trial right, we “assess the timing of the defendant’s assertion and the manner in which the right was asserted.” Id. ¶ 32. We consider “whether a defendant was denied needed access to speedy trial over his objection or whether the issue was raised on appeal as [an] afterthought.” Id. The effect of a defendant’s assertion of his speedy trial right may be mitigated where his actions resulted in delay. Id.{18} The district court found that De-fendant had not formally asserted his speedy trial right until he filed his motion to dismiss in July 2013. It weighed this factor slightly against the State, because it found that Defendant had not acqui-esced to the delay. The State, citing a Fifth Circuit Court of Appeals case, argues that Defendant’s filing of a motion to dismiss should be weighed “strongly” against Defendant because it was “an assertion of the remedy” and not an assertion of the right. See United States v. Frye, 489 F.3d

201, 210-12 (5th Cir. 2007) (concluding that the assertion-of-the-right factor did not “weigh against the government” because the defendant’s motions for dismissal amounted to an assertion of the remedy rather than an assertion of his speedy trial right and because the motions did not manifest a “desire to be tried promptly”). New Mexico courts, however, have concluded that a motion to dismiss based on speedy trial grounds is an assertion of the right that is weighed against the government, although it is generally not weighed heavily. See, e.g., Work v. State, 1990-NMSC-085, ¶ 7, 111 N.M. 145, 803 P.2d 234 (agreeing with the Court of Appeals that the defendant timely asserted his right to a speedy trial and “weigh[ing] this factor in his favor” where the defendant filed a speedy trial motion seven months after the indictment and five weeks before trial was scheduled to begin); State v. Johnson, 1991-NMCA-134, ¶ 5, 113 N.M. 192, 824 P.2d 332 (con-cluding that the “[d]efendant asserted his right to a speedy trial by filing a motion to dismiss for delay” and that “[t]his factor . . . weighed in favor of [the] defendant, but not heavily”).{19} Here, Defendant asserted his speedy trial right by filing his motion to dismiss about nine months after the State refiled the charges against him and about five months before he was scheduled to go to trial. He filed his motion well before trial was set to begin, not “on appeal as [an] afterthought[,]” and he did not otherwise act in a manner that caused delay. See Garza, 2009-NMSC-038, ¶ 32. Therefore, we conclude that his motion amounted to an appropriate assertion of the right and the district court properly weighed the assertion factor slightly against the State. See Work, 1990-NMSC-085, ¶ 7; Johnson, 1991-NMCA-134, ¶ 5.4. Prejudice{20} The “heart” of the speedy trial right “is preventing prejudice to the accused.” Garza, 2009-NMSC-038, ¶ 12. We analyze prejudice against a defendant under three interests: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Id. ¶ 35. We are mindful that “some degree of . . . anxiety is inherent for every defendant . . . awaiting trial.” State v. Maddox, 2008-NMSC-062, ¶ 33, 145 N.M. 242, 195 P.3d 1254 (alterations, internal quotations marks, and citation omitted), abrogated on other grounds by Garza,

2009-NMSC-038, ¶¶ 47-48. “Therefore, we weigh this factor in the defendant’s favor only where . . . the anxiety suffered is undue.” Garza, 2009-NMSC-038, ¶ 35. A defendant is not required to show that he experienced “greater anxiety and concern than that attending most criminal prosecu-tions.” Salandre v. State, 1991-NMSC-016, ¶ 32, 111 N.M. 422, 806 P.2d 562, holding modified on other grounds by Garza, 2009-NMSC-038, ¶ 22. “The operative question is whether the anxiety and concern, once proved, has continued for an unacceptably long period.” Id. “It is for the court to deter-mine whether the emotional trauma suf-fered by the accused is substantial and to incorporate that factor into the balancing calculus.” Id. The evidence must also es-tablish that the alleged prejudice occurred as a result of the delay in trial beyond the presumptively prejudicial threshold as op-posed to the earlier prejudice arising from the original indictment. See Spearman, 2012-NMSC-023, ¶ 39.{21} The district court found that Defen-dant suffered prejudice because he “lived under a cloud of anxiety, suspicion[,] and hostility from the beginning of the case up to the date of the hearing [on his motion to dismiss]”; “[a]fter the case was dismissed and refil[]ed, . . . Defendant’s girlfriend ended her long[-]term relationship with . . . Defendant because he had become unbearable to live with[]”; and “Defen-dant testified [that] he became unbearable mainly due to the continued stress of the criminal proceedings against him.”{22} Defendant testified that at the time he was arrested, he had been serving on the Gallup Fire Department for twenty years and had risen to the level of Lieu-tenant. As part of his duties he was a CPR instructor; taught at the fire academy and the U.S. Department of Defense; and worked with children through the Police Athletic League, the Boys and Girls Club, and in local schools teaching fire preven-tion. He testified that after he was arrested in March 2012, Albuquerque and Gallup newspapers published articles about the allegations against him, and his supervisor told a news reporter during a television interview that Defendant was “a black eye to the . . . department.” Defendant was demoted to general “firefighter” status, resulting in a dramatic decrease in pay, and he was stripped of all of his super-visory and teaching duties. He testified that his department restricted him from having any contact with females, regard-less of their age, even to the extent that



http://www.nmcompcomm.us/Advance Opinionshe was not permitted to perform CPR on females during emergency medical calls. His supervisors began writing him up for numerous minor infractions and indirectly suggested that he retire to “save [his] retirement” before he was fired. As a result, Defendant retired early, causing him to receive a lower pension than he would have received had he retired a few years later, as he had previously intended.{23} Defendant testified that he and his girlfriend of seven years and her children—his “family”—were ostracized at work and in the community and that most of his friends who had children stopped communicating with him. After the State refiled the charges against him in October 2012, Defendant’s family left him and moved to Silver City. He later tried to reconcile his relationship with his family, and he moved to Silver City to be closer to them. However, he could not secure employment in Silver City due to the pending charges. His family left him a second time due to his inability to find work and the stress of “being charged again.” He testified that between the time of his arrest and the time of the hearing on his motion to dismiss, his weight dropped from 280 pounds to 189 pounds and that this nearly 100-pound weight loss was due to stress and not being able to eat or sleep.{24} The State did not present any evidence to show that Defendant had not suffered these forms of prejudice, other than confirming that his retirement was “voluntary,” that Defendant had been ar-rested once before in 2008 for domestic battery, and that one of the reasons that his family left him was because of his behavior in response to his stress around the pend-ing charges.

{25} We defer to the district court’s fac-tual findings regarding whether Defendant suffered prejudice from the delay, see Spearman, 2012-NMSC-023, ¶ 19, and we conclude that the prejudice was not only “actual” and “particularized[,]” but that it was “substantial[,]” “undue[,]” see Garza, 2009-NMSC-038, ¶¶ 13, 35, and it “con-tinued for an unacceptably long period[,]” see Salandre, 1991-NMSC-016, ¶ 32. Al-though some of the harm occurred while the first case was pending, it continued and was unnecessarily prolonged seven to twelve months by the State’s deliber-ate delay when it dismissed and refiled the case. Defendant suffered additional prejudice after the charges were refiled: his family left him—twice, and he was unable to secure a job. The personal hardship and anxiety-type of prejudice to be protected against is separate and distinct from the loss of liberty caused by incarceration or the possible prejudice to an accused’s defense. See Spearman, 2012-NMSC-023, ¶ 37; see also Salandre, 1991-NMSC-016, ¶ 18 (stating that the speedy trial right “protects against interference with a defen-dant’s liberty, disruption of employment, curtailment of associations, subjection to obloquy, and creation of undue anxiety”); State v. Vigil-Giron, 2014-NMCA-069, ¶ 56, 327 P.3d 1129 (stating that “anxiety, loss of employment, continued inability to find work, and . . . public humiliation” suffered by the defendant “are forms of prejudice that the speedy trial right is intended to curtail”).{26} Thus, the evidence presented to the district court identified the types of seri-ous disruptions and other severe hardships that can be weighed heavily in Defendant’s favor. We will not substitute the State’s view

of the severity of Defendant’s personal hardships and anxiety level for that of the district court. See Spearman, 2012-NMSC-023, ¶ 19. Taking into account the additional delay arising from the State’s intentional dismissal and refiling of the charges to avoid the October 2012 trial setting, the overall anxiety and personal hardship suffered by Defendant in this case was much more severe. See Garza, 2009-NMSC-038, ¶ 25 (“The reasons for a period of the delay may either heighten or temper the prejudice to the defendant caused by the length of the delay.” (internal quotation marks and citation omitted)). Under these circumstances, we agree with the district court that the prejudice factor weighed heavily in Defendant’s favor.C. Balancing the Factors{27} The length of delay weighs at least slightly or even more heavily in Defen-dant’s favor. The assertion of the right is weighed slightly in favor of Defendant. The reasons for the delay and the undue preju-dice suffered weigh heavily in Defendant’s favor. None of these Barker factors weigh in the State’s favor. Therefore, on balance, we conclude that the Barker factors weigh sufficiently in Defendant’s favor and the district court appropriately dismissed De-fendant’s charges on speedy trial grounds. See Spearman, 2012-NMSC-023, ¶ 17.CONCLUSION{28} We affirm the district court’s order dismissing this case with prejudice.{29} IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:MICHAEL E. VIGIL, Chief JudgeMICHAEL D. BUSTAMANTE, Judge




Certiorari Granted, January 26, 2015, No. 35,063



STATE OF NEW MEXICO,Plaintiff-Appellee,

v.THADDEUS CARROLL,Defendant-Appellant

Docket No. 32,909 (filed October 21, 2013)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYJUDITH NAKAMURA, District Judge

GARY K. KINGAttorney General

CORINNA LASZLO-HENRYAssistant Attorney General

Santa Fe, New Mexicofor Appellee

BENNETT J. BAURActing Chief Public Defender

Santa Fe, New MExico

SUSAN BURGESS-FARRELLDistrict Public Defender

STEVEN J. FORSBERGAssistant Public DefenderAlbuquerque, New Mexico

for Appellant

Opinion

Michael E. Vigil, Judge{1} Defendant Thaddeus Carroll was con-victed of driving while under the influence (DWI) in violation of NMSA 1978, Sec-tion 66-8-102(D) (2007, amended 2010), following a bench trial in metropolitan court. Defendant appealed to the district court for on-record review, and the district court affirmed. Defendant then appealed to this Court. The State has filed motions urging us to dismiss Defendant’s appeal and all similar appeals currently before this Court. The State contends that there is no express right to appeal or grant of jurisdiction to this Court from a district court’s on-record appellate review of a metropolitan court conviction for DWI. Having conducted a de novo review of the relevant constitutional provisions and stat-utes governing this Court’s jurisdiction and

the right to appeal from cases originating in metropolitan court, we deny the State’s motion to dismiss. See State v. Montoya, 2008-NMSC-043, ¶ 9, 144 N.M. 458, 188 P.3d 1209 (“Jurisdiction questions are ques-tions of law which are subject to de novo review.”); State v. Heinsen, 2004-NMCA-110, ¶ 9, 136 N.M. 295, 97 P.3d 627 (“We review the application and interpretation of constitutional provisions, statutes, and court rules de novo to determine the right to an appeal and the scope of the appeal allowed by law.”), aff ’d, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040.DISCUSSION{2} The State’s challenge to this Court’s authority necessitates that we consider both our jurisdiction and Defendant’s right to ap-peal. “Jurisdiction” refers to subject matter jurisdiction and “implicates a court’s power to decide the issue before it.” State v. Rudy B., 2010-NMSC-045, ¶ 14, 149 N.M. 22, 243 P.3d 726 (internal quotation marks and

citation omitted). However, as our Supreme Court acknowledged early in our State’s ju-risprudence, a grant of jurisdiction does not “confer upon litigants an affirmative right to invoke such jurisdiction.” State v. Chacon, 1914-NMSC-079, ¶ 8, 19 N.M. 456, 145 P. 125, superseded by constitutional amend-ment, N.M. Const. art. VI, § 2 (1965), as rec-ognized by State v. Griffin, 1994-NMSC-061, ¶ 3 n.2, 117 N.M. 745, 877 P.2d 551.1 Rather, based on our Supreme Court’s discussion in Chacon, “[a] court’s jurisdiction to hear an appeal [is] to be distinguished . . . from a litigant’s right to invoke that jurisdiction by bringing the appeal. The court’s jurisdiction thus . . . remain[s] in abeyance until given vitality by legislative authority.” See Seth D. Montgomery & Andrew S. Montgomery, Jurisdiction as May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico, 36 N.M. L. Rev. 215, 226 (2006) (internal quotation marks and citation omitted); cf. Rudy B., 2010-NMSC-045, ¶ 12 (treating the right to appeal and jurisdic-tion as separate concepts); Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12, 112 N.M. 226, 814 P.2d 94 (same). Generally, in order for an appeal to be properly before us, this Court must have jurisdiction to hear it, and a defendant must have the right to have it heard.{3} Both this Court’s jurisdiction and a litigant’s right to appeal must derive from a statute or constitutional provision. See City of Las Cruces v. Sanchez, 2007-NMSC-042, ¶ 10, 142 N.M. 243, 164 P.3d 942 (“[I]t has long been settled that the creating of a right of appeal is a matter of substantive law and outside the province of the court’s rule making power.” (alteration, internal quota-tion marks, and citations omitted)); State v. Smallwood, 2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 821 (“[O]ur Constitution or Legislature must vest us with appellate jurisdiction[.]”). Our Supreme Court has recognized that it cannot create jurisdiction through its rule-making authority. Id. ¶ 6. Similarly, our Supreme Court has “conceded that if the [L]egislature ha[s] authorized no appeal, [it is] powerless to create the right of appeal by rule.” State v. Arnold, 1947-NMSC-043, ¶ 11, 51 N.M. 311, 183 P.2d 845. This Court is therefore limited to relying on state constitutional and statutory provisions

1 Prior to being amended in 1965, Article VI, Section 2 did not contain the language that “an aggrieved party shall have an ab-solute right to one appeal.” Rather, the antecedent to our current Article VI, Section 2 merely stated: “The appellate jurisdiction of the Supreme Court shall be co-extensive with the state, and shall extend to all final judgments and decisions of the district courts, and said court shall have such appellate jurisdiction of interlocutory orders and decisions of the district courts as may be conferred by law.” Chacon, 1914-NMSC-079, ¶ 4. In Chacon, our Supreme Court determined that the pre-amendment language conferred jurisdiction, but did not confer a right to appeal. See id. ¶ 8.



http://www.nmcompcomm.us/Advance Opinionsto support our conclusion that Defendant has the right to appeal, and this Court has the authority to consider it.{4} This Court is similarly limited in our interpretation of our state constitution and statutes by the plain meaning rule. See In re Rescue Ecoversity Petition, 2012-NMCA-008, ¶ 6, 270 P.3d 104 (“When interpreting the Constitution, we follow the plain meaning rule.”); United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 9, 148 N.M. 426, 237 P.3d 728 (“The first guiding principle in statutory construction dictates that we look to the wording of the statute and attempt to apply ‘the plain meaning rule[.]’” (citation omitted)); see also NMSA 1978, § 12-2A-19 (1997) (“The text of a stat-ute or rule is the primary, essential source of its meaning.”). The plain meaning rule presumes that the words in a constitutional or statutory provision “have been used ac-cording to their plain, natural, and usual signification and import, and the courts are not at liberty to disregard the plain mean-ing of words . . . in order to search for some other conjectured intent.” See In re Rescue Ecoversity Petition, 2012-NMCA-008, ¶ 6 (internal quotation marks and citation omit-ted); Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37, 147 N.M. 583, 227 P.3d 73 (“[T]he plain meaning rule, recogniz[es] that when a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” (alteration, internal quota-tion marks, and citation omitted)). Thus, pursuant to the plain meaning rule, we will not read into a constitutional or statutory provision “language which is not there, es-pecially when it makes sense as it is written.” Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147 N.M. 512, 226 P.3d 611 (internal quotation marks and citation omitted). With these considerations in mind, we now turn to the statutory and constitutional provi-sions that relate to this Court’s jurisdiction and Defendant’s right to appeal.Jurisdiction{5} The Court of Appeals’ jurisdiction is governed by Article VI, Section 29 of the New Mexico Constitution and NMSA 1978, Section 34-5-8 (1983). Article VI, Section 29 provides that the Court of Ap-peals

may be authorized by law to review directly decisions of administrative agencies of the state, and it may be authorized by rules of the supreme court to issue all writs necessary or appropriate in aid of its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as may be provided by law.

As discussed above, “[t]he phrase ‘as may be provided by law’ means that our Con-stitution or Legislature must vest us with appellate jurisdiction[.]” See Smallwood, 2007-NMSC-005, ¶ 6. The Legislature has defined this Court’s jurisdiction in Section 34-5-8. Section 34-5-8(A)(3) vests this Court with “jurisdiction to review on appeal . . . criminal actions, except those in which a judgment of the district court imposes a sentence of death or life imprisonment.” Based on the clear language of the statute, this Court has been vested with jurisdiction over appeals in all criminal actions with the limited exception of those where a sentence of death or life imprisonment is imposed. Had the Legislature intended to limit our jurisdiction to preclude review of the on-record appellate decisions of the district court, we assume it would have explicitly done so. See, e.g., Hanson v. Turney, 2004-NMCA-069, ¶ 12, 136 N.M. 1, 94 P.3d 1 (“It is thus clear that if the [L]egislature intended to treat permit holders the same as owners of water rights, it knew how to draft a statute which would successfully do so.”); State ex rel. Citizens for Quality Educ. v. Gallagher, 1985-NMSC-030, ¶ 13, 102 N.M. 516, 697 P.2d 935 (“[H]ad the Legislature so desired, it would have prohibited withdrawal of signatures placed on a petition for recall. This Court will not read into the Recall Act language which is not there.”). Given that the Legislature listed no other exceptions to this broad grant of jurisdiction, including no limitation on where the case originated, we conclude that Section 34-5-8(A)(3) provides this Court with jurisdiction over appeals in criminal actions originating in courts of limited jurisdiction.Right to Appeal{6} Of course, a determination that this Court has jurisdiction does not end our inquiry. Instead, we must also determine whether Defendant has a right to appeal

to this Court. The New Mexico Constitu-tion provides aggrieved parties with “an absolute right to one appeal.” N.M. Const. art. VI, § 2. This constitutional provision, however, has been interpreted as being limited to cases originating in district court. See Sanchez, 2007-NMSC-042, ¶ 9 (“Article VI, Section 2 only applies to cases originating in district court, not to cases originating in courts of limited jurisdic-tion, such as a municipal court.”). The corollary provision for cases originating in courts of limited jurisdiction is found in Article VI, Section 27. Section 27 provides: “Appeals shall be allowed in all cases from the final judgments and decisions of the probate courts and other inferior courts to the district courts, and in all such appeals, trial shall be had de novo unless otherwise provided by law.” N.M. Const. art. VI, § 27. The phrase “unless otherwise provided by law” has been interpreted to authorize the Legislature to change the form of the ap-peal from de novo to appellate, see State v. Ball, 1986-NMSC-030, ¶ 10, 104 N.M. 176, 718 P.2d 686 (internal quotation marks and citation omitted), which the Legislature has done for criminal actions originating in metropolitan court “involving driving while under the influence of intoxicating liquors or drugs.” NMSA 1978, § 34-8A-6(C) (1993). Section 34-8A-6(C) provides:

Any party aggrieved by a judgment rendered by the metropolitan court in a criminal action involv-ing driving while under the influ-ence of intoxicating liquors . . . may appeal to the district court of the county in which the metropolitan court is located within fifteen days after the judgment was rendered. The manner and method of ap-peal shall be set forth by supreme court rule.

{7} The State points out that these provi-sions do not explicitly provide for an appeal to this Court, instead, referring only to appeals to district court. The State further argues that to the extent court procedural rules indicate that defendants have a right to appeal the district court’s review of a metropolitan court decision to this Court, our Supreme Court was without authority to grant a right of appeal via rule.2 While

2 In its motion and memorandum, the State refers to former Rule 7-703(R) NMRA (2009), which prior to being amended in 2012 stated: “[a]n aggrieved party may appeal from a judgment of the district court to the New Mexico Supreme Court or New Mexico Court of Appeals, as authorized by law, in accordance with the Rules of Appellate Procedure.” In 2012, this language was removed from Rule 7-703 and included in Rule 5-827(N) NMRA (“An aggrieved party may appeal from a judgment of the district court to the New Mexico Supreme Court or New Mexico Court of Appeals, as authorized by law, in accordance with the Rules of Appellate Procedure.”).



http://www.nmcompcomm.us/Advance Opinionswe have acknowledged that the Supreme Court does not have authority to create or enlarge a right to appeal, the Supreme Court does have authority to promulgate procedural rules where the right to ap-peal has been provided by the Legislature. NMSA 1978, Section 39-3-3(A)(1) (1972) provides defendants in criminal proceed-ings with the right to appeal a final judg-ment of the district court to this Court, except in cases involving death or life imprisonment. See § 39-3-3(A)(1) (“In any criminal proceeding in district court an appeal may be taken by the defendant to the supreme court or court of appeals, as appellate jurisdiction may be vested by law in these courts . . .within thirty days from the entry of any final judgment[.]”); § 34-5-8(A)(3).{8} The State argues that the term “crimi-nal proceeding” in Section 39-3-3 should not be interpreted as extending to a district court’s “on-record review of a lower court judgment.” The State’s argument is pre-mised on the fact that a defendant bears the burden to prosecute his or her appeal in district court, see Rule 5-828 NMRA; that our case law describes an appeal as “no part of the trial,” see Ammerman v. Hubbard Broadcasting, Inc., 1976-NMSC-031, ¶ 20, 89 N.M. 307, 551 P.2d 1354; and that the rules governing such appeals are collected under “appeals” or “special proceedings” within the Rules of Criminal Procedure for the Metropolitan Courts and District Courts, see Rules 7-703 and 5-827. Having considered these argu-ments, we conclude that the State’s defini-tion of “criminal proceeding” is much too narrow.{9} The State essentially asks this Court to define “proceeding” as synonymous with “trial,” and conclude that because the district court proceedings are appellate in nature they do not fall within the purview of Section 39-3-3(A)(1). Black’s Law Dic-tionary defines “proceeding” much more broadly than the State would have us do. According to Black’s,

“Proceeding” is a word much used to express the business done in courts. . . . It is more comprehensive than the word “action,” but it may include in its general sense all the steps

taken or measures adopted in the prosecution or defense of an action, including the pleadings and judgment. As applied to actions, the term “proceeding” may include—(1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, . . . (7) the trial; (8) the judgment; (9) the execution; . . . (11) the taking of the appeal or writ of error[.]

Black’s Law Dictionary 1324 (9th ed. 2009). Based on this definition of “proceeding,” we conclude that Section 39-3-3(A)(1) is intended to include a defendant’s right to appeal a district court’s review of an on-record metropolitan court decision.{10} Moreover, if this Court were to construe the term “proceeding” as the State suggests, we would necessarily have to conclude that our Supreme Court did not possess the authority to promulgate Rule 5-827(N); that by promulgating Rule 5-827(N), our Supreme Court exercised legislative power; and that by doing so it violated the New Mexico Constitution. “It is, of course, a well-established principle of statutory construction that statutes should be construed, if possible, to avoid constitutional questions.” Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 12, 111 N.M. 336, 805 P.2d 603. Accordingly, where this Court is presented with a rea-sonable interpretation of a statute that does not call into question the constitutionality of the actions of our Supreme Court, that interpretation is the one this Court will adopt.{11} Finally, the State argues that inter-preting Section 39-3-3 to provide for a right to appeal under these circumstances would give rise to claims under the Equal Protection Clause. The State argues that to provide a second appeal by right for certain petty crimes, but not for more serious crimes, is an “unreasoned distinc-tion” that bears no “rational relationship to any legitimate state interest.” While we note that our interpretation of the relevant statutes recognize a different appellate pro-cedure depending on the type of crime, we disagree that it rises to the level of an equal protection violation. Practically speaking, however, the Legislature’s decision to alter

the nature of the appeal for petty offenses originating in metropolitan court from de novo to on-record, eliminated the neces-sity for the most populous district in this State to hold a de novo trial where the case had already been heard by a law-trained judge. Compare NMSA 1978, § 34-8A-4(B) (1993) (providing that a metropolitan judge must be “a member of the bar” and have “practiced in this state for a period of three years”), and § 34-8A-6(B), (C) (providing that the metropolitan court is a court of record for civil actions, criminal cases involving driving while under the in-fluence, and domestic violence cases), with NMSA 1978, § 35-2-1 (1979, amended 2013) (providing that a magistrate judge must have “graduated from high school” or “attained the equivalent of a high school education”), and NMSA 1978, § 35-13-2(A) (1996) (“Appeals from the magistrate courts shall be tried de novo in the district court.”). This decision also freed the State from having to retry the case, recall wit-nesses, or run the risk of losing evidence, and allows the district court more ease in managing its docket. Efforts aimed at improving the efficiency and economy of the operation of the most populous judicial district in this State appear to provide the rational basis for this distinction that the State argues is lacking. To the extent the State takes issue with these considerations as supporting the differences in appellate review, such policy determinations are not for this Court to make.CONCLUSION{12} We conclude Section 34-5-8(A)(3) vests this Court with jurisdiction to hear appeals from a district court’s on-record review of a metropolitan court decision, andthat Section 39-3-3(A)(1) provides defen-dants with a right to appeal to this Court and invoke that grant of jurisdiction. As a result, we deny the State’s motion to dismiss. Defendant’s appeal will proceed to be calendared on its merits.{13} IT IS SO ORDERED.

MICHAEL E. VIGIL, Judge

WE CONCUR:M. MONICA ZAMORA, JudgeJ. MILES HANISEE, Judge




Certiorari Granted, January 26, 2015, No. 35,063



STATE OF NEW MEXICO,Plaintiff-Appellee,

v.THADDEUS CARROLL,Defendant-Appellant

Docket No. 32,909 (filed December 1, 2014)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYJUDITH K. NAKAMURA, District Judge

GARY K. KINGAttorney General

Santa Fe, New MexicoRALPH E. TRUJILLO

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee

JORGE A. ALVARADOChief Public DefenderSanta Fe, New MexicoSTEPHEN J. FORSBERG

Assistant Appellate DefenderAlbuquerque, New Mexico

LAW OFFICES OF THE PUBLIC DEFENDER

for Appellant

Opinion

James J. Wechsler, Judge{1} Defendant Thaddeus Carroll appeals his conviction for driving under the influence of alcohol (DWI). Defendant was tried in the Bernalillo County Metropolitan Court and appealed to the district court, which affirmed. Defendant makes three arguments in favor of reversal: (1) that his conviction violated Rule 7-506 NMRA, which requires that a defendant be tried within 182 days of the latest of several triggering events; (2) that the metropolitan court improperly admit-ted the testimony of a prosecution witness; and (3) that the evidence was insufficient to sustain his conviction.{2} The crux of Defendant’s argument regarding Rule 7-506 is that Defendant did not receive adequate notice of his trial. Defendant was mailed notice six days prior to the proceeding. The trial was scheduled for the very last day possible under Rule 7-506, and Defendant did not appear. Be-cause Defendant missed the court date, the metropolitan court chose to issue a bench warrant for his arrest. The effect of the warrant was to toll the calendar under Rule 7-506 and, upon Defendant’s surrender to the jurisdiction of the court, provide an ad-

ditional 182 days for trial. Defendant argues that he did not receive sufficient notice of his trial date, that the warrant was improper, and, therefore, the case should have been dismissed pursuant to Rule 7-506. We agree with Defendant that the notice provided of his trial date—six days by mail—was not sufficient and, therefore, we reverse and remand with instructions to the district court to dismiss this case with prejudice. We do not reach the other arguments.BACKGROUND{3} Defendant was arrested on April 12, 2008 for aggravated DWI, first offense, and arraigned on April 14, 2008. The trial set-ting was continued twice because the State was not ready to proceed—first, because the arresting officer was on vacation and, second, because the officer did not appear at the proceeding. Noting that the State was twice unready to proceed and that the State did not make available witnesses for pre-trial interviews, Defendant moved to dismiss the case at the second setting. The metropolitan court granted the motion and dismissed the case without prejudice. That was on August 21, 2008.{4} On October 8, 2008, the State re-filed the dismissed complaint against Defen-dant. The metropolitan court set the trial for October 14, 2008, the last possible date

to commence a trial under Rule 7-506. The metropolitan court sent both the notice of the re-filing and the new trial setting to Defendant by mail. These mailings were sent on October 8, 2008, six days prior to the trial date. Although Defendant’s at-torney was present at the trial, Defendant did not attend the proceeding. Again the State was not ready to proceed because the complaining officer did not appear. In consequence of Defendant’s absence, the metropolitan court issued a bench warrant. Two days later, Defendant filed a motion to quash the bench warrant and dismiss the case pursuant to Rule 7-506. Defendant argued that six days notice by mail was insufficient and asserted that he only received the notice on the day of the proceeding. The metropolitan court denied Defendant’s motion. Subsequently, Defendant filed a motion requesting that the bench warrant be cancelled or quashed and included an apology for his failure to appear. The metropolitan court granted this motion and cancelled the warrant.{5} At the trial setting on February 4, 2009, Defendant again argued that the case should be dismissed pursuant to Rule 7-506. Defendant pointed out that ten days notice is required for service of a summons, with three additional days for service by mail. The metropolitan court stated that Rule 7-205 NMRA—“the ten-day stuff ”—did not apply to trials. The metropolitan court added that it could “set a trial the very next day [after notice.]” It denied Defendant’s renewed motion to dismiss pursuant to Rule 7-506. Defendant was tried and found guilty of DWI, first offense. Defendant appealed to the district court, which affirmed.STANDARD OF REVIEW{6} The application of Rule 7-506 to the facts of this case is a question of law that we review de novo. State v. Maestas, 2007-NMCA-155, ¶ 9, 143 N.M. 104, 173 P.3d 26; see also State v. Donahoo, 2006-NMCA-147, ¶ 2, 140 N.M. 788, 149 P.3d 104 (reviewing a district court interpreta-tion of a metropolitan court rule de novo).{7} The bench warrant for Defendant was issued by the metropolitan court pursuant to Rule 7-207(A) NMRA. Rule 7-207(A) provides that a metropolitan court judge may issue a bench warrant when a person fails to appear at the time and place speci-fied by the court. By the statutory term used for the grant of authority—“may”—the choice to issue a bench warrant is an exercise of discretion on the part of the issuing judge. As such, we review for an abuse of discretion.



http://www.nmcompcomm.us/Advance OpinionsRULE 7-506{8} Under Rule 7-506(B) and its sister rules for the municipal and magistrate courts—each frequently referred to as the six-month rule—the trial of a criminal defendant must commence within 182 days of the latest of several triggering events. See also Rule 8-506(B) NMRA (stating that the trial of a criminal defendant in municipal court must commence within 182 days of the latest of several triggering events); Rule 6-506(B) NMRA (same for magistrate court). Among the triggering events are arraignment and the surrender of a defendant after a failure to appear. Rule 7-506(B)(1) (arraignment); Rule 7-506(B)(5) (surrender in New Mexico); Rule 7-506(B)(6) (surrender in another state). The disposition of this case depends on whether Defendant’s triggering event was his arraignment or his surrender to the court in response to the bench war-rant. Whether arraignment or surrender was the triggering event pivots on whether the warrant was within the discretion of the metropolitan court.{9} Defendant contends that the metro-politan court abused its discretion when it issued a bench warrant on October 14, 2008 for failure to appear when Defendant was sent notice by mail only six days before the proceeding. Defendant points to two rules. Under Rule 7-104 NMRA, the gen-eral rule for notice of a hearing on a motion is five days with three extra days for service by mail. Under Rule 7-205, a summons to appear requires at least ten days notice with three additional days for service by mail. Defendant, arguing by analogy, contends that six days notice by mail of his trial date was inadequate because a hearing on a motion requires eight days notice by mail under our rules and a summons to appear requires thirteen days.{10} The State contends that the amount of notice is not relevant. The State argues that, by the plain language of Rule 7-207(A), the metropolitan court can issue a warrant if a person fails to appear at the time and place ordered by the court and, because Defendant did not appear on October 14, 2008 as ordered, the bench warrant was not improper. According to the State, upon the surrender of Defendant to the court, the 182-day countdown to commence trial under Rule 7-506 began anew.1

{11} We do not agree with the State that the amount of notice given to a defendant to appear at a trial is irrelevant to whether

a bench warrant for failure to appear is justified. The flaw in the State’s position is highlighted by the statement of the metro-politan court that it could schedule a trial for the very day after notice was sent. Un-der the reasoning of the State, a defendant could be sent notice by mail to appear the next day and issued a warrant for failure to appear before the defendant even received notice of the proceeding. An order to ap-pear that, by design, defies compliance cannot be the basis of a legitimate warrant. This is especially true when, as here, the warrant for failure to appear is used as a lever to re-start the countdown to begin a trial under a rule intended to guarantee a defendant’s right to a speedy trial.{12} Having determined that notice is a relevant consideration in this case, we turn to the question of whether the six-day notice by mail received by Defendant was sufficient. The State has offered no reason why Defendant should be offered less notice for his trial than the eight days by mail that would generally be required for a hearing on a motion, and we can think of none. See Rule 7-104(C), (D) (stating that notice of a motion hearing is not less than five days, generally, with three extra days for service by mail). Furthermore, because this case was re-filed after being dismissed, the notice sent to Defendant of his trial date is akin to a summons. See Black’s Law Dictionary 1436 (6th ed. 1990) (recognizing that a sum-mons to a criminal defendant commences the state’s action and directs the individual to appear in court to answer the charge). A summons served by mail must be sent a minimum of thirteen days prior to the required appearance of a defendant. Rule 7-205(D). The notice provided to Defendant of his re-filed case and impending trial date—six days by mail—was not adequate. Because the notice offered to Defendant by the metropolitan court was not sufficient, the bench warrant for failure to appear was not within the discretion of the metro-politan court. Accordingly, after October 14, 2008, the time for the State to commence a trial expired under Rule 7-506(B).{13} Before concluding, we pause to observe the larger picture in this case. The facts cast a pall over the State’s position. The State was never ready to try this case within the initial 182 days allowed under Rule 7-506(B), including on October 14, 2008, after the State re-filed the case just six days prior. At the trial setting on August 21,

2008, shortly after Defendant’s motion to dismiss was granted, the State announced that it anticipated re-filing, yet chose not to re-file until October 8, 2008, a delay of about six weeks. When the State finally tried the case, about ten months after ar-raignment, it did so without the arresting officer whose absence ostensibly caused the delays in the first place. It is the burden of the State to bring a defendant to trial within the 182-day requirement. State v. Granado, 2007-NMCA-058, ¶ 14, 141 N.M. 575, 158 P.3d 1018. One purpose of the rule is to “effectuate a criminal defendant’s right to a speedy trial.” State v. Savedra, 2010-NMSC-025, ¶ 5, 148 N.M. 301, 236 P.3d 20. Although analytically distinct, the six-month rule is rooted in the right to a speedy trial articulated in the Sixth Amendment of the United States Constitution and Article II, Section 14 of the New Mexico Constitu-tion. Cf. State v. Garza, 2009-NMSC-038, ¶ 43, 146 N.M. 499, 212 P.3d 387 (stating that one of the versions of our six-month rule was “implemented . . . in response to Barker [v. Wingo, 407 U.S. 514 (1972),]” in which the United States Supreme Court laid out the test for evaluating a potential speedy trial violation under the Sixth Amendment). In metropolitan court, if the State is unable to commence trial within 182 days, it can petition the court for ex-tensions of time for up to thirty days total under Rule 7-506(C)(5). See Rule 7-506(C)(5) (allowing the court to grant extensions under “exceptional circumstances”). But to re-file a dismissed case just prior to the expiration of the 182-day period with the hope or intention of gaining an additional 182 days does not comport with the spirit of the rule. See Savedra, 2010-NMSC-025, ¶ 5 (holding that strategic re-filing in district court “violate[d] the spirit of the six-month rule” (internal quotation marks and cita-tion omitted)).CONCLUSION{14} For the foregoing reasons, we re-verse the judgment of the district court. We remand with orders to vacate the con-viction of Defendant and dismiss this case with prejudice pursuant to Rule 7-506(E)(2).{15} IT IS SO ORDERED.

JAMES J. WECHSLER, Judge

WE CONCUR:RODERICK T. KENNEDY, Chief JudgeJONATHAN B. SUTIN, Judge

1 Implicit in the State’s reasoning is the idea that the calendar was tolled under Rule 7-506 from the time the metropolitan court issued the bench warrant until Defendant surrendered to the court because he was a fugitive from justice from the time he did not appear. Otherwise, the 182-day period in which to commence trial would have expired after October 14, 2008.



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