april 15, 2015 • volume 54, no. 15

Blue Without You, by Jenifer Garcia Weems Art Gallery

Inside This Issue

April 15, 2015 • Volume 54, No. 15

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

NREEL Section: Mixer at Cowgirl Hall of Fame ............................. 4

Solo and Small Firm Section: ‘The Legislative Session that Was’ With Greg Fouratt ................... 4

Mexican American Law Student Association: Fighting for Justice Banquet .................................. 5

New Mexico Hispanic Bar Association: Las Vegas Meet and Greet ..................................... 5

New Mexico Women’s Bar Association: Pettijohn Award Reception ................................... 6

Clerk’s Certificates .................................................12

From the New Mexico Supreme Court

2015-NMSC-007, No. 33,684: State v. Astorga ..................................................18

2 Bar Bulletin - April 15, 2015 - Volume 54, No. 15

CENTER FOR LEGAL EDUCATION

CLE Planner

Full course agendas available online.

Register online at www.nmbar.org or call 505-797-6020.

Apri

l 24

Apri

l 29

Apri

l 30

The Brain-Smart Negotiator: Skills and Practices for the Effective LitigatorPresented by Brian L. Shoemaker, Esq., Shoemaker Law Firm PC

Friday, April 24, 2015 • 9 a.m.-4:30 p.m. State Bar Center

1.2 EP4.8 G

Standard Fee: $249Government and legal services attorneys, and Paralegal Division members $219Webcast Fee: $279

also available viaLIVE WEBCAST

Mistakes We’ve Made That We Hope You Can AvoidPresented by The Hon. Alan Malott, 2nd Judicial District Court; Sandra Morgan Little, Little Gilman-Tepper Batley & Leigh PA;Ron Taylor, Ronald Taylor Law Office; Brad Zeikus, Esq.

Wednesday, April 29, 2015 • Lunch:11:30 a.m.-noon • CLE: noon • 1 p.m. State Bar Center

1.0 G

Co-sponsor: Senior Lawyers DivisionStandard Fee: $50YLD and SLD members: $30

ADR Series: Mediating in Courts of Limited Jurisdiction—Are You Part of the Solution or Part of the Problem?Presented by Norm Gagne, attorney and mediator; and Susan Barnes Anderson, Metro Court Mediation Division

Thursday, April 30 • 12:30-1:30 p.m. State Bar Center

1.0 G

Co-sponsor: ADR CommitteeStandard Fee: $50ADR Committee members: $30Non-attorneys with certificate of attendance: $10 Non-attorneys without certificate of attendance: Free of charge

To attend by phone, register by calling CLE at 505-797-6020 and provide the phone number from where you will be calling.

http://www.nmbar.org

Bar Bulletin - April 15, 2015 - Volume 54, No. 15 3

Notices ................................................................................................................................................................4Legal Education Calendar .............................................................................................................................7Writs of Certiorari ............................................................................................................................................9Court of Appeals Opinions List ................................................................................................................. 11Clerk’s Certificates ......................................................................................................................................... 12Recent Rule-Making Activity ..................................................................................................................... 17Opinions

From the New Mexico Supreme Court2015-NMSC-007, No. 33,684: State v. Astorga ......................................................................... 18

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

State Bar Workshops April

21 Legal Resources for the Elderly Workshop 10–11 a.m., Presentation 11:30 a.m.–2 p.m., Clinics Artesia Senior Center, Artesia

22 Legal Resources for the Elderly Workshop 10–11 a.m., Presentation 11:30 a.m.–2:30 p.m., Clinics Chaves County JOY Center, Roswell

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

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

29 Legal Resources for the Elderly Workshop 10–11 a.m., Presentation, No Clinics Chama Senior Center, Chama

29 Legal Resources for the Elderly Workshop Noon–1 p.m., Presentation, No Clinics Tierra Amarilla Senior Center, Tierra Amarilla

MAy

1 Civil Legal Fair 10 a.m.–1 p.m., First Judicial District Court, First Floor Jury Room, Santa Fe

Meetings April

15 Real Property, Trust and Estate Section BOD, Noon, State Bar Center

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

17 Family Law Section BOD, 9 a.m., via teleconference

17 Trial Practice Section BOD, Noon, State Bar Center

21 Appellate Practice Section BOD, Noon, via teleconference

21 Solo and Small Firm Section BOD, 11:30 a.m.; Presentation, noon; State Bar Center

22 Law Practice Management Committee, Noon, State Bar Center

23 Natural Resources, Energy, and Environmental Law Section, Noon, via teleconference

24 Immigration Law Section BOD, Noon, via teleconference

28 Intellectual Property Law Section BOD, Noon, Lewis Roca Rothgerber

30 Alternative Dispute Resolution Committee, Noon, State Bar Center

Cover Artist: Jenifer Garcia is a self-taught artist specializing in original artwork including watercolor on paper, acrylic on canvas, handcrafted jewelry, prints, and hand-painted ornaments. View more of her work at www.etsy.com/shop/SnapDragonStudiosNM. In addition to Weems Art Gallery in Old Town Albuquerque, Garcia has shown at Jezebel Gallery in Madrid and Old Schoolhouse Gallery in San Antonio, N.M.

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

April 15, 2015, Vol. 54, No. 15

http://www.etsy.com/shop/

mailto:[email protected]








NoticesProfessionalism TipCourt News

New Mexico Supreme CourtProposed Amendments to Supreme Court Rules of Practice and Procedure In accordance with the Supreme Court’s new annual rulemaking process under Rule 23-106 NMRA, which includes an annual publication of proposed rule amendments for public comment every spring, the fol-lowing Supreme Court Committees are considering whether to recommend for the Supreme Court’s consideration proposed amendments to the rules of practice and procedure summarized in the March 18 Bar Bulletin (Vol. 54, No. 11). To view the proposed amendments, visit the Supreme Court’s website at http://nmsupremecourt.nmcourts.gov. Comments can be submit-ted electronically through the Court’s web-site, by email to [email protected], by fax to 505-827-4837, or by mail to Joey D. Moya, Clerk, New Mexico Supreme Court, PO Box 848, Santa Fe, NM 87504-0848. Comments must be received by the Clerk on or before April 15 to be considered by the Court. Note that any submitted comments may be posted on the Supreme Court’s website for public viewing.

Second Judicial District CourtInvestiture Ceremony of Hon. Debra Ramirez Members of the legal community are invited to the investiture ceremony of Hon. Debra Ramirez, Domestic Vio-lence Division XXIV, Family Court. The ceremony will be at 4:30 p.m., April 17, in the Frank H. Allen, Jr. Ceremonial Courtroom 338, Second Judicial District Court in Albuquerque. A reception will immediately follow at the Albuquerque Country Club.

U.S. District Court, District of New MexicoFederal Bar Seminar Join colleagues for a free one-day CLE program “The Second, Best Federal Bar Seminar Ever” (6.0 G) from 8:15 a.m.– 4:45 p.m., May 1, at the Albuquerque Con-vention Center. Topics include “Evidence” and “Preservation of Issues for Appellate Review” in the morning and a choice of civil or criminal law programs in the after-noon. For more information or to register, visit www.nmd.uscourts.gov.

stAte BAr NewsAttorney Support Groups• April 20, 7:30 a.m. First United Methodist Church, 4th

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

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

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

• May 11, 5:30 p.m. UNM School of Law, 1117 Stanford

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

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

Alternative Dispute Resolution CommitteeCLE Series: ‘Mediating in Courts’ Norm Gagne and Susan Barnes Anderson will present “Mediating in Courts of Limited Jurisdiction—Are You Part of the Solution or Part of the Problem?” (1.0 G) as part of the ADR Committee CLE Series from 12:30–1:30 p.m., April 30, at the State Bar Center (and by teleconference). To register, visit www.nmbar.org. Teleconference attendees must pre-register by calling 505-797-6020. The ADR Committee will meet prior to the CLE program at noon.

Animal Law SectionPost-Legislature Animal Talk The Animal Law Section will present a post-Legislative Animal Talk at noon on April 17 at the State Bar Center. Garrett VeneKlasen, executive director of New Mexico Wildlife Federation, and Phil Carter, wildlife campaign manager for Animal Protection of New Mexico, will discuss some of the animal-related legisla-tion introduced during the session. R.S.V.P. to Evann Kleinschmidt, [email protected], by April 16. Beverages and cookies will be provided.

Natural Resources, Energy and Environmental Law SectionMixer at Cowgirl Hall of Fame The Natural Resources, Energy and En-vironmental Law Section invites members to mosey on over to the Cowgirl Hall of Fame in Santa Fe, 319 S. Guadalupe St., for some fun and libations. The festivities will be from 5-7 p.m., Thursday, April 30. First “shot” and the grub are courtesy of the Section; pony up for additional drinks. For commuters, or those wanting to travel from Albuquerque, the Rail Runner depot is within walking distance. R.S.V.P. to Evann Kleinschmidt, [email protected], by April 27.

Solo and Small Firm Section‘The Legislative Session that Was’ With Greg Fouratt Department of Public Safety Cabinet Secretary (and former U.S. Attorney for New Mexico) Greg Fouratt will discuss the inside experiences of working with the House and Senate in “The Legislative Session that Was, Through the Eyes of a Rookie,” at a noon luncheon on April 21 at the State Bar Center, presented by the Solo and Small Firm Section. The Section board meeting will begin at 11:30 a.m. R.S.V.P. to Evann Kleinschmidt, [email protected] by April 20 to ensure your free lunch at the presentation.

Young Lawyers DivisionStatewide Volunteers Needed for Law Day Call-in Program Volunteers are needed for the Young Lawyers Division Law Day Call-in from 9 a.m.–1 p.m. on Saturday, May 2, at the State Bar Center in Albuquerque. Volunteers are needed in all areas of law, but particularly family law. Breakfast will be provided. To volunteer or for more information, in Albuquerque, contact Sonia Russo at [email protected]. In Roswell, contact Anna Rains, [email protected]. In Las Cruces and Alamogordo, contact Erin Atkins, [email protected]. In Gallup, contact Laura Horton, [email protected].

With respect to opposing parties and their counsel:

I will clearly identify, for other counsel or parties, all changes that I have made in all documents.

http://nmsupremecourt

http://www.nmd.uscourts.gov






uNMLaw LibraryHours Through May 9Building & Circulation Monday–Th ursday 8 a.m.–10 p.m. Friday 8 a.m.–6 p.m. Saturday 8 a.m.–5 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Librarian on call 3–6 p.m. Saturday–Sunday Closed

Mexican American Law Student AssociationFighting for Justice Banquet Join the Mexican American Law Student Association for the 20th Annual Fighting for Justice Banquet honoring the Working Classroom. Angelo Gon-zales, Ph.D., will be the keynote speaker. Th e event will be at 6 p.m., April 25, at Sandia Resort & Casino in Albuquerque. To purchase tickets, visit www.malsa.org or contact MALSA President Dynette Cordova, [email protected].

other BArsAlbuquerque Bar AssociationLaw Day Luncheon Members of the legal community are in-vited to the Albuquerque Bar Association’s 2015 Law Day Luncheon at 11:45 a.m., May 1, at the Hyatt Regency Downtown in Albuquerque. Renee Lerner, professor of law at the George Washington University Law School, will present “Ancient Liberties: Magna Carta and Trial by Jury in America.” Tickets are $40 per person or $400 for a table of 10. Sponsorship opportunities are available and start at $500. For more information, visit www.abqbar.org or call 505-842-1151. Register by noon, April 23.

Federal Bar AssociationCLE Luncheon Event Dean Erwin Chemerinsky will present “An Amazing Time in the Supreme Court” (1.0 G) at the CLE luncheon event spon-sored by the New Mexico Chapter of the Federal Bar Association on April 30 from noon–1:30 p.m. at the La Fonda Hotel in Santa Fe. Chemerinsky is a distinguished professor of law and the Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. Check-in will begin at 11:30 a.m. and a buff et luncheon begins at noon. Th e

presentation follows at 12:30 p.m. Cost: $25 for judges, court staff and law students; $50 for Federal Bar Association members; non-lawyers, $75 for non-members. Credit cards, checks and cash will be accepted at the door. Checks can be sent to New Mexico Chapter of the Federal Bar Asso-ciation, 112 Edith NE, Albuquerque, NM 87102. Space is limited; register to guar-antee a spot. For more information or to register, contact Ron Holmes, [email protected], or Naomi Barnes, [email protected].

First Judicial District Bar AssociationApril 2015 Legislative Review State Sen. Peter Wirth and State Rep. Brian Egolf, Santa Fe attorneys and legisla-tors representing the First Judicial District, will discuss the highlights and lowlights of this year’s legislative session. Th e pro-gram is at noon, April 20, 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 AssociationIndian Law Seminar in Durango Th e New Mexico Criminal Defense Lawyers Association is partnering with the Colorado Criminal Defense Bar to host a CLE seminar on May 1 in Duran-go, Colo., “Criminal Justice Issues In & Around Indian Country” (4.5 G, 1.0 EP). Topics to be covered include federal and state jurisdictional issues, representing pro bono clients in tribal court practi-cally and ethically, and civil issues related to criminal charges on Native land. Visit www.nmcdla.org or call 505-992-0050 to register and to get information on how to reserve discounted hotel rooms early.

New Mexico Hispanic Bar AssociationLas Vegas Meet and Greet Th e New Mexico Hispanic Bar Asso-ciation and the Aragon Law Firm will co-sponsor a meet-and-greet event at 6 p.m., April 17, at the El Rialto Restaurant and Lounge, 141 Bridge Street, in Las Vegas. All are welcome. R.S.V.P. at www.nmhba.net.

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

The ABA Retirement Funds Program (the “Program”) provides a ordable 401(k) plans

with no out-of-pocket expenses exclusively to law rms of all sizes, even solos.

The Program o ers a broad range of retire-ment plans, full-service administration, and

professional duciary services. Contact the ABA Retirement Funds Program at

800-826-8901 or visit www.abaretirement.com for more information and a prospectus.

Member Benefi tF e a t u r e d

Submitannouncementsfor publication in the Bar Bulletin to

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

http://www.abaretirement



http://www.malsa.org


http://www.abqbar.org


http://www.nmcdla.org

http://www.nmhba



New Mexico Trial Lawyers FoundationTort Law Update The New Mexico Trial Lawyers Foun-dation presents “34th Annual Update on New Mexico Tort Law” (6.0 G, 1.0 EP), on April 24 in Albuquerque. For more infor-mation or to register, call 505-243-6003 or visit www.nmtla.org.

New Mexico Women’s Bar AssociationHon. Martha Vazquez to Receive Pettijohn Award The New Mexico Women’s Bar Asso-ciation Helen Pettijohn Award Reception honoring Hon. Martha Vazquez will be held from 6–9 p.m., May 7 at the Hotel Andaluz in Albuquerque. Tickets are $45 for WBA members, $60 for non-mem-bers, and $25 for students. A sponsorship table for ten is $500. For tickets, contact Amelia Nelson at [email protected]. The WBA is also asking for silent auction items for the event. To donate, contact Peggy Graham at [email protected]. All proceeds from the event benefit the WBA scholarship at the UNM School of Law.

other NewsChristian Legal AidTraining Seminar New Mexico Christian Legal Aid invites new members to join them as they work together to secure justice for the poor and uphold the cause of the needy. They will be hosting a refresher seminar from noon–5 p.m. on April 17 at the State Bar Center. Join them for free lunch, CLE credits and training as they update skills on how to provide legal aid. For more information or to register, contact Jim Roach at 505-243-4419 or Jen Meisner at 505-610-8800 or email [email protected].

New Mexico Foundation for Open GovernmentGovernment Transparency CLE Registration is open for the New Mex-ico Foundation for Open Government’s May 1 seminar on public records and open meetings laws (5.0 G, 1.0 EP, pend-ing MCLE approval). The program will be held at the Albuquerque Journal Building in Journal Center. For more information, visit http://myemail.constantcontact.com/New-Mexico-Foundation-for-Open-Government-CLE-May-1.html?soid=1103244704435&aid=SLB8YrkY_j0.

New Mexico Lawyers for the ArtsVolunteers Needed for Clinics New Mexico Lawyers for the Arts and WESST seek attorneys who are able to volunteer for a pro bono clinic in Santa Fe from 10 a.m.–2 p.m. on June 6. Volunteers can volunteer for the entire clinic or just a few hours. Lunch will be provided. Clients will be creative professionals or arts orga-nizations. Volunteer attorneys are needed in the following areas: contracts, business law, employment matters, estate planning, intellectual property law. For more infor-mation and to participate, contact Talia Kosh at [email protected].

Rocky Mountain Mineral Law FoundationEnhanced Oil Recovery Institute The State Bar is co-sponsoring the Special Institute on Enhanced Oil Recovery: Legal Framework for Sustainable Management of Mature Oil Fields, May 7–8 in San Antonio, Texas, with the Rocky Mountain Mineral Law Foundation. State Bar members may register for this program at the discounted rate. For a detailed program brochure, online regis-tration and information about discounted hotel rooms at the Westin Riverwalk Hotel, visit www.rmmlf.org. Comprehensive course materials will be provided to all registrants.

Southwest Women’s Law CenterCLE Program: Law Enabling Women’s Fair Pay in New Mexico The Southwest Women’s Law Center, in conjunction with American Association of University Women-New Mexico and the New Mexico Human Rights Bureau is presenting a CLE on the New Mexico Fair Pay for Women Act at noon on Monday, April 20, at the UNM Continuing Educa-tion Building, 1634 University Blvd. NE in Albuquerque. Pamelya Herndon, J.D., executive director of SWLC and Admin-istrative Law Judge Jaime Phillips, Ph.D., of New Mexico Workforce Solutions will speak about the law and make employers and employees more aware of their rights and responsibilities. Lunch and registra-tion is at 11:30 a.m. To register, visit http://aauwnmabqForumFairPay.eventbee.com, or contact [email protected] for information.

Workers’ Compensation Association of New Mexico34th Annual Conference The Workers’ Compensation Asso-ciation of New Mexico will host its 34th Annual Conference “Finding the Hero in You: The Super Men and Wonder Women of Work Comp,” May 13–15 at Isleta Resort and Casino in Albuquerque. The super hero-themed conference will kick off with the annual fund-raising golf tournament on May 13 at Isleta Eagle. The following two-day conference features HR/safety, medical and legal tracks with continuing education credits available for a variety of professionals, including 10.5 G and 1.0 E, (pending MCLE approval). For more information and to register, visit www.wcaofnm.com.

http://www.nmtla.org


http://myemail.constantcontact.com/


http://www.rmmlf.org

http://aauwnmabqForumFairPay.eventbee.com

http://aauwnmabqForumFairPay.eventbee.com


http://www.wcaofnm.com


Legal EducationApril

15–16 Great Adverse Depositions: Principles and Principal Techniques

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

15–16 Asset Purchase Deals, Parts 1–2 2.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

17 Ethics & Digital Communications 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

21 Oil and Gas: From the Basics to an In-Depth Study (2014)

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

21 Nonprofit Corporations Compliance (2014)

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

21 Supreme Court Case Update and New Rules Process (2014)


21 ‘Technethics’: Ethical Issues in Social Media and Other New Technologies (2014)

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

21 2015 Ethicspalooza: Civility and Professionalism


21 2015 Ethicspalooza: The Ethics of Social Media Use


21 Drafting Settlement Agreements in Litigation

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

24 The Brain-Smart Negotiator: Skills and Practices for the Effective Litigator

4.8 G, 1.2 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

24 34th Annual Update on New Mexico Tort Law

6.0 G, 1.0 EP Albuquerque New Mexico Trial Lawyers’

Foundation 505-243-6003 www.nmtla.org

28 New Mexico Administrative Law Institute 2014


28 Accounting for Lawyers (2014) 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

28 Practice Management, the Cloud, and Your Firm (Online Practice Management Strategies 2014)


28 Establishing Your Online Presence, Ethically and Professionally (Online Practice Management Strategies 2014)


28–29 Eminent Domain, Parts 1–2 2.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

26 Mistakes We’ve Made and Hope you Can Avoid

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

30 ADR Series: Mediating in Courts of Limited Jurisdiction—Are You Part of the Solution or Part of the Problem?

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

30 ID Theft Prevention and Remediation

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

30 Ethicspalooza: Conflicts of Interest 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org












http://www.nmtla.org











Legal Education www.nmbar.org

May

1 Criminal Justice Issues In & Around Indian Country

4.5 G, 1.0 EP Durango, Colo. New Mexico Criminal Defense

Lawyers Association 6.0 G 505-992-0050 www.nmcdla.org

1 Government Transparency: Recent Issues in Access to Public Records and Open Meetings

5.0 G, 1.0 EP Albuquerque New Mexico Foundation for Open

Government 505-764-3750 www.nmfog.org

1 The Second, Best Federal Bar Seminar Ever

6.0 G Albuquerque U.S. District Court, District of New

Mexico 505-348-2136 www.nmd.uscourts.gov

4 2015 Fiduciary Litigation Update 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

5 Writing and Speaking to Win (2014)


5 The Family Law Client in the Context of Immigration Law: What Every Attorney Should Know to Maximize Results for Noncitizen Clients


5 2015 Ethicspalooza: Ethically Managing Your Practice


5 2015 Ethicsplaooza: Proper Trust Accounting


5 Law Practice Succession—A Little Thought Now, a Lot Less Panic Later (2014)


5 Drafting Effective Employee Handbooks


6 2015 Employment and Labor Law Legislative Update

2.0 G Live Seminar 505-797-6020 www.nmbar.org

7 Business Valuation in Transactional Documents: Formulas, Comps & the Market


12 Letters of Intent in Transactions- Farming a Deal & Avoiding Liability


13 2015 FMLA Update 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

14 Essential Title Examination in Real Estate & Curing Defects


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

April

30 Ethicspalooza: All Those Fees 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

30 An Amazing Time in the Supreme Court

1.0 G Santa Fe New Mexico Chapter of the Federal

Bar Association [email protected]


http://www.nmcdla.org

http://www.nmfog.org

http://www.nmd.uscourts.gov

















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. 35,207 Mayer v. Jones COA 32,338 04/01/15No. 35,206 State v. Gonzales COA 33,884 04/01/15No. 35,205 Sotelo v. State 12-501 04/01/15No. 35,204 State v. Skaggs COA 34,127 03/31/15No. 35,128 Tinsley v. Cepeda COA 33,864 03/30/15No. 35,203 Graham v. Hatch 12-501 03/27/15No. 35,198 Noice v. BNSF COA 31,935 03/27/15No. 35,197 State v. Juarez COA 34,154 03/27/15No. 35,194 Andazola v. State 12-501 03/23/15No. 35,193 State v. Phillips COA 33,879 03/23/15No. 35,192 State v. Avalos COA 32,689 03/20/15No. 35,191 State v. Yanez COA 33,954 03/20/15No. 35,190 State v. Tapia COA 32,277 03/19/15No. 35,188 CYFD v. Tina P. COA 33,899 03/19/15No. 35,185 State v. Beckwith COA 33,828 03/19/15No. 35,184 State v. Vuljevic COA 33,860 03/19/15No. 35,183 State v. Tapia COA 32,934 03/18/15No. 35,182 State v. Tapia COA 32,277 03/17/15No. 35,181 State v. Winters COA 32,669 03/17/15No. 35,180 State v. Rockymore COA 34,138 03/17/15No. 35,179 State v. Peralta COA 33,987 03/16/15No. 35,178 State v. Hunter COA 33,663 03/16/15No. 35,164 State v. Najar COA 34,002 03/12/15No. 35,159 Jacobs v. Nance 12-501 03/12/15No. 35,163 State v. Dominguez COA 34,121 03/11/15No. 35,157 Firstenberg v.

City of Santa Fe COA 33,441 03/10/15No. 35,156 State v. Garcia COA 33,794 03/10/15No. 35,152 Arellano v.

N.M. Dept. of Health COA 34,062 03/06/15 Response ordered; due 4/21/15No. 35,151 State v. Foust COA 34,060/34,074 03/04/15No. 35,150 State v. Kerry K. COA 33,341 03/04/15No. 35,148 El Castillo Retirement Residences v.

Martinez COA 31,701 03/02/15 Response filed 3/17/15No. 35,145 State v. Benally COA 31,972 03/02/15No. 35,091 Lopez v. Tapia 12-501 03/02/15No. 35,116 State v. Martinez COA 32,516 02/25/15No. 35,122 Lente v. State 12-501 02/13/15No. 35,121 State v. Chakerian COA 32,872 02/13/15No. 35,106 Salomon v. Franco 12-501 02/04/15No. 35,105 Pena-Kues v.

Smith’s Food & Drug COA 32,790 02/03/15 Response filed 3/9/15No. 35,108 Pena-Kues v.

Smith’s Food & Drug COA 32,790 01/30/15 Response filed 3/9/15No. 35,097 Marrah v. Swisstack 12-501 01/26/15No. 35,098 Torres v. Hatch 12-501 01/23/15No. 35,084 Branch v. State 12-501 01/16/15

Response ordered; due 5/21/15No. 35,046 Ramirez v. Ortiz 12-501 12/15/14No. 35,040 Montoya v. Wrigley 12-501 12/15/14No. 35,037 Graham v. Hatch 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. 34,949 State v. Chacon COA 33,748 10/27/14 Response filed 10/31/14No. 34,937 Pittman v.

N.M. 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; due 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. 34,777 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. 34,765 Helfferich v. Frawner 12-501 06/24/14 Response ordered; filed 3/25/15No. 34,793 Isbert v. Nance 12-501 06/23/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,776 Serna v. Franco 12-501 06/13/14No. 34,748 Smith v. State 12-501 06/06/14No. 34,731 Helfferich v. Frawner 12-501 05/29/14 Response ordered; filed 3/25/15No. 34,739 Holguin v. Franco 12-501 05/21/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,589 Seager v. State 12-501 04/23/14 Response ordered; filed 2/18/15No. 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 but Not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 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 11/20/13

Effective April 3, 2015


Writs of CertiorariNo. 34,400 State v. Armijo COA 32,139 12/20/13No. 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. 34,843 State v. Lovato COA 32,361 08/29/14No. 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 01/26/15No. 35,016 State v. Baca COA 33,626 01/26/15No. 34,974 Moses v. Skandera COA 33,002 01/26/15No. 34,995 State v. Deangelo M. COA 31,413 02/06/15No. 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 Insurance v.

Vigil COA 32,171 03/23/15No. 35,101 Dalton v. Santander COA 33,136 03/23/15

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 09/11/13

No. 33,884 Acosta v. Shell Western Exploration and Production, Inc. COA 29,502 10/28/13

No. 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. 34,120 State v. Baca COA 31,442 03/26/14No. 34,122 State v. Steven B. consol. w/

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

Garduno COA 32,026 08/13/14No. 34,447 Loya v. Gutierrez COA 32,405 08/27/14No. 34,295 Dominguez v. State 12-501 09/24/14No. 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. 34,805 King v.

Behavioral Home Care COA 31,682 04/27/15No. 34,772 City of Eunice v. N.M. Taxation

and Revenue Dept. COA 32,955 04/27/15No. 33,994 Gonzales v. Williams COA 32,274 04/27/15No. 33,863 Murillo v. State 12-501 04/27/15No. 33,810 Gonzales v. Marcantel 12-501 04/27/15No. 34,769 State v. Baca COA 32,553 04/29/15No. 34,786 State v. Baca COA 32,523 04/29/15No. 35,005 State v. Archuleta COA 32,794 04/29/15

Writ of Certiorari Quashed:

Date Order FiledNo. 34,834 SF Pacific Trust v.

City of Albuquerque COA 30,930 04/03/15

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,154 State v. Albert COA 33,083 03/31/15No. 35,146 State v. Elliot COA 32,787 03/31/15No. 35,144 State v. Ridley COA 33,895 03/31/15


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


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

Published Opinions

No. 33300 13th Jud Dist Cibola CV-11-35, S BENAVIDEZ v CIBOLA COUNTY (affirm in part, reverse in part) 3/31/2015No. 33821 8th Jud Dist Taos CV-11-143, W KIPNIS v M JUSBASCHE (affirm in part, reverse in part) 4/02/2015

Unublished OpinionsNo. 34137 2nd Jud Dist Bernalillo LR-13-14, STATE v S THOMPSON (affirm) 4/01/2015No. 34295 5th Jud Dist Eddy JR-13-9, STATE v DEANNA H (reverse and remand) 4/01/2015No. 33958 3rd Jud Dist Dona Ana DM-09-1339, R CHIP v S CHIP (affirm) 4/02/2015No. 34018 2nd Jud Dist Bernalillo LR-12-38, STATE v A GALLION (affirm) 4/02/2015

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

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


Dated March 17, 2015

Clerk’s Certificate of Address and/or

Telephone Changes

Scott P. LandryLandry Law, PC9896 Rosemont Avenue, Suite 104Lone Tree, CO 80124720-583-2143720-583-2483 (fax)[email protected]

Samuel M. HerreraThe Herrera Firm PCPO Box 2345, Taos, NM 875711113 Calle Visariagas (El Prado, NM 87529)575-751-0417575-751-1687 (fax)[email protected]

Anne Murray1423 Seventh Street NWAlbuquerque, NM [email protected]

Sarah M. Bradley1500 Van Cleave Road NWAlbuquerque, NM 87107505-259-2554505-344-7396 (fax)[email protected]

Bette R. Knapp VelardeVelarde Law Office1228 Central Avenue SWAlbuquerque, NM 87102505-842-0062505-248-0261 (fax)[email protected]

Clerk’s Certificate of Withdrawal

Effective March 10, 2015:Patrick J. Anderson267 Peninsula RoadPlymouth, MN 55441

Effective March 10, 2015:Tom BlankenhornPO Box 525El Prado, NM 87529

Effective March 10, 2015:Laurence M. Leshin1216 Indiana Street NEAlbuquerque, NM 87110

Effective March 10, 2015:Timothy B. Rode214 Riverside Drive, Apt. 604New York, NY 10025

Effective March 12, 2015:Brett Andrew Steinbook8116 Aspen Avenue NEAlbuquerque, NM 87110

Effective March 11, 2015:Rocio Del Sagrario Toriz2601 Blanding Avenue, Suite C-356Alameda, CA 94501

Effective March 16, 2015:Hannah Stephen Turner10 Bosque RoadAlgodones, NM 87001

Effective March 10, 2015:Jacqueline I. Valenzuela5500 Broken Sound Blvd.Boca Raton, FL 33487

Effective March 14, 2015:C. Ted WimberleyPO Box 744Red River, NM 87558

Clerk’s Certificate of Name Change

As of March 13, 2015: Deena L. Buchanan f/k/a Deena Buchanan WilliamsRay, McChristian & Jeans, PC6000 Uptown Blvd. NE, Suite 307Albuquerque, NM [email protected]

March 16, 2015:Jane E. Granier f/k/a Jane E. Abrams1018 E. Amador AvenueLas Cruces, NM 88001575-526-5263575-647-5264 (fax)[email protected]

Clerk’s Certificate of Reinstatement to

Active Status

Effective March 13, 2015:

David Scott Christensen12737 Ethelton WayApple Valley, MN 55124

Clerk’s Certificate of Change to Inactive

Status

Effective March 11, 2015:David PaulyPauly Law FirmPO Box 36779Albuquerque, NM [email protected]

Effective March 17, 2015:D. Scott RiedelLaw Offices of the Public Defender301 N. Guadalupe Street, Suite 101Santa Fe, NM [email protected]

Dated March 24, 2015


Telephone Changes

Erica EllisEllis Law LLC910 W. Pierce Street, Suite 37Carlsbad, NM [email protected]

Donald R. Fenstermacher5913 Cubero Drive NEAlbuquerque, NM [email protected]

Adam Hartley GreenwoodOffice of the Attorney General111 Lomas Blvd. NW, Suite 300Albuquerque, NM [email protected]














Clerk’s Certificates

William Scott JaworskiN.M. State Land Office310 Old Santa Fe TrailSanta Fe, NM 87501505-827-5752505-827-4262 (fax)[email protected]

Juliet M. KeeneOffice of the Attorney General111 Lomas Blvd. NW, Suite 300Albuquerque, NM 87102505-222-9000505-222-9007 (fax)[email protected]

Ryan James McCordOffice of the Second Judicial District Attorney520 Lomas Blvd. NWAlbuquerque, NM [email protected]

Phillip P. MedranoSenior Citizens’ Law Office4317 Lead Avenue SE, Suite AAlbuquerque, NM 87108505-265-2300505-265-3600 (fax)[email protected]

Zachary P. OlivaKiefaber & Oliva LLP808 Travis Street, Suite 1030Houston, TX [email protected]

Hon. Linda G. Padilla800 S. Woodrow AvenueGallup, NM [email protected]

Jose Roberto PavonHoneywell Aerospace2524 S. El Paradiso, Unit 16Mesa, AZ [email protected]

Aaron A. RodriguezN.M. Department of Public SafetyPO Box 1628Santa Fe, NM 87504505-827-9154505-827-3387 (fax)[email protected]

Michael Patrick SanchezOffice of the Eleventh Judicial District Attorney335 S. Miller AvenueFarmington, NM 87401505-599-9810505-599-9822 (fax)[email protected]

Laura E. Sanchez-RivetSanchez Legal Solutions, LLCPO Box 656232929 Coors Blvd. NW, Suite 307-D (87120)Albuquerque, NM [email protected]

Kelly Brooks Smith15 Esquina RoadSanta Fe, NM [email protected]

Gabriela M. StewartCuddy & McCarthy, LLPPO Box 41601701 Old Pecos Trail (87505)Santa Fe, NM 87502505-988-4476505-954-7373 (fax)[email protected]

Andrea Jay WalkerOffice of the Third Judicial District Attorney845 N. Motel Blvd., 2nd FloorLas Cruces, NM 88007575-524-6370575-524-6379 (fax)[email protected]

Joan Maureen WatersN.M. Children, Youth and Families Dept.PO Box 220475 Courthouse Road Los Lunas, NM 87031505-865-4634 Ext. 1169505-866-0637 (fax)[email protected]

Evan P. Woodward9300 South IH, Set-A-500, Box 205Austin, TX [email protected]

Frank A. Baca Jr.PO Box 72609Albuquerque, NM [email protected]

Deborah D’Ann Dictsonc/o OIG100 Chestnut Street, Suite 107Abilene, TX 97602

Robin DreisigackerLaw Office of Robin Dreisigacker, LLC2501 San Pedro NE, Suite 214Albuquerque, NM [email protected]

Steven Lee GonzalesGonzales Law Firm, LLC3840 Masthead Street NEAlbuquerque, NM [email protected]

Lexi Wilson JonesFoster, Rieder & Jackson, PCPO Box 1607201 Third Street NW, Suite 1500 (87102)Albuquerque, NM 87103505-767-0577505-242-9944 (fax)[email protected]

Megan Elizabeth JordiKids in Need of Defense (KIND)435 W. 116th Street, Box G6New York, NY 10027

Barbara J. MerrymanOffice of the County AttorneyPublic Works Department2400 Broadway SE, Bldg. NAlbuquerque, NM 87102505-224-2127505-848-1510 (fax)[email protected]

Hon. Ross C. Sanchez (ret.)PO Box 27024Albuquerque, NM [email protected]

James C. Slattery2700 Zaragosa StreetAustin, TX [email protected]

Jeanne Yvonne Sohn8100 Wyoming Blvd. NE, Suite M4 #136Albuquerque, NM [email protected]

Susan O. Weckesser40A Old Road SouthLamy, NM 87540505-466-2200505-466-4060 (fax)[email protected]

John Joseph KellyLaw Office of John J. Kelly, PAPO Box 31085Albuquerque, NM [email protected]

Joseph E. CampBell3 George Court, Suite C2Edgewood, NM 87015505-286-7800505-286-2411 (fax)[email protected]

Roderick JuarezLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102505-835-2903505-796-4653 (fax)[email protected]

Anthony Wade LongOffice of the Attorney General111 Lomas Blvd. NW, Suite 300Albuquerque, NM 87102505-222-9020505-222-9006 (fax)[email protected]

JoHanna C. Cox5901-J Wyoming Blvd. NE, PMB #251Albuquerque, NM 87109505-503-4965505-214-5674 (fax)[email protected]

Charles D. NolandNoland Law OfficePO Box 25492Albuquerque, NM [email protected]

































Clerk’s Certificate of Reinstatement to

Active Status

As of March 27, 2015:Ernest J. C’DeBaca13463 E. Del Timbre DriveScottsdale, AZ [email protected]

Effective March 26, 2015:Jesse K. Tremaine3452 Richville Road, Unit 1801Manchester Center, VT 05255

As of March 23, 2015:Tom Alan Van Buskirk13922 East Hampden PlaceAurora, CO [email protected]

Clerk’s Certificate of Change to

Inactive Status

Effective March 25, 2015:Kevin J. Curran4105 Rancho Grande Place NWAlbuquerque, NM 87120505-899-1015

Effective March 6, 2015:John E. HernandezRackspace Hosting1 Fanatical PlaceCity of WindcrestSan Antonio, TX 78218210-312-6964210-312-4848 (fax)

February 28, 2015:Carol Anne Smith Rising712 Trujillo LaneCorrales, NM [email protected]

Clerk’s Certificate of Withdrawal

Effective March 16, 2015:John R. Durrance Jr.38 Liberty StreetMontpelier, VT 05602

Effective March 23, 2015:Nancy E. Nickerson283 Rodeo RoadSanta Fe, NM 87505

Clerk’s Certificate of Name Change

Iris Calderon Godina f/k/a Calderon Godina519 Granite Avenue NWAlbuquerque, NM [email protected]

March 19, 2015:Cindy A. Leos f/k/a Cynthia A. LeosLaw Office of Cindy Leos, LLC400 Gold Avenue SW, Suite 911Albuquerque, NM 87102505-247-2624505-842-5699 (fax)[email protected]

In Memoriam

March 27, 2015:William C. Marchiondo315 Fifth Street NWAlbuquerque, NM 87102

Dated April 1, 2015


Telephone Changes

Heidi Lyn AdamsOffice of the Tenth Judicial District AttorneyPO Box 1141300 S. Third StreetTucumcari, NM [email protected]

Hon. Jennifer L. AttrepFirst Judicial District CourtPO Box 2268225 Montezuma Avenue (87501)Santa Fe, NM 87504505-455-8290505-455-8323 (fax)

Amber C. BakerSecond Judicial District CourtPO Box 488400 Lomas Blvd. NW (87102)Albuquerque, NM [email protected]

Janet K. BakerDefense Contract Management Agency1151 E. Hermans Road, Bldg. 801Tucson, AZ [email protected]

Lauren M. BaldwinN.M. Taxation and Revenue Dept., Hearings Bureau801 Fourth Street NW, Suite KAlbuquerque, NM 87102505-243-8694505-243-3599 (fax)[email protected]

Taylor Wills Edwards BrownOffice of the Federal Public DefenderPO Box 17743Fort Worth, TX 76102817-978-2753817-978-2757 (fax)

Brian Douglas Escobedo2235 Galahad RoadSan Diego, CA 92123858-277-2511

Catherine Mary GleesonUniversity of Colorado, Office of University Counsel1800 Grant Street, Suite 700Denver, CO [email protected]

Kevin A. GrahamMcCarthy & Holthus LLP6501 Eagle Rock Avenue NEAlbuquerque, NM 87113877-369-6122 Ext. 3397505-809-3977 (fax)[email protected]

Jonathan M. Hill800 Lomas Blvd. NW, Suite 200Albuquerque, NM 87102505-600-1305505-243-0949 (fax)[email protected]

Matthew K. Hironaka908 N. Cobblestone StreetGilbert, AZ [email protected]

Gloria J. JohnsonPO Box 112219Tacoma, WA [email protected]

Ryan Kluthe936 Georgia Street SEAlbuquerque, NM [email protected]

Marshall G. Martin1990 Avalon RoadDubuque, Iowa [email protected]

Joan Annette McMahonN.M. Child Support Enforcement Division2732 N. Wilshire Blvd.Roswell, NM 88201575-624-9001575-624-6187 (fax)[email protected]

Marie Legrand Miller120 Tenth Street NW, Suite BAlbuquerque, NM 87102505-243-3199505-832-3332 (fax)[email protected]




















James Walton Mitchell IIISanders, Bruin, Coll and Worley, PAPO Box 550701 W. Country Club Road (88201)Roswell, NM 88202575-622-5440575-622-5853 (fax)[email protected]

Thomas A. Outler736 Madison Street NEAlbuquerque, NM [email protected]

Sylvia G. Porter500 E. San Antonio Avenue, Suite 503El Paso, TX [email protected]

Robert RetherfordN.M. Children, Youth and Families Dept.2800 Farmington AvenueFarmington, NM 87401505-327-5316 Ext. 1111505-599-9680 (fax)[email protected]

Andrea Waye ReynoldsStoel Rives LLP101 S. Capitol Blvd., Suite 1900Boise, ID 83702208-387-4249208-389-9040 (fax)[email protected]

Wayne Robert SuggettWayne R. Suggett Attorney at Law, PC201 Third Street NW, Suite 1800Albuquerque, NM 87102505-767-9804505-246-0707 (fax)[email protected]

Pilar VailePilar Vaile PC1110 El Alhambra Circle NWAlbuquerque, NM [email protected]

Tom Van Buskirk13922 East Hampden PlaceAurora, CO [email protected]

Roscoe A. WoodsOffice of the Attorney GeneralPO Box 1508408 Galisteo Street (87501)Santa Fe, NM 87504505-827-7416505-827-6478 (fax)[email protected]

Paul Trafton YarbroughHall & Evans, LLC1001 Seventeenth Street, Suite 300Denver, CO [email protected]

Dennis F. ArmijoDennis F. Armijo, PC4300 Rio Colorado Road NWAlbuquerque, NN [email protected]

Sue A. CallawayPO Box 92482Albuquerque, NM 87199

Dorothy K. CannonPO Box 129Selbyville, DE [email protected]

Marisol C. GarciaPO Box 27097Albuquerque, NM 87114

Nicholas L. PinoU.S. Department of AgricultureOffice of General CounselPO Box 586Albuquerque, NM 87103

Christine Eve RodriguezGap, Inc.4400 Masthead Street NE, Suite 300Albuquerque, NM [email protected]

Constance Grace TathamArizona Dept. of TransportationExecutive Hearing Office3838 N. Central Avenue, 3rd & 4th FloorsPhoenix, AZ 85012602-712-7737602-214-1624 (fax)

Jason Benjamin WheelessPO Box 27739500 Marquette Avenue NW, Suite 1200 (87102)Albuquerque, NM 87125

Thomas L. WrightLaw Office of Tom Wright521 Texas AvenueEl Paso, TX [email protected]

Christopher Saucedo ([email protected])Morris J. Chavez ([email protected])Ryan Harrigan ([email protected])Catherine Russell ([email protected])Frank Tomas Apodaca ([email protected])SaucedoChavez, PC6565 Americas Parkway NE, Suite 920Albuquerque, NM 87110505-338-3945505-338-3950 (fax)

William D. Slease ([email protected])Anne L. Taylor ([email protected])Christine E. Long ([email protected] Gagne ([email protected])The Disciplinary Board20 First Plaza Ctr. NW, Suite 710Albuquerque, NM 87102505-842-5781505-766-6833 (fax)

John R. KelleyLaw Office of John R. Kelley, LLC800 Lomas Blvd. NW, Suite 200Albuquerque, NM 87102505-242-2676505-243-0949 (fax)[email protected]

George Moore Moore ([email protected])Arin Elizabeth Berkson ([email protected] Pandora Bassan ([email protected])Daniel Joseph Behles ([email protected])Moore, Berkson, Bassan & Behles, PC3800 Osuna Road NE, Suite 2Albuquerque, NM 87109505-242-1218505-242-2836 (fax)

Joseph M. CampbellLaw Offices of the Public Defender301 N. Guadalupe Street, Suite 101Santa Fe, NM 87501505-395-2888 Ext. 10827505-204-7063 (fax)[email protected]

Yolanda Mercedes GaunaLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM [email protected]

J.K. Theodosia JohnsonLaw Offices of the Public Defender301 N. Guadalupe Street, Suite 101Santa Fe, NM [email protected]

Michael L. RosenfieldLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM [email protected]

Jeramy I. SchmehlLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102505-369-3586505-796-4612 (fax)[email protected]







































Donald R. Sears Jr.Office of the Second Judicial District Attorney520 Lomas Blvd. NWAlbuquerque, NM [email protected]

Melissa MorrisDavis Miles McGuire Gardner PLLC320 Gold Avenue SW, Suite 1401Albuquerque, NM 87102505-948-5050505-242-1014 (fax)[email protected]

Arthur Bailey III1440 S. St. Francis Drive, Suite BSanta Fe, NM 87505505-954-4808505-983-2502 (fax)[email protected]

Steven P. FisherSanders, Bruin, Coll and Worley, PAPO Box 550701 W. Country Club Road (88201)Roswell, NM 88202575-622-5440575-622-5853 (fax)[email protected]

Karen KahnModrall, Sperling, Roehl, Harris & Sisk, PAPO Box 2168500 Fourth Street NW, Suite 1000 (87102)Albuquerque, NM 87103-2168505-848-1800505-848-1889 (fax)[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


Pending Proposed Rule Changes Open for Comment:

Comment Deadline

Please see the special summary of proposed rule amendments pub-lished in the March 18, 2015 (Vol. 54, No. 11) issue of the Bar Bulletin. The actual text of the proposed rule amendments can be viewed on the Supreme Court’s website at the address noted below. The comment deadline for those proposed rule amendments is April 15, 2015.

Recently Approved Rule Changes Since Release of 2014 NMRA:

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.

http://nmsupremecourt.nmcourts.gov

http://www.nmcompcomm.us


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

From the New Mexico Supreme Court and Court of Appeals

From the New Mexico Supreme Court

Opinion Number: 2015-NMSC-007

STATE OF NEW MEXICO,Plaintiff-Appellee,

v.MICHAEL ASTORGA,

Defendant-AppellantNo. 33,684 (filed February 16, 2015)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYNEIL CANDELARIA, District Judge

HECTOR BALDERASAttorney General

SRI MULLISAssistant Attorney General

Santa Fe, New Mexicofor Plaintiff

JORGE A. ALVARADOChief Public DefenderDAVID HENDERSON

Assistant Appellate DefenderSanta Fe, New Mexico

for Defendant

Opinion

Edward L. Chávez, Justice1 A jury convicted Defendant Michael Astorga (Defendant) of one count of first-degree murder, two counts of tampering with evidence, and one count of being a felon in possession of a firearm. These convictions stemmed from the March 2006 shooting death of Deputy James McGrane during a traffic stop in the East Mountain area of Bernalillo County. Because Deputy McGrane was an on-duty peace officer, and because the shooting occurred prior to July 1, 2009, the effective repeal date of the death penalty, the State opted to seek a sentence of death. See NMSA 1978, § 31-20A-5 (1981) (listing aggravating cir-cumstances for capital felony sentencing determinations, including the victim’s identity as “a peace officer who was act-ing in the lawful discharge of an official duty when he was murdered,” that could support a sentence of death prior to July 1, 2009); 2009 N.M. Laws, ch. 11, §§ 1 to 7 (abolishing the death penalty for all crimes committed on or after July 1, 2009).2 At Defendant’s request, the dis-trict court impaneled a jury under Rule 5-704(D) NMRA (2004) to decide only the question of his guilt. After a full trial on that issue (the guilt phase), the jury returned a guilty verdict on all counts. A separate jury was then impaneled to

consider whether Defendant should “be sentenced to death.” Rule 5-704(D). After a second trial, which was limited to deter-mining whether Defendant should receive the death penalty (the penalty phase), the sentencing jury did not unanimously agree that Defendant should be sentenced to death. The district court therefore sen-tenced Defendant to life imprisonment for the first-degree murder conviction, followed by 13-1/2 years for the remaining convictions.3 Defendant advances five grounds for reversal, all limited to purported errors that occurred during the guilt phase of his trial. We consider each argument below and affirm.BACKGROUND4 Deputy McGrane was patrolling the area around Tijeras during the early hours of March 22, 2006, when he radioed the dispatch operator that he was pulling over a silver Dodge pickup truck with New Mexico license plate number 459-CDS. About five minutes later, an area resident called 911 and reported that: (1) he had heard two gunshots; (2) he could see a police vehicle pulled over on the side of the road; and (3) it looked like an officer was lying on the ground about ten feet from the vehicle with his flashlight on. The caller also reported that after he heard the shots, his girlfriend saw a white truck “peel[] out of there.”

5 When officers arrived at the scene, they found Deputy McGrane lying face-up on the road with “an apparent gunshot wound to the face.” Near Deputy Mc-Grane’s body, the officers recovered two spent 10-millimeter casings, both of which had been fired from a Glock handgun. At trial, a pathologist testified that Deputy McGrane had been shot from a distance of “less than 12 inches” and that the bul-let had struck him in the chin, severed his spine, and killed him instantly. The pathologist further testified that Deputy McGrane’s left leg had multiple abrasions, which “could be” consistent with being run over.6 The license plate number given to the dispatch operator by Deputy McGrane was registered to a Dodge truck owned by De-fendant. Cash Mart sold the Dodge truck to Defendant, but the title to the truck was still in Cash Mart’s name. At the time of the shooting, Defendant was a convicted felon and also had an outstanding warrant for his arrest. Earlier in 2006, Defendant had purchased property in the East Mountains under the name of Donnie Sedillo, look-ing to make a new life for himself and his family. At about the same time, Defendant had become a regular customer at the Ten Points General Store, where he was known as Donnie Sedillo. Approximately two months before Deputy McGrane’s death, Defendant had shown the owner of the general store his 10-millimeter Glock handgun. The 10-millimeter Glock used to kill Deputy McGrane was never recovered. Defendant’s truck, however, was found at a residence about 160 yards from Defen-dant’s property.7 After the shooting, law enforcement identified Defendant as a potential suspect in Deputy McGrane’s death and embarked upon a multiagency investigation. De-fendant was eventually apprehended in Mexico and deported back to New Mexico, where he faced charges relating to Deputy McGrane’s death.8 Defendant was tried for an open count of murder, two counts of tamper-ing with evidence (for hiding the truck and the 10-millimeter Glock handgun), and one count of being a felon in pos-session of a firearm. In addition to the evidence described above, several wit-nesses testified during the guilt phase about statements that Defendant had made after the shooting and before his capture in Mexico. One of Defendant’s

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance Opinionsfriends testified that Defendant came to the friend’s house shortly after the shoot-ing and told him, “[The Sheriff ’s Office] fucked it up again, and I started to do good again, and they fucked it up.” An-other witness testified that she had first met Defendant in Ciudad Juárez, Mexico during a trip to buy marijuana, and that Defendant had volunteered to her, “I’m Michael Astorga, I blasted that cop.” The same witness recounted that, on the same occasion, Defendant had tried to sell her guns, and when she asked him whether any of the guns had been used to kill “the cop,” Defendant answered, “No, I got rid of that one.”9 Defendant testified at trial and denied shooting Deputy McGrane. He claimed that he was in Albuquerque at the home of two of his friends at the time of the shoot-ing. When Defendant learned that he was wanted for Deputy McGrane’s murder, he fled to Mexico because he was “terrified” that he was “going to be killed by the po-lice.” The jury rejected Defendant’s alibi and convicted him on all counts.10 The penalty phase of Defendant’s trial then was held before a separate jury to decide whether Defendant should receive a death sentence. The penalty-phase jury found that Defendant knew or should have known that Deputy McGrane was a peace officer performing his duties, and that Defendant intended to kill Deputy Mc-Grane or acted with reckless disregard for Deputy McGrane’s life. However, the jury did not unanimously agree that Defendant should be sentenced to death. This appeal followed.11 This Court has jurisdiction over Defendant’s direct appeal under Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. Defendant advances five grounds for reversal, all limited to purported errors that occurred during the guilt phase of his trial: (1) trial counsel’s failure to litigate certain evidence amounted to either fundamental error or ineffective assistance of counsel; (2) the district court improperly excluded a prior inconsistent statement during Defendant’s cross-examination of a key witness for the State; (3) the State improperly questioned Defendant’s alibi witness about Defen-dant’s alleged involvement in another murder; (4) the State failed to introduce sufficient evidence of deliberation to sup-port a conviction for first-degree murder; and (5) the district court abused its discre-tion by denying Defendant’s motion for a change of venue.

DISCUSSIONI. Failure to Litigate Certain

Evidence: The “10-8” Call12 Defendant’s first argument for re-versal hinges on a piece of evidence that defense counsel claims to have overlooked during the guilt phase of the trial. At the beginning of its case-in-chief, the State played a recording for the jury of Deputy McGrane’s call to the dispatch operator shortly before his death. In the recording, Deputy McGrane can be heard describing his location and a vehicle:

McGrane:South 14 and 66, New Mexico, 459, Charles-David-Sam, silver Dodge pickup, one inside.Dispatch:10-9 you’re . . . South 14 and what mile marker?McGrane:Mile marker 29. It’s cross with 66.Dispatch:10-4.

At the same time as the “10-4,” a voice can be heard stating, “10-8,” the code that means that an officer has cleared the last call and is back in service. Defense counsel claimed during the penalty phase that he “didn’t catch” the 10-8 call during the guilt phase of the trial, and therefore failed to argue its significance to the jury. He also argued that if the “10-8” was Deputy McGrane clearing the call involving De-fendant’s truck, “then [Defendant] should have never been a suspect. He shouldn’t have been a target, much less convicted,” because the shooter was someone else.13 Defendant now maintains that de-fense counsel’s failure to litigate the 10-8 call during the guilt phase—“whether Deputy McGrane cleared the call . . . 4-1/2 minutes before the report of shots fired”—requires reversal for two reasons. First, citing Montoya v. Ulibarri, Defendant argues that the 10-8 call was evidence of his “actual innocence” and that as a result, defense counsel’s failure to litigate the call was fundamental error. See 2007-NMSC-035, ¶¶ 14, 23-25, 142 N.M. 89, 163 P.3d 476 (holding that Article II, Sections 13 and 18 of the New Mexico Constitution support an actual innocence claim in a ha-beas corpus proceeding, absent any other constitutional violation at trial). Second, Defendant maintains that the failure to litigate the 10-8 call violated his right to effective assistance of counsel under the Sixth Amendment of the United States Constitution. We address each argument in turn.

A. Failure to litigate the 10-8 call was not fundamental error

14 Under the doctrine of fundamental error, an appellate court has the discre-tion to review an error that was not preserved in the trial court to determine if a defendant’s conviction “shock[s] the conscience” because either (1) the defen-dant is “indisputably innocent,” or (2) “a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.” State v. Barber, 2004-NMSC-019, ¶¶ 8, 17, 135 N.M. 621, 92 P.3d 633 (internal quotation marks and citations omitted); see also Rule 12-216(B)(2) NMRA. When reviewing for fundamental error, “we first determine if error occurred; if so, we next determine whether that error was fundamental.” Campos v. Bravo, 2007-NMSC-021, ¶ 8, 141 N.M. 801, 161 P.3d 846.15 Defendant argues that the error in this case was defense counsel’s failure to litigate the 10-8 call during the guilt phase, purportedly in violation of Defendant’s “right . . . to have this critical evidence introduced at the trial that determined his guilt or innocence.” The State concedes that the failure to litigate the 10-8 call was an oversight on defense counsel’s part, but it disagrees that the call was evidence of Defendant’s actual innocence; instead, from the State’s perspective, defense coun-sel’s focus on the call during the penalty phase was merely a “shift in trial strategy” after “the guilt-phase jury rejected [Defen-dant’s] alibi.”16 We conclude that defense counsel’s potential oversight, while possibly an “error” in layman’s terms, is not the sort of legal error that the fundamental error doctrine is intended to remedy. Whether to litigate certain evidence at trial is a matter entrusted to the discretion of defense counsel. See, e.g., Lytle v. Jordan, 2001-NMSC-016, ¶ 47, 130 N.M. 198, 22 P.3d 666 (“ ‘The decision whether to call a witness is a matter of trial tactics and strategy within the control of trial counsel.’ ” (quoting State v. Orosco, 1991-NMCA-084, ¶ 35, 113 N.M. 789, 833 P.2d 1155)). Similarly, whether defense counsel erred by failing to discover the importance of certain evidence is a question of reason-ableness considered in light of the record. See State v. Arrendondo, 2012-NMSC-013, ¶¶ 38-39, 278 P.3d 517 (noting that for the Supreme Court to remand to the trial court an ineffective assistance of counsel claim raised on direct appeal, a defendant has to demonstrate that “defense counsel’s



http://www.nmcompcomm.us/Advance Opinionsperformance” fell outside “the range of reasonable representation,” relying upon a defendant’s development of the record “with respect to defense counsel’s actions” to evaluate said counsel’s performance, and refusing to speculate about the reason for trial counsel’s delay in discovering poten-tially exculpatory evidence). Thus, to claim that defense counsel’s failure to “catch” the 10-8 call during the guilt phase was error, is really just to challenge the adequacy of defense counsel’s performance at trial. This is not a claim of fundamental error, but one of ineffective assistance of counsel, a claim to which we now proceed.B. Defendant has not made a prima

facie claim of ineffective assistance of counsel

17 Defendant contends that defense counsel’s failure to litigate the 10-8 call was ineffective assistance of counsel under the Sixth Amendment of the United States Constitution. “To establish ineffective assistance of counsel, a defendant must show: (1) ‘counsel’s performance was de-ficient,’ and (2) ‘the deficient performance prejudiced the defense.’ ” State v. Paredez, 2004-NMSC-036, ¶ 13, 136 N.M. 533, 101 P.3d 799 (quoting Strickland v. Washing-ton, 466 U.S. 668, 687 (1984)). On direct appeal, the record is frequently inadequate to either evaluate counsel’s performance or to determine prejudice. Arrendondo, 2012-NMSC-013, ¶ 38 (“The record is frequently insufficient to establish whether an action taken by defense counsel was reasonable or if it caused prejudice.”). As a result, we prefer an ineffective assistance of counsel claim to be brought in a habeas corpus proceeding, “so that the defendant may actually develop the record with respect to defense counsel’s actions.” Id. However, if the defendant presents a prima facie case on direct appeal, we will remand the inef-fective assistance of counsel claim to the district court. Id. Absent a prima facie case, we presume that counsel’s performance was reasonable. Id.18 To determine if defense counsel’s performance was deficient, we consider whether it “ ‘fell below an objective stan-dard of reasonableness.’ ” State v. Hunter, 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 (quoting Strickland, 466 U.S. at 688). This is not an easy standard for convicted defendants to meet because “[w]e indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.” Hunter, 2006-NMSC-043, ¶ 13 (internal quotation marks omitted). “A prima facie case for ineffective assistance of counsel is not made if there is a plausible, rational strategy or tactic to explain the counsel’s conduct.” State v. Ortega, 2014-NMSC-017, ¶ 55, 327 P.3d 1076 (quoting Jordan, 2001-NMSC-016, ¶ 26).19 In this case, defense counsel stated that he “made a mistake and overlooked evidence” concerning the 10-8 call. De-fendant contends that this admission demonstrates that the failure to litigate the call was a mistake and not the result of trial tactics or strategy. We disagree. Without further factual development, defense counsel’s statement is ambiguous and therefore insufficient to support a prima facie ineffective assistance claim, particularly since the State has not had an opportunity to cross-examine counsel about his alleged oversight. When defense counsel stated that he “didn’t catch . . . at trial” the evidence concerning the clear-ing of the call, he may have meant, as Defendant suggests, that he did not notice the 10-8 call until after the jury returned its guilty verdict against Defendant. But the State offers an alternative meaning: that defense counsel noticed the call and disregarded it for some strategic reason until he “caught” its significance after the jury found Defendant guilty.20 The State’s interpretation of defense counsel’s words appears plausible, given that defense counsel reasonably could have concluded that the 10-8 call was not help-ful to Defendant’s case. Defense counsel could have decided not to emphasize the 10-8 call because the jury had the record-ing of the entire call to dispatch during its deliberations and, as we explain more fully below, the phrase “10-8” sounds as though it may have been made on an over-lapping airwave by an officer other than Deputy McGrane. Alternatively, defense counsel may have concluded that even if the 10-8 call had been made by Deputy McGrane, the call would not have proved that Deputy McGrane necessarily termi-nated all contact with Defendant. Under these circumstances, we cannot determine whether defense counsel’s performance “fell below an objective standard of rea-sonableness” without affording the State an opportunity to question defense counsel about the precise meaning of his state-ment and whether he chose to not litigate the 10-8 call as a matter of trial strategy.

Hunter, 2006-NMSC-043, ¶ 13 (internal quotation marks and citation omitted); see also Arrendondo, 2012-NMSC-013, ¶ 38-39 (noting that the record is “frequently insufficient to establish whether an action taken by defense counsel was reasonable” and refusing to speculate, for example, as to why a defense counsel delayed in learn-ing of a piece of evidence, so as to conclude that the defendant had failed to make a prima facie claim of ineffective assistance of counsel).21 Even assuming that defense coun-sel’s performance was deficient, Defendant has not established that he was prejudiced by the deficient performance. To prove prejudice,

[A] defendant must demonstrate that counsel’s errors were so serious, such a failure of the ad-versarial process, that such errors undermine[] judicial confidence in the accuracy and reliability of the outcome. A defendant must show a reasonable probability that, but for counsel’s unprofes-sional errors, the result of the proceeding would have been different.

State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (second alteration in original) (internal quotation marks and citations omitted).22 Defendant forcefully argues that the result of the guilt phase would have been different had defense counsel liti-gated the 10-8 call. He contends that the dispatch call was central to the State’s case, including the State’s argument that the call showed that Deputy McGrane “had acted as a witness to his own murder.” Accord-ing to Defendant, the 10-8 call potentially flips the meaning of the dispatch call on its head by suggesting that Deputy McGrane had already cleared his investigation of Defendant’s truck “minutes before he was killed.”23 We are not persuaded that, had defense counsel litigated the 10-8 call during the guilt phase, there was a reason-able probability that the result would have been different. We agree with the State that the relevance of the 10-8 call went to the question of Defendant’s identity as the shooter. Defense counsel argued as much during the penalty phase: “If . . . th[e] dispatch tape is correct and [Deputy McGrane] cleared that scene, then [Defen-dant] should have never been a suspect. He shouldn’t have been a target, much less convicted.” However, the guilt-phase



http://www.nmcompcomm.us/Advance Opinionsjury heard ample additional evidence from which it could have concluded that Defendant killed Deputy McGrane. Such evidence includes Defendant’s own admis-sions concerning his role in the shooting, the facts supporting the inference that De-fendant owned a Glock handgun (which was the murder weapon), and the facts indicating that the truck Deputy McGrane had pulled over prior to his murder was owned by Defendant. Cash Mart sold the Dodge truck to Defendant, but the title to the truck was still in Cash Mart’s name. In the face of all of the evidence of Defendant’s identity as Deputy McGrane’s killer, we are not persuaded, to a reason-able probability, that litigating the 10-8 call would have changed the outcome of the guilt phase of Defendant’s trial. The 10-8 call was just another piece of evidence for the jury to weigh in deciding whether Defendant murdered Deputy McGrane.24 Our conclusion is based on more than mere speculation. Due to the pro-cedural history of this case, the State effectively had to re-litigate the question whether Defendant murdered Deputy McGrane during the penalty phase, and defense counsel took full advantage of the second opportunity to argue Defendant’s innocence. See UJI 14-7014 NMRA (pro-viding that, to find the defendant guilty of the aggravating circumstance of “murder of a peace officer,” the jury must find, inter alia, that “the defendant knew or should have known that (name of victim) was a peace officer” and that Defendant “intended to kill or acted with a reck-less disregard for human life and knew that [his] [her] acts carried a grave risk of death”). The 10-8 call featured promi-nently in that phase of the proceedings, and the jury heard conflicting testimony about whether the call had been made by Deputy McGrane or by another officer on an overlapping airwave. Significantly, defense counsel placed the 10-8 call front-and-center during his closing remarks:

You know, Folks, I should sit down now. This case should be over with because [the dispatch recording] alone, if anybody

would have ever taken the time to look at it, to think about it, to study, to get the CAD1 reports to listen to what was really said in this case should have ended this. Why? Because [Deputy McGrane] went 10-8. The State may get up and say, well, we don’t think that was his voice. I’m sorry, it was your dispatch tape. It was your operator. It was your dispatch operator, it was your exhibit. You’re the one that admit-ted it. You’re the one that told us that. I’m sorry, that is what they said. There is no way around that, and there is no way around it for a jury either. It’s cold and clear as you can get it.

The penalty-phase jury considered this conflicting evidence and argument to-gether with the recording and transcript of the dispatch call, and unanimously found the aggravating circumstance of “murder of a peace officer.” Thus, even after the 10-8 call was fully litigated, the penalty-phase jury unanimously concluded that Defen-dant had murdered Deputy McGrane. We therefore cannot say to a reasonable prob-ability that litigating the 10-8 call during the guilt phase would have produced a different result.2

25 We hold that Defendant has not made a prima facie case of ineffective assistance of counsel on direct appeal. However, De-fendant is not precluded from pursuing this claim in a separate habeas proceed-ing, where he may get the opportunity to fully litigate the reasonableness of defense counsel’s failure to litigate the 10-8 call and whether he was prejudiced by that failure. See Arrendondo, 2012-NMSC-013, ¶¶ 42-44 (noting that although there was not “enough evidence to properly address” the defendant’s ineffective assistance of counsel claim, the defendant was “free to pursue habeas corpus proceedings where he may actually develop the record” with respect to said claim).II. Gonzales’s Prior Inconsistent

Statement26 Defendant next argues that the dis-trict court improperly prevented him from

calling a witness to impeach the testimony of Ernest Gonzales, the owner of the Ten Points General Store, who testified that he had seen Defendant several weeks before Deputy McGrane’s death with a 10-mil-limeter Glock handgun—the same type of handgun used to shoot Deputy McGrane. Gonzales testified that Defendant was a regular customer at Gonzales’s conve-nience store and that on one occasion, Defendant noticed the 9-millimeter Glock handgun that Gonzales carried on his hip and said “I’ve got one similar to that.” Some time later, Defendant again visited Gonzales’s store and said, “Oh, I brought that gun so I could show you the one that I had like yours.” Gonzales testified that he picked up Defendant’s gun and saw that it said “Glock” and “ ‘10 mm’ right on it.”27 On cross-examination, defense counsel asked Gonzales about his previous statement to a defense investigator about why Gonzales thought that the gun Defen-dant had shown him was a 10-millimeter Glock. According to defense counsel, Gon-zales told the investigator that he actually never saw the “10 mm” stamp, and that instead, Defendant had told Gonzales that it was a 10-millimeter handgun when De-fendant pulled it out of his pocket. Defense counsel pressed Gonzales about his prior statement that he had not actually looked at the stamp, and Gonzales responded, “From what I saw, that’s what I saw,” but he did not remember exactly what he had told the investigator about seeing the stamp.28 Defendant later tried to call the in-vestigator to testify about Gonzales’s prior statement. The State objected, arguing that Gonzales had not testified in a manner that was inconsistent with the prior statement. In considering the objection, the district court asked sua sponte, “Prior inconsistent statements, don’t they have to be under oath as well, Counsel?” Defense counsel responded, “No, not under the rule. That changed some years ago.” Unconvinced, the district court asked counsel for both the State and the defense to research the “prior inconsistent rule” over recess. Upon their return, the court conferred with counsel off the record and disallowed the

1CAD reports are “everything that the [law enforcement] dispatcher types in on [his or] her computer.” These CAD reports include information concerning the “call, the location,” etc. Dispatchers “dispatch[] [law enforcement] units to their calls and tak[e] care of all units.” 2At oral argument, this Court questioned Defendant’s appellate counsel about whether the phrase “10-8” was actually part of the larger phrase, “two-oh-nine, 10-8,” that can be heard immediately preceding and overlapping with the dispatch operator’s “10-4.” The parties were granted leave to file supplemental briefing to address the issue, and both acknowledged that the larger phrase, “two-oh-nine, 10-8” or “two-one-niner, 10-8,” can be heard on the recording. Defendant’s appellant counsel acknowledges that the significance of this larger phrase was neither argued nor raised during Defendant’s trial.



http://www.nmcompcomm.us/Advance Opinionsinvestigator’s testimony, apparently be-cause Gonzales’s prior statement was not given under penalty of perjury as required for prior inconsistent statements admit-ted under Rule 11-801(D)(1)(a) NMRA (2006). Defense counsel then made the following statement “to make a record”:

I understand the Court has ex-amined the rule and that rule requires that that be under oath before we can impeach in the fashion that I desire to do such. I respectfully disagree with the rule. I think that it denies us the opportunity to present evidence that would contradict what Mr. Gonzales is saying, but I do un-derstand the rule.

29 Defendant argues on appeal that the district court erred by disallowing the investigator’s testimony under Rule 11-801(D)(1)(a), contending for the first time that the testimony was admissible under Rule 11-613(B) NMRA (1993) as extrinsic evidence of a prior inconsistent statement for impeachment purposes. We review de novo whether the district court applied the correct evidentiary rule to ex-clude the investigator’s testimony. See, e.g., State v. Torres, 1999-NMSC-010, ¶ 28, 127 N.M. 20, 976 P.2d 20 (“[T]he threshold question of whether the trial court applied the correct evidentiary rule or standard is subject to de novo review on appeal.”). Given the apparent confusion that arose in this case, we take this opportunity to clarify the different purposes and effects of these two rules, which both relate to the admissibility of prior inconsistent statements.A. Rules 11-613 and 11-801(D)(1)(a)

govern different aspects of the admissibility of a prior inconsistent statement

30 Under the New Mexico Rules of Evidence, a prior inconsistent statement has three elements: (1) the statement was made by a witness who testifies at trial; (2) the statement was given before the witness testifies at trial; and (3) the statement is inconsistent with the witness’s trial testi-mony. See Rule 11-801(D)(1)(a). Because of the second element, a prior inconsistent statement is not given “at the current trial or hearing”; thus, the admissibility of this prior statement invariably implicates the rule against hearsay. Rule 11-801(C) (de-

fining hearsay as a statement that is not made while testifying at the current trial or hearing and that is offered to prove the truth of the matter asserted in the state-ment); Rule 11-802 NMRA (providing that hearsay is inadmissible except as provided by rule or statute).31 However, courts have long recog-nized that prior inconsistent statements differ from other types of out-of-court statements in several important ways. First, prior inconsistent statements are inherently relevant for a “non-hearsay” purpose: impeaching a witness’s credibil-ity. See, e.g., State v. Carlton, 1971-NMCA-019, ¶ 34, 82 N.M. 537, 484 P.2d 757 (“It is fundamental that a statement, written or oral of a witness as to a material matter inconsistent with his testimony at trial is admissible for impeachment purposes.”); see also 3A John Henry Wigmore, Evidence in Trials at Common Law § 1017, at 993 (James H. Chadbourn ed., 1970) (“We place [the witness’s] contradictory state-ments side by side, and, as both cannot be correct, we realize that in at least one of the two he must have spoken errone-ously. Thus, we have detected him in one specific error, from which may be inferred a capacity to make other errors.”). As a result, a prior inconsistent statement used for impeachment is not hearsay because it is not admitted for the truth of the matter asserted; rather, “it is the fact of the incon-sistency that is admissible, not the substan-tive truth or falsity of the prior statement.” State v. Macias, 2009-NMSC-028, ¶ 20, 146 N.M. 378, 210 P.3d 804, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.32 A second distinguishing feature of a prior inconsistent statement is the declar-ant’s presence in the courtroom. See Rule 11-801(D)(1)(a). Because the declarant actually testifies at trial and is subject to cross-examination about the prior state-ment, the usual concerns about the reli-ability of the out-of-court statement are greatly diminished. See, e.g., 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:1, at 9 (4th ed. 2013) (noting that prior inconsistent statements, inter alia, “are often more reliable than testimo-ny because [prior inconsistent statements are] closer in time to the matter reported and less likely to have been influenced by the controversy”).

33 Rules 11-613 and 11-801(D)(1)(a) codify the differences between prior inconsistent statements and other out-of-court statements, albeit in a somewhat indirect manner. Rule 11-613 is a pro-cedural rule that governs two aspects of how a prior inconsistent statement may be used for impeachment purposes. Our focus here is on Rule 11-613(B), which provides that “[e]xtrinsic evidence of a prior inconsistent statement by a wit-ness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.” The rule thus presumes that a witness may be impeached by questioning the witness about a prior inconsistent statement, and the rule allows, but does not require, extrinsic evidence of the prior statement when the require-ments of the rule have been satisfied. See 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 613.05[1] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2014) (“Rule 613 does not require a party who seeks to impeach a witness through alleged prior inconsistent statements to present extrinsic evidence of the statements.”).34 Rule 11-801(D)(1)(a), by contrast, embodies a limited recognition of the notion that a prior inconsistent state-ment is more reliable than other types of out-of-court statements. Rule 11-801(D)(1)(a) singles out one category of prior inconsistent statements as “not hearsay” because of the circumstances under which the statements are made.3 See 5 Weinstein & Berger, supra, § 801.21[1] (“[P]rior inconsistent statements that fulfill the requirements of Rule 801(D)(1)(A) are ut-tered under circumstances that make them at least as reliable as in-court testimony.”). Under Rule 11-801(D)(1)(a), a prior inconsistent statement is “not hearsay” when the declarant testifies and is subject to cross-examination about the prior state-ment, and the statement was “given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” Because the statement is “not hearsay,” it can be admitted as substantive evidence—“to prove the truth of the matter asserted” in the statement and not just for impeachment. Rule 11-801(C)(2) NMRA.

3Before 1995, Rule 11-801(D)(1)(a) excluded all prior inconsistent statements from the definition of hearsay. Rule 11-801(D)(1)(a) NMRA (1973, amended 1993). The rule was amended in 1995, consistent with Federal Rule of Evidence 801(d)(1)(a), to exclude only statements “given under oath subject to the penalty of perjury.” Rule 11-801(D)(1)(a) (1995, amended 2012).



http://www.nmcompcomm.us/Advance OpinionsThis can be particularly important in a case in which the prior statement is the only ev-idence presented on a particular element of a crime. Cf. 5 Weinstein & Berger, supra, § 801.21[5] (“If a statement admitted under Rule 801(d)(1)(A) is the only evidence on an element in an offense charged, the court must determine whether the nature of the evidence is sufficient for conviction.”).35 Thus, extrinsic evidence of a prior inconsistent statement—including a state-ment admitted under Rule 11-801(D)(1)(a)—is always admissible for impeach-ment purposes, subject to the require-ments of Rule 11-613 and to the general rules governing relevance. See, e.g., State v. Davis, 1981-NMSC-131, ¶¶ 18-20, 97 N.M. 130, 637 P.2d 561 (holding that the district court properly relied on Rule 11-403 NMRA to exclude extrinsic evidence of a prior inconsistent statement when the probative value of the evidence was substantially outweighed by the “needless presentation of cumulative evidence”). However, to introduce a prior inconsis-tent statement for its truth—as substan-tive proof of the matter asserted in the prior statement—the statement must have been given under “penalty of perjury” as provided in Rule 11-801(D)(1)(a) or fall within a hearsay exception under Rule 11-803 NMRA (1993). Due to the potential for misuse of a statement admitted only for impeachment purposes, a limiting instruction is often appropriate when a prior inconsistent statement cannot be considered for its truth. See UJI 14-5009 NMRA (articulating jury instructions concerning the admission of evidence for a limited purpose); see also 3 Mueller & Kirkpatrick, supra, § 6:99, at 614 (“Of course the court on request should give an appropriate limiting instruction advising the jury that the statement is admissible only for whatever light it might shed on the credibility of the witness, and not as proof of what the statement asserts . . . .”).B. The district court erred by relying

on Rule 11-801(D)(1)(a) to exclude extrinsic evidence of Gonzales’s prior inconsistent statement

36 In this case, Defendant’s cross-examination of Gonzales emphasized that Gonzales’s in-court testimony (about hav-ing seen the “10 mm” stamp on the Glock handgun) was inconsistent with his previ-

ous statement to the investigator that he never actually saw the stamp. The record also shows that Defendant gave Gonzales a chance during cross-examination to ex-plain or deny his prior statement and that the State had the opportunity to question Gonzales about the prior statement during his re-direct examination. These circum-stances easily satisfy the requirements for the admission of extrinsic evidence of a prior inconsistent statement for the purpose of impeachment under Rule 11-613(B).37 Further, nothing specific in the record indicates that Defendant intended to argue the prior statement for its truth. Indeed, in responding to the State’s objec-tion to the investigator’s testimony, de-fense counsel explicitly stated that he had laid the proper foundation to “impeach” Gonzales, although he did not directly reference Rule 11-613. Thus, Defendant’s purpose for the investigator’s testimony seemingly was to cast doubt on Gonzales’s credibility—not to prove that Gonzales did not actually see the “10 mm” stamp. Under these circumstances, when the prior statement was offered only to impeach Gonzales and not to prove its truth, Rule 11-801(D)(1)(a) simply was not impli-cated.38 The State argues that irrespec-tive of the rule upon which the district court relied to exclude the investigator’s testimony, Gonzales’s trial testimony was not inconsistent with his prior statement. Because Gonzales only testified that he could not remember what he might have said and did not dispute what he may have told the investigator, the State maintains that Gonzales “made no prior inconsistent statement.”39 The State’s argument misses the mark. In evaluating whether a witness’s trial testimony is inconsistent with the witness’s prior statement, the question is not whether the witness denies—or even recalls—having made the prior statement. In fact, under “current practice,” the wit-ness need not even be confronted with the prior statement before extrinsic evi-dence is presented as long as the witness has an opportunity to “explain or deny” the statement at some point during the proceeding. See State v. Dominguez, 2007-NMSC-060, ¶¶ 18-19, 142 N.M. 811, 171

P.3d 750 (“[T]he federal rule, identical to our Rule 11-613(B), ‘permits departure from the traditional, although often still preferred, method of confronting a witness with his inconsistent statement prior to its introduction in to evidence.’ ” (quot-ing State v. Gomez, 2001-NMCA-080, ¶ 14, 131 N.M. 118, 33 P.3d 669)); see also 3 Mueller & Kirkpatrick, supra, § 6:101, at 638-39 (“Rule 613 does not specify any particular time or sequence, so the chance for explanation or denial (and for additional questioning by parties defend-ing or repairing the witness’ credibility) may be provided either before or after the statement has been proved by extrinsic evidence.” (internal quotation marks and footnote omitted)).40 The question, instead, is simply whether the substance of the witness’s trial testimony is inconsistent with the prior statement. See, e.g., State v. Varela, 1999-NMSC-045, ¶ 36, 128 N.M. 454, 993 P.2d 1280 (holding that “there must be substantive inconsistencies” to justify ad-mitting a prior inconsistent statement into evidence). In this case, Gonzales testified at trial that he actually saw the “10 mm” stamp on the Glock handgun. Defendant sought to impeach Gonzales with his prior statement that he did not actually look at the stamp. These statements are clearly in-consistent, irrespective of Gonzales’s ability to recall the prior statement.4 The require-ments of Rule 11-613(B) were therefore satisfied, and the investigator’s testimony was admissible to impeach Gonzales, sub-ject to the district court’s broad discretion under Rule 11-403. We note that defense counsel failed to cite Rule 11-613(B) to the district court when he conceded that the testimony did not meet the required elements for admissibility under Rule 11-801(D)(1)(a) and did not emphasize his intent to simply introduce the evidence as impeachment evidence. Nonetheless, excluding the extrinsic evidence of Gon-zales’s prior inconsistent statement under Rule 11-801(D)(1)(a) was error when the evidence was offered only for the purpose of impeachment. We now address whether the improper exclusion of the investigator’s testimony requires reversal.C. The error was harmless41 The State contends that Defendant failed to preserve his argument that the

4The State does not argue, and we do not decide, whether extrinsic evidence of a prior inconsistent statement is admissible when the witness admits having made the prior statement. See, e.g., United States v. Soundingsides, 820 F.2d 1232, 1240 (10th Cir. 1987) (holding that it was error to admit extrinsic evidence of prior inconsistent statements when the witnesses acknowledged having made the inconsistent statements; there was no need for further proof of the statements).



http://www.nmcompcomm.us/Advance Opinionsevidence was admissible under Rule 11-613(B), and we therefore must limit our review to fundamental error. As we previously recounted, the record suggests that defense counsel conceded that the testimony was inadmissible under Rule 11-801(D)(1)(a) and did not alert the dis-trict court to its admissibility under Rule 11-613(B). Under a crabbed reading of our preservation requirements, we could limit our review either to plain error under Rule 11-103(E) NMRA or to fundamental error. See, e.g., Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, ¶ 22, 133 N.M. 669, 68 P.3d 909 (explaining that Rule 12-216(A) NMRA requires a party to object to a trial court’s ruling “on the same grounds argued in the appellate court” (internal quotation marks and citations omitted)); see also State v. Lucero, 1993-NMSC-064, ¶ 12, 116 N.M. 450, 863 P.2d 1071 (“ ‘Even if the defendant did not raise proper objections at trial, he may be entitled to relief if the errors of which he complains on appeal constituted plain error . . . or fundamental error.’ ” (quoting State v. Barraza, 1990-NMCA-026, ¶ 17, 110 N.M. 45, 791 P.2d 799) (internal citations omitted)). How-ever, defense counsel’s explanation that he intended to offer the investigator’s testi-mony for the purpose of impeachment—a non-hearsay purpose firmly embedded in our Rules of Evidence—was sufficiently specific to preserve the issue for appellate review.42 When an error is preserved, we re-view for harmless error, and our inquiry depends on whether the error was consti-tutional. See Tollardo, 2012-NMSC-008, ¶ 36. Defendant contends that the exclusion of the investigator’s testimony violated his Sixth Amendment right of confrontation and his Fourteenth Amendment right to due process. The State persuasively argues that these contentions lack merit, and it appears that Defendant abandoned them in his reply brief. Even so, we note that Gonzales testified at trial, and defense counsel actually cross-examined him about his prior statement. Further, defense counsel argued in his closing remarks that Gonzales was not a credible witness based, in part, on his inconsistent statements about having seen the “10 mm” stamp. We therefore fail to see how excluding the investigator’s testimony implicated Defendant’s confrontation or due process rights.43 Absent a constitutional violation, we look to whether there is a reasonable prob-ability that the error affected the verdict.

See id. Defendant bears the initial burden of demonstrating that he was prejudiced by the error. State v. Holly, 2009-NMSC-004, ¶ 28, 145 N.M. 513, 201 P.3d 844. Apart from the claimed constitutional errors addressed above, Defendant contends that the absence of the investigator’s testimony “permitted the jury erroneously to infer [that] the statement had not in fact been made.” We disagree. Defense counsel im-peached Gonzales with his prior inconsis-tent statement during cross-examination, and Gonzales did not deny that he may have told the investigator that he did not actually look at the “10 mm” stamp when Defendant showed him Defendant’s hand-gun. Also, irrespective of whether Gonza-les saw the “10 mm” stamp or Defendant told him that the handgun was a 10-mil-limeter Glock, both statements confirmed that Defendant had shown Gonzales the type of weapon used to kill Deputy McGrane. Thus, extrinsic evidence of the prior statement was minimally relevant to Gonzales’s credibility on the material issue at hand, and therefore such evidence could have been excluded as causing “undue de-lay, wasting time, or needlessly presenting cumulative evidence.” Rule 11-403; see also Davis, 1981-NMSC-131, ¶¶ 17-20 (hold-ing that the district court did not abuse its discretion by excluding extrinsic evidence of a prior inconsistent statement when the defense attorney had cross-examined the witness about the statement and argued the inconsistencies to the jury during clos-ing arguments).44 We could affirm the exclusion of the investigator’s testimony on the basis of Rule 11-403 alone. See, e.g., Macias, 2009-NMSC-028, ¶ 17 (“The trial record does not clearly reveal the trial court’s specific reason for admitting the statements, but we may uphold the judge’s decision if it was right for any reason.”). However, we also conclude that the exclusion of the investigator’s testimony was harmless error because whether the investigator saw the stamp on the gun or Defendant told the investigator that the gun was a 10-millimeter Glock, there is no reason-able probability that impeachment of the investigator would have affected the verdict.III. Improper Questioning about

Defendant’s Involvement in Another Murder

45 Defendant next contends that his conviction should be reversed because of a question asked by the State during its cross-examination of one of Defen-

dant’s alibi witnesses, Yolanda Saiz, that improperly referred to Defendant’s sus-pected involvement in a prior homicide. Approximately five months before Deputy McGrane’s death, Defendant had been charged with an open count of murder for the death of Candido Martinez, and a war-rant had been issued for Defendant’s arrest. In a pretrial motion, the State argued that evidence of the outstanding warrant was “essential to prove the defendant’s motive and intent at the time of the shooting” of Deputy McGrane. The State therefore asked the district court to “admit evidence that a warrant had been issued for the defendant for [the] previous murder, and that the warrant was in effect at the time of the murder of Deputy McGrane.”46 Over Defendant’s objection, the district court granted the motion in part, ruling that the State could inform the jury that Defendant had an outstanding arrest warrant at the time of Deputy McGrane’s death. However, the court also ruled that the State could not introduce evidence that the warrant was for murder, reasoning that such evidence would be highly prejudicial to Defendant. The district court later rejected the State’s follow-up request to introduce evidence that the warrant was simply for a felony.47 The State repeatedly and forcefully renewed its motion to inform the jury that the warrant was for murder, also arguing that the evidence was necessary to provide context for a central theme of the defense: that several defense witnesses had given inconsistent statements to law enforce-ment because they had been terrorized during the manhunt for Defendant. The State contended that the only way to ratio-nalize the aggressive search for Defendant by law enforcement not only was to explain that Defendant was suspected of Deputy McGrane’s murder, but he also was a con-victed felon who was wanted for another murder, and who was believed to be armed and dangerous. The district court denied many such requests by the State, reasoning each time that the fact that the warrant was for murder would be highly prejudicial to the defense.48 Before the State’s cross-examination of Saiz, the State renewed its request to inform the jury that the outstanding war-rant was for murder. Saiz had given several conflicting statements to the police about her knowledge of Defendant’s whereabouts at the time of Deputy McGrane’s death. In the midst of questioning Saiz about a num-ber of inconsistencies between one of her



http://www.nmcompcomm.us/Advance Opinionsprior statements and her trial testimony, the State asked the following question:

Q: In fact, what you said [was], “If you guys would have caught him before, he wouldn’t have killed somebody else,” that’s what you said in your first statement, isn’t it?

A: I mean, that’s what it says there, yes.

The question and answer were admitted without objection, without any reaction from defense counsel or the district court, and were never alluded to again during the proceedings.49 Defendant contends that the State “intentionally used a statement concern-ing [the] other homicide to impeach a key defense witness” in violation of the district court’s repeated rulings that “evidence regarding the unrelated homicide should be excluded.” Defendant acknowledges that the asserted error was not preserved, and therefore asks this Court to review for plain error. See Rule 11-103(E) (“A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.”). The State counters that we should limit our review to the more stringent fundamental error standard. Under either standard, we must be convinced that “admission of the evidence in question ‘creates grave doubts concerning the validity of the verdict.’ ” State v. Rojo, 1999-NMSC-001, ¶ 45, 126 N.M. 438, 971 P.2d 829 (quoting Lucero, 1993-NMSC-064, ¶ 12).50 The first step in a plain or fundamen-tal error analysis is to determine whether the evidence in question was erroneously admitted. See Campos, 2007-NMSC-021, ¶ 8 (“[W]e first determine if error occurred; if so, we next determine whether that error was fundamental.”). Defendant contends that the State’s question was unrelated to the impeachment of Saiz and that “its only connection to the issues before the jury was as highly improper propensity evidence.” We disagree. Saiz testified that Defendant was at her house until some-time “after midnight” on the morning of March 22, 2006, the morning that Deputy McGrane was killed shortly after 12:44 am. As a result, her prior inconsistent state-ment to the police that, “If you guys would have caught him before, he wouldn’t have killed somebody else,” was relevant to her credibility. Saiz’s prior statement clearly acknowledged that she found Defendant’s involvement in Deputy McGrane’s death

to be at least plausible, which would not be true had Defendant been at her house that morning. Thus, the prior statement was relevant to show that Saiz had been untruthful, either in her statement to the police or in her testimony at trial. See Macias, 2009-NMSC-028, ¶ 20 (“We place [the witness’s] contradictory statements side by side, and, as both cannot be correct, we realize that in at least one of the two he must have spoken erroneously. Thus, we have detected him in one specific error, from which may be inferred a capacity to make other errors.” (alteration in original) (quoting 3A Wigmore, supra, § 1017, at 993)).51 Given the relevance of the prior statement, it could only have been ex-cluded if its relevance was “substantially outweighed by a possibility of . . . unfair prejudice.” Rule 11-403. The district court had determined that evidence that the warrant was for murder was inadmissible under Rule 11-403, and it had staunchly adhered to that holding throughout the trial—with the vigorous support of defense counsel. That neither the district court nor defense counsel reacted to the State’s question leads us to conclude that, in the context of the trial, the question was not as “highly prejudicial” as Defendant now contends. In fact, the State renewed its request to inform the jury that the warrant was for murder during Saiz’s redirect ex-amination—after it had asked the question in dispute—and neither the district court nor defense counsel took issue with the State’s previous question.52 The single question and answer was the lone reference to Saiz’s prior state-ment that the jury heard in a trial that lasted more than two weeks, a trial that, as explained later in this opinion, included abundant evidence of Defendant’s guilt. Thus, even under the harmless error stan-dard that applies to errors that are properly preserved, the admission of the question would not require reversal. See State v. Serna, 2013-NMSC-033, ¶ 23, 305 P.3d 936 (“When assessing the probable effect of evidentiary error, ‘courts should evaluate all of the circumstances surrounding the error.’ This includes the source of the error, the emphasis placed on the error, evidence of the defendant’s guilt apart from the er-ror, the importance of the erroneously ad-mitted evidence to the prosecution’s case, and whether the erroneously admitted evidence was merely cumulative.” (quot-ing Tollardo, 2012-NMSC-008, ¶ 43)). As a result, even if the admission of the State’s

question was erroneous, the error does not require reversal under either the plain or fundamental error doctrines.53 Defendant also suggests that we should evaluate the State’s question under the standard applied to prosecutorial misconduct arising from the intentional introduction of evidence about a defen-dant’s post-arrest silence, as in State v. Hennessy, 1992-NMCA-069, ¶¶ 21-23, 114 N.M. 283, 837 P.2d 1366, overruled on other grounds by Lucero, 1993-NMSC-064. In Hennessy, the Court of Appeals reversed the defendant’s conviction based on a find-ing of fundamental error after the prosecu-tion impeached the defendant using his “failure” to contact the police to correct a false statement that he had made upon his initial arrest. Hennessy, 1992-NMCA-069, ¶ 7. On re-direct examination, the defendant explained that his attorney had counseled him “not to say anything to anybody about the case.” Id. During clos-ing arguments, the prosecution referred to the defendant’s testimony as evidence that the defendant “never bothered” to tell the truth, and that his attorney had told him not to tell the truth. Id. The Court reasoned that fundamental error occurred because the prosecution “intentionally elicited direct comment on the exercise of [the] defendant’s rights, despite [the Court of Appeals’] repeated admonitions not to do so.” Id. ¶ 23.54 Even if we were to agree that the State’s question in this case amounted to prosecutorial misconduct, Hennessy is not on point. The questioning in Hennessy implicated the defendant’s Fifth Amend-ment right to remain silent, whereas here, Defendant does not contend that the State’s question about Saiz’s prior statement vio-lated anything other than Rule 11-403. In addition, unlike the single, fleeting ques-tion in this case that was never referred to again, the prosecution in Hennessy repeatedly questioned the defendant about his purported failure to correct the false statement and referenced the exchange during closing arguments. Id. ¶¶ 7-8. Thus, Hennessy is neither controlling nor persuasive.55 We acknowledge that the State’s decision to impeach Defendant with that particular statement was very near the line that had been drawn by the district court. The better practice would have been to ask to approach the bench to confirm that the question was permissible in light of the court’s ruling to exclude evidence that the warrant was for murder. But under the



http://www.nmcompcomm.us/Advance Opinionscircumstances, the State’s questioning was sufficiently distinct from the substance of the court’s ruling that we will not second-guess the lack of a reaction from the court or from defense counsel. Indeed, defense counsel could have reasonably concluded that objecting to the State’s questioning may have merely highlighted the preju-dice such that the better course of action was to remain silent. See, e.g., Anderson v. Sternes, 243 F.3d 1049, 1057-58 (7th Cir. 2001) (noting that a counsel’s strategy of avoiding emphasis of prejudicial evidence may reasonably encompass the eschew-ing of limiting instructions). Moreover, we will assume that the court permitted the State’s questioning under its broad discretion to control the examination of witnesses and the overall fairness of the presentation of evidence. See, e.g., State v. Jett, 1991-NMSC-011, ¶ 13, 111 N.M. 309, 805 P.2d 78 (“A trial court’s ruling as to the permissible scope of cross-examination is also reviewed under the abuse of discretion standard.” (internal quotation marks and citation omitted)).IV. Substantial Evidence to Show

Deliberation56 Defendant argues that his first-degree murder conviction must be re-versed because the State failed to prove the essential element of deliberation. See NMSA 1978, § 30-2-1(A)(1) (1994) (“Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused . . . by any kind of willful, deliberate and premeditated killing . . . .”); see also UJI 14-201 NMRA (providing that willful and deliberate murder requires proof beyond a reasonable doubt that “[t]he killing was [done] with the deliberate intention to take away the life of [the victim]”).57 When reviewing for substantial evidence, we ask “whether substantial evi-dence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. We “view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). “Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free

to reject [the defendant’s] version of the facts.” Id. (internal quotation marks and citations omitted). Instead, we ask whether a “rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.” Id. (internal quotation marks and citation omitted).58 To support a conviction for first-de-gree murder by deliberate killing, the State must prove beyond a reasonable doubt that Defendant killed Deputy McGrane with the deliberate intention of taking away his life. UJI 14-201.

A deliberate intention refers to the state of mind of the defen-dant. A deliberate intention may be inferred from all of the facts and circumstances of the killing. The word deliberate means ar-rived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate inten-tion to kill. To constitute a de-liberate killing, the slayer must weigh and consider the question of killing and his [or her] reasons for and against such a choice.

Id.59 Defendant contends that the evi-dence introduced and relied upon by the State to prove deliberation was insufficient to prove that the homicide was “more than an impulsive killing.” See State v. Garcia, 1992-NMSC-048, ¶ 22, 114 N.M. 269, 837 P.2d 862. He argues that although the State introduced substantial evidence that the shooting occurred during a traffic stop, the record is “silent regarding how the shoot-ing took place.” Without an eye-witness account to describe the details of the shooting, Defendant contends, the State’s evidence was “equally consistent with an impulsive, panicked reaction to being pulled over by the police as it is [with] a deliberate-intent murder.”60 A deliberate intention is rarely sub-ject to proof by direct evidence and often must be inferred from the circumstances. See Duran, 2006-NMSC-035, ¶ 7 (“Intent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.” (internal quotation marks and citations omitted)); see also UJI 14-201 (“A deliberate inten-

tion may be inferred from all of the facts and circumstances of the killing.”). The State contends that it introduced “ample evidence” at trial to allow the jury to infer Defendant’s deliberate intention to kill Deputy McGrane. In particular, the State maintains that the circumstances of the shooting itself support an inference of a deliberate intention. The jury reasonably could have concluded that Defendant complied when Deputy McGrane pulled him over, retrieved his gun while he waited for Deputy McGrane to approach the truck on foot, and when Deputy McGrane neared the window, shot twice at Deputy McGrane from point-blank range.61 Defendant compares these facts to those in Garcia and contends that the evidence relied on by the State shows merely that Defendant had an opportunity to deliberate, not that he actually deliber-ated. See 1992-NMSC-048, ¶ 28. In Garcia, this Court found insufficient evidence of a deliberate intention when the evidence showed that the defendant and the victim argued, appeared to reconcile, and argued again, ending with the defendant stabbing the victim to death. Id. The Court reasoned that, even though the defendant had time between the arguments to form a deliber-ate intention, “nothing in the evidence enabled the jury to infer that this is when he formed the requisite deliberate intent, or that he ever formed such an intent.” Id. ¶ 30.62 Garcia represents the high-water mark of what this Court has required on appeal to show substantial evidence of a deliberate intention. See Flores, 2010-NMSC-002, ¶ 21 (“The facts in Garcia have been distinguished many times by this Court from the facts in cases where there was sufficient evidence of deliberation.”). We take this opportunity to emphasize that the factual basis for our holding in Garcia was narrow. Despite abundant evidence that the killing in Garcia was intentional, our concern was that the State had utterly failed to introduce evidence that the kill-ing was anything other than “rash and impulsive”:

[W]e believe that the evidence was not only insufficient to allow a rational jury to find the essential element of deliberation in [the defendant’s] stabbing of [the victim]; it was altogether lacking to serve as a basis for any such inference. There was no evidence to support the jury’s conclusion that, as contemplated by the trial



http://www.nmcompcomm.us/Advance Opinionscourt’s instruction, [the defen-dant] decided to stab [the victim] as a result of careful thought; that he weighed the considerations for and against his proposed course of action; and that he weighed and considered the question of killing and his reasons for and against this choice.

Garcia, 1992-NMSC-048, ¶ 28 (first em-phasis added).63 The circumstances of this case are far removed from those of Garcia. Rather than proving only “a rash and impulsive killing,” Garcia, 1992-NMSC-048, ¶ 28, the evidence in this case supported an inference beyond a reasonable doubt that Defendant “weigh[ed] and consider[ed] the question of killing and his reasons for and against such a choice.” UJI 14-201. We agree with the State that the manner of the killing alone supported an infer-ence of deliberation. The jury could have reasonably inferred that, once Defendant saw that he was being pulled over, he faced several options, including whether: (1) to cooperate with Deputy McGrane during the stop and likely be arrested on the outstanding warrant; (2) to attempt to flee from Deputy McGrane; or (3) the option that he chose—to wait for Deputy McGrane to approach the truck and shoot him in the face at point-blank range. The jury could have found that Defendant contemplated all of these choices and, even if he did not make his final decision until the last second, the decision to kill Deputy McGrane was nonetheless a deliberate one. See State v. Sosa, 2000-NMSC-036, ¶ 14, 129 N.M. 767, 14 P.3d 32 (“Based upon the evidence, a reasonable jury could determine that [the] [d]efendant intended to kill [the victim] when he went to [the victim’s] home armed with a gun, waited for him to arrive, and then shot the un-armed victim numerous times.”); see also UJI 14-201 (“A calculated judgment and decision may be arrived at in a short period of time.”); cf. People v. Mendoza, 263 P.3d 1, 13-15 (Cal. 2011) (finding substantial evidence of “premeditated and deliberate murder” when the defendant obeyed an officer’s command to sit on a curb, hid behind another person to conceal drawing his gun, and shot the officer in the face).64 We also agree with the State that other evidence introduced at trial sup-ported finding a deliberate intention to take away the life of Deputy McGrane. The jury could have inferred that Defendant had a motive for the shooting, which may

be probative of a deliberate intention. See, e.g., State v. Motes, 1994-NMSC-115, ¶¶ 14-15, 118 N.M. 727, 885 P.2d 648 (rely-ing in part on evidence of the defendant’s motive to find a deliberate intention to kill his ex-wife). The jury could have found that Defendant killed Deputy McGrane to avoid arrest because Defendant knew that he was wanted on an outstanding arrest warrant and had organized his life to hide his identity by driving a truck registered in someone else’s name, purchasing a mobile home under an alias in the isolated East Mountains, and making himself known under that alias. Cf. Mendoza, 263 P.3d at 14-15 (finding evidence of a “preexisting motive” when the defendant was on parole and knew that he would be arrested and sent back to prison if the victim-officer found that the defendant was in possession of a firearm).65 The jury also could have found that Defendant’s actions after the killing aided in proving a deliberate intention. Shortly after the shooting, Defendant told his friend, “[The Sheriff ’s Office] fucked it up again, and I started to do good again, and they fucked it up.” Moreover, Defendant fled to Mexico after the shooting, where he informed a new acquaintance, “I’m Michael Astorga, I blasted that cop.” While these statements, standing alone, might have been insufficient to prove De-fendant’s deliberate intention, they were probative of deliberation in the context of all of the evidence introduced on that ele-ment of first-degree murder. See Duran, 2006-NMSC-035, ¶ 9 (finding evidence of a deliberate intention based in part on the defendant’s statement after the killing that he had “straight up murdered some bitch”); see also Flores, 2010-NMSC-002, ¶ 23 (“Not only may [the] [d]efendant’s acts before and during the crime provide evidence of intent, evidence of flight or ‘an attempt to deceive the police’ may prove consciousness of guilt.” (quoting State v. Martinez, 1999-NMSC-018, ¶¶ 29-30, 127 N.M. 207, 979 P.2d 718)); Rojo, 1999-NMSC-001, ¶ 23 (“[J]ust because each component may be insuf-ficient to support the conviction when viewed alone does not mean the evidence cannot combine to form substantial, or even overwhelming, support for the conviction when viewed as a whole.”); cf. Mendoza, 263 P.3d at 14-15, 18 (affirm-ing the defendant’s conviction based on substantial evidence of “planning activity, preexisting motive, and manner of kill-ing”).

66 In sum, the circumstances of this case are nowhere near the circumstances of Garcia. The State introduced abun-dant evidence of Defendant’s deliberate intention to take away the life of Deputy McGrane.V. Change of Venue67 For his last argument, Defendant claims that the district court abused its discretion when it denied his motion for a change of venue before the guilt phase of his trial. Defendant filed a pretrial mo-tion for change of venue, claiming the jury pool in Bernalillo County would be preju-diced against him due to extensive media coverage of the case. After an evidentiary hearing on the motion, the district court denied Defendant’s request, citing a lack of evidence that the entire jury pool was presumptively prejudiced. After the guilt phase, however, the district court granted Defendant’s renewed motion for a change of venue, reasoning that the guilt-phase trial had generated “a lot of public excite-ment” and that the court had received a low number of responses to the juror ques-tionnaires sent out to potential members of the penalty-phase jury pool. Defendant contends that the district court’s decision to change the venue for the penalty phase shows that the court abused its discretion when it denied Defendant’s motion before the guilt phase. We disagree.68 We review the denial of a motion for change of venue for an abuse of discretion. State v. House, 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967. The trial court may change venue based on presumed prejudice or on actual prejudice. Id. ¶ 45-47. Presumed prejudice arises when “evidence shows that the community is so saturated with inflammatory publicity about the crime that it must be presumed that the trial proceedings are tainted.” Id. ¶ 46. However, if the court concludes that presumed prejudice is not present and instead proceeds to voir dire, “we will limit our review to the evidence of actual preju-dice.” State v. Barrera, 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. “Actual prejudice requires a direct investigation into the attitudes of potential jurors [dur-ing voir dire] . . . to establish whether there is such widespread and fixed prejudice within the jury pool that a fair trial in that venue would be impossible.” House, 1999-NMSC-014, ¶ 46. A finding of no actual prejudice must be supported by substantial evidence and “necessarily precludes a find-ing of presumed prejudice.” See Barrera, 2001-NMSC-014, ¶ 16.



http://www.nmcompcomm.us/Advance Opinions69 In this case, the district court found insufficient evidence of presumed preju-dice and proceeded to voir dire. Potential jurors filled out extensive questionnaires, and over the course of the voir dire, each potential juror was questioned regarding actual prejudice. Jurors who could not be impartial were excused, and the jury that was finally impaneled was composed of jurors who affirmed their ability to remain impartial.70 Defendant does not offer, and we are unable to find, any evidence in the record of actual prejudice against Defendant held by the members of the guilt-phase jury panel. We also note that Defendant did not renew his motion for a change of venue after voir dire, tacitly agreeing that there was no evidence of actual prejudice among

the members of the guilt-phase jury panel. This procedure was adequate to safeguard Defendant’s right to a fair and impartial jury. See Barrera, 2001-NMSC-014, ¶ 18 (noting that the trial court determined “through voir dire that the jurors, although they may have heard of the case, were not incapable of impartiality” and that “[m]ore is not required” (quoting State v. Chamberlain, 1991-NMSC-094, ¶ 6, 112 N.M. 723, 819 P.2d 673)); see also State v. Lasner, 2000-NMSC-038, ¶ 27, 129 N.M. 806, 14 P.3d 1282 (holding that the trial court did not abuse discretion in denying change of venue where the defendant was able to question jurors and challenge those who indicated partiality).71 The district court’s decision to grant the renewed motion for a change of ven-

ue—after the highly publicized guilt-phase trial—does not lead us to a different result. Rather, we view the district court’s grant of the renewed motion as indicative of its ability to maintain a fair and open mind throughout the complicated and lengthy proceedings of this case. The district court did not abuse its discretion when it denied Defendant’s motion for a change of venue.CONCLUSION72 We affirm all of Defendant’s convic-tions.73 IT IS SO ORDERED.

EDWARD L. CHÁVEZ, Justice

WE CONCUR:PETRA JIMENEZ MAES, JusticeRICHARD C. BOSSON, JusticeCHARLES W. DANIELS, Justice



Call-in ProgramLaw Day

MAY 2, 2015

during the YLD’s Law Day Call-in Program.

Saturday, May 2, 9 a.m. to 1 p.m., State Bar CenterIf you are bilingual (English and Spanish), that’s a plus

• Family Law• Landlord/Tenant disputes

• Consumer Law • Personal Injury

• Collections

Because there will be so many callers, you can only provide 5 minutes of guidance and then refer callers to legal service organizations for further assistance.

If you can volunteer in Albuquerque, please contact Sonia Russo at [email protected] or 505-269-0369. In Roswell, contact Anna Rains at [email protected] or 575-622-5440.

Questions? [email protected]

YOUNG LAWYERS DIVISION

NEEDED: Volunteer attorneys who can answer questions about:

Earn pro bono hours!

Friday, May 1, 2015 • 8:00 a.m. – 4:15 p.m.Albuquerque Journal • 7777 Jefferson St. NE • Albuquerque, NM 87109

GOVERNMENT TRANSPARENCY CLE:Recent Issues in Access to Public Records and Open MeetingsApproved for six CLE credits, including one ethics credit

REGISTER EARLYwww.nmfog.org • 505-764-3750

**Become a member of FOG to receive a discount**

Highlights:• When is a subcommittee subject to OMA• Cost of electronic records• Changes to IPRA and OMA during the 2015 legislative session

New This Year:Sunshine on My Shoulders: Perspective of a Government Attorney

Fastcase is a free member service that includes cases, statutes, regulations, court

rules, constitutions, and free live training webinars. Visit

www.fastcase.com/webinars to view current offerings.

For more information, visit www.nmbar.org,

or contact April Armijo, [email protected]

or 505-797-6086.

http://www.nmfog.org




http://www.fastcase.com/webinars




redflagsnm.com | 1.800.704.5533

know the red flags.

Our elderly are the targets of investment fraud, and you, as a legal professional who

works with seniors, can prevent devastating financial loss by helping them recognize the red

flags of cons and schemes designed to take their money. Visit redflagsnm.com or call the

State of New Mexico Securities Division at 1.800.704.5533 to learn more.

ATTORNEYS, you CAN HELP PREVENT INVESTMENT FRAUD ON THE ELDERLY.

“AniPay” is a registered ISO/MSP of Harris, N.A., Chicago, IL.

Call 866.376.0950 or visitwww.aniscape.com/nmbar

credit card processing

Recommended by over60 bar associations!

Member Benefit

http://www.aniscape.com/nmbar


WILLIAM A. SANCHEZRetired District Judge

Sanchez Settlement & Legal Services LLC(505) 720-1904 • [email protected] • www.sanchezsettled.com

Mediation, Settlement Facilitation, and Arbitration•

Over 21 years experience as a District Judge presiding over hundreds of civil jury and bench trials.

Special Master Services also available.

Offices in Albuquerque and Los Lunas

PROFESSIONAL LIABILITY INSURANCE

If standard insurance programs won’t cover you due to claims, state bar discipline, or your area of practice, I can help. As a surplus lines broker, I represent you, the insured, not any insurer.

GEORGE E. DIAS, AIC ASLI P.O. Box 641723 San Francisco, CA 94164

C: (415) 505-9699 New Mexico Insurance Producer # 347722

Surplus Lines License # 347758

Caren I. Friedman

APPELLATE SPECIALIST

________________

505/466-6418

[email protected]

Walter M. DrewConstruc)on Defects Expert

40 years of experience

Construc)on-‐quality disputesbetween owners/contractors/ architects, slip and fall, buildinginspec)ons, code compliance,cost to repair, standard of care

(505) 982-‐[email protected]

A Civilized Approach to Civil Mediation

We create a safe and

respectful environment for parties

Karen S. Mendenhall The Mendenhall Firm, P.C.

(505) 243-3357 [email protected]



http://www.sanchezsettled.com




ClassifiedPositions

D & A Bookkeeping Service“we’ll do the books for you”

[email protected]

No need for another associateBespoke lawyering for a new millennium

THE BEZPALKO LAW FIRM Legal Research and Writing

(505) 341-9353 www.bezpalkolawfirm.com

David StottsAttorney at Law

Business LitigationReal Estate Litigation

242-1933

(505) 988-2826 • [email protected]

MORNINGSTAR ENTERPRISES, LLCMARIE SUSAN LEE, CPA MBA CFE

FORENSIC ACCOUNTING(505) 235-3500 • [email protected]

www.morningstarcpa.com

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has an immediate position open to a new or expe-rienced attorney. Salary will be based upon the District Attorney Personnel and Compensation Plan with starting salary range of an Associ-ate Trial Attorney to a Senior Trial Attorney ($41,685.00 to $72,575.00). Please send resume to Janetta B. Hicks, District Attorney, 400 N. Virginia Ave., Suite G-2, Roswell, NM 88201-6222 or e-mail to [email protected].

Associate AttorneyChapman and Charlebois, P.C. is seeking an experienced insurance defense attorney to join our litigation team, providing legal analysis, representation and advice to local and national clients. Attorney must have 3+ years of insur-ance defense experience and be licensed in NM. Please submit resume and salary requirements to: [email protected].

Associate AttorneyWhitener Law Firm, P.A. is currently seek-ing a full-time associate attorney to handle Personal Injury cases. Candidates must be highly motivated, client oriented and will enjoy working in a fast-paced environment. Candidates must be licensed to practice in the state of New Mexico. Salary competi-tive and commensurate to experience and qualifications. Please send resume to Nichole Henry, Whitener Law Firm, P.A., 4110 Cut-ler Avenue, N.E., Albuquerque, NM 87110, fax to 505-242-3322 or e-mail to [email protected]

13th Judicial District AttorneySenior Trial Attorney, Assistant Trial Attorney, Associate Trial AttorneyCibola, Sandoval, Valencia CountiesSenior Trial Attorney - This position requires substantial knowledge and experience in crimi-nal prosecution, rules of criminal procedure and rules of evidence, as well as the ability to handle a full-time complex felony caseload. Admission to the New Mexico State Bar and a minimum of five years as a practicing attorney are also required. Assistant Trial Attorney - The 13th Judicial District Attorney’s Office is accepting applications for an entry to mid level attorney to fill the positions of Assistant Trial Attorney. This position requires misdemeanor and felony case-load experience. Associate Trial Attorney - an entry level position for Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Offices. The position requires misdemeanor, juvenile and possible felony cases. Upon request, be prepared to provide a summary of cases tried. Salary for each position is commensurate with experience. Send resumes to Kathleen Colley, District Office Manager, PO Box 1750, Bernalillo, NM 87004, or via E-Mail to: [email protected]. Deadline for submission of resumes: Open until positions are filled.

Insurance Defense AttorneyLiberty Mutual Insurance is seeking an Insurance Defense Attorney in the Albu-querque area with a minimum of 4-5 years’ experience in the areas of civil litigation and workers’ compensation. Interested candi-dates must be licensed to practice law in the State of New Mexico. The ideal candidate is a highly motivated professional that can take initiative and work independently. Candidates need to be organized and have exceptional writing and communication skills. Competitive salary and comprehensive benefits package includes 401K and company paid pension plan. If interested, please search using requisition # 60132 and post your resume using the following address: http://www.careers.libertymutualgroup.com/

Staff AttorneyPresbyterian Healthcare Services is seeking a full time attorney to provide legal support on a broad range of employment legal issues with a focus on compliance with federal and state law to provide legal support in prepar-ing submittals to federal and state agencies, providing legal support in negotiation of provider employment agreements, and for HR decisions and personnel actions. Juris Doctor degree and NM license to practice law and a minimum of 3-5 years of experience and a strong background in employment – either law or HR is required, with clear and concise writing ability. Experience in health-care and physician employment and contract matters strongly desired. Please visit our website www.phs.org, click on careers, and apply to job requisition 54501. We provide a comprehensive salary and benefit package. We are an equal opportunity employer and all qualified applicants will receive consider-ation for employment without regard to race, color, age, religion, gender, national origin, sexual orientation, gender identity, marital status, disability, protected veteran status, or any other characteristic protected by law. Presbyterian Healthcare Services is a drug-free and tobacco-free employer with smoke free campuses.

Associate AttorneyBusy law firm practicing in the areas of Family Law, Worker’s Compensation and Personal Injury seeking Associate Attorney to immediately join our growing firm. At-torney will primarily practice in the area of Family Law and will be responsible for legal analysis, representation, document preparation, mediations and litigation. Sal-ary will be consistent with experience. Please submit cover letter and resume to [email protected]. No phone calls.


http://www.bezpalkolawfirm.com



http://www.morningstarcpa.com




http://www.careers.libertymutualgroup.com/

http://www.careers.libertymutualgroup.com/

http://www.phs.org


New Mexico Legal Aid Positions Available in Roswell, NMManaging Attorney and Staff AttorneyThe Managing Attorney will supervise attor-neys and other staff and volunteers; handle administrative duties; and handle cases as sole counsel or co-counsel for low-income individuals and families in a wide variety of poverty law areas including family law, housing, public benefits, and consumer is-sues. The Managing Attorney will be active in local bar and community activities. The work will include participating in community education and outreach to eligible clients; and recruitment of and collaboration with pro bono attorney. Requirements: Minimum three years as licensed attorney preferred; prior experience in administrative and su-pervisory roles preferred. Must be willing to travel. Candidates also must possess excellent written and oral communication skills, the ability to manage multiple tasks, manage a caseload and build collaborative relationships within the staff and the community. Profi-ciency in Spanish is a plus. The staff attorney will represent low-income individuals and families in a wide variety of poverty law areas including family law, housing, public benefits, and consumer law issues. The attorney will be active in local bar and community activities. The attorney will provide representation in domestic relations proceedings (with a focus in domestic violence), low income housing cases, Social Security disability cases, and other issues involving low income clients. The work also will include community education and outreach to eligible clients; and col-laboration with pro bono attorneys. Require-ments: Experience with advocacy in rural communities will be highly preferred. Must be willing to travel. Candidates also must possess excellent written and oral communi-cation skills, the ability to manage multiple tasks, manage a significant caseload and build collaborative relationships within the staff and the community. Proficiency in Spanish is a plus. The Roswell office handles creative, challenging and complex work throughout southeastern and east central New Mexico. The Staff Attorney especially will help NMLA expand its Rural Advocacy Project, funded by the New Mexico Supreme Court’s Fund for Access to Justice, in the Hobbs and Carlsbad areas. We are looking for highly motivated candidates who are passionate and strongly committed to helping NMLA better serve rural communities, including development of effective team strategies to handle complex advocacy and extended representation cases. Send a current resume and a letter of interest explaining what you would like to accomplish if you are selected for this position to: [email protected]. Salary: DOE, NMLA is an EEO Employer. Deadline: April 30, 2015.

Part-time CourierPart-time Courier 12-5 PM, five days a week for downtown law firm. Position also includes front desk coverage, scanning of closed files, mail, and other duties as directed. Parking provided. Please submit resume or letter of interest to [email protected].

Trust OfficerA position as a Trust Officer for Los Alamos National Bank is available in our Albuquer-que office. As a Trust Officer, you will develop new trust business by combining a thorough knowledge of our available products and trust policies with excellent service. You must have the ability to resolve unique and complex issues with expertise in the review and analysis of our customers’ trust and estate administration needs coupled with a solid understanding of regulatory compli-ance issues related to the trust environment. The Trust Officer will be expected to develop and maintain strong working relationships to cultivate a profitable customer base and cli-entele. Minimum education and experience requirements: Bachelor’s degree in a related field and/or Certified Trust Financial Advisor (CTFA), Certified Financial Planner (CFP) or Juris Doctorate (JD) required; Minimum of 8 years of experience in a trust related field required. To apply: All applicants must sub-mit an application, available on our website at www.lanb.com. Resumes are not accepted in lieu of an application. Submit applications by email to [email protected], by mail to PO Box 60, Los Alamos, NM 87544 or in person at any of our offices. For more information call 505-662-1079 or visit the Careers page on our website. Los Alamos National Bank is an Equal Opportunity Employer.

Legal Assistant/Paralegal (Albuquerque)Full-time position. Applicant should have at least 2 years legal experience in bankruptcy law practice, with general business and litiga-tion experience a plus. Applicant should be reliable, have excellent verbal and written communication skills; and the ability to pay careful attention to detail while handling a large and diverse case load. A job description will be provided at the initial interview. Com-pensation is based on experience and qualifi-cations. Please fax resume to 505-246-0900.

Request for ApplicationsCity of Albuquerque Paralegal PositionsA Paralegal position is available within the Litigation Division of the Legal Depart-ment of the City of Albuquerque. Position Summary: Paralegal with a civil litigation background who has the skills, knowledge, and ability to assist attorneys in civil litiga-tion practice, including from the inception of a civil lawsuit through trial. Minimum education and experience requirements: Associates Degree in Paralegal Studies, plus three (3) years’ experience as a paralegal; or a Certificate in Paralegal Studies, plus five (5) years’ experience as a Legal Secretary/Assistant. To Apply: All applicants must submit, by May 1, 2015, a City Application. Resumes will not be accepted in lieu of the application. An On-Line Application Pro-cess can be accessed at web site www.cabq.gov/jobs. Applications are also available at the City of Albuquerque Human Resources Department 400 Marquette NW 7th Floor Suite 703. Albuquerque NM 87103. Copies of required certifications, registrations, and/or licenses, if not attached on-line, must be provided at the time of interview

Insurance Defense AttorneyLiberty Mutual Insurance is seeking an Insurance Defense Attorney in the Albu-querque area with a minimum of 1-2 years’ experience in civil litigation and workers’ compensation. Interested candidates must be licensed to practice law in the State of New Mexico. The ideal candidate is a self-starter who is highly motivated and can take initia-tive. Candidates need to be organized and have exceptional writing and communication skills. Competitive salary and comprehensive benefits package includes 401K and company paid pension plan. If interested, please search using requisition # 60135 and post your re-sume using following address: http://www.careers.libertymutualgroup.com/

Request for ApplicationsCity of AlbuquerqueLegal Secretary PositionLegal Secretary Position is available within the Litigation of the Legal Department of the City of Albuquerque. Position Summary: will per-form a variety of responsible legal secretarial duties in support of a assigned attorney or attorneys including preparing and reviewing legal documents; perform the more difficult and complex clerical duties with the assigned work unit and provide secretarial and admin-istrative support to an assigned division head. Minimum Education and Experience require-ments: Associates’ degree in business adminis-tration or a related field, may substitute three (3) years secretarial experience to include two (2) years as a Legal Secretary. ProLaw and/or experience with a case management system is desirable. To Apply: All applicants must submit, by April 22, 2015, a City Application. Resumes will not be accepted in lieu of the ap-plication. An On-Line Application Process can be accessed at the web site www.cabq.gov\jobs. Copies of required certifications, registrations, and/or licenses, if not attached on-line, must be provided at the time of interview.


http://www.lanb.com


http://www.cabq

http://www

http://www.cabq.gov\jobs


Services

Available for Research and Writing AssignmentsAttorney with 7 years appellate court ex-perience available for research and writing assignments. Reliable and thorough: motions, briefs, research. Email [email protected] or call 505-715-6566 or 505-281-9293.

Office Space

Taos Conference and Office SpaceTaos conference and office space available for depositions and mediations. Call Robyn 575-758-1225

Office Available for RentOne office available for rent, including sec-retarial area, at 2040 4th St. NW (I-40 & 4th St.), ABQ. Rent includes receptionist, use of conference rooms, high speed internet, phone system, free parking for staff and clients, use of copy machine, fax machine and employee lounge. Contact Jerry or George at 505-243-6721 or [email protected]

ParalegalLitigation paralegal with background in large volume document control/manage-ment, trial experience, and familiar with use of computerized databases. This is an opportunity for a highly motivated, task & detail-oriented professional to work for an established, well-respected downtown law firm. Competitive benefits. Email resume to: [email protected]

620 Roma N.W.620 ROMA N.W., located within two blocks of the three downtown courts. Rent includes utilities (except phones), fax, internet, janito-rial service, copy machine, etc. All of this is included in the rent of $550 per month. Up to three offices are available to choose from and you’ll also have access to five confer-ence rooms, a large waiting area, access to full library, receptionist to greet clients and take calls. Call 243-3751 for appointment to inspect.

Legal SecretaryBusy insurance and civil defense firm seeks full-time legal secretary with five plus years’ experience in insurance defense and civil litigation. Position requires a team player with strong word processing skill including proficiency with Word Perfect, knowledge of court systems and superior clerical and organizational skills. Should be skilled transcriptionist, attentive to detail and ac-curate with a Minimum typing speed of 75 wpm. Excellent work environment, salary and benefits. Send resume and references to Riley, Shane & Keller, P.A., Office Mgr, 3880 Osuna Rd., NE, Albuquerque, NM 87109 or e-mail to [email protected]

Part-time Billing ClerkPart-time Billing Clerk for downtown law firm. Experience with TABS preferred, and electronic billing a plus. Flexible hours. Good income for second job. Only those with law firm billing experience should apply. Please submit resume to [email protected].

ParalegalPeifer, Hanson & Mullins, P.A., is seek-ing an experienced commercial litigation paralegal. The successful candidate must be a detail-oriented, team player with strong organizational and writing skills. Experi-ence in database and document management preferred. Please send resume, references and salary requirements via email to Shannon Hidalgo at [email protected].

Experienced Paralegal/ Legal Assistant Two lawyer civil litigation firm seeks expe-rienced candidate with a minimum of five years experience in personal injury litigation. Candidate should be proficient in Microsoft Word, transcription, and familiar with electronic filing systems in both State and Federal Court. Spanish speaking a plus. Sal-ary depends on qualifications and experience. Excellent work environment with bonuses and flexible hours. Send resume and refer-ences to [email protected]

Al l adver t i s ing must be submitted via e-mail by 4 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Wednesday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, 13 days prior to publication.

For more advertising information, contact:

Marcia C. Ulibarri at 505-797-6058 or

e-mail [email protected]

SUBMISSION DEADLINES

Visit the State Bar of

New Mexico’s website

www.nmbar.org










This lively tournament has repeatedly sold out. Register now!At the website: lawschool.unm.edu/golf

Or by calling the Law School Office of Advancement: 505.277.1457.

Our commitment is to raise $50,000 each year in direct support of deservingUNM Law students, and we cannot do it without your support!

Friday, June 5, 2015UNM Championship Golf Course

11:00 AM: Lunch 12:30 PM: Shotgun start (18 holes)Post Play - Catered 19th Hole Reception

Presenting Sponsor

Your registration fees and sponsorships help the Law Alumni Association fund its three full-ride merit scholarships which are awarded to one extraordinary

law student in each class for all three years of his or her study.

Quality, full-color printing.Local service with fast turnaround.

DIGITAL PRINT CENTER

For more information, contact Marcia Ulibarri at 505-797-6058 or [email protected]

Ask about your member discount.

Mary Ann R. Burmester(505) 881-2566

2727 San Pedro NE, Suite 114, Albuquerque, NM 87110 www.nmdivorcecustody.com

Mary Ann R. BurmesterVirginia R. DuganTatiana D. Engelmann-Corp Jon A. FederRobert P. Matteucci Jr.Patrick L. McDanielThomas C. MontoyaDenise E. Ready

MAILING ADDRESS:PO BOX 3070

Albuquerque, NM 87190

PHYSICAL ADDRESS:City Place | Suite 2000

2155 Louisiana Blvd NEAlbuquerque, NM 87110

W. W. Atkinson Stephen J.E. Sprague(1910–1993) (1941–2003)

Telephone (505) 883-3070 | Fax (505) 889-3111www.AtkinsonKelsey.com

Law Offices of

Peter F. Staiti, llcLaw Offices of

Peter F. Staiti, llc7400 Montgomery Blvd. NE, Suite 39, Albuquerque, NM 87109

Tel: (505) 243-9290 • Fax: (505) 715-5845 • [email protected] Montgomery Blvd. NE, Suite 39, Albuquerque, NM 87109

Tel: (505) 243-9290 • Fax: (505) 715-5845 • [email protected]

Mary Ann R. Burmester(505) 881-2566

2727 San Pedro NE, Suite 114


Robert P. Matteucci Jr.Robert P. Matteucci Jr.Patrick L. McDanielPatrick L. McDanielThomas C. MontoyaThomas C. MontoyaDenise E. ReadyDenise E. Ready

City Place | SuiteCity Place | Suite 2000 2000

CITY PLACE SUITE 20002155 LOUISIANA NE

P.O. BOX 3070

Albuquerque, New Mexico 87190

Tel: (505) 243-9290 • Fax: (505) 715-5845 • [email protected]: (505) 243-9290 • Fax: (505) 715-5845 • [email protected]

Law Offices of

Peter F. Staiti, llc7400 Montgomery Blvd. NE, Suite 39


NM Divorce & Custody Law LLC Mary Ann R. BurmesterAttorney

(505) 881-25662727 San Pedro NE | Suite 114


We help families solve problems.

[email protected]

87190 87190

CITY PLACE | SUITE 20002155 LOUISIANA NEAlbuquerque, NM 87110P.O. BOX 3070 (87190-3070)

(505) 883-3070 Fax (505) 889-3111

e-mail: [email protected] web: www.atkinsonkelsey.com

Tatiana D. Engelmann attorney at law

Law Offices of

Peter F. Staiti, llc7400 Montgomery Blvd. NE, Suite 39

Albuquerque, NM 87109Tel: (505) 243-9290 • Fax: (505) 715-5845

[email protected]

Attorney at Law • Retired Chief District Court Judge(505) 321-4549 • [email protected]

TED C. BACA

601 Calle del Pajarito N.W., Albuquerque, New Mexico 87114

Frank A. BacaAttorney at Law

7601 Jefferson St. NE, Ste. 380, Albuquerque, NM 87109505.400.5588 • [email protected]

(505) 321-4549 • [email protected]

Attorney at Law

601 Calle del Pajarito N.W.

Albuquerque, New Mexico 87114

TED C. BACA

Attorney at Law

601 Calle del Pajarito N.W.Albuquerque, New Mexico 87114(505) 321-4549 • [email protected]

Retired Chief District Court Judge

TED C. BACA

Frank A. BacaAttorney at Law

Wills, Probate & Real Estate Transactions

7601 Jefferson St. NE, Ste. 380Albuquerque, NM 87109505.400.5588 • [email protected]

We’re ready to print YOUR

business package!



http://www.nmdivorcecustody.com

http://www.AtkinsonKelsey.com




http://www.nmdivorcecustody.com


http://www.atkinsonkelsey.com



