inside this issue - state bar of new mexico...2010/05/10 · resume to kathleen jo gibson, chief...

Bar Bulletin - May 10, 2010 - Volume 49, No. 19 1

Inside This Issue

www.nmbar.org

May 10, 2010 • Volume 49, No. 19

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

U.S. District Court for the District of N. M. Public Notices Concerning Reappointment

of Full-Time U.S. Magistrate Judges .................7

New Attorneys Take Oath in Santa Fe ...................8

Proclamation: New Mexico Drug Court Recognition Month, May 2010 ......................10

Hearsay ................................................................11

Clerk’s Certificates ...............................................17

Rules/Orders

No. 32,249: In the Matter of the Suspension of Active and Inactive Members of the State Bar of New Mexico for Nonpayment of 2010 Annual Bar License Fee and for Noncompliance With Rules 24-102 and 17-203 NMRA .........21

No. 32,251: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Noncompliance With 2010 Requirement to Disclose Information Concerning Professional Liability Insurance Coverage .........................................................22

No. 32,316: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Failure to Certify 2010 Pro Bono Information .....................................................23

From the New Mexico Supreme Court

2010-NMSC-015, No. 31,686: McNeill v. Rice Engineering & Operating, Inc. ...............24

2010-NMSC-016, No. 29,664: State v. Johnson ...............................................27

2010-NMSC-017, No. 30,787: Cable v. Wells Fargo Bank New Mexico, N.A. .............34

From the New Mexico Court of Appeals

2010-NMCA-029, No. 28,774: Korba v. Atlantic Circulation, Inc. ..................40

2010-NMCA-030, No. 28,034: State v. Williams ..............................................44

Reflections by Phil Hulebak (see page 3) Weems Art Gallery, Albuquerque

http://www.nmbar.org

2 Bar Bulletin - May 10, 2010 - Volume 49, No. 19

“Tools for your Toolbox” SeminarFriday,May 21, 2010

6.5 CLE Credits

Please return to: New Mexico Trial Lawyers’ Foundation P.O. Box 301, Albuquerque, NM 87103-0301

TUITION (After May 14, 2010 increases by $10) NMTLA Member ................................................................................$190.00

(If you are attending the seminar and joining NMTLA, please send two checks, one for the seminar and one for your dues) Non Member Attorney.........................................................................$240.00 Paralegal ................................................................................................$90.00

(Attorney must also be registered for this program Attorney attending: ____________________________________________ ) UNM Law School Student Chapter Member ........................................$45.00 NMTLA Public Interest Attorney Member .........................................$149.00 Full-time Judicial Clerk (Must pre-register)

no MCLE Credits .................................................................................$25.00 MCLE Credits reported .........................................................................$30.00 Full-time Judge or Appellate Law Clerk (Must pre-register)

no MCLE Credits ..................................................................................$25.00 MCLE Credits reported .........................................................................$30.00

Embassy Suites Hotel & Conference Center • 1000 Woodward Way • Albuquerque, New Mexico

P R O G R A M S C H E D U L E8:30 a.m. Check-in/Registration9:00 a.m. Emergent Issues in Medical Malpractice

Lisa K. Curtis, Esq.(30 Minutes - 0.5 Credit)

9:30 a.m. Identifying and Proving Damages Caused by TBIBryan Query, Esq.(30 Minutes - 0.5 Credit)

10:00 a.m. Creative Approaches to Preparing for ArbitrationPaul Abrams, Esq.(30 Minutes - 0.5 Credit)

10:30 a.m. Break10:45 a.m. Motion Practice - How to Get Timely Results

Honorable Alan Malott (30 Minutes – 0.5 Credit)

11:15 a.m. Crashworthiness Cases - An UpdateDavid J. Jaramillo, Esq.(45 Minutes – 0.7 Credit)

12:00 p.m. Lunch (on your own)1:00 p.m. Commercial Truck Collisions: How to Handle a Claim

Angel L. Sanez, Esq. and Denise M. Torres, Esq.(30 Minutes – 0.5 Credit)

1:30 p.m. Punish the Wrong - Interface Between Civil Actions & Criminal Proceedings

Bertrand R. Parnall, Esq.(45 Minutes – 0.7 Credit)

2:15 p.m. Developing Settlement Statements & Organizing Your Files Brady C. Pofahl, Esq.(30 Minutes – 0.5 Credit)

2:45 p.m. F-Tags: Clues to Nursing Home Abuse Dusti Harvey, Esq.(30 Minutes – 0.5 Credit)

3:15 p.m. Break3:30 p.m. Finding Coverage in Cases Involving Crime Victims F. Michael Hart, Esq.

(30 Minutes – 0.5 Credit) 4:00 p.m. Nuts & Bolts of Structured Settlements

Kelly Ramsdale(30 Minutes - 0.5 Credit)

4:30 p.m. Using Discovery Tools in Workers' Compensation Cases to Develop a Personal Injury Case

Robert L. Scott, Esq.(30 Minutes – 0.5 Credit)

5:00 p.m. AdjournKristina Bogardus, Program Co-ChairAmalia S. Lucero, Program Co-Chair

Payment Check Enclosed Visa MasterCard AmExTo register with a credit card complete registration form including credit card information and fax form to 243-6099 or call 243-6003.

Card No. ________________________________________________________Exp. Date: ____________________________ CVC Code: ________________Billing Address: __________________________________________________________________________________________ Zip____________________Signature ________________________________________________________

(cardholder signature required)

Name ___________________________________________________________NM Bar ID No. ___________________________________________________Firm ____________________________________________________________Mailing Address __________________________________________________City/State/Zip: ____________________________________________________Phone: __________________________________________________________Fax: ____________________________________________________________E-mail __________________________________________________________

Tools for your Toolbox:Practice Tips for Litigators Seminar

6.5 CLE CreditsMAY 21, 2010

S E M I N A R R E G I S T R A T I O N

Pre sents

I cannot attend the seminar. Please send the: NMTLA Members Non-membersCourse Materials $25.00 $40.00Course Materials & Audio Tape $80.00 $130.00

I cannot attend the seminar. Please send the: NMTLA Members Non-membersCourse Materials $25.00 $40.00Course Materials & Audio Tape $80.00 $130.00


Table of ConTenTs

MeeTings

May

10 Taxation Section BOD, noon, via teleconference

11 Appellate Practice Section BOD, 12:30 p.m., Holland and Hart, Santa Fe

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

12 Criminal Law Section BOD, noon, State Bar Center

13 Intellectual Property Section BOD, noon, Law Office of Diane Albert

sTaTe bar Workshops

May

11 Lawyer Referral for the Elderly Workshop 9:30–11 a.m., Presentation 1–4 p.m., Clinics Red Rock Convention Center, Churchrock

12 Lawyer Referral for the Elderly Workshop 10–11:30 a.m., Presentation 1–4 p.m., Clinics Cibola Senior Center, Grants

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

Notices ................................................................................................................................................................4New Attorneys Take Oath in Santa Fe .......................................................................................................8Proclamation: New Mexico Drug Court Recognition Month, May 2010 ................................... 10Hearsay .............................................................................................................................................................. 11Legal Education Calendar ......................................................................................................................... 12Writs of Certiorari ......................................................................................................................................... 14List of Court of Appeals’ Opinions ........................................................................................................... 16Clerk’s Certificates ......................................................................................................................................... 17Recent Rule-Making Activity ..................................................................................................................... 19Rules/Orders

No. 32,249: In the Matter of the Suspension of Active and Inactive Members of the State Bar of New Mexico for Nonpayment of 2010 Annual Bar License Fee and for Noncompliance With Rules 24-102 and 17-203 NMRA .......................................................... 21

No. 32,251: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Noncompliance With 2010 Requirement to Disclose Information Concerning Professional Liability Insurance Coverage .......................................................... 22

No. 32,316: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Failure to Certify 2010 Pro Bono Information ...................................... 23

Opinions From the New Mexico Supreme Court

2010-NMSC-015, No. 31,686: McNeill v. Rice Engineering and Operating, Inc. ............. 24

2010-NMSC-016, No. 29,664: State v. Johnson .......................................................................... 27

2010-NMSC-017, No. 30,787: Cable v. Wells Fargo Bank New Mexico, N.A. .................... 34


2010-NMCA-029, No. 28,774: Korba v. Atlantic Circulation, Inc. ......................................... 40

2010-NMCA-030, No. 28,034: State v. Williams ......................................................................... 44

Advertising ..................................................................................................................................................... 50

Officers, Board of Bar Commissioners Stephen S. Shanor, President Jessica A. Pérez, President-Elect Hans Voss, Vice President Andrew J. Cloutier, Secretary-Treasurer Henry A. Alaniz, Immediate-Past President

Board of EditorsMark A. Glenn, Chair Danny W. JarrettKimberly L. Alderman Joan MarsanJoel McElroy Carson Kathryn Joy MorrowCynthia A. Christ Steven K. SandersAutumn Gray Kelly A. Thomas

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago (505)797-6030•[email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri (505)797-6058•[email protected] Print Shop Manager Brian Sanchez Production Assistant Michael Rizzo Press Shop Assistant Michael Schall

©2010, 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

May 10, 2010, Vol. 49, No. 19

Cover Artist: As a landscape painter, Phil Hulebak finds the subtlety in the light of the moment that imparts a sense of nature and the creator. Capturing a moment as though it is familiar, his intimacy with the outdoors uncovers some of the magic that makes the legends. To see the cover art in its original color, visit www.nmbar.org and click on Attorneys/Members/Bar Bulletin.

mailto:[email protected]








noTiCesWith respect to other judges:

In all written and oral communications, I will abstain from disparaging personal remarks or criticisms, or sarcastic or demeaning comments about another judge.

professionalisM Tip

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

Court Exhibits For Years May be Retrieved Through lst Judicial District Court Exhibits in criminal, civil, domestic relations, 1987–94 July 2 (505) 455-8269 probate, and children’s court cases

CourT neWsN.M. Supreme CourtCommittee Vacancy–Courts of Limited Jurisdiction One vacancy exists on the Courts of Limited Jurisdiction Committee due to the resignation of one member. Persons interested in volunteering time on this com-mittee may send a letter of interest and/or resume to Kathleen Jo Gibson, Chief Clerk, PO Box 848, Santa Fe, NM 87504-0848. Deadline for submissions is May 21.

Judicial Performance Evaluation Commission The Judicial Performance Evaluation Commission was created by the New Mexico Supreme Court to provide voters with fair, responsible and constructive evaluations of trial and appellate judges and justices seeking retention in general elections. The results of the evaluations also provide judges with information that can be used to improve their professional skills as judicial officers. The next regular meeting will be from 8 a.m. to 5 p.m., May 21, at the Judicial Informa-tion Division, Santa Fe.

Proposed Revisions to the Uniform Jury Instructions—Civil The Committee on Uniform Jury Instructions for Civil Cases is considering whether to recommend proposed amend-ments and new instructions to the Uniform Jury Instructions—Civil for the Supreme Court’s consideration. The committee also proposes to add an introduction to Chapter 23 and to change the title of the chapter from “Wrongful Discharge” to “Employ-ment.” To comment on the proposed

amendments before they are submitted to the Court for final consideration, either submit comments electronically through the Supreme Court’s website at http://nmsupremecourt.nmcourts.gov/ or send written comments to: Kathleen J. Gibson, Clerk New Mexico Supreme Court PO Box 848 Santa Fe, NM 87504-0848Comments must be received by the Clerk on or before May 24 to be considered by the Court. Note that any submitted comments may be posted on the Supreme Court’s website for public viewing. For reference, see the May 3 (Vol. 49, No. 18) Bar Bulletin.

N.M. Court of AppealsGrand Opening of the Pamela B. Minzner Law Center The New Mexico Court of Appeals judges and staff invite the legal community to attend the grand opening of the Pamela B. Minzner Law Center at 4 p.m., May 14, 2211 Tucker NE, Albuquerque. Park in the “M” parking lot of the UNM School of Medicine across the street from the Court.

Fifth Judicial District CourtJudicial Vacancy A vacancy on the 5th Judicial District Court will exist in Lovington as of July 1 upon the resignation of the Honorable Don Maddox. Direct inquiries regarding the details or assignment of this vacancy

to the chief judge or the administrator of the court. Kevin K. Washburn, chair of the Judicial Nominating Commission, solicits applications for this position from lawyers who meet the statutory qualifications in Article VI, Section 14 of the New Mexico Constitution. Applications may be obtained from the Judicial Selection website at http://lawschool.unm.edu/judsel/application.php, or via e-mail or fax by calling Sandra Bauman, (505) 277-4700. The deadline for applications is 5 p.m., June 4. Applica-tions received after that date will not be considered. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The Judicial Nominating Commission will meet June 25 at the Lea County Courthouse, Lovington, to evaluate the applicants for this position. The meeting is open to the public.

Thirteenth Judicial District CourtE-Filing Goes Live in Valencia County The 13th Judicial District Court will require mandatory e-filing in all civil cases beginning July 1. E-filing is currently avail-able in Cibola and Sandoval counties, and Valencia County goes live for e-filing May 10. In all three counties, e-filing will be voluntary and free prior to July 1, but reg-istering with the service provider is required. Anyone wishing to utilize e-filing must sign up with Wiznet and become a registered

http://nmsupremecourt.nmcourts.gov


http://lawschool.unm.edu/judsel/application

http://lawschool.unm.edu/judsel/application


www.nmbar.org

ember benefit of the WeekM

noMinaTions are noW being aCCepTed

2010 sTaTe bar annual aWards

Send a letter of nomination for each nominee to:

Joe Conte, Executive DirectorState Bar of New Mexico

PO Box 92860Albuquerque, NM 87199-2860

Fax (505) 828-3765 or e-mail [email protected]

Deadline for Nominations: May 14

For more information, see the March 29 (Vol. 49, Vol. 13) Bar Bulletin or

visit http://www.nmbar.org/Attorneys/lawpubs/SBNMAwards2010Notice.pdf.

user, which entails signing a subscriber agree-ment and receiving a user ID and password to access the system. Beginning July 1, Wiznet will charge a fee (determined by statute) to each registered user when utiliz-ing the system. To access the e-filing system, go to www.13districtcourt.com and select “E-File,” read the user guide, participate in an Internet training session and set up an account. A new local rule (LR13-411) governing the procedures for e-filing for the 13th Judicial District has been approved by the New Mexico Supreme Court. Contact Gregory T. Ireland, (505) 865-4291 x 2104, for further information.

Bernalillo County Metropolitan CourtJudicial Vacancy One vacancy will exist on the Bernalillo County Metropolitan Court in Albuquer-que as of July 1 upon the retirement of the Honorable Anna G. Martinez. Chief Judge Judith Nakamura has indicated she intends to assign the vacancy to the court’s criminal division. Kevin K. Washburn, chair of the Judicial Nominating Commission, solicits applications for this position from lawyers who meet the statutory qualifications in Section 34, Article 8A-4B of the New Mexico

Statutes Annotated 1978. Applications may be obtained from the Judicial Selection website at http://lawschool.unm.edu/judsel/application.php, or via e-mail or postal mail by calling Sandra Bauman at (505) 277-4700. The deadline for applications is 5 p.m., May 10. Applications received after that date will not be considered. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The Judicial Nominat-ing Commission will meet May 25 at the Bernalillo County Metropolitan Court, 401 Lomas NW, Albuquerque, to evaluate the applicants for this position. The meeting is open to the public.

U. S. District Court for the District of New MexicoProposed Revisions to Local Rules of Civil Procedure Proposed revisions to the Local Rules of Civil Procedure of the U.S. District Court for the District of New Mexico are being considered. Both a redline version with an index of changes and a clean version are posted on the Court’s website at www.nmcourt.fed.us. Comments may be submit-ted via e-mail to [email protected] or by mail to U.S. District Court, Clerk’s Office, Pete V. Domenici U.S. Courthouse, 333 Lomas Blvd. NW, Suite 270, Albuquer-que, NM 87102, Attn: Local Rules. All comments must be received no later than June 3.

Using PDF Marking Tools In partnership with the U.S. District Court of New Mexico and the Federal Bar Association, a complimentary 90-minute training session on using PDF markup tools will be offered at the following times and locations: Session I 8:30–10 a.m. Session II 10:30 a.m.–noon Session III 1–2:30p.m. Albuquerque May 18–19 Las Cruces June 23–June 24 Santa Fe July 21–July 22 Attendees will learn how to use a variety of PDF tools to mark portions of exhibits identified for the Court’s attention and meet the requirements of the U.S. District Court for the District of New Mexico Local Civil Rule 10.6. “Identifying Portions of Exhibits: Using Markup Tools to Correctly Mark PDF Documents” will be taught by Court staff and a trainer specializing in computer

skills. For workshop agenda and registration, go to www.nmcourt.fed. CLE credit is not available.

sTaTe bar neWsAttorney Support Group • June 7, 5:30 p.m.—Afternoon groups

meet regularly on the first Monday of the month:

• May 17, 7:30 a.m.—Morning groups meet regularly on the third Monday of the month.

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, (505) 242-6845.

Bankruptcy Law SectionClient Education Brochures Available Brochures created by the Bankruptcy Law Section, Filing Bankruptcy in New Mexico, are available free of charge in both English and Spanish. Attorneys may personalize the brochures with firm contact information and distribute them to clients. Visit the Bankruptcy Law Section page on the State Bar website or click on http://www.nmbar.org/AboutSBNM/sections/Bankruptcy/filingbankruptcy.html. To pick up copies from the State Bar Center, contact Marilyn Kelley, (505) 797-6048.

CoreVaultImagine losing hundreds of legal briefs,

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They feel secure and protected. The same consideration should be given when

choosing a data back-up and recovery company for protecting critical legal

documents. Backup should be secure, stored safely off-site, and performed by a vendor

that’s trustworthy. Ask CoreVault about their automated online data backup and

recovery services. Documents will be secure and protected, just like your clients. Call 1-866-981-5949 or visit www.corevault.

com/sbnm. Special pricing as low as $19.95/month.


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http://www.nmbar.org/Attorneys

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http://www.nmcourt.fed.us

http://www.nmcourt.fed.us


http://www.nmcourt.fed

http://www.nmbar.org/AboutSBNM/sections

http://www.nmbar.org/AboutSBNM/sections


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Tenth Annual Golf Outing The Bankruptcy Law Section will spon-sor its 10th Annual Golf Outing at noon, May 14, at the Tanoan Country Club, 10801 Academy Road SE, Albuquerque. The $65 fee includes a round of golf, a cart, and hors d’oeuvres. A cash bar will also be available. Non-golfing section members are encouraged to attend the reception fol-lowing the tournament at 5 p.m. For more information or to register, contact Gerald Velarde, (505) 248-0050 or [email protected]. Reservations must be made by May 10. Participants must provide their own golf clubs.

N.M. Medical Review CommissionVolunteers Needed to Screen Medical Malpractice Cases Volunteers, particularly defense at-torneys, are needed to serve on panels to screen applications of alleged medical malpractice. The New Mexico Medical Review Commission, created by Section 41-5-14 of the New Mexico Medical Mal-practice Act, was enacted in 1976. The act mandates that the commission screen all applications of alleged medical malpractice against a qualified medical provider. Three panel members from the medical profession and three panel members from the State Bar review each application. Visit http://www.nmbar.org/AboutSBNM/Committees/NM-MRC/NMMRC.html for more information and to volunteer, or contact Vicky Bolton, (505) 828-0237, 800-748-1596 or e-mail [email protected].

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and attend Understanding the Inspection of Public Records Act (1.0 general CLE credit) presented by Mona Valicenti, Of-fice of the New Mexico Attorney General. The program will be held from noon to 1 p.m., May 12, at the State Bar Center. The registration fee is $16 for attorneys, $10 for members of the Paralegal Division, and $15 for non-members. Registration begins at the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, (505) 247-0411, or Evonne Sanchez, (505) 222-9356.

oTher barsAlbuquerque Bar AssociationJune Member Luncheon The Albuquerque Bar Association’s Member Luncheon will be held at 11:45 a.m., June 1, at the Embassy Suites Hotel, 1000 Woodward Place NE, Albuquerque. Dick Minzner of Rodey Dickason Sloan Akin & Robb PA will present an update of the current legislative session from 12:30 to 1:30 p.m. (1.0 general CLE credit for those attendees who wish to purchase credit). Lunch only: $25 members/$35 non-members with reservations; Lunch/CLE: $55 members/$75 non-members with reservations; CLE only: $30 members/$40 non-members with reservations. Register for lunch by noon, May 27. To register: 1. log on to www.abqbar.org; 2. e-mail [email protected]; 3. fax to (505) 842-0287; 4. call (505) 842-1151 or (505) 243-

2615; or 5. mail to PO Box 40, Albuquerque,

NM 87103.

N.M. Defense Lawyers AssociationTrial Techniques CLE Seminar The N. M. Defense Lawyers Association will sponsor Advanced Trial Techniques Seminar: Meeting the Challenge of Jury Trials and Avoiding Runaway Verdicts (6.5 general and 1.0 ethics CLE credits ) May 13 at the State Bar Center. Designed for the intermediate as well as advanced trial practitioner, its scope is aimed at attorneys, claims managers and representatives, and risk managers who handle jury cases that are tried to juries which have significant exposure for punitive damages due to seri-ous injury or corporate indifference. Topics include the importance of developing trial themes, concentration on punitive damage exposure and approaches to jury selection. The afternoon session will involve presenta-tion of a case to a live focus group, including an analysis of the deliberation of that case via closed circuit video. For more informa-tion, e-mail [email protected] or call (505) 797-6021.

unMSchool of LawSpring Library Hours to May 15Building and Circulation Monday–Thursday 8 a.m.–11 p.m. Friday 8 a.m.–6 p.m. Saturday 9 a.m.–6 p.m. Sunday 9 a.m.–11 p.m.Reference Monday - Friday 9 a.m.–6 p.m. Saturday Closed Sunday Noon–4 p.mMemorial Day, May 31 Closed

oTher neWs Workers’ Compensation Administration Brown-Bag Luncheon The WCA will host a brown-bag luncheon at 11:30 a.m., May 21, at the Workers’ Compensation Administration headquarters, 2410 Centre SE, Albuquer-que. The topic will be trial and hearing scheduling with an opportunity for open discussion immediately following.

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The current term of office for incumbent full-time

United States Magistrate Judge W. Daniel Schneider will ex-pire on March 11, 2011. The United States District Court has established a panel of citizens, as required by law, to consider the reappointment of Magistrate Judge W. Daniel Schneider to a new eight-year term.The duties of Magistrate Judge W. Daniel Schneider are de-fined in 28 U.S.C. § 636(a) and involve the trial of federal petty and minor offenses as per 18 U.S.C. § 3401; imposition of conditions of release under 18 U.S.C. § 3146; conduct-ing arraignments, non-guilty pleas, and felony guilty pleas; upon designation, conducting hearings and submitting to the judges proposed findings of fact and recommendations for dispositive motions or prisoner petitions; trial and disposition of civil cases upon consent of the litigants; and, performing such other duties as conferred or imposed by law or by the Federal Rules of Criminal Pro-cedure and/or the Rules of the United States District Court for the District of New Mexico.The public and members of the bar are invited to submit comments as to whether the reappointment of Magistrate Judge W. Daniel Schneider to a new term of office should be considered. All comments will be kept confidential and should be submitted to the personal attention of the undersigned not later than July 2, 2010.

Mark BakerLong, Pound & Komer PA

PO Box 5098Santa Fe, NM 87502-5098


United States Magistrate Judge Alan C. Torgerson will expire on March 2, 2011. The United States District Court has es-tablished a panel of citizens, as required by law, to consider the reappointment of Magistrate Judge Alan C. Torgerson to a new eight-year term.The duties of Magistrate Judge Alan C. Torgerson are defined in 28 U.S.C. § 636(a) and involve the trial of federal petty and minor offenses as per 18 U.S.C. § 3401; imposition of conditions of release under 18 U.S.C. § 3146; conduct-ing arraignments, non-guilty pleas, and felony guilty pleas; upon designation, conducting hearings and submitting to the judges proposed findings of fact and recommendations for dispositive motions or prisoner petitions; trial and disposition of civil cases upon consent of the litigants; and, performing such other duties as conferred or imposed by law or by the Federal Rules of Criminal Pro-cedure and/or the Rules of the United States District Court for the District of New Mexico.The public and members of the bar are invited to submit comments as to whether the reappointment of Magistrate Judge Alan C. Torgerson to a new term of office should be considered. All comments will be kept confidential and should be submitted to the personal attention of the undersigned not later than July 2, 2010.




United States Magistrate Judge Robert H. Scott will expire on March 31, 2011. The United States District Court has es-tablished a panel of citizens, as required by law, to consider the reappointment of Magistrate Judge Robert H. Scott to a new eight-year term.The duties of Magistrate Judge Robert H. Scott are defined in 28 U.S.C. § 636(a) and involve the trial of federal petty and minor offenses as per 18 U.S.C. § 3401; imposition of conditions of release under 18 U.S.C. § 3146; conduct-ing arraignments, non-guilty pleas, and felony guilty pleas; upon designation, conducting hearings and submitting to the judges proposed findings of fact and recommendations for dispositive motions or prisoner petitions; trial and disposition of civil cases upon consent of the litigants; and, performing such other duties as conferred or imposed by law or by the Federal Rules of Criminal Pro-cedure and/or the Rules of the United States District Court for the District of New Mexico.The public and members of the bar are invited to submit comments as to whether the reappointment of Magistrate Judge Robert H. Scott to a new term of office should be considered. All comments will be kept confidential and should be submitted to the personal attention of the undersigned not later than July 2, 2010.




United States Magistrate Judge Lourdes A. Martinez will ex-pire on March 31, 2011. The United States District Court has established a panel of citizens, as required by law, to consider the reappointment of Magistrate Judge Lourdes A. Martinez to a new eight-year term. The duties of Magistrate Judge Lourdes A. Martinez are defined in 28 U.S.C. § 636(a) and involve the trial of federal petty and minor offenses as per 18 U.S.C. § 3401; imposition of conditions of release under 18 U.S.C. § 3146; conduct-ing arraignments, non-guilty pleas, and felony guilty pleas; upon designation, conducting hearings and submitting to the judges proposed findings of fact and recommendations for dispositive motions or prisoner petitions; trial and disposition of civil cases upon consent of the litigants; and, performing such other duties as conferred or imposed by law or by the Federal Rules of Criminal Pro-cedure and/or the Rules of the United States District Court for the District of New Mexico. The public and members of the bar are invited to submit comments as to whether the reappointment of Magistrate Judge Lourdes A. Martinez to a new term of office should be considered. All comments will be kept confidential and should be submitted to the personal attention of the undersigned not later than July 2, 2010.



U. S. District Court for the District of New MexicoPublic Notices Concerning Reappointment of Full-Time United States Magistrate Judges



Stories and pictures by Dorma Seago

New AttorNeys tAke oAth iN sANtA Fe

(From Top) Tobanna Barker, Brandon Durrett, and Elisabeth Millich sign the historic Roll of Attorneys.

The 2010 spring swearing-in ceremony for 76 new members of the State Bar took place April 26 at the James A. Little Theater in Santa Fe. Remarks were offered by State Bar President Steve Shanor; YLD Chair Martha Chicoski; Briggs Cheney, who represented the Lawyers Assistance Committee; and Mary Torres, New Mexico delegate to the American Bar Association. Chair of the New Mexico Board of Bar Examiners David Chacon introduced each inductee to the court. Following tradition, the Justices of the New Mexico Supreme Court delivered welcoming remarks and personal challenges to the new attorneys.

sigNiNg the roll. . .

PreseNtAtioNs to the Court. . .

tAkiNg the oAth. . .

Top Row: Kristina G. Fisher presents Alexis Carver (left). Dana Lee Bobroff presented Mary Doris Modrich-Alvarado. W. Mark Mowery presents Jordyn Whisenant. Midde Row: Dennis E. Jontz presents Marshall J. Ray. Thomas M. Clark presents Elden Pennington. New attorneys Brandi Dosser and Justin Kiechler enjoy the proceedings.Bottom Row: Clyde F. Worthen presented his son Chad F. Worthen. Casey Douma presents Ke Aloha Mae Alo Douma.


From Top: Kirsten Edwards, Lee Roy Montion, Orlando Torres, and Rebekah Puckett sign the Roll of Attorneys.

Detached retinas blinded Earl Oaks in both eyes when he was five years old. But it didn’t slow him down much. He finished high school in Willis, Texas, in three and a half years, attended Ohio State University for a year, and graduated from Texas Tech University in 2008 with a bachelor’s degree in sociology. He earned his J.D. degree from Texas Tech Uni-versity School of Law where he was president of the Criminal Trial Lawyers Association. He attended law school on a K. G. Spencer Scholarship, which is awarded for charisma, ability to adapt to adversity, and dogged persistence in law school. Oaks works efficiently using both braille and scribes. Justice Patricio M. Serna moved Oaks’ admission to the bar. “I want to thank Carol Skiba, executive director of the New Mexico Board of Bar Examiners, for bringing Earl to my at-tention,” said Justice Serna. “I was touched by the last sentence of his biography, which reads, ‘Now the time has come when Justice Serna will move my admission. That will be one of the most honorable and unforgettable moments of my life.’ Moving Earl’s admission was also one of my unforgettable moments.

Earl overcame tremendous obstacles in gaining admission to the bar and I am proud of him and wish him well.” Becoming an attorney has been Earl Oaks’ dream. Becoming an attorney in criminal law is now his passion.

When you’re named “Justice,” do you have any other choice but to go into law? Justice Castillo has been on active duty in the U.S. Army since March 2006. When he returns from his pending deployment in support of Operation Enduring Freedom (for security reasons, he cannot divulge the exact location), he will be transferred to the Judge Advocate General’s Corps (JAG). Castillo earned his bachelor’s degree in political science from Brook-lyn College and his law degree from the University of Denver Sturm College of Law. “It’s been a long and difficult road,” said Lt. Castillo. “Between deploy-ments, military training and moving from state to state, it was extremely hard to steal time to study, which is

extremely difficult in a deployed location because of lack of access to bar materials. My wife, who supported me 100%, made outlines of bar topics and went over legal terms on a computer camera. I had the support of family, friends and superiors. They encouraged me to keep trying and keep studying and I never gave up. After two prior failures and three MPREs, in February 2010 I finally passed both exams.”

Always a family affair, the proceedings just sometimes get too long, as Castillo’s son Alexavier, 6, can at-test.

State Bar President Stephen S. Shanor welcomes new admittees to the State Bar.

For a list of the new attorneys admitted to the State Bar on April 26, see the clerk’s certificates, page 17.

The Justices of the New Mexico Supreme Court always make the new admit-tee ceremony memorable with personal words of advice and encouragement. Chief Justice Charles W. Daniels, Justice Petra Jimenez Maes and Justice Edward L. Chávez listen as movants present new admittees to the Court.


In the Supreme Court of the State of New Mexico

WHEREAS, drug courts provide the focus and leadership for community-wide, anti-drug systems, bringing together criminal justice, treatment,

education, and other community partners in the fight against drug abuse and criminality;

WHEREAS, drug court programs are the original form of drug policy reform and combine intensive judicial supervision, mandatory substance abuse

treatment and drug testing, and escalating sanctions and incentives in order to break the cycle of drug addiction and its concomitant crime;

WHEREAS, the judges, prosecutors, defense attorneys, treatment and rehabilitation professionals, law enforcement and corrections personnel,

researchers and educators, national and community leaders, and others dedicated to the movement have had a profound impact through hard work and commitment to their communities; and

WHEREAS, the drug court movement has grown from one drug court in 1994 to over 45 drug courts that are in operation or in the planning stages.

NOW, THEREFORE, BE IT RESOLVED, that the New Mexico Supreme Court declares that a “New Mexico Drug Court Month” be established during the

month of May 2010, recognizing the practitioners and participants who make drug courts work and the significant contributions that drug courts have made, and continue to make, in reducing drug usage and crime.

DONE in Santa Fe, New Mexico, this 9th day of April, 2010.

Charles W. Daniels. Chief Justice

ProclamationNew Mexico Drug Court

Recognition MonthMay 2010


Carolyn Ramos has been elected to the Board of Trustees of her alma mater, Middlebury College. She was also recently selected to be a member of the International Association of Defense Counsel. Ramos is a shareholder and director with the law firm of Butt Thornton & Baehr PC in Albuquerque.

Pía Salazar, a partner at Salazar Sullivan & Jasionowski and cur-rent president of the

New Mexico Trial Lawyers Association, has been selected to appear in Southwest Super Lawyers 2010. Salazar received her law degree from the UNM School of Law in 1994. She practices primarily in the areas of medical malpractice and wrongful death litigation.

Carolyn Ramos

Pía Salazar

Editor’s Note: The contents of Hearsay and In Memoriam are submitted by members or derived from news clippings. E-mail announcements to [email protected].

Paul BardackeBusiness Litigation

Anne P. BrowneReal Estate

Michael J. GoldenFamily Law

Gail GottliebBankruptcy &

Creditor/Debtor Rights

Kerry C. KiernanAppellate

Twila B. LarkinFamily Law

Attorneys from the law firm of Sutin Thayer & Browne have been selected for inclusion in the 2010 issue of Southwest Super Lawyers in the area of law indicated. In addition, Paul Bardacke and Kerry Kiernan were recognized as being ranked in “The Top 25 New Mexico” lawyers.

WASHINGTON — The U.S. Senate unanimously approved the nomination of Kenneth J. Gonzales as U.S. attorney for New Mexico. President Barack Obama, who nominated Gonzales, signed off on the Senate's confirmation, and Martha Vázquez, chief

justice of the U.S. District Court in New Mexico, swore Gonzales into office. "I am honored to learn that the Senate has acted favorably on my nomination," Gonzales said. "Protecting the safety and welfare of our citizens and fairly and honorably representing the federal government's interests are tasks that we must perform with increasing vigor dur-ing these challenging times." Senator Jeff Bingaman, D-N.M., and Sen. Tom Udall, D-N.M., praised

Gonzales' confirmation. "Ken Gonzales has all the right qualifications for this very important position, and I commend President Obama for nominating him," Bingaman said. "Throughout his career, Ken Gonzales has shown a commit-ment to the people of New Mexico and the pursuit of justice," Udall said. Gonzales will take over for Greg Fouratt, a career federal prosecutor, who was appointed acting U.S. attorney by federal judges in New Mexico after David Iglesias was fired by the George W. Bush administration in a controversial 2007 purging of federal prosecutors. Gonzales, 45, has served as an assistant U.S. attorney in New Mexico since 1999. He is a prosecutor in the Organized Crime and Drug Enforcement Task Force unit and previously served in the Violent Crimes, Narcotics and Criminal Immigration units. The career prosecutor served as a legislative assistant to Bingaman from 1996 to 1999 and as a judicial law clerk to a chief justice of the New Mexico Supreme Court before that. Gonzales is a Pojoaque High School graduate who earned his bachelor's and law degrees from the University of New Mexico.

—Albuquerque JournalReprinted with permission

Kenneth J. Gonzales

www.nmbar.orgHearsay




legal education

G = General E = Ethics

P = Professionalism VR = Video Replay Programs have various sponsors; contact appropriate sponsor for more information.

May

10 2010 Professionalism and Ethics: Responding to Crisis Through Limited Representation

VR, Las Cruces Center for Legal Education of NMSBF 1.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org

10 Malpractice in an Uncertain Economy (from Surviving to Thriving, 2009)

VR, Las Cruces Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

11–12 Buying Distressed Business: “Loan to Own” and Other Strategies, Parts 1 and 2

Teleseminar Center for Legal Education of

NMSBF 2.0 G (505) 797-6020 www.nmbarcle.org

11 Creditors Rights, Collections, and Bankruptcy

VR, Las Cruces Center for Legal Education of NMSBF 4.0 G, 1.0 E (505) 797-6020 www.nmbarcle.org

11 FMLA Master Class M. Lee Smith Publishers LLC Albuquerque 6.0 G (615) 373-5183 www.mleesmith.com 11 Handling Title Insurance Claims

and Litigation NBI, Inc. Albuquerque 6.0 G 1-800-930-6182 www.nbi-sems.com

12 How to Keep Tax-Exempt Organizations in Compliance

NBI, Inc. Albuquerque 6.5 G 1-800-930-6182 www.nbi-sems.com

12 Understanding the Inspection of Public Records Act

State Bar Center Paralegal Division 1.0 G (505) 247-0411 or (505) 222-9356

13 Advanced Trial Techniques Seminar: Meeting the Challenge of Jury Trials and Avoiding Runaway Verdicts

State Bar Center N.M. Defense Lawyers Association 6.5 G, 1.0 E (505) 797-6021 [email protected]

14 Adoption Law NBI, Inc. Albuquerque 5.0 G, 1.0 1-800-930-6182 www.nbi-sems.com

18 2009 Employment and Labor Law Institute

VR - State Bar Center Center for Legal Education of

NMSBF 5.0 G, 1.0 E (505) 797-6020 www.nmbarcle.org

18 2009 Forensic Accounting VR - State Bar Center Center for Legal Education of


18 Choice of Entity for Service Businesses, Including Law Firms



18 Medicare Set Asides in Personal Injury Cases

VR - State Bar Center Center for Legal Education of


19 Advanced Employment Law NBI, Inc. Albuquerque 6.0 G 1-800-930-6182 www.nbi-sems.com

20 Annual Tax Policy Conference Albuquerque New Mexico Tax Research Institute 9.0 G, 1.0 E (505) 842-5833

21 New Mexico Water Rights and Regulations Albuquerque Halfmoon LLC 6.0 G (715) 835-5900

24 When Prosecutors Test the Outer Limits

Teleconference TRT, Inc. 1.0 E, 1.0 P 1-800-672-6253 www.trtcle.com

20 Compensation and Other Techniques for Getting Money Out of a Business



25 Incentive Trusts: Carrots and Sticks to Encourage Good Behavior and Discourage Bad



http://www.nmbarcle.org




http://www.mleesmith.com

http://www.nbi-sems.com









http://www.trtcle.com




legal education www.nmbar.org

26 Ethics in Negotiations Teleseminar Center for Legal Education of

NMSBF 1.0 E (505) 797-6020 www.nmbarcle.org

26 Practical Discovery from A to Z NBI, Inc. Albuquerque 5.0 G, 1.0 E 1-800-930-6182 www.nbi-sems.com

27 Lawyer Substance Abuse Addictions: Causes and Results

Teleconference TRT, Inc. 1.0 E, 1.0 P 1-800-672-6253 www.trtcle.com

June1–2 2010 Ethics in Civil Litigation,

Parts 1 & 2 Teleseminar Center for Legal Education of


1 Disciplinary Administrative Adjudications in New Mexico

VR–State Bar Center Center for Legal Education of


1 The Probate Law and the Probate Process in New Mexico



8 Ethics for Business Lawyers Teleseminar Center for Legal Education of


8 Intermediate NM Gross Receipts and Compensating Tax

Albuquerque Lorman Education 6.6 G (866) 352-9539 www.lorman.com

9 Consumer Law State Bar Center Paralegal Division 1.0 G (505) 247-0411 or (505) 222-9356

10 Tax Strategies for Distressed S Corps



11 The Duke City Scorcher Albuquerque N. M. Criminal Defense

Lawyers Association 6.0 G nmcdla.org or (505) 992-0050 [email protected]

15-16 2010 Estate Planning Update, Parts 1 and 2



15 Putting Your Best Face on a Case VR–State Bar Center Center for Legal Education of

NMSBF 4.7 G, 1.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org

15 Animal Law: Legislation, Litigation, Ethics, and Professionalism


NMSBF 4.0 G, 1.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org

16 Managing Construction Project Risk

Albuquerque NBI, Inc. 5.0 G, 1.0 E (800) 930-6182 www.nbi-sems.com

16 When Prosecutors Test the Outer Limits

Teleconference TRT, Inc. 1.0 E, 1.0 P (800) 672-6253 www.trtcle.com

17 Lawyer Substance Abuse Addictions: Causes and Results

Teleconference TRT, Inc. 1.0 E, 1.0 P (800) 672-6253 www.trtcle.com

22–23 Buying and Selling Distressed Real Estate, Parts 1 & 2



16 Managing Construction Project Risk

Albuquerque NBI, Inc. 5.0 G, 1.0 E (800) 930-6182 www.nbi-sems.com









http://www.lorman.com












Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

effeCTive May 10, 2010

Writs of certiorari

as updated By tHe clerk of tHe neW Mexico supreMe court

petitions for Writ if certiorari filed and pending: Date Petition FiledNO. 32,368 State v. Ray (COA 29,882) 4/30/10NO. 32,367 Cedrins v.

City of Albuquerque (COA 29,967) 4/29/10NO. 32,366 State v. Montes (COA 29,301) 4/29/10NO. 32,365 State v. Holgate (COA 30,021) 4/29/10NO. 32,364 State v. Manuel P. (COA 30,185) 4/29/10NO. 32,363 State v. Rayford (COA 30,108) 4/28/10NO. 32,358 State v. Salas (COA 29,948) 4/28/10NO. 32,362 State v. Grajeda (COA 29,903) 4/27/10NO. 32,360 State v. Figueroa (COA 28,798) 4/27/10NO. 32,357 State v. Elawar (COA 29,780) 4/27/10NO. 32,356 Wishneski v. Dona Ana Co.

Detention Ctr. (12-501) 4/26/10NO. 32,355 State v. Martinez (COA 30,083) 4/22/10NO. 32,353 State v. Nelson (COA 30,114) 4/22/10NO. 32,351 State v. Lopez (COA 29,765) 4/21/10NO. 32,350 State v. Ramirez (COA 28,481) 4/21/10NO. 32,349 Ruiz v. Romero (12-501) 4/21/10NO. 32,346 Duran v. Barrientos (COA 20,074) 4/21/10NO. 32,348 State v. Descheny (COA 29,889) 4/20/10NO. 32,345 State v. Dominguez (COA 28,610) 4/19/10NO. 32,344 Provencio v. Wenrich (COA 28,882) 4/19/10 Responsefiled4/26/10NO. 32,342 Bonney v. Herzog (COA 20,227) 4/19/10 Responsefiled4/22/10NO. 32,341 Herzog v. Griego (COA 20,224) 4/19/10 Responsefiled4/22/10NO. 32,343 State v. Lara (COA 29,974) 4/16/10NO. 32,340 Rivera v.

American General (COA 28,691) 4/16/10NO. 32,339 McPeek v. Hubbard (COA 27,424) 4/16/10NO. 32,338 Becerra v. State (12-501) 4/16/10NO. 32,325 State v. Theresa R. (COA 29,617) 4/16/10NO. 32,335 Albuquerque City Council

v. Roby (COA 30,175/30,237) 4/15/10NO. 32,333 State v. Mendoza (COA 28,781) 4/15/10NO. 32,332 Kuhn v. Paradise Hills

Homeowners Assn. (COA 29,927) 4/14/10NO. 32,327 State v. Hurtado (COA 29,949) 4/14/10NO. 32,324 Allen v. Paptheofanis (COA 28,079) 4/14/10NO. 32,326 Gonzalez v. Bravo (12-501) 4/13/10NO. 32,323 State v. Miller (COA 29,992) 4/12/10NO. 32,321 State v. Sergio V. (COA 29,615) 4/12/10NO. 32,319 State v. Tesch (COA 29,990) 4/12/10NO. 32,322 Garcia v. Tapia (12-501) 4/9/10 Response due 5/5/10NO. 32,320 State v. Vasquez (COA 29,800) 4/9/10NO. 32,318 State v. Martinez (COA 28,538) 4/8/10NO. 32,317 State v. Villalba (COA 29,007) 4/8/10

NO. 32,314 City of Rio Rancho v. Mazzei (COA 28,609) 4/7/10

Response due 5/14/10NO. 32,311 Rodriguez v. Permian (COA 29,435) 4/7/10 Responsefiled4/22/10NO. 32,310 Garcia v. Tapia (12-501) 4/6/10 Response due 5/5/10NO. 32,239 Duran v. Bravo (12-501) 4/2/10 Response due 5/13/10 by extnNO. 32,296 Carabajal v. State (12-501) 3/29/10 Response due 5/13/10 by extnNO. 32,295 Duran v. State (12-501) 3/29/10 Response due 5/21/10 by extnNO. 32,290 State v. Moreno (COA 28,312) 3/25/10 Response due 5/3/10NO. 32,280 Perez v. Heredia (12-501) 3/22/10 Responsefiled4/14/10NO. 32,244 State v. Hart (COA 29,828) 2/24/10NO. 32,242 NM Dept of Public Safety

v. Montoya (COA 29,904) 2/24/10 Stayed until 5/11/10

pending mediation

certiorari granted But not yet suBMitted to tHe court:

(Parties preparing briefs) Date Writ IssuedNO. 31,740 State v. McCorkle (COA 29,124) 7/1/09NO. 31,813 State v. Soliz (COA 28,018) 7/29/09NO. 31,791 State v. Atcitty (COA 27,189/27,940/27,333) 8/12/09NO. 31,891 State v. Gonzales (COA 29,297) 9/15/09NO. 31,927 State v. Sanchez (COA 28,090) 9/28/09NO. 32,012 State v. Trujillo (COA 28,412) 11/18/09NO. 31,980 Northwest Villages, LLC

v. Martinez (COA 29,743) 12/7/09NO. 32,041 State v. Puliti (COA 29,509) 12/7/09NO. 32,044 State v. Episcopo (COA 29,328) 12/7/09NO. 32,069 State v. Martinez (COA 28,665) 12/29/09NO. 32,126 State v. Myers (COA 26,837) 1/12/10NO. 32,094 State v. Flores (COA 27,647) 1/12/10NO. 32,129 State v. Wylie (COA 29,694) 1/22/10NO. 32,130 State v. Cruz (COA 27,292) 1/25/10NO. 32,139 San Juan Ag. Water

Users Assn. v. KNME-TV (COA 28,473) 1/25/10NO. 32,092 State v. Trujillo (COA 27,291) 1/26/10NO. 32,162 Garcia v. Garcia (COA 28,106) 2/2/10NO. 32,099 Wachocki v. Bernalillo

Co. Sheriff’s Dept. (COA 27,761) 2/8/10NO. 32,131 Wachocki v. Bernalillo

Co. Sheriff’s Dept. (COA 27,761) 2/8/10


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

NO. 32,165 State v. Henry (COA 28,507) 2/11/10NO. 32,170 State v. Ketelson (COA 29,876) 2/11/10NO. 32,137 State v. Skippings (COA 28,324) 2/18/10NO. 32,063 Jordan v. Allstate

Insurance Co. (On rehearing) (COA 28,638) 3/1/10

NO. 32,149 State v. Sandoval (COA 28,437) 3/1/10NO. 32,203 Lucero v. Trujillo (COA 29,859) 3/1/10NO. 32,234 State v. Trujillo (COA 29,870) 3/10/10NO. 32,243 Farmers Insurance

Co of Arizona v. Chen (COA 28,859) 4/1/10NO. 32,175 Kittell v. Lovett (COA 29,693) 4/1/10NO. 32,263 State v. Williams (COA 28,034) 4/1/10NO. 32,291 State v. Torres (COA 29,603) 4/23/10

certiorari granted and suBMitted to tHe court:

(Submission = date of oral argument or briefs-only submission)Submission Date

NO. 31,374 Schultz v. Pojoaque Tribal Police Dept. (COA 28,508) 5/11/09

NO. 31,288 State v. Savedra (COA 27,288/27,289/27,290) 8/11/09

NO. 31,637 Akins v. United Steel (COA 27,132) 10/13/09NO. 31,224 State v. Harrison (COA 27,224) 11/9/09NO. 30,827 State v. Sims (COA 26,590) 11/10/09NO. 31,092 State v. Mailman (COA 27,966) 11/10/09NO. 31,117 State v. Moore (COA 28,243) 11/10/09NO. 31,328 Garcia v. State

(On rehearing) (12-501) 11/30/09NO. 31,602 Allstate Ins. Co. v. Guest (COA 27,253) 12/14/09NO. 31,603 Guest v. Allstate Ins. Co. (COA 27,253) 12/14/09NO. 31,750 Kilgore v. Fuji (COA 27,470) 1/11/10NO. 31,218 State v. Henley (COA 27,925) 1/27/10NO. 31,732 State v. Smile (COA 27,338) 1/27/10NO. 31,745 State v. Jackson (COA 28,107) 1/27/10NO. 31,100 Allen v. LeMaster (12-501) 2/15/10

NO. 31,723 State v. Mendez (COA 28,261) 2/16/10NO. 31,739 State v. Marquez (COA 27,971) 2/16/10NO. 31,360 State v. Morales (COA 26,969) 2/17/10NO. 31,433 Romero v.

Philip Morris, Inc. (COA 26,993) 2/22/10NO. 31,724 Albuquerque Commons v.

City/Albq. (COA 24,026/24,027/24,042/24,425) 2/22/10NO. 31,907 Edward C. v.

City of Albuquerque (COA 27,864) 3/15/10NO. 31,917 Edward C. v.

Albq. Baseball Club (COA 27,864) 3/15/10NO. 31,738 State v. Marlene C. (COA 28,352) 3/22/10NO. 31,995 Herrera v. Eberline (COA 28,577) 4/12/10NO. 31,656 State v. Rivera (COA 25,798) 4/13/10NO. 31,015 State v. Demongey (COA 26,453) 4/15/10NO. 32,001 Oldham v. Oldham (COA 28,493) 5/10/10NO. 31,567 State v. Guthrie (COA 27,022) 5/11/10NO. 32,065 Romero v. Progressive

Northwestern Ins Co. (COA 28,720) 5/11/10 (On rehearing)NO. 31,909 State v. Rudy B. (COA 27,589) 5/12/10NO. 31,922 State v. Terrazas (COA 27,613) 5/26/10NO. 32,064 Cordova v. Cordova (COA 28,208) 5/26/10

petition for Writ of certiorari denied:

NO. 32,267 State v. Shaun S. (COA 28,680) 4/20/10NO. 32,306 Breen v. Taxation &

Revenue Dept. (COA 29,849) 4/28/10NO. 32,328 Edwards v. Little (COA 30,226/29,712) 4/28/10NO. 32,331 Sigala v. Bravo (12-501) 4/28/10NO. 32,336 Hernandez v. State (12-501) 4/28/10NO. 32,315 State v. Riggs (COA 29,569) 4/29/10NO. 32,275 Giron v. Citimortgage (COA 29,008) 4/30/10NO. 32,299 State v. Romero (COA 28,038) 4/30/10



puBlisHed opinions

Date Opinion FiledNo. 28995 11th Jud Dist San Juan CR-07-173, STATE v D MONTOYA (vacate and remand) 4/27/2010No. 28407 2nd Jud Dist Bernalillo CV-07-1968, ABQ v ANDALUCIA DEVELOPMENT (reverse) 4/28/2010

unpuBlisHed opinions

No.28555 3rdJudDistDonaAnaCV-98-139,GALEXANDERvGTHARP(affirm) 4/26/2010No.29929 9thJudDistCurryCR-08-653,CR-08-654,STATEvCBATES(affirm) 4/27/2010No.29930 9thJudDistCurryCR-08-654,STATEvCBATES(affirm) 4/27/2010No.29931 9thJudDistCurryCR-08-653,CR-08-654,CR-08-655,STATEvCBATES(affirm) 4/27/2010No.30021 9thJudDistCurryCR-08-385,STATEvRHOLGATE(affirm) 4/27/2010No.30032 6thJudDistHidalgoCR-09-103,STATEvEBIRD(affirm) 4/27/2010No. 30087 1st Jud Dist Santa Fe CV-08-1936, SETON FAMILY TRUST v P WIRTH (dismiss) 4/27/2010No.30184 11thJudDistSanJuanLR-09-115,STATEvLCURLEY(affirm) 4/27/2010No. 30218 12th Jud Dist Otero CR-07-113, CR-07-193, CR-07-80, STATE v J RIORDAN (dismiss) 4/27/2008No.28347 12thJudDistOteroCR-05-642,STATEvMAMAYA(affirm) 4/28/2010No.28392 1stJudDistSantaFeDM-98-243,MORTIZvDORTIZ(affirminpart,reverseinpartandremand) 4/28/2030No.29980 3rdJudDistDonaAnaCV-07-2250,CCORREAvMSANDERS(affirm) 4/28/2010No.30019 2ndJudDistBernalilloMC-06-2708,MMINTEERvDSUDLOW(affirm) 4/28/2010No. 30150 9th Jud Dist Curry DM-05-259, H KIM v C DESHONE (dismiss) 4/28/2010No.30078 9thJudDistRooseveltCR-08-136,STATEvFESPARZA(affirm) 4/30/2010

Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fé, NM 87504-2008 • (505) 827-4925

effeCTive april 30, 2010

opinions

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

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

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


Clerk’s CertifiCate DateD april 26, 2010

clerk’s certificatesfroM tHe neW Mexico supreMe court

Clerk’s CertifiCate of admission

Asra Imtiaz Ahmad841 Silver Avenue, SWAlbuquerque, NM 87102

Alva Alvarez120 West 5th StreetPecos, TX 79772

Michael A. Anderson8217 Krim Drive, NEAlbuquerque, NM 87109

Tobanna BarkerDines & Gross, P.C.6301 Indian School Road, NE, Suite 900Albuquerque, NM 87110-8199505-889-4050505-889-4049 (telecopier)

John T. Beckstead465 RD 6100Kirkland, NM 87417

D. Neill Benton1104 Florida Street, NEAlbuquerque, NM 87110

Jake Boazman448 U.S. Highway 60/70/84Clovis, NM 88101-9233

Daniel E. Brannen, Jr.215 West San Francisco Street, Suite 204Santa Fe, NM 87501

James T. Burns7541 Prairie Road, NEAlbuquerque, NM 87109-1801

Joshua Scott Cantrell5279 Diamondback DriveLas Cruces, NM 88011-7587

Alexis Carver7536 Jemez Street, NEAlbuquerque, NM 87109-4921

Justice Lewis Castillo4407 SW Hickory LaneLawton, OK 73505-7506

Stefan R. ChacónNM Supreme Court237 Don Gaspar Avenue (87501)PO Box 848Santa Fe, NM 87504-0848505-827-4892505-827-4837 (telecopier)

Jennifer Anne Collins1009 Marquette Blvd. NEAlbuquerque, NM 87106

David Comarow10561 Haven StreetLas Vegas, NV 89183

Sheila D’Ambrosio201 12th Street, NWAlbuquerque, NM 87102-1815

Rachel Michelle Darby110 Richmond Dr., SE, #304Albuquerque, NM 87106-2274

Brandi Nicole Dosser1402 TX AvenueLubbock, TX 79401

Ke Aloha Mae Alo DoumaPO Box 812Laguna, NM 87026-0812

Carolyn Michelle DrouinPO Box 116Crown Point, NM 87313-0116

Brandon Edward Durrett3260 Bromley PlaceMidland, TX 79705

Kirsten D. EdwardsPO Box 1453Taos, NM 87571-1453

Jonathan A. Elms4605 18th StreetLubbock, TX 79416

Jennifer C. Esquibel10304 Apache Avenue, NEAlbuquerque, NM 87112

Milad Kaissar Farah5881 Oscar PerezEl Paso, TX 79932

Fritz L. Fisher1624 Market Street, Suite 302Denver, CO 80202

Jessica Goldman221 North KansasEl Paso, TX 79901

Danielle M. Gross230 West 5th StreetTempe, AZ 85281

Dulcinea Z. HanuschakHinkle, Hensley, Shanor & Martin, L.L.P.218 Montezuma StreetSanta Fe, NM 87501505-982-4554505-982-8623 (telecopier)

Jose A. Howard-Gonzalez221 North KansasEl Paso, TX 79901

Jason P. Hungerford4856-B Excalibur DriveEl Paso, TX 79902-1204

Ryan T. Jerman3705 Campus Boulevard, NEAlbuquerque, NM 87106

Stephanie M. Johnson233 Mississippi Avenue, SWBemidji, MN 56601-4032

Meredith Anne JohnstonePeter H. Johnstone, P.C.1128 Pennsylvania NE, #250Albuquerque, NM 87110505-255-2421505-255-2353 (telecopier)

Justin Kiechler619 BroadwayLubbock, TX 79401-3503

Julia LapisPO Box 1663, MS A-187Los Alamos, NM 87545-1663

Corinna Laszlo-Henry1003 5th StreetLas Vegas, NM 87701

Andrew J. Lehrman3360 Mauis DriveCorpus Christi, TX 78411

Steven L. Lovett4206 Tres Ninos, Suite BLas Cruces, NM 88011

Josephine LueTrenchard & Hoskins306 North Lea AvenueRoswell, NM 88201575-622-7774575-622-4705 (telecopier)

Sofia Reyes McDermott1413 Montana AvenueEl Paso, TX 79902

Elizabeth Anne MillichHurley, Toevs, Styles, Hamblin& Panter, P.A.4155 Montgomery Blvd., NEAlbuquerque, NM 87109-6742505-888-1188505-888-9215 (telecopier)

Mary Doris Modrich-AlvaradoPO Box 3365Window Rock, AZ86515-3365

Joshua M. MontagniniMason, Isaacson & Macik, P.A.104 East Aztec AvenueGallup, NM 87301-6256505-722-4463505-722-2629 (telecopier)

Lee Roy Montion1300 North El Paso StreetEl Paso, TX 79902

Donald F. Moore, Jr.Office of the District Attorney801 North LinamHobbs, NM 88240575-397-2471575-397-6484 (telecopier)

Katherine Elizabeth Murray1000 2nd Street, NWAlbuquerque, NM 87102-

William C. Nedbalek1710 13th StreetAlamogordo, NM 88310-5014

Rebecca R. Niose7500 Cleghorn Road, NWAlbuquerque, NM 87120-4924

Earl Campbell OaksPO Box 1313Willis, TX 77378-1313


clerk’s certificates http://nmsupremecourt.nmcourts.gov.

Michael L. Parker701 Race StreetBaird, TX 79504

Elden PenningtonClark, Grubesic, Jones & Baur, L.L.C.1322 Paseo de PeraltaSanta Fe, NM 87501505-820-1825505-986-0475 (telecopier)

Sabrina Price14610 West Mandalay LaneSurprise, AZ 85379-4757

Rebekah Staggs Puckett7143 Toulan Drive, NEAlbuquerque, NM 87122

Debora E. Ramirez801 McDuffie Circle, NEAlbuquerque, NM 87110

Susan Waller Ramos1309 Serinna CourtSilver City, NM 88061

Marshall J. Ray8705 Cherry Hills Road, NEAlbuquerque, NM 87111

Julie Simmons Rivers512 NW 12th StreetOklahoma City, OK 73103

Robert Michael Rohr4203 Camelback Road, NWAlbuquerque, NM 87114

Jennifer E. Sanchez2222 Uptown Loop, NE, #4301Albuquerque, NM 87110

Benjamin Richard SchropeOffice of the District Attorney102 North Canal, Suite 200Carlsbad, NM 88220575-885-8822575-628-8566 (telecopier)

Eileen May Shearin1115 BroadwayLubbock, TX 79401-3303

Susan L. StinsonOffice of the District Attorney520 Lomas Boulevard, NWAlbuquerque, NM 87102-2118505-841-7100505-841-7260 (telecopier)

Orlando J. Torres5761 Lawndale Drive, #BEl Paso, TX 79912-4256

Eric L. Townsend21006 Mendenhall CourtTopanga, CA 90290-4481

Rachel Trafican2404 Broadway Blvd., NEAlbuquerque, NM 87102

Robert E. Valdez75 Three Lakes DriveSan Antonio, TX 78248

Matthew R. Wade1508 WalnutAlamogordo, NM 88310

Cathryn L. Wallace2436 Sunridge DriveLas Cruces, NM 88012

Stephen B. Waller500 Marquette, NW, #1100Albuquerque, NM 87102

Christopher William Westenberger2901 Juan Tabo Blvd NE, #208Albuquerque, NM 87112-1885

Jordyn Whisenant6605 Uptown Blvd. NE, #340Albuquerque, NM 87110-4230

Kathryn Lynn Whitehead914 Spruce StreetTruth or Consequences, NM 87901-1556

John Warner Widell3937 Agua Fria StreetSanta Fe, NM 87507

Chad F. Worthen10500 Vendaval Avenue, NWAlbuquerque, NM 87114

Thomas L. Wyman909 Tijeras Avenue, NW, #215Albuquerque, NM 87102



Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

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

effeCTive april 26, 2010

To view pending• proposed rule changes visit the New Mexico Supreme Court’s Web site: http://nmsupremecourt.nmcourts.gov/

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

Pending ProPosed rule Changes:

Comment Deadline13-2300 Introduction. (UJI–Civil) 05/24/10 13-2305 Human Rights Act violation. Withdrawn;

Recompiled as UJI 13-2307] (UJI–Civil) 05/24/10 13-2307 Human Rights Act violation. (UJI–Civil) 05/24/1013-2307A Race, gender, and other discrimination

under the New Mexico Human Rights Act. (UJI–Civil) 05/24/10

13-2307B Bonafideoccupationalqualification. No instruction drafted. (UJI–Civil) 05/24/10

13-2307C Discrimination based on serious medical condition or physical or mental handicap. (UJI–Civil) 05/24/10

13-2307D Failure to accommodate. (UJI–Civil) 05/24/1013-2307E Undue hardship. No instruction drafted.

(UJI–Civil) 05/24/1013-2307F Determiningwhetherimpairmentqualifies

as a physical or mental handicap. (UJI–Civil) 05/24/10

13-2307G Determiningwhetherimpairmentqualifies as a serious medical condition. No instruction drafted. (UJI–Civil) 05/24/10

13-2307H Establishing disability by showing an individual has a record of a physical or mental condition. No instruction drafted. (UJI–Civil) 05/24/10

13-2307I “Regardedas”defined.Noinstruction drafted. (UJI–Civil) 05/24/10

13-2307J “Otherwisequalified”defined.(UJI–Civil) 05/24/1013-2307K “Reasonableaccommodation”defined.

No instruction drafted. (UJI–Civil) 05/24/1013-2307L Constructive discharge. (UJI–Civil) 05/24/103-105 Assignment and designation of judges

(Rules of Civil Procedure for the Metropolitan Courts) 05/03/10

3-706 Appeal from metropolitan court on the record (Rules of Civil Procedure for the Metropolitan Courts) 05/03/10

6-701 Judgment (Rules of Criminal Procedure for the Magistrate Courts) 05/03/10

6-703 Appeal (Rules of Criminal Procedure for the Magistrate Courts) 05/03/10

7-703 Appeal (Rules of Criminal Procedure for the Metropolitan Courts) 05/03/10

8-701 Judgment (Rules of Procedure for the Municipal Courts) 05/03/10

8-703 Appeal (Rules of Procedure for the Municipal Courts) 05/03/10

10-424 Advice of rights by judge (Children’s Court Rules) 04/26/10

10-425 Consent decree (Children’s Court Rules) 04/26/10

10-456A Affidavitofindigency;abuseorneglect (Children’s Court Rules) 04/26/10

15-103 Qualifications(RulesGoverning Admission to the Bar) 01/25/10

4-102A Certificateofexcusalorrecusal (Civil forms) 07/27/09

4-103A Notice of excusal (Civil forms) 07/27/094-104A Notice of recusal (Civil forms) 07/27/096-701 Judgment (Rules of Criminal

Procedure for the Magistrate Courts) 07/27/098-701 Judgment (Rules of Procedure

for the Municipal Courts) 07/27/096-703 Appeal (Rules of Criminal Procedure

for the Magistrate Courts) 07/27/098-703 Appeal (Rules of Procedure

for the Municipal Courts) 07/27/0910-343 Adjudicatory hearing; time limits;

continuances (Children’s Court Rules) 04/17/09

reCently aPProved rule Changes sinCe release of 2010 nmra:

Effective Date

rules of civil procedure for tHe district courts

1-079 Public inspection and sealing of court records. 07/01/10

rules of civil procedure for tHe Magistrate courts


2-105 Assignment and designation of judges. 05/14/10

rules of criMinal procedure for tHe Metropolitan courts


civil forMs

4-102 Certificateofexcusalorrecusal. 05/14/104-103 Notice of excusal. 05/14/104-104 Notice of recusal. 05/14/10

rules of criMinal procedure for tHe district courts

5-605 Jury trial. 11/30/095-704 Death penalty; sentencing. 11/30/09


http://www.nmcompcomm.us


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


5-302A Grand Jury Proceedings. 05/14/10

rules of criMinal procedure for tHe Magistrate courts


6-105 Assignment and designation of judges. 05/14/10

rules of criMinal procedure for tHe Metropolitan courts


7-201 Commencement of action. 05/10/107-504 Discovery; cases within metropolitan

court trial jurisdiction. 05/10/10

rules of procedure for tHe Municipal courts


criMinal forMs

9-218 Target notice. 05/14/109-219 Grand jury evidence alert letter. 05/14/10

cHildren’s court rules and forMs


10-313.1 Representation of multiple siblings. 05/10/10

rules of appellate procedure

12-213 Briefs. 04/12/1012-214 Oral argument. 04/12/1012-305 Form of papers prepared by parties. 04/12/1012-314 Public inspection and sealing

of court records. 07/01/10

uJi criMinal

14-121 Individual voir dire; death penalty cases; single jury used. 11/30/09

14-121A Individual voir dire; death penalty cases; two juries used. 11/30/09

rules governing adMission to tHe Bar

15-304 Oath. 03/30/10

rules governing discipline

17-316 Review by the Supreme Court. 11/30/09 Supreme Court General Rules23-106 Supreme Court rules committees. 05/10/10

rules governing revieW of Judicial standards coMMission

27-106 Forms of papers. 03/03/1027-301 Commencement of proceedings. 03/03/1027-303 Response. 03/03/10

rules governing tHe Judicial evaluation coMMission

28-201 Commission created; members; staff; meetings. 02/24/10

28-202 Judicial proceedings; excusals; recusals and withdrawals. 02/24/10

28-203 Powers and duties of the Commission. 02/24/1028-205 Confidentialityofinformation. 02/24/1028-301 Judicial evaluations. 02/24/1028-302 Narrativeprofilerequirements. 02/24/1028-303 Powers and duties of the Commission. 02/24/1028-401 Criteria for evaluation of judicial

performance. 02/24/10



rules/ordersFrom the New Mexico Supreme Court

http://www.nmcompcomm.us/

No. 32,249

iN the Matter of the suspeNsioN of aCtive aND iNaCtive MeMbers of the state bar of New MexiCo for NoNpayMeNt of 2010 aNNual bar liCeNse fee aND for NoNCoMpliaNCe with rules 24-102 aND 17-203 NMra

orDer of suspeNsioN

WHEREAS, this matter came on for consideration by the CourtuponcertificatefiledbytheBoardofCommissionersofthe State Bar of New Mexico that certain members of the State Bar of New Mexico are delinquent in the payment of annual bar license fees pursuant to Rule 24-102 NMRA, annual disciplinary fee assessment pursuant to Rule 17-203 NMRA, and/or the late penalty payment pursuant to Rule 24-102 NMRA for the year 2010; WHEREAS, the Clerk of this Court, on April 9, 2010, issued andattemptedtoservebyfirst-classregularmailtothelastknown

Ann Elizabeth ChavezLegislativeAssistantOfficeofSenator Jeff Bingaman703HartSenateOfficeBuildingWashington, D.C. 20510-0001

Martin J. ChavezP.O. Box 1293Albuquerque, NM 87103-1293

Kelly C. Dawson10050 Great Hills Trail, #710Austin, TX 78759-5843

Marcia J. DennySaudi Arabian TexacoP.O. Box 5095Bellaire, TX 77402-5095

Kevin D. ElkinsP.O. Box 974Mesilla Park, NM 88047-0974

Boglarka FoghiOfficeoftheDistrictAttorneyPO Box 1750Bernalillo, NM 87004-1750

Joe R. FulcherPO Box 31189Sea Island, GA 31561-1189

Colene M. GastonBeaver Water DistrictPO Box 400Lowell, AR 72745-0400

addressshownontheofficialrollofattorneysa“CitationandOrder to Show Cause” and “Order” to each delinquent attorney; and the time within which to respond to said “Citation and Order to Show Cause” having elapsed, and full payment of delinquent feesnothavingbeentendered,andtheCourtbeingsufficientlyadvised, Chief Justice Charles W. Daniels, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Edward L. Chávez concurring; NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the following named attorneys be and hereby ARE SUSPENDED FROM THE PRACTICE OF LAW in the courts of this state by reason of nonpayment of said annual assessment fees for the year 2010; and IT IS FURTHER ORDERED that the Clerk of this Court shall changetheofficialrollofattorneystoindicatethestatusofsus-pension for the attorneys listed below, and that notice thereof be given to each judge in the state of New Mexico and be published on the Judicary’s web site (www.nmsupremecourt.nmcourts.gov) in the Bar Bulletin.

Ginger A. Allen2049 East 84th StreetMerrillville, IN 46410-5089

Katherine E. AllenP.O. Box 31878Santa Fe, NM 87594-1878

Meg BaileyNew York State Mental Hygiene Legal Svc5 Coates DriveGoshen, NY 10924-6746

Sujatha Baligac/o Community Works1605 Bonita AvenueBerkeley, CA 94709-2021

Eleanor K. BrattonHC 61 Box 1025Ramah, NM 87321-9600

Carole J. Brown501 S.W. C Avenue, Suite 201Lawton, OK 73501-4325

Thomas M. BrownP.O. Box 1966Albuquerque, NM 87103-1966

John Max Burnett, Jr.4110 Cutler Avenue, N.E.Albuquerque, NM 87110-3896

Kevin Gover5901 Mount Eagle Drive, #1418Alexandria, VA 22303-2511

Jonathan M. HillOfficeofthePublicDefender505 Marquette Avenue, NW, Suite 120Albuquerque, NM 87102-2159

Daniel R. HorvathCommunity Enterprise Investments Inc.302 North Barcelona StreetPensacola, FL 32501-4806

John Michael HughsonHolt, Babington & Mynatt, P.C.PO Box 2699Las Cruces, NM 88004-2699

Sheila Martinez LemkeTownsend, Townsend & Crew, L.L.P.2 Embarcadero Center, Floor 8San Francisco, CA 94111-3833

Angela N. LyttonCALPAPLosAngelesRegionalOfficePO Box 862137Los Angeles, CA 90086-2137

Dennis T. Martinez1122 Central Avenue, S.W.Albuquerque, NM 87102-2976

http://www.nmsupremecourt.nmcourts.gov



Jeffrey Raymond McCombsGEICO Staff Counsel1012 Belmont DriveKennedale, TX 76060-5616

Luis QuintanaPO Box 196Corrales, NM 87048-1096

Peter B. RamesPO Box 3614Albuquerque, NM 87190-3614

Owen M. RussellPO Box 2580Milan, NM 87021-2580

Kimberley A. Schavey11224 Morocco Road, N.E.Albuquerque, NM 87111-2651or2419 Floral Road, N.W.Albuquerque, NM 87104

Steven C. Sugarman1210 Luisa Street, Suite 1Santa Fe, NM 87505-4175

Thomas A. Tabet1412 Lomas Boulevard, N.W.Albuquerque, NM 87104-1236

David V. ThomasPolicy Communications8713 Castle Ridge AvenueLas Vegas, NV 89129-8306

Matthew S. Turner310 West Wall Street, Suite 1100Midland, TX 79701-5125

Guilia Miller Urquhart912 Salamanca Street, N.W.Albuquerque, NM 87107-5642

Marlynda L. Vorv8406 Donnybrook DriveChevy Chase, MD 20815-3870

Jenero F. Welsh1002MagoffinAvenueEl Paso, TX 79901-1522

No. 32,251

iN the Matter of the suspeNsioN of aCtive MeMbers of the state bar of New MexiCo for NoNCoMpliaNCe with 2010 requireMeNt to DisClose iNforMatioN CoNCerNiNg professioNal liability iNsuraNCe Coverage

orDer of suspeNsioN

WHEREAS, this matter came on for consideration by the Court uponcertificatefiledbytheBoardofCommissionersoftheStateBar of New Mexico that certain members of the State Bar of New Mexico are in noncompliance with professional liability insurance coverage disclosure requirements for compliance year 2010 due to failure to provide requested information on the annual regis-tration statement and/or failure to pay the penalty of $100.00 or both mandated by Rule 17-202(A) NMRA; and WHEREAS, the Clerk of this Court, on April 9, 2010, issued andattemptedtoservebyfirst-classregularmailtothelastknownaddressshownontheofficialrollofattorneysa“CitationandOrder to Show Cause” and “Order” to each delinquent attorney; and the time within which to respond to said “Citation and Order to Show Cause” having elapsed, and disclosure of required infor-mation concerning professional liability insurance coverage not havingbeensubmitted,andtheCourtbeingsufficientlyadvised,Chief Justice Charles W. Daniels, Justice Patricio M. Serna, Jus-tice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Edward L. Chávez concurring;

NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the following named attorneys be and hereby ARE SUSPENDED FROM THE PRACTICE OF LAW in the courts of this state by reason of noncompliance with professional liability insurance coverage disclosure requirements for compli-ance year 2010; and IT IS FURTHER ORDERED that the Clerk of this Court shall changetheofficialRollofAttorneystoindicatethestatusofsus-pension for the attorneys listed below, and that notice thereof be given to each judge in the state of New Mexico and be published in the Bar Bulletin.

Angela Therese Delorme-Gaines 506 Brentwood Place Marshalltown, IA 50158-3720 or 14247 Pikeminnow Place Broomfield,CO80023

John R. Taylor 910 5th Street, N.W. Albuquerque, NM 87102-2139

IT IS SO ORDERED. WITNESS, Honorable Edward L. Chávez,

Chief Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 28th day of April, 2010.

_________________________________________ Kathleen Jo Gibson, Chief Clerk of the Supreme Court of the State of New Mexico





No. 32,316

iN the Matter of the suspeNsioN of aCtive MeMbers of the state bar of New MexiCo for failure to Certify 2010 pro boNo iNforMatioN

orDer of suspeNsioN

WHEREAS, this matter came on for consideration by the CourtuponcertificatefiledbytheBoardofCommissionersofthe State Bar of New Mexico that certain members of the State Bar of New Mexico failed to provide pro bono information for the 2010 compliance year pursuant to Rule 24-108 NMRA; and WHEREAS, the Clerk of this Court, on April 9, 2010, issued andattemptedtoservebyfirst-classregularmailtothelastknownaddressshownontheofficialrollofattorneysa“CitationandOrder to Show Cause” and “Order” to each delinquent attorney; and the time within which to respond to said “Citation and Order to Show Cause” having elapsed, and full payment of delinquent feenothavingbeentendered,andtheCourtbeingsufficientlyadvised, Chief Justice Charles W. Daniels, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Edward L. Chávez concurring; NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the following named attorneys be and hereby ARE SUSPENDED FROM THE PRACTICE OF LAW in

the courts of this state by reason of failure to provide pro bono information for the 2010 compliance year; and IT IS FURTHER ORDERED that the Clerk of this Court shall changetheofficialRollofAttorneystoindicatethestatusofsus-pension for the attorneys listed below, and that notice thereof be given to each judge in the state of New Mexico and be published in the Bar Bulletin.

Angela Therese Delorme-Gaines 506 Brentwood Place Marshalltown, IA 50158-3720 or 14247 Pikeminnow Place Broomfield,CO80023

Helen Laura Lopez 1421 Luisa Street, Suite H Santa Fe, NM 87505-4073




Bar Bulletin - May 10, 2010 - Volume 49, No. 19

Resort Information

Situated high in the picturesque mountains of Mescalero, New Mexico, just outside of

Ruidoso, the Inn of the Mountain Gods offers clean mountain air and breathtaking scenery. The dazzling lobby features a two-story window overlooking snowcapped mountains, a beautiful lake and championship golf course.

INN OF THE MOUNTAIN GODS287 Carrizo Canyon Road, Mescalero, N.M.

(800) 545-9011

Room rates:$159/single or double; $269/suite

Be sure to mention the “State Bar of New Mexico” to receive the special discounted rate.


Effective June 1, 2010, the law firm of Sheehan, Sheehan & Stelzner, P.A. will be known as

SHEEHAN & SHEEHAN, P.A.P.O. Box 271, 40 First Plaza Center, N.W., Suite 740

Albuquerque, New Mexico 87103(505) 247-0411

www.SheehanSheehan.com

Our name change reflects the departure, as of May 31, 2010, of Luis G. Stelzner and several other attorneys. We have had many enjoyable years of practicing together and we wish our departing colleagues well in their future endeavors.

We also are very pleased to announce the addition of the following attorneys to our firm:

Barbara G. Stephenson, formerly of Gilkey & Stephenson, P.A., has 30 years of legal experience. For the past 20 years, she has worked exclusively in counseling and defending employers in employment litigation and administrative proceedings. She is recognized as a specialist in employment and labor law by the New Mexico Board of Legal Specialization, has an “AV” rating from Martindale-Hubbell® and, since 2001, has been listed in Best Lawyers in America in employment law. Barbara will continue her practice in employment defense work at our firm.

Quentin Smith also comes to us from Gilkey & Stephenson, P.A., where he has practiced exclusively in the areas of employment and labor law since 2004. He graduated summa cum laude from the Uni-versity of New Mexico School of Law in 2003, and then served as a judicial law clerk for New Mexico Supreme Court Justice Pamela Minzner. Quentin is certified by the New Mexico Board of Legal Spe-cialization as a specialist in employment and labor law. He will continue to practice employment and labor law at our firm, and will also be engaged in general litigation matters.

Joshua A. Allison graduated summa cum laude from the University of New Mexico School of Law in 2008, and then served as a judicial law clerk for New Mexico Supreme Court Chief Justice Edward L. Chávez. Josh comes to us from the law firm of Snell & Wilmer, L.L.P. in California, where he practiced in the areas of commercial litigation and civil appeals. He will continue to be engaged in commercial litigation and civil appeals at our firm, as well as construction law and general litigation matters.

SHEEHAN & SHEEHAN, P.A.

Joshua A. Allison Susan C. Kery Of Counsel: Craig T. Erickson Timothy M. Sheehan Briggs F. Cheney David P. Gorman Quentin Smith �omas J. Horan Kim A. Griffith Barbara G. Stephenson Lawrence J. Horan Patrick J. Hart John W. Utton Pat Sheehan Wendy E. York

http://www.SheehanSheehan.com


Who: Members of the Tenth Circuit Bench and BarWhat: 2010 Tenth Circuit Bench & Bar ConferenceWhere: The Broadmoor in Colorado Springs, ColoradoWhen: August 26 - 28, 2010Why: Education, Collegiality, Networking, and CLEs

Mark your calendars and plan on attending this very exciting 2010 Tenth Circuit Bench & BarConference! Distinguished guests will include Supreme Court Justices Ruth Bader Ginsburg andSonia Sotomayor; Lord Igor Judge, Chief Justice of England and Wales; and Chief JusticeBeverly McLachlin, Canadian Supreme Court.

Conference registration and hotel reservations open early May. Visit the Conference website at:http://www.ca10.uscourts.gov/judconf/ to register. Please notethe room block fills up fast. In the meantime, if you haveany questions, call the Judicial Resources team at303.355.2067 or e-mail them [email protected].

Richard T Radecki, MD announces that he is expanding his practice in the area of chart reviews as well as Independent Medical Evaluations (IME), including Panel IME’s. Dr Radecki is Board Certi�ed in Physical Medicine and Rehabilitation. He is a member of the American Board of Independent Medical Examiners as well as the American Academy of Pain Management. We look forward to doing business with you. If you have any questions, please feel free to contact Anita at 505-977-0107.

3874 Masthead NE Bldg GAlbuquerque, NM 87109

505-338-2077 Phone505-338-1960 Fax

MRC ofNewMexico

Richard Radecki MD

LEADING PATIENTS TO HEALTHCARE SOLUTIONS IN MUSCULOSKELETAL & SPINAL CHALLENGES

http://www.ca10.uscourts.gov/judconf

mailto:@ca10.uscourts.gov


Name ______________________________________________________________________________ SBNM Bar No. ______________________

Name for Badge (if di�erent than above) _________________________________________________________________________________

Address ____________________________________________________________________________________________________________

City _________________________________________________________________________ State _______________ Zip _______________

Phone ______________________________ Fax ______________________________ Email ________________________________________

Guest 1 _______________________________ Guest 2 _______________________________ Guest 3 _______________________________ Name badge required to attend all functions.

REGISTRATION FEES Price Qty. SubtotalIncludes CLE tuition, materials, MCLE �ling fees, speaker costs, continental breakfasts, breaks, silent auction and opening and President’s receptions.

Standard Early Registration Fee (Must be postmarked by May 14) $345 ______ ______

After May 14 Fee $445 ______ ______

YLD, Paralegal, Government & Legal Services Attorney $225 ______ ______

After May 14, YLD, Paralegal, Government & Legal Services Attorney $325 ______ ______

Guest (includes name badge, continental breakfasts, breaks, silent auction and receptions) $95 ______ ______

Conference Materials - I would like :

CD Version Deduct $25 from Registration Fee ______ ______

Printed Version (Included in Registration Fee) ______ ______

Both CD and Printed Version Add $50 ______ ______

SEPARATELY TICKETED EVENTS Charo Performance at the Spencer Theater, Friday, July 16

(You must pre-purchase by May 28. Tickets will not be available for sale after that date.) $79 ______ ______ (Transportation is not included in the ticket price and must be purchased separately.)

Transportation from the Inn of the Mountain Gods to the Spencer Theater (You must pre-purchase by May 28. Tickets will not be available for sale after that date.) $25/person ______ ______

Golf Tournament (18-hole) (You must pre-purchase by June 30. Tickets will not be available for sale after that date.) $90 ______ ______

I will set up my own team and the players are: ________________________ ________________________ ________________________

I would like to be placed on a team (Handicap/Average Golf Score ________) I want to play on: Thursday afternoon Friday morning Friday afternoon Saturday morning Saturday afternoon

Child Care, Friday, July 16 (5:30-10:00 p.m.):

Names/Ages: ___________________________ ___________________________ ___________________________ $10 ______ _______

TOTAL $______PAYMENT OPTIONS

Enclosed is my check in the amount of $ __________________ (Make Checks Payable to: State Bar of New Mexico) VISA Master Card American Express Discover Purchase Order (Must be attached to be registered)

Credit Card Acct. No. _______________________________________________________________________ Exp. Date __________________

Signature __________________________________________________________________________________________________________

Register by mail or fax.MAIL: SBNM, P.O. Box 92860, Albuquerque, NM 87199-2860 FAX: (505) 797-6071; Open 24 HoursCancellations & Refunds: If you �nd that you must cancel your registration, send a written notice of cancellation via fax by 5 p.m., one week prior to the program of interest. A refund, less a $50 processing charge, will be issued. Registrants who fail to notify CLE by the date and time indicated will receive a set of course materials via mail following the program.MCLE CREDIT INFORMATION: Courses have been approved by the New Mexico MCLE Board. CLE will provide attorneys with necessary forms to �le for MCLE credit in other states. A separate MCLE �ling fee may be required.Hotel information is available on page 3 of this brochure.

2010 ANNUAL MEETING – BENCH & BAR CONFERENCEStaying connected and cohesive… local law practices make New Mexico advances

Inn of the Mountain Gods, Mescalero, New Mexico • July 15-17, 201010.4 General, 1.0 Ethics, 1.0 Professionalism CLE Credits


advance opinions http://www.nmcompcomm.us/froM tHe neW Mexico supreMe court and court of appeals


Opinion Number: 2010-NMSC-015

Topic Index:Civil Procedure: Real Party in Interest; Standing; Statute of Limitations;

Summary Judgment; Survival of Cause of Action; and Third-party ActionsNatural Resources: Oil and Gas

Property: Trespass; and PossessionStatutes: Interpretation; Legislative Intent; and Rules of Construction

Torts: Intentional Torts; Statute of Limitations; and Trespass

WILLIAM F. McNEILL, MARILYN CATES and THE BLACK TRUST,Plaintiffs-Petitioners,

versusRICE ENGINEERING AND OPERATING, INC.,

RICE ENGINEERING, INC., RICE OPERATING COMPANY, and HOBBS SALT WATER DISPOSAL SYSTEM,

whose General Partner is RICE OPERATING COMPANY and whose Partners/Joint Ventures are

ALTURA ENERGY LTD., et al.,Defendants-Respondents.

No. 31,686 (filed: March 4, 2010)

ORIGINAL PROCEEDING ON CERTIORARIGARY L. CLINGMAN, District Judge

opinion

edWard l. cHávez, cHief Justice

{1} Plaintiffs sued Defendants for trespass resulting from the operation of a salt water disposal well on Plaintiffs’ property. The district court granted a motion for sum-mary judgment to Defendants and Plaintiffs appealed.TheCourtofAppealsaffirmed,holding that Plaintiffs lacked standing to bring a cause of action for trespass and unjust enrichment for acts that occurred before Plaintiffs owned their property. We

JAMES P. LYLELAW OFFICES OF

JAMES P. LYLE, P.C.Albuquerque, New Mexico

for Petitioners

SARAH M. SINGLETONJAIME R. KENNEDY

STEPHEN S. HAMILTONMONTGOMERY & ANDREWS, P.A.

Santa Fe, New Mexico

JOHN M. CARAWAYMCCORMICK, CARAWAY, TABOR

& BYERS, L.L.P.Carlsbad, New Mexico

for Respondents

granted Plaintiffs’ petition for writ of cer-tiorari. We agree with the Court of Appeals that an action for trespass to real property is in tort for the alleged injury to the right of possession. Pacheco v. Martinez, 97 N.M. 37, 41, 636 P.2d 308, 312 (Ct. App. 1981). Therefore, it is an action in personam, not in rem, and does not run with the land. Id. For a party to have standing to sue for trespass, it must be an aggrieved party; that is, it must have a possessory interest in the land at the time of the trespass. Although the discovery of the trespass is what begins the statute of limitations to run, discovery is

not what makes a party an aggrieved party for purposes of standing. Because the Court of Appeals’s unpublished memorandum opinion is well-written and persuasive, we adopt it in its entirety and attach it to this opinion as Appendix A.{2} IT IS SO ORDERED. EDWARD L. CHÁVEZ, Chief JusticeWE CONCUR:PATRICIO M. SERNA, JusticePETRA JIMENEZ MAES, JusticeRICHARD C. BOSSON, Justice CHARLES W. DANIELS, Justice



IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

WILLIAM F. MCNEILL,MARILYN CATES, and

THE BLACK TRUST,Plaintiffs-Appellants/Cross Appellees,

No. 29,207

RICE ENGINEERING AND OPERATING, INC., RICE

ENGINEERING, INC., RICEOPERATING COMPANY, and

HOBBS SALT WATER DISPOSALSYSTEM, whose general partner is

Rice Operating Company,Defendants-Appellees/

Cross-Appellants.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY

GARY L. CLINGMAN, District Judge

SARAH M. SINGLETONJAIME R. KENNEDY

MONTGOMERY AND ANDREWS, P.A.Santa Fe, New Mexico

JOHN M. CARAWAYMCCORMICK, CARAWAY, TABOR

& BYERS, L.L.PCarlsbad, New Mexico

for Appellees/Cross-Appellants

JAMES P. LYLELAW OFFICES OF JAMES P. LYLE, P.C.

Albuquerque, New Mexicofor Appellants/Cross-Appellees

MeMoranduM opinion

roderick t. kennedy, Judge

{3} Plaintiffs appeal from a judgment en-tered in favor of Defendants on Plaintiffs’ claims of trespass and unjust enrichment. In this Court’s notice of proposed summary disposition,weproposedtoaffirm.Defen-dants timely responded with a memorandum in support, and Plaintiffs timely responded with a memorandum in opposition. We have considered Plaintiffs’ arguments, and as we arenotpersuadedbythem,weaffirm.{4} Our notice of proposed summary dis-position proposed to affirmbased on ourconclusion that Plaintiffs lacked standing

to bring claims of trespass and unjust en-richment for acts that occurred before they owned the property. The question of whether a party has standing to sue is a question of law that we review de novo. See McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 12, 143 N.M. 740, 182 P.3d 121.{5} In the district court, Plaintiffs claimed that Defendants began pumping salt water from beyond the boundaries of Plaintiffs’ land into a well on Plaintiffs’ property, and that this activity began—without the knowledge or consent of Plaintiffs or their predecessors in interest—in 1958 and con-tinued until 2001. In 2004, Plaintiffs and Defendants settled all claims relating to any such activity that occurred after October 27, 1994. Accordingly, in our notice we stated that it appeared that the only issues that would have been tried in the district court—and therefore, the only issues to be reviewed on appeal—relate to Defendants’ liability for salt water disposal activity that took place between 1958 and October 27, 1994. As Plaintiffs’ memorandum in opposi-tion does not express any disagreement with our understanding of these facts, we rely on them for our decision in this case. {6} In the district court, Defendants’ amend-ed motion for summary judgment presented evidence that none of the Plaintiffs had any ownership interest in the property prior to 1996. Defendants’ amended motion also presented evidence that one of the Plaintiffs, William McNeill, occupied the property under a lease beginning in 1993, although he did not have an ownership interest in it until later. These facts were not disputed in Plaintiffs’ response to Defendants’ motion. {7} “The gist of an action of trespass to real property is in tort for the alleged injury to the right of possession.” Pacheco v. Martinez, 97 N.M. 37, 41, 636 P.2d 308, 312 (Ct. App. 1981). Therefore, in order to have standing to make a claim for trespass to land, a plaintiff must have had some sort of possessory in-terest in the land at the time of the trespass. Our Supreme Court has explained that a party who acquires title to real property does not acquire his or her predecessor’s claims of trespass against a third party, but instead may only recover for any trespass that might continue after the acquisition. See Garver v. Public Serv. Co. of N.M., 77 N.M. 262, 271, 421 P.2d 788, 794 (1966) (agreeing with cases standing for the proposition that “one who purchases real estate after a trespass has been committed thereon, cannot maintain an action for such prior trespass, but may recover for trespasses which continue after

the purchase”); Caledonian Coal Co. v. Rocky Cliff Coal Mining Co., 16 N.M. 517, 518, 120 P. 715, 716 (1911) (syllabus by the Court) (“A right of action for a trespass to land is not assigned by a subsequent convey-ance of the land.”). Because neither Plaintiff Marilyn Cates nor Plaintiff Black Trust had any possessory interest in the property between 1958 and October 27, 1994, we conclude that they lacked standing to assert a claim for damages for any trespass that oc-curred during that period. Under the general rule announced in Garver and Caledonian Coal, the fact that title passed to them after the trespass does not afford them with any right the previous owner may have had to bring suit.{8} During the same period, however, Plain-tiff William McNeill leased the property be-ginning sometime in 1993, thereby gaining a possessory interest in the land. Therefore, the question is whether Mr. McNeill has standing to sue to recover for the alleged acts of trespass to the property that occurred during the period beginning in 1993 when he began leasing the property, and October 27, 1994. We hold that he does not. Plain-tiffs expressly argued to the district court that the pumping of salt water underground did not interfere with a lessee’s possessory interest in the use of the property, and that it only interfered with the owners’ owner-ship interest in the land. Although Plaintiffs made this argument with respect to a lessee who leased the property after Mr. McNeill did, we cannot see how this same argument would not apply to Mr. McNeill when he leased the property in 1993 and 1994. It ap-pears that Mr. McNeill leased the property for purposes of ranching. Plaintiffs expressly denied that they were claiming that the exis-tence of the pipelines themselves constituted a trespass. Instead, their argument was that since Plaintiffs’ predecessors in interest had permitted Defendants to build the pipeline for the purpose of injecting salt water pro-duced from activities on the property itself, it was the injection of salt water from off of the property that constituted the trespass. Because the claimed injury to the land in this case occurred below the surface, we conclude that any underground salt water disposal that took place between 1993 and October 27, 1994, did not interfere with Mr. McNeill’s possessory rights as a lessee. Ac-cordingly, we conclude that he did not have standing to sue for any trespass that occurred during that period. See Caledonian Coal, 16 N.M. at 524, 120 P. at 717-18 (holding that a plaintiff who sought to recover the value of coal removed from land “must show some


property right or interest in the coal which is not established by possession of the land merely,” since removal by trespass is an “injury to the freehold, for which injury the owner of the fee is alone entitled to recover.”). {9} Although Garver and Caledonian Coal discuss a party’s standing to bring a claim for the tort of trespass, we believe that the standing analysis is the same for Plaintiffs’ unjust enrichment claim. We know of no authority that would permit a non-owner of property to recover in unjust enrichment for someone else’s unauthorized use of that property. Just as with the tort of trespass, it is the owner who would be entitled to restitu-tion, since the person who used the owner’s property would have done so at the owner’s expense. See Heimann v. Kinder-Morgan CO2 Co., L.P., 2006-NMCA-127, ¶ 20, 140 N.M. 552, 144 P.3d 111 (“Unjust enrichment . . . is a theory under which an aggrieved party may recover from another party who hasprofitedattheexpenseoftheaggrievedparty.”). Therefore, Plaintiffs would only be entitled to restitution for any periods during which they had an ownership interest in the property. They have apparently in fact recovered for such unjust enrichment in their settlement agreement with Defendants. {10} In their memorandum in opposi-tion, Plaintiffs argue that the discovery rule would somehow grant them standing to sue for injuries that were suffered by their pre-decessors in interest. We disagree, and we believethatPlaintiffs’argumentconflatesthequestion of when a cause of action accrues with the question of who possesses the rights sought to be enforced or the injury sought to be compensated. The discovery rule sim-ply provides that the statute of limitations begins to run from the time an aggrieved party discovers an injury. See NMSA 1978, § 37-1-7 (1880) (“In actions for relief, on the ground of fraud or mistake, and in actions for injuries to, or conversion of property, the cause of action shall not be deemed to have accrued until the fraud, mistake, injury or conversion complained of, shall have been discovered by the party aggrieved.”). On its face, the rule gives no indication that an aggrieved party who has discovered an injury is entitled to recover for injuries previ-ously done to other aggrieved parties. In this case, Mr. McNeill discovered Defendants’ wrongful conduct in 1995. Accordingly, an application of the discovery rule would simply permit Plaintiffs four years from the discovery in 1995 to bring suit. See NMSA 1978, § 37-1-4 (1880) (providing that an action “brought for injuries to property or

for the conversion of personal property or for relief upon the ground of fraud, and all other actions not herein otherwise provided forandspecified”mustbebrought“withinfour years”). Plaintiffs were proper parties to bring suit, not by virtue of the discovery rule, but because they owned the property while the trespass continued. Plaintiffs have settled all claims relating to the period during which they had such an ownership interest plus an additional period of a few years prior to the time they obtained their ownership interest. We cannot see how the discovery rule would permit Plaintiffs to recover for injuries that were done to Plaintiffs’ predecessors. {11} Plaintiffs suggest that they acquired their predecessors’ claims of trespass and unjust enrichment either through deed or inheritance. However, Plaintiffs cite no authority for the proposition that a claim of trespass or a claim of unjust enrichment based on trespass is one that automatically runs with title to the land, and Garver and Caledonian Coal state otherwise. While Plaintiffs both distinguish Garver and Cale-donian Coal and argue that the statement in each case regarding a subsequent purchaser’s inability to bring suit for a trespass that oc-curred prior to the time that they acquired title to the property is merely dicta, we see no reason that this general rule of law would be inapplicable in this case. In Garver and Caledonian Coal, our Supreme Court clearly stated that an action for trespass is not auto-matically assigned to a subsequent owner. See Garver, 77 N.M. at 271, 421 P.2d at 794; Caledonian Coal, 16 N.M. at 518, 120 P. at 716. Where Plaintiffs have failed to cite any contrary authority from this or any other jurisdiction, this Court will presume that no such authority exists. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984); see also Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed dis-position to clearly point out errors in fact or law.”).{12} Plaintiffs also argue that this Court’s opinion in McNeill v. Burlington Res. Oil & Gas Co., 2007-NMCA-024, 141 N.M. 212, 153 P.3d 46, controls the question of whether Plaintiffs can recover for trespasses that occurred on the land when it was still owned by their predecessors in interest. We are not persuaded that our opinion in Mc-Neill squarely addressed this issue. In that case, Plaintiffs alleged that the defendant’s “failure to properly close [a] pit resulted in subsurface contamination of their property[,

and] that the contamination has affected the water supply in the area and that, as a result, Plaintiffs’ cattle will not drink the water.” 2007-NMCA-024, ¶ 5. The defen-dant in that case argued that the Black Trust did not have standing to bring suit since 1) while the language in the quitclaim deed conveyed the predecessor’s “right, title, and interest” in the property itself, it did not convey personal causes of action and 2) the cause of action accrued when the injury to the property occurred, which was prior to the trust’s acquisition of the property. Id. ¶ 12. This Court did not address the question of whether the deed was adequate to convey personal causes of action, and instead held that New Mexico applies the discovery rule, and that under that rule, the cause of action did not accrue until after the trust acquired the property. Id. ¶ 14-15. Our Supreme Court affirmedthisportionofourholding,andit,too, addressed only the discovery rule, with-out discussing whether or not the deed itself conveyed any personal causes of action. See McNeill, 2008-NMSC-022, ¶ 37. {13} Both opinions in McNeill addressed only the question of whether the Black Trust had standing to bring the claims at issue in that case. Since the contamination of the property alleged in McNeill continued while the Black Trust owned the property, we believe both our opinion and our Supreme Court’s opinion in that case simply held that the trust had standing to bring suit for that continuing injury, since it was not discov-ered until after the trust acquired title to the land. We do not believe that either decision resolved the question of whether a party can recover for a trespass that occurred solely while the property was owned by someone else. (We note that to the degree that the trespass at issue in this appeal continued during Plaintiffs’ ownership of the property, Plaintiffs have recovered for that trespass.) Therefore, we conclude that neither this Court’s opinion nor our Supreme Court’s opinion in McNeillconflictswiththegeneralrule stated in Garver and Caledonian Coal, and that neither opinion compels a conclu-sion that Plaintiffs are entitled to recover for a trespass that occurred before they owned the land.{14} Accordingly, for the reasons stated in this opinion and in our notice of proposed summarydisposition,weaffirm.{15} IT IS SO ORDERED. RODERICK T. KENNEDY, JudgeWE CONCUR:CYNTHIA A. FRY, Chief JudgeLINDA M. VANZI, Judge




Topic Index:Appeal and Error: Appellate Rules and Procedure; Fundamental Error; Pres-

ervation of Issues for Appeal; Standard of Review; and Substantial or Sufficient Evidence

Constitutional Law: Fair Trial; Fourth Amendment; Freedom of Speech; New Mexico Constitution, General; Right to Confrontation;

Self-Incrimination; Suppression of Evidence; and Trial by JuryCriminal Law: Accessory; Aiding or Abetting; Felony Murder;

Possession; and RobberyCriminal Procedure: Courtroom Security; Effective Assistance of Counsel;

Expert Witness; Fair Trial; Public Trial; Right against Self-Incrimination; Right to Confrontation; Substantial or Sufficient Evidence; Wiretaps; and Witnesses

Evidence: Admissibility of Evidence; Availability of Witness; Credibility of Witnesses; Hearsay Evidence; Impeachment; Probative Value v. Prejudicial Effect; Relevancy, Materiality, and Competency; Substantial or Sufficient

Evidence; and WitnessesJuries: Impartial Jury; Jury Selection; and Voir Dire

Jury Instructions: Jury Instructions, General

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusTRACY ALVIN JOHNSON,

Defendant-Appellant.No. 29,664 (filed: March 23, 2010)

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTYJAY W. FORBES, District Judge

JOHN A. MCCALLLAW WORKS, L.L.C.

Albuquerque, New Mexicofor Appellant

GARY K. KING Attorney General

FRANCINE ANN BACA-CHAVEzAssistant Attorney General

Santa Fe, New Mexicofor Appellee

opinion

patricio M. serna, Justice

I. INTRODUCTION{1} This is Defendant Tracy Johnson’s second direct capital appeal to the New Mexico Supreme Court, following his third trial for the murder of two individuals in Carlsbad in late 2000. Now, almost a decade afterthecrimeswerecommitted,weaffirmDefendant’s convictions and sentences for twocountsoffirstdegreemurder,onecountof armed robbery, one count of conspiracy to commit armed robbery, and one count of possessionofafirearmbyafelon.II. BACKGROUND

{2} We described the crimes with which De-fendant was charged in our previous opinion in this case:

The two victims [Anthony Granado and Ronnie Lujan] were beaten, robbed, and killed inside a residence belonging to one of them. One victim had been shot three times - once in the head, once in the chest, and once in the back - and had been struck in the head by a hard, curved object, consistent with a tire iron. The other victim had been shot twice - once in the head and once in the chest - and had also been struck in the head by a hard, curved object. A ballistics expert

testified that all fivebulletswerefiredfromthesamefirearm.How-ever, neither the murder weapon nor any of the items stolen from the house were ever recovered.

State v. Johnson, 2004-NMSC-029, ¶ 3, 136 N.M. 348, 98 P.3d 998.{3} Defendant was tried by jury and found guilty on the same charges he appeals now, as well as evidence tampering. On appeal, this Courtaffirmedhisconvictionforevidencetampering, but reversed all of his other con-victions on the grounds that the admission of a certain statement was not harmless error under the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), and remanded for retrial. 2004-NMSC-029, ¶ 2. Defendant’s second trial ended in a mistrial. Defendant was tried a third time, found guilty on all charges, and sentenced to a total of 67 years in prison.III. DISCUSSION{4} Defendant raised sixteen issues in this appeal, and we address each in turn. A. Admission of Recorded Jail Phone

Calls1. Factual and Procedural History{5} While being held in the Eddy County Detention Center (“Detention Center”) awaiting his second trial, Defendant made multiple telephone calls, which were re-corded because the Detention Center digi-tally records all calls placed by inmates for security purposes. When a call is placed, a digital message informs both parties to the call that it may be recorded and monitored, stating, “This call is from a correctional institution and is subject to monitoring and recording.” The Detention Center interprets the decision of both parties to the call to continue talking after hearing the recorded message as their consent to the recording.{6} While in the Detention Center, Defen-dant placed two calls to Thomas Martinez (“Martinez”) and one to Cynthia Flores (“Flores”), requesting that Martinez be pres-ent at Defendant’s trial and that Flores ask another individual to be present at the trial, ostensiblytoinfluencethetestimonyoftheState’s witnesses. In a motion in limine, the State argued that the calls to Martinez and Flores were evidence that Defendant was engaging in witness intimidation to prevent certain witnesses from testifying about the true nature of Defendant’s role in the crimes. The court granted the State’s motion in limine, permitting recordings of the conver-sations to be played at trial, and admitting Defendant’s statements as admissions of a party opponent and those of Martinez and Flores as non-hearsay statements made in


furtherance of a conspiracy.1 A portion of one call to Martinez was admitted as an adoptive admission of Defendant.{7} Defendant argues that the calls were recorded in violation of his rights under the New Mexico Abuse of Privacy Act and the United States and New Mexico Constitutions and were improperly admitted at trial.2. Standard of Review{8} Our review of the admission of the telephone calls involves a mixed question of law and fact and is reviewed de novo. State v. Templeton, 2007-NMCA-108, ¶ 8, 142 N.M. 369, 165 P.3d 1145.3. Abuse of Privacy Act{9} Defendant argues that the phone calls in question were recorded in violation of Section 30-12-1 of the Abuse of Privacy Act (“Act”), NMSA 1978, §§ 30-12-1–11 (1963, as amended through 1979), which prohibits the knowing interference of com-munication without lawful authority by “reading, interrupting, taking or copying any message, communication or report in-tended for another by telegraph or telephone without the consent of a sender or intended recipient thereof [.]” Section 30-12-1(C). An exception is provided when “one of the parties to the communication has given prior consent to such interception, monitoring or recording of such communication.” Section 30-12-1(E)(3).{10} Two Court of Appeals opinions have addressed this question and held that the Act is not violated when a prisoner impliedly consents to the recording of calls placed from jail. In State v. Coyazo, 1997-NMCA-029, 123 N.M. 200, 936 P.2d 882, cert. denied, 123 N.M. 168, 936 P.2d 337 (1997), the defendant was in jail awaiting trial onfirst degreemurder chargeswhenhe placed a call on the jail phone, next to which was a sign stating that all calls were subject to monitoring and recording. The Court of Appeals consulted case law discussing the analogous federal statute, 18 U.S.C. § 2511, to conclude the defendant’s consent to the recording could be shown by circumstantial evidence, namely, the sign next to the phone stating that the call was subject to recording. Coyaco, 1997–NMCA-029, ¶¶ 10, 13, 16. In Templeton, the Court ofAppealsaffirmedtheCoyazo application of the exception in the Act to calls made in jail. The Court reiterated that consent may be implied where adequate notice has been given an inmate that phone calls are subject to recording. 2007-NMCA-108, ¶ 15 (stat-ing that “adequate notice” includes “signs near telephones indicating that calls may

be monitored, information in orientation or prison handbooks provided to inmates, forms signed by inmates consenting to monitoring procedures, [and] recordings on telephones that indicate the monitoring policy prior to the placing of a call”). The Court found that the recording of a call placed from the booking area, where no notice was given that calls could be recorded, violated the Act. Id. ¶ 16. However, the Templeton Court concluded that a call placed from inside the jail, where there were signs next to the phone stating that the call would be recorded and an automated recording informed the caller that the call was being recorded before the number dialed was connected, did not violate the Act because the defendant had consented to the recording by placing the call with the knowledge that it would be recorded. Id. ¶¶ 23-24.{11} Defendant’s briefs do not attempt to distinguish Coyazo and Templeton and do nothing more than reference arguments made in response to the State’s motion in limine, which is an unacceptable appellate practice. See Rule 12-213(A)(4) NMRA. We agree with the Court of Appeals’ analyses in Coyazo and Templeton concluding that the Act is not violated when phone calls placed from jail are recorded after the caller has been given notice that such will occur. De-fendant impliedly provided prior consent to the recording of his calls by placing the calls with the knowledge that they were subject to recording and monitoring; indeed, we may say that Martinez and Flores also consented to the recording of the phone calls by ac-cepting the calls after hearing the recording. The consent exception to the Act, Section 30-12-1(E)(3), applies to phone calls placed from jail when one or both parties impliedly consents, and thus Defendant’s rights under the Act were not violated.4. United States Constitution:

Amendments Four, Five, and Six{12} Defendant also claims that the re-cording of the phone calls violated his rights under the Fourth, Fifth, and Sixth Amend-ments of the United States Constitution. These claims are meritless.{13} The Fourth Amendment protects against unreasonable searches and seizures. See Burdeau v. McDowell, 256 U.S. 465, 474-75 (1921). While the United States Supreme Court has not decided whether the monitoring and recording of prison phone calls violates the Fourth Amendment, the federal Circuit Courts which have addressed this question under the federal wiretapping statute, 18 U.S.C. § 2511, have found that

it does not. Like the New Mexico Abuse of Privacy Act, the federal wiretapping statute contains an exception that permits recording when consent has been obtained. Compare NMSA 1978, § 30-12-1(E)(3) with 18 U.S.C. § 2511(2)(c). Federal courts have found im-plied consent under the wiretapping statute when jails notify inmates by sign or record-ing that their calls are being monitored, and thus there exists no reasonable expectation of privacy in the phone call that would result in a Fourth Amendment violation. See, e.g., United States v. Verdin-Garcia, 516 F.3d 884,894(10thCir.2008)(findingimpliedconsent to recording based on circumstantial evidence that the defendant knew calls from jail phones were recorded); United States v. Workman, 80 F.3d 688, 693-94 (2d Cir. 1996) (consentimpliedwheninmatenotifiedthatcall would be recorded and still placed call); United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996) (same); Jaramillo v. Scribner, 2009 WL 1444353, at *11 (E.D. Cal. 2009) (no reasonable expectation of privacy in a phone call from prison where a “recorded voice at the beginning of the telephone call alerted [the defendant] that the call may be monitored and recorded”). We agree that Defendant’s Fourth Amendment rights were not violated by the recording of a phone call he made with notice that the call would be recorded.{14} The Fifth Amendment protects against compelled self-incrimination and is violated by custodial interrogation result-ing in a coerced confession. See Miranda v. Arizona, 384 U.S. 436, 467 (1966). Here, Defendant was in police custody, but he was not the subject of police interrogation when he placed these phone calls, nor was he coerced into conversing about witness intimidation on the jail phone. See Coyazo, 1997-NMCA-029,¶17(findingthat“thereis no evidence that [the defendant] was com-pelled, coerced, or improperly influencedinto making the calls in question”); see also United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992) (“[The defendant] was aware of the telephone monitoring policy. It was his choice to use the telephone to conduct his illegal business. Having gambled by discuss-ing his [illegal plan], [the defendant] cannot now be heard to complain that he lost.”). Defendant’s Fifth Amendment Rights were not violated. {15} The Sixth Amendment protects an individual’s right to counsel and the confidentiality of conversations betweenclient and counsel. See State v. Young, 2007-NMSC-058, ¶ 2, 143 N.M. 1, 172 P.3d 138;

1Martinez was convicted of conspiracy to intimidate a witness. State v. Martinez, 2008-NMCA-019, 143 N.M. 428, 176 P.3d 1160.


Coyazo, 1997-NMCA-029, ¶ 19. None of the phone calls in question were to Defendant’s counsel, and therefore Defendant’s Sixth Amendment rights were not violated. See Coyaco, 1997–NMCA-029, ¶ 19.5. New Mexico Constitution: Article II,

Sections 10, 14, 15, and 17{16} Article II, Section 10 of the New Mexico Constitution protects against un-reasonable searches and seizures. Although our Constitution generally provides greater protection than the Fourth Amendment, Article II, Section 10 is not violated by the recording of the jail phone calls because Defendant had no reasonable expectation of privacy in phone calls he knew were being recorded. See Templeton, 2007-NMCA-108, ¶ 26.{17} Article II, Section 14 protects the right to counsel. As there was no call to De-fendant’s attorney involved, Section 14 was not violated. See Coyazo, 1997-NMCA-029, ¶ 19.{18} Article II, Section 15 protects against coerced self-incrimination. Just as it did not violate the Fifth Amendment, recording these calls did not violate Section 15. See id. ¶ 17.{19} Article II, Section 17 protects free-dom of speech. The First Amendment of the federal Constitution is not violated when prisons monitor inmates’ phone calls for prison security purposes. See, e.g., United States v. Vasta, 649 F. Supp. 974, 989-90 (S.D.N.Y. 1986). Defendant offers no argu-ment that Article II, Section 17 provides greater speech protections in this case, see State v. Gomez, 1997-NMSC-006, ¶ 23, 122 N.M. 777, 932 P.2d 1, and thus we need not determine whether Section 17 was vio-latedbyprisonofficialsrecordingthephonecalls.6. Admission of the Calls{20} Having determined that the record-ing of the phone calls should not be sup-pressed for violating the Act or the United States or New Mexico Constitutions, we turn to whether the calls were admitted for a proper purpose. Defendant argues that the calls were improperly admitted and that an expert was necessary to explain the colloquial language used in the calls. The State argues that the calls were properly admitted as the non-hearsay admissions of a party opponent or for purposes other than the truth, such as evidence of other bad acts for proving motive or intent.{21} The district court did not err in admitting the calls. The statements of Defendant were admitted as non-hearsay statements of a party opponent. Rule 11-

801(D)(2)(a) NMRA. The statements of the other party to the phone conversations were admitted as adoptive statements of a co-conspirator in furtherance of the conspiracy, Rule 11-801(D)(2)(e), and, in one case, as an adoptive admission of Defendant. Rule 11-801(D)(2)(b). Cf. State v. Macias, 2009-NMSC-028, ¶ 36, 146 N.M. 378, 210 P.3d 804 (holding that the district court abused its discretion in admitting recorded phone calls placed from a jail phone to which no exception or exemption to the hearsay rule applied). Defendant need not have been charged with conspiracy to intimidate a wit-ness in order for this exception to the hearsay rule to be invoked to admit evidence. See State v. Farris, 81 N.M. 589, 589-90, 470 P.2d 561, 561-62 (Ct. App. 1970). We hold that these statements were properly admitted under the aforementioned hearsay excep-tions.7. Manner of Admission{22} Defendant also argues that he re-ceived ineffective assistance of counsel be-cause no objection was made to the lack of an expert witness to explain the language used in the recorded calls. Establishing a prima facie case of ineffective assistance of counsel requires a defendant to show (1) an error by trial counsel, and (2) that the defendant was prejudiced by that error. See State v. Grogan, 2007-NMSC-039, ¶ 11, 142 N.M. 107, 163 P.3d 494. As the Court of Appeals noted in its review of two of these conversations in Martinez’s trial for conspiracy to intimidate a witness:

While the conversations were replete with idiomatic and offen-sive language, the agreement that [Martinez] would appear in court to intimidate [the witness] was suf-ficientlyclearandunderstandablefor the jury to determine that the two agreed on a plan to accomplish that result: shake the witness up and make him afraid to testify truthfully or to have a lapse in memory.

Martinez, 2008-NMCA-019, ¶ 4. There was no error in admission of the phone calls without the use of an expert. As there was no error by trial counsel in not objecting to the lack of expert witness in the admission of the phone conversations, Defendant’s ineffec-tive assistance of counsel claim fails. B. Use of Leg Shackles During Trial1. Background{23} Defendant was in leg irons for the duration of the trial. The record does not con-tain the reason behind this security measure. Defendant requested that the leg irons be removed if he were to testify. Citing safety

concerns and recent violent incidents in other states involving unsecured defendants, the district court said it would not “override the detention center” and remove Defendant’s leg irons if he were to testify. Defendant did nottestify.Inaddition,fivesecurityguardswere present in the courtroom during the trial, although the reason for their presence is not in the record. Defendant did not object eithertothepresenceofthesecurityofficersor the use of leg irons, other than to request the shackles be removed were Defendant to testify.{24} Defendant now argues that the use of leg irons during trial violated his due pro-cess rights under the United States and New Mexico Constitutions, as well as his right to a fair and impartial jury and a presump-tion of innocence under the New Mexico Constitution. Defendant does not argue that thepresenceofthesecurityofficersviolatedhis rights, but does acknowledge that some level of security was necessary during trial in stating that either the use of shackles or the presenceoftheguards“wouldbesufficientto guarantee any safety issues related to the trial, but not both.”2. Standard of Review{25} Defendant did not object to the use of leg irons during the trial. As it was not pre-served, we review this issue for fundamental error. State v. Holly, 2009-NMSC-004, ¶ 40, 145 N.M. 513, 201 P.3d 844.

Error that is fundamental must be such error as goes to the foundation or basis of a defendant’s rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive. Fundamental error only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand.

State v. Gallegos, 2009-NMSC-017, ¶ 27, 146 N.M. 88, 206 P.3d 993 (internal quota-tion marks and citations omitted).3. Analysis{26} The United States Supreme Court concluded that visible shackling is “inher-ently prejudicial,” Deck v. Missouri, 544 U.S. 622, 635 (2005), and stated that “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justi-fiedbyastateinterestspecifictoaparticulartrial[,]” including security concerns. Id. at 629. The important principles behind this


rule are: (1) the presumption of innocence, id. at 630 (“Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process.”); (2)the right to counsel, id. at 631 (stating that shackles “can interfere with a defendant’s ability to participate in his own defense, say, by freely choosing whether to take the witness stand on his own behalf”); and (3) the dignity of the judicial process. Id. (“[T]he use of shackles at trial affronts the dignity and decorum of judicial proceedings that the judge is seeking to uphold.” (internal quotationmarks andmodifications omit-ted)). State interests may outweigh these individual rights, but a court must make this determination after a review of each case’s circumstances. Id. at 632.{27} In Deck, the Court found that the defendant was prejudiced by visible shack-ling during the sentencing phase of his trial. The record was clear that the jury knew the defendant was shackled, id. at 634, and the prosecution failed to meet its burden of proving beyond a reasonable doubt that the inherently prejudicial shackling did not contribute to the guilty verdict. Id. at 635.{28} In contrast, where a defendant is restrained in a manner not visible to the jury, prejudice is not presumed. In United States v. Wardell, 591 F.3d 1279, 1294 (10th Cir. 2009), the Tenth Circuit refused to presume prejudice when a defendant was required to wear a stun belt that was not visible to the jury. Similarly, in Holly, we found no fundamental error when a single juror may have viewed the defendant in handcuffs and defense counsel raised the issue to the judge but did not request a mistrial, removal of the juror,orafindingofprejudice. 2009-NMSC-004, ¶¶ 40-41.{29} In this case, the district court did not commit fundamental error by keeping Defendant in shackles for the duration of the trial. There is no indication the jury saw the leg irons, and thus the factors tending to show prejudice are not present. See id., ¶¶ 40-42. As the jury was not aware of Defen-dant’s restraint, Defendant’s presumption of innocence was not violated. See State v. Sluder, 82 N.M. 755, 756-57, 487 P.2d 183, 184-85 (Ct. App. 1971). For the same reason, the dignity of the judicial process was not affected. See Deck, 544 U.S. at 630. Defen-dant’s right to counsel was not violated, as the record does not reveal that Defendant’s

decision not to testify was a result of the district court’s determination that Defen-dant posed too great a security risk to be unshackled rather than Defendant’s own free choice not to testify. See id. at 631. While the record seems to indicate the decision to shackle Defendant was the Department of Corrections and not the district courts,2 the district court considered Defendant to pose a safety threat and stated it would not remove the leg irons. We do note, however, thatthisprocedureisrarelyjustified.See id. at 628 (counseling that shackling “should be permittedonlywherejustifiedbyanessentialstateinterestspecifictoeachtrial”(internalquotation marks and citation omitted)). In the future, the district court and the parties shouldensuretherecordreflectsthereasonsbehind security measures undertaken during trial and the ways in which the defendant’s constitutional rights are protected or the state interests that outweigh the defendant’s individual rights.C. Denial of Challenges for Cause

During Jury Selection1. Background{30} Defendant argues that the district court’s denial of his requests to strike two jurors, Jurors 28 and 35, for cause violated Defendant’s right to an impartial jury. Juror 28’s cousin was murdered and Juror 28 did not believe the perpetrator’s sentence was sufficient.Juror28indicatedthathewouldfollow the law as stated by the judge and be fair in his determination of guilt, though itwouldbedifficult forhim to ignore thevictims’ families’ feelings. Juror 35’s friend was murdered nine years prior, and Juror 35 stated that the feelings that arose after the murder would be “rekindled” during trial. Juror 35 stated those feelings would not cause her to be unfair to either side. The district court denied Defendant’s attempts to have Jurors 28 or 35 struck for cause. As a result, Defendant used peremptory strikes to remove Jurors 28 and 35. 2. Standard of Review{31} “[W]e review the trial court’s rulings regarding the selection of jurors for an abuse of discretion because the trial court is in the best position to assess a juror’s state of mind, based upon the juror’s demeanor and cred-ibility.” State v. Allen, 2000-NMSC-002, ¶ 83,128N.M.482,994P.2d728(filed1999)(internal quotation marks and citations omit-ted). “An abuse of discretion exists when the

trial court acted in an obviously erroneous, arbitrary, or unwarranted manner.” Gallegos, 2009-NMSC-017, ¶ 21 (internal quotation marks and alterations omitted). Where the trial court clearly abused its discretion in failing to excuse a juror who could not be impartial, prejudice is presumed if the petitioner used all peremptory challenges on potential jurors who could be excused for cause before a jury was seated. Fuson v. State, 105 N.M. 632, 634, 735 P.2d 1138, 1140 (1987). The challenging party bears the burden of proving juror bias. State v. Baca, 99 N.M. 754, 756, 664 P.2d 360, 362 (1983).3. Analysis{32} The jury may not consider the conse-quences of its verdict. State v. Brown, 1997-NMSC-029, ¶ 12, 123 N.M. 413, 941 P.2d 494. In this case, although both Jurors 28 and 35 indicated the trial would cause them to think about the murders of their loved ones, both also indicated that they would be able to be fair and follow the instructions of the judge. The district court denied the request based on this fact and we will not second-guess his judgment, and Defendant failed to demonstrate that his use of peremptory strikes on Jurors 28 and 35 resulted in preju-dice. Cf. Rivera v. Illinois, ___ U.S. ___, ___, 129 S. Ct. 1446, 1453 (2009) (“If a defendant is tried before a qualified jury composedof individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is no matter of federal constitutional concern.”). As we will not presume prejudice and Defendant has failed to show prejudice, we hold that the district court did not abuse its discretion in failing to strike the jurors for cause.D. Voir Dire Questions1. Background{33} During voir dire, the prosecutor posed questions to the venire about acces-soryliabilityusinghypotheticals.Thefirsthypothetical, to which Defendant did not object, was a scenario about three people stealing an air conditioner. The second hypothetical involved a homicide, and the prosecutor initially used Defendant’s name, stating, “Let’s just take for instance Mr. Johnson is not the person who pulled the trigger.” Defendant objected. In a sidebar, the district court permitted the question without use of Defendant’s name, a restriction with which the prosecutor complied. No juror

2Under Rule 5-115(C) NMRA, the appearance of a defendant before the court in “any . . . item which, if visible to the jury, would prejudice the defendant in the eyes of the jury” is not permitted “[e]xcept by order of the court[.]” While the district court may take the views of the executive branch into consideration, the judge must make the determination about the propriety and necessity of restraint devices in each particular case.


admitted to being unable to follow the law regarding accessory liability. Defendant now argues this question amounted to pros-ecutorial misconduct that deprived him of a fair trial.2. Standard of Review{34} We apply an abuse of discretion standard of review to the district court’s “determination of how voir dire should be conducted, because assuring the selection of an impartial jury may require that counsel be allowed considerable latitude in questioning prospective [jury] members.” Allen, 2000-NMSC-002, ¶ 83 (internal quotation marks and citations omitted; alteration in original). “Thetrialcourt,whoislisteningfirsthandtocounsel’s questions and the panel members’ responses, is in the best position to determine whethervoirdirehas sufficientlyexposedany biases that may preclude jurors from acting fairly and impartially.” State v. Marti-nez, 2002-NMCA-036, ¶ 35, 131 N.M. 746, 42 P.3d 851. We will reverse only if a clear abuse of discretion by the district court in the conduct of voir dire resulted in prejudice to defendant. State v. Clark, 1999-NMSC-035, ¶ 20, 128 N.M. 119, 990 P.2d 793.3. Analysis{35} The Sixth Amendment of the United States Constitution guarantees defendants the right to trial by a fair and impartial jury and is implicated during voir dire. State v. Sosa, 1997-NMSC-032, ¶¶ 14, 15, 123 N.M.564,943P.2d1017(findingthatthetrial judge’s decision not to permit defense questioning on the venire’s attitude to gangs was not an abuse of discretion). In Clark, we held the trial court did not abuse its discretion by permitting the prosecutor to ask whether an individual could impose the death penalty, as “this questioning did not commit jurors to return a death sentence.” 1999-NMSC-035, ¶ 20.{36} In this case, the prosecutor’s ques-tioning whether the potential jurors could follow the law did not bind them to return a guilty verdict. There is no indication that the prosecutor’s questions prejudiced the jury. The district court did not abuse its discre-tion by permitting the use of hypotheticals during the voir dire in a way that resulted in prejudice to Defendant.E. Exclusion of Witness from

Courtroom1. Background{37} Defendant’s father was included on the witness lists for both parties. During thefirsttrial,thedistrictcourtimposedthewitness sequestration rule but permitted witnesses who were not going to be recalled tostayinthecourtroomaftertheytestified.

Thedistrictcourt,inthefirsttrial,ruledthatDefendant’s father, though not called by either party as part of a case-in-chief and Defendant’s only relative able to be present at trial, was potentially a rebuttal witness for the State and therefore remained under sequestration. During a bench conference in the third trial, Defendant requested that his father, who had not been called as a witness, be allowed to sit in the courtroom, as the victims’ mothers, witnesses who had already testified,were so permitted.Thedistrict court denied the request, invoking the prior ruling on witness sequestration. Defendant implicitly argues that his father was excluded from the courtroom because he is African-American.2. Standard of Review{38} Although the parties describe the issue as whether the district court abused its discretion in excluding members of the gen-eral public from the courtroom, our review is whether the district court abused its discre-tion by imposing the witness sequestration rule. See State v. Shirley, 2007-NMCA-137, ¶ 33, 142 N.M. 765, 170 P.3d 1003. “We will not disturb the decision of the trial court absent a clear abuse of this discretion and prejudice to the complaining party.” State v. Hernandez, 115 N.M. 6, 18, 846 P.2d 312, 324 (1993).3. Analysis{39} The witness sequestration rule permits the exclusion of witnesses from the courtroom to prevent the tailoring of testi-mony that may occur as a result of listening to the trial. Rule 11-615 NMRA (permitting the exclusion of witnesses from the court-room “so that they cannot hear the testi-mony of other witnesses”); see also State v. Trevino, 113 N.M. 804, 809, 833 P.2d 1170, 1175 (Ct. App. 1991). As evidenced by the concerns of witness intimidation, discussed supra Section III.A., the district court was validly concerned about the integrity of the testimony at trial. The district court did not abuse its discretion in upholding the witness sequestration rule during this trial with the effect that Defendant’s father was excluded from the courtroom, and Defendant did not show that he was prejudiced by the imposi-tion of the rule. There is no basis in the record for the allegation that Defendant’s father was excluded because of his race.F. Admission of Testimony1. Standard of Review{40} The trial court’s admission or exclu-sion of evidence is reviewed on an abuse of discretion standard. Macias, 2009-NMSC-028, ¶ 16. On appeal, the reviewing court will not consider issues not raised in the trial court unless the issues involve matters

of jurisdictional or fundamental error. Rule 12-216(B) NMRA.2. Analysis{41} Relevant evidence is that which has “any tendency to make the existence of any fact that is of consequence to the determina-tion of the action more probable or less prob-able than it would be without the evidence.” Rule 11-401 NMRA. Relevant evidence is admissible. Rule 11-402 NMRA. Relevant evidence will be excluded, however, if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evi-dence.” Rule 11-403 NMRA. Evidence that reflectsonawitness’credibilityisrelevant.See, e.g., State v. Christopher, 94 N.M. 648, 651, 615 P.2d 263, 266 (1980). “Any doubt whether the evidence is relevant should be resolved in favor of admissibility.” State v. Balderama, 2004-NMSC-008, ¶ 23, 135 N.M. 329, 88 P.3d 845.a. Testimony Regarding Fight at the

Hub{42} Defendant argues that the admission oftestimonyaboutafight,towhichDefen-dant was a party, at the Hub, a liquor store, hours prior to the murders was not relevant and more prejudicial than probative. The State argues that it was relevant and proba-tive to whether Defendant and his associates acted in concert the night of the murders.{43} Witness Jeff Hoff (“Hoff”) testi-fied about an incident at the Hub many hours prior to the murders. According to Hoff, Defendant, Coley Ingram (“Coley”), Jamall Young (“Young”), Wayne Ingram (“Wayne”), and Hoff drove to the Hub and Defendant, Coley, and Young entered into an altercation with a group of individuals in the parking lot, at the end of which Defen-dant punched a woman. Defendant objected that the testimony was not relevant, and the district court overruled the objection. Defendant did not object under any other rule of evidence, and thus our review is lim-ited to whether the testimony was relevant under Rule 11-401. See State v. Lopez, 84 N.M. 805, 809, 508 P.2d 1292, 1296 (1973) (stating that an issue is preserved for appeal only when a timely objection that alerts the trial court of the nature of the claimed error is made and invokes an intelligent ruling thereon).BecausewefindthattheHubfighttestimony has at least a small tendency to make the existence of the fact that Defendant and his cohorts acted in concert on the night of the murders, we hold that the district court did not err in admitting this testimony.3


b. Testimony Regarding Memory of Crimes

{44} Defendant further argues that Hoff’s testimony about his state of mind after the murders was more prejudicial than probative and its admission should result in reversal. This issue was not preserved below, and thus our review is for fundamental error. See State v. Ervin, 2008-NMCA 016, ¶ 14, 143 N.M. 493, 177 P.3d 1067. The testimony about how often Hoff thinks of the murders is probative because of the lapse of time since the murders were committed and to explain the discrepancies between Hoff’s testimony and prior statements he had given to the police. There was no fundamental error in the admission of this testimony.c. Testimony Regarding Time Before

Going to Police{45} On cross-examination, Defendant questioned Hoff about why he waited four days before reporting the crime to the police. On re-direct, the State asked Hoff to explain why he had waited. Defendant objected to the question as being “irrelevant and im-material.” The district court permitted the questions as relevant.{46} Defendant attempted to impeach Hoff’s credibility during cross-examination, and the State’s questions about the four-day absence were asked to rehabilitate the witness. The testimony was relevant to the issue of the witness’ credibility, and thus the district court did not abuse its discretion by permitting questioning into Hoff’s reasons for waiting multiple days before reporting the crime.G. Motion for Mistrial1. Denial of Motion for Mistrial Made

At Triala. Background{47} Wayne, who was not charged in the crimes, refused to testify when called as a witness by the State, stating that he had no memory of the events on the day of the mur-ders and that he felt threatened. Defendant moved for a mistrial on the grounds that the jury was prejudiced by the fear in the courtroom that prevented Wayne from tes-

tifying. The district court denied the motion for mistrial. With the jury absent, the district court ruled that Wayne was “practically un-available” and permitted Wayne’s testimony fromthefirsttrialtobeplayedbecause“thetestimony he gave was voluntary, it was given under oath, he was cross-examined, it has not been recanted.” After the recorded testimony was played, the district court per-mitted both parties to cross-examine Wayne using leading questions.{48} Defendant argues that the district court erred by failing to grant a mistrial, as findingWayne unavailable and admittinghis prior testimony deprived Defendant of his Confrontation Clause rights, and that the testimony was wrongfully admitted under the forfeiture by the wrongdoing exception to the hearsay rule. The State argues that the prior testimony was properly admitted under the former testimony exception to the hearsay rule.b. Standard of Review {49} A denial of a motion for mistrial is reviewed under an abuse of discretion stan-dard. State v. McDonald, 1998-NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752.c. Analysis{50} The record is clear that the district court admitted Wayne’s recorded testimony under the former testimony exception to the hearsay rule, Rule 11-804(B)(1) NMRA. To admit former testimony under this exception, thecourtmustfirstdeterminethatthewitnessis unavailable. One way in which a witness may be found unavailable is if she or he “testifiestoalackofmemoryofthesubjectmatter of the declarant’s statement.” Rule 11-804(A)(3). If a witness is determined to be unavailable, the former testimony exception permits the introduction of testimony “taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.” Rule 11-804(B)(1). The purpose of the cross-examination requirement is to ensure that a defendant’s

Confrontation Clause rights are not violated. See Crawford, 541 U.S. at 53-54.{51} In this case, the district court did not abuse its discretionbyfindingWaynewas unavailable to testify based on his re-peated refusal to testify due to a purported lack of memory. See State v. Gonzales, 112 N.M. 544, 551, 817 P.2d 1186, 1193 (1991) (holding that the district court did not abuse its discretion by finding a witness who “repeatedly stated he could not remember events and details about which he previ-ouslytestified”unavailableandadmittingtheprior testimony under Rule 11-804(B)(1)). Defendant’s Confrontation Clause rights were not violated because Defendant had an opportunity to cross-examine Wayne, and the same motive to develop Wayne’s testimony, duringDefendant’sfirsttrialonthesesamecharges. In addition, the court permitted Defendant to cross-examine Wayne after the tape was played, further dispelling any concerns about Defendant’s Confrontation Clause rights. The district court did not abuse its discretion by admitting Wayne’s former testimony under the prior testimony excep-tion to the hearsay rule.2. Failure to Grant a Mistrial Sua

Spontea. Background{52} Defendant argues that the district court erred by not conducting evidentiary hearings before one juror withdrew and to determine why two witnesses, Wayne and Coley, were in fear. Midway through trial, one juror requested, in chambers, that she be excused because her daughter was the Ingrams’ neighbor. Defendant was not pres-ent, but his counsel gave a “full and complete waiver” to Defendant’s presence. Defendant did not object to his counsel’s actions. Wayne testifiedfortheState,andColeytestifiedforthe defense. Neither said who or what was making them afraid.b. Standard of Review{53} As Defendant did not move for a mistrial on these grounds during trial, our review is for fundamental error. See Gal-legos, 2009-NMSC-017, ¶ 27.

3We note that this testimony arguably falls under the rubric of propensity testimony. Under Rule 11-404(B) NMRA, evidence of prior bad acts may not be admitted solely “to prove the character of a person in order to show action in conformity therewith.” See State v. Gallegos, 2007-NMSC-007, ¶ 22, 141 N.M. 185, 152 P.3d 828 (“[t]he rule prohibits the use of otherwise relevant evidence when its sole purpose or effect is to prove criminal propensity.”). Before admitting such evidence, the proponent of the evidence must give notice of his or her intent to do so and “identify and articulate the consequential fact to which the evidence is directed before it is admitted.” Id.IfthetrialcourtfindstheevidenceisadmissibleunderRule11-404(B),itmuststilldeterminewhetheritsatisfiestherequirementsof Rule 11-403. Gallegos, 2007-NMSC-007, ¶ 22. However, we note that even if Defendant had objected under Rule 11-404(B), and even if we had found error in the district court’s admission of the evidence, we would have found such error to be harmless, as there is not a reasonable probability that the error affected the jury verdict. See State v. Torrez, 2009-NMSC-029, ¶ 33, 146 N.M. 331, 210 P.3d 228 (“To determine whether a non-constitutional error was harmless, we must assess whether there is no reasonable probability that the error affected the verdict.”).


c. Analysis{54} In Gallegos, we determined there was no fundamental error when the dis-trict court did not order a mistrial sua sponte after two jurors asked the bailiff if the defendant would plead, and the judge conducted individual voir dire and offered a curative instruction. Id. ¶ 29. The judge took “necessary steps to determine whether bias or prejudice existed in the minds of the jurors[.]” Id. Here, the district court did not commit fundamental error by failing to declare a mistrial sua sponte when one juror was excused because she was fearful of repercussions against her daughter, she said on the record that she could not be impartial, no other jurors knew she was making such a request, and Defendant waived his right to be present when the district court dismissed the juror.{55} Defendant also argues that the court should have declared a mistrial sua sponte because Coley and Wayne said they were scared to testify. As cited to us by Defendant, “It is axiomatic in our system of justice that an individual is entitled to a fair trial‒notaperfectone.”United States v. Mannie, 509 F.3d 851, 857 (7th Cir. 2007) (finding,underabuseofdiscretionreview,that trial court erred by not granting mistrial when courtroom atmosphere was extremely disruptive and trial court’s voir dire and cu-rative instructions were not enough). Here, we are reviewing for fundamental error, and the failure of the district court to conduct an unrequested evidentiary hearing does not “shock the conscience” such that reversal is required.H. Denial of Motion for Directed

Verdict1. Background{56} The armed robbery charge required the State to prove that Defendant took and carried away the property of the victims, that Defendant was armed, and that Defendant took the property by use or threat of force or violence. NMSA 1978, § 30-16-2 (1973). Because the State argued that Defendant committed the armed robbery under an accomplice theory, it had to show that De-fendant intended the crime to be committed and helped, encouraged, or caused the crime to be committed. NMSA 1978, § 30-1-13 (1972).2. Standard of Review{57} We review denials of directed ver-dicts by asking

whether sufficient evidencewasadduced to support the underlying

charge.Thetestforsufficiencyofthe evidence is whether substantial evidence of either a direct or cir-cumstantial nature exists to support a verdict of guilt beyond a reason-able doubt with respect to every element essential to a conviction. Whenconsidering thesufficiencyof the evidence, this Court does not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with afindingofinnocence.Instead,weview the evidence as a whole and indulge all reasonable inferences in favor of the jury’s verdict while at the same time asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation marks, citations, and alterations omitted).3. Analysis{58} We hold that “substantial evidence of either a direct or circumstantial nature,” id., was presented at trial to permit the jury tofindDefendantguiltybeyonda reason-able doubt. The testimony presented at trial that supports Defendant’s armed robbery conviction includes: Hoff’s testimony about the conversation in the bathroom between Defendant and Coley; Hoff’s testimony that Defendant said, “[t]his is a jack” upon entering the victims’ room; Hoff’s testimony about Young bringing items out of the house and into the Defendant’s car; Wayne’s recorded testimony that he saw a phone, pager, and jewelry at Defendant’s house after the robbery but had not seen Defendant with such items prior to the murders; David Mata’s testimony that Defendant requested he hide Defendant’s guns shortly after the murder and robbery; Coley’s recorded tes-timony that Defendant thought the victim was in possession of Defendant’s gun; the State’s witnesses who impeached Coley’s testimony exculpating Defendant, including theprisonofficialswhotestifiedthatColeyhad stated that Defendant had the gun with which he committed the murders; testimony that Defendant dominated his relationship with Coley; recorded phone calls in which Coley told his family he did not commit the crimes, although he confessed to the same; recorded phone calls in which Defendant requested other individuals intimidate the witnesses against him; and testimony of multiple witnesses, including Defendant

himself, that Defendant had remained in the room during the commission of the crimes.{59} Although evidence was presented contrary to Defendant’s conviction, is it not our role to “evaluate the evidence to determine whether some hypothesis could be designedwhichisconsistentwithafindingof innocence.” Id. The testimony presented exculpating Defendant was his own recorded testimony from thefirst trial andColey’stestimony that Defendant played no role in the robbery and that his previous testimony, in which he stated that Defendant committed the crimes, was false. Viewing the evidence as a whole and in the light most favorable to theverdict,thereissufficientevidencefora reasonable jury to have found Defendant guilty of armed robbery beyond a reasonable doubt.I. Aiding and Abetting Jury

Instruction {60} Defendant argues that the district court committed error in issuing the aid-ing and abetting jury instruction, having objected based on his “great hope” that we change the instruction. The district court gave the aiding and abetting uniform jury instruction, UJI 14-2821 NMRA, approved by this Court at the time of the trial, and Defendant has not convinced us of any need to revisit that instruction. There is no error.J. SufficiencyoftheEvidence{61} Defendant attempts to revive his argumentsregardingthesufficiencyoftheevidencemade during his first appeal tothis Court. This is impermissible, Rule 12-213(A)(4); see also Clark, 1999-NMSC-035, ¶ 3 (“[W]e address only those issues properly before this Court within the briefs of the parties.”), and thus we do not review this issue.K. Abandoned Issues{62} Defendant abandoned three issues, the admission of hearsay testimony regard-ing a conversation between Hoff and a friend, the admission of Defendant’s prior criminal record, and the State’s use of rebut-tal witnesses, by failing to discuss them in his brief. See Clark, 1999-NMSC-035, ¶ 3.IV. CONCLUSION{63} Defendant’s convictions are af-firmed.{64} IT IS SO ORDERED. PATRICIO M. SERNA, Justice

WE CONCUR:EDWARD L. CHÁVEZ, Chief Justice PETRA JIMENEZ MAES, JusticeRICHARD C. BOSSON, JusticeCHARLES W. DANIELS, Justice




Topic Index:Miscellaneous Statutes: Uniform Trust Code

Property: Community PropertyStatutes: Applicability; Interpretation; and Statutes, General

Wills, Trusts, and Probate: Amendment; Construction of Trust Provisions; Distribution; Revocation; Testamentary Intent; and Trusts, General

IN THE MATTER OF THE CABLE FAMILY TRUST DATED JUNE 10, 1987, AS AMENDED

GARY D. CABLE,Beneficiary-Petitioner,

versusWELLS FARGO BANK NEW MEXICO, N.A.,

Petitioner-Respondent.No. 30,787 (filed: March 23, 2010)

ORIGINAL PROCEEDING ON CERTIORARICLAY CAMPBELL, District Judge

opinion

cHarles W. daniels, Justice

{1} This case requires us to determine whether the community property trust created by a married couple granted the surviving spouse the power to amend the trust’s remainder distribution schedule after thedeathofthefirstspouse.TheCourtofAppealsupheldtheaffirmativeanswertothat question by the district court solely on the theory that the surviving spouse’s undisputed right to withdraw all assets of the trust estate implicitly included a lesser power to amend the trust. While we conclude that the Court of Appeals was correct in upholding the surviving spouse’s right to amend, we do so through a broader analysis of the totality of the trust provi-sions. Because we hold that the power of amendmentwas specifically intendedbythe grantors in this case, we do not need to hypothesize whether an unrestricted power to withdraw necessarily includes a power to amend in all cases as a matter of law.I. BACKGROUND{2} In July 1987, Lowell and Martha Cable

JANE B. YOHALEMLAW OFFICES OF

JANE B. YOHALEMSanta Fe, New Mexico

for Petitioner

GREGORY W. MACKENzIEHURLEY, TOEVS, STYLES, HAMBLIN

& PANTER, P.A.Albuquerque, New Mexico

for Respondent

created the Cable Family Trust to care for the needs of each other and to distribute any assets that remained after the deaths of both of them to their three children, Petitioner Gary Cable, Larrie Cable, and Shirley Trevino (for purposes of clarity, all family members will be referred to by theirfirstnamesinthisOpinion).Althoughthe property initially placed into the trust was separate property, in December of the same year, Lowell and Martha entered into a community property agreement that designated “all property, . . . regardless of when acquired, and all property hereinafter acquired” as community property. Three months later, Martha died, leaving Lowell as the sole surviving grantor.{3} Over the next fifteen years, Lowellmade a series of amendments to the trust, among which were his 1988 appointment of Gary as trustee and his 1994 amendment, after he remarried, replacing Gary as trustee with a predecessor of Wells Fargo Bank. Of particularsignificancetotheissuesinthiscase is Lowell’s 1999 amendment to the post-trust distribution schedule, redirecting 39 percent of the trust remainder to (1) his elevengrandchildren(2.5%each);(2)five

nonprofit organizations—TheSalvationArmy, Habitat for Humanity, Albuquerque Rescue Mission, Albuquerque Little The-atre, and Musical Theatre of the Southwest (1.5% each); (3) St. Paul Lutheran Church (2.5%); and (4) two close friends (1.5% jointly). The greater part of the trust re-mainder, 61 percent of the total, was still to be distributed among Martha and Lowell’s three children, but the original equal three-way distribution among them was amended to provide for a 30-30-40 split, with 18.3 percent of the total trust proceeds going to each of their two sons, Gary and Larrie, and 24.4 percent going to their daughter, Shirley. In dollar terms, the amended dis-tribution schedule meant that Shirley would receive roughly $36,600 more than either of her brothers. The 1999 amendments were the last made before Lowell died in 2002.{4} After Lowell’s death, trustee Wells Fargofiledapetitioninthedistrictcourtforapproval to distribute the remainder of the trust estate, amounting to about $600,000, in accordance with the 1999 amended distributionschedule.Garyfiledawrittenopposition to Wells Fargo’s request and moved for declaratory judgment and sum-mary judgment. His position was that all of the trust amendments Lowell had made in the years after the death of Martha, includ-ing the 1999 distribution schedule, were beyond Lowell’s authority as surviving grantor. Gary argued that he therefore was entitled to receive a full one-third share of the trust remainder, as originally designated in the 1987 schedule, instead of the 18.3 percent he would receive by the terms of the 1999 schedule, a dollar difference of about $90,000.{5} Much of the focus of the litigation in this case has been the proper interpretation of Section 9.1 of the instrument creating the trust, which provides in its entirety:

9.1 Power in Grantors During Lifetimes of Grantors. Grantors reserve the right at any time or times to amend or revoke this in-strument and the trusts hereunder, in whole or in part, by an instru-ment or instruments in writing, signed by Grantors and delivered in Grantors’ lifetimes to Trustee; provided, however, that no such alteration, amendment or revoca-tion shall affect the character of any property held by the Trust, and the interest of the Husband and Wife in the various Trust assets, whether community, sepa-rate or otherwise, shall retain its


character as such. Nothing herein shall be construed as a transfer of separate properties from Husband to Wife, or from Wife to Husband, and in the event of any revocation, all property shall be reconveyed to the respective owners. If this instrument is revoked in its en-tirety, the revocation shall take effect upon the delivery of the required writing to Trustee. On the revocation of this instrument in its entirety, Trustee shall de-liver to Grantors, or as Grantors may direct in the instrument of revocation, all the Trust property. Notwithstanding the foregoing, the Grantors may specifically declare in writing certain assets to be community property.

{6} WellsFargofiled amotion for sum-mary judgment that relied primarily on provisions contained in the trust instrument itself, but that also relied on a supporting affidavit executed byWayneMarsh, theattorney who had drafted the original 1987 Cable Family Trust agreement at Lowell andMartha’srequest.Mr.Marsh’saffidavitrecited in relevant part (1) that he drafted Section 9.1 of the agreement to provide that Grantors “reserve the right at any time or times to amend or revoke” the trust and its provisions; (2) that it was his practice to explain to his clients that this standard language routinely used by him in trust agreements “confers upon the surviving spouse the power to amend the trust agree-mentafterthedeathofthefirstspouse”;and(3) that, as the attorney who prepared the agreement for Lowell and Martha, he be-lieved that Section 9.1 accurately stated the intent of his clients to allow the surviving spouse the power to amend. Gary argued in opposition that the use of the plural term “Grantors” in Section 9.1 meant that both grantors had to agree jointly to any amend-ment, and that it was therefore impossible for Lowell to have any such amendment power after Martha’s death.{7} The district court granted summary judgment in favor of Wells Fargo, agree-ing that Lowell, as surviving grantor, had the power of amendment, and the Court ofAppeals affirmed that result. Cable v. Wells Fargo Bank N.M., N.A. (In Re Cable Family Trust), 2008-NMCA-005, 143 N.M.269,175P.3d937(filed2007).TheCourt of Appeals rejected attorney Marsh’s interpretation of the effect of Section 9.1 of the trust and instead relied exclusively on Section 2.4, which provided in relevant

part: “Trustee shall . . . pay over to the surviving Grantor such amount or amounts of principal as the surviving Grantor may demand in writing delivered to Trustee.” Id. ¶ 2. In essence, the Court viewed the power to take all as necessarily including the power to take less than all and to redis-tribute it. Id. ¶¶ 1, 17.{8} We granted certiorari to consider those issues.II. STANDARD OF REVIEW{9} The parties agree that the material facts in this case are undisputed and that the case should have been resolved by summary judgment, although they disagree about the principles of law that should be applied to the undisputed facts. “An appeal from the grant of a motion for summary judgment presents a question of law and is reviewed de novo. Summary judgment is appropri-ate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971 (internal quotation marks and citations omitted).{10} The legal inquiry in this case in-volves the interpretation of trust language and the application of statutes to the trust and its terms. Both tasks also require de novo review. Arch, Ltd. v. Yu, 108 N.M. 67, 71, 766 P.2d 911, 915 (1988) (“When the issue to be determined rests upon the interpretation of documentary evidence, this Court is in as good a position as the trial court to determine the facts and draw its own conclusions.”); State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (“Statutory construction is a matter of law we review de novo.”).III. DISCUSSION Role of Grantor’s Intent{11} We start with the basic principle that “[i]n construing the provisions of wills and trust instruments, the court must attempt to ascertain and give effect to the [grantor’s] intent.” Fenley v. Estate of Deupree (In re Estate of Deupree), 2002-NMCA-097, ¶¶ 10, 12, 132 N.M. 701, 54 P.3d 542 (noting that a court may consider the language and conduct of the parties, the surrounding cir-cumstances, and, where needed to interpret ambiguous language, extrinsic evidence of the parties’ intent, including testimony of the attorney who drafted the trust) (internal quotation marks and citation omitted); Loco Credit Union v. Reed, 85 N.M. 729, 733, 516 P.2d 1112, 1116 (1973) (emphasizing the need to honor the intent of the grantors, despitedeficienciesintechnicaldocumentdrafting).

{12} In the Uniform Trust Code (UTC), adopted by the New Mexico Legislature in 2003 as NMSA 1978, Sections 46A-1-101 to 46A-11-1105 (2003, as amended through 2009), the phrase “terms of the trust” is defined as “themanifestation of the set-tlor’s intent regarding a trust’s provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.” Section 46A-1-103(R); see also Restate-ment (Third) of Trusts: Terms of the Trust § 4 (2003) (“The phrase ‘terms of the trust’ means the manifestation of intention of the settlor with respect to the trust provisions expressed in a manner that admits of its proof in judicial proceedings.”).

The phrase “the terms of the trust” is used in a broad sense . . . [and] includes any manifestations of the settlor’s intention at the time of the creation of the trust, whether expressed by written or spoken words or by conduct . . . . The terms of the trust may appear clearly from written or spoken words, or they may be provided by statute, supplied by rules of construction, or determined by interpretation of the words or con-duct of the settlor in the light of all of the circumstances surrounding the creation of the trust.

Restatement (Third) of Trusts: Terms of the Trust § 4 cmt. a.{13} As with other types of donative documents, the primary evidence of grantor intent is the plain language of each provi-sion, when read in conjunction with the document as a whole:

The text of a donative document must be read in its entirety. Each portion, whether it be a word, phrase, clause, sentence, para-graph, article, or some other por-tion, is connected to a whole. The donor is presumed to intend that the various portions complement or modify each other. The case may arise, for instance, in which two portions, read in isolation, appear contradictory. But, when construction of the document as a consistent whole would be facilitated by reading one portion as modifying the other or reading both as mutually modifying each other, that construction prevails.

Restatement (Third) of Prop.: Wills & Other Donative Transfers § 10.2 cmt. b (2003). See generally § 46A-1-112 (stat-


ing that the rules of construction for documents disposing of property “apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property”). Analysis of Trust Expressions of

Grantor Intent{14} Instead of trying to draw conclu-sions about the intent of Lowell and Mar-tha from parsing language in isolated parts of their trust documents, we must instead examine all relevant components and then consider how theyfit together to com-pose the whole expression of their intent. Viewed in that manner, we conclude that thedocumentationreflectsanoverarchingintent to create a trust that would (1) pro-vide for both Lowell and Martha, with the power to amend or revoke its provisions during their joint lifetimes; (2) provide for the needs and wishes of the surviving spouse, with the same power to amend or revokeafterthedeathofthefirstofthem;and (3) convey any remaining assets in thetrustestatetootherbeneficiariesafterthe deaths of both spouses. A number of sections of the trust documentation sup-portthisinterpretationandreflectaclearintention to vest complete control of the entire estate in the surviving spouse after thedeathofthefirst.{15} To begin with, the section spe-cifically governing trust interpretation provides a clear expression of Lowell and Martha’s intent that all provisions of the trust are meant to be liberally construed in favor of the surviving spouse’s interests andabovetheinterestsofotherbeneficia-ries:

1.6 Interpretation. Inasmuch as the continued welfare of Grant-ors is of primary and paramount concern, Trustee is directed to liberally construe all provisions of this trust in favor of the surviv-ing Grantor, and if there is any doubtorconflictofinterest, therights and interests of the surviv-ing Grantor shall be dealt with by Trustee as primary and paramount to the rights and interests of all otherbeneficiaries.

{16} ThefirstsentenceofSection2.1,entitled “Both Grantors Living and Com-petent,” makes it clear that “[w]hile both Grantors are living, Trustee shall dispose of the net income and principal of the community property of this trust as both Grantors may direct Trustee from time to time by a written instrument signed by both Grantors and delivered to Trustee.”

(Emphasis added.) By contrast, Section 2.3, entitled “Death of First Grantor to Die,” provides that “[u]pon the death of thefirstGrantortodie(hereinafterreferredto as ‘deceased Grantor’), the remaining trust estate shall be administered and dis-tributed in accordance with the subsequent provisions of PART TWO.” (Emphasis added.){17} The “subsequent provisions of PART TWO” include Section 2.4, entitled “During Surviving Grantor’s Lifetime,” which explicitly directs not only that the Trustee shall pay “for the surviving Grant-or’sbenefitsuchamountsofprincipalasTrustee may deem necessary or advisable for his or her care, maintenance and sup-port in reasonable comfort,” but also that the survivor is given an unrestricted right to take any or all of the trust assets on de-mand: “Trustee shall also pay over to the surviving Grantor such amount or amounts of principal as the surviving Grantor may demand in writing delivered to Trustee.”{18} Another of the “subsequent provi-sions of PART TWO” recognizes the right of the survivor to redirect the distribution of all of the trust remainder “for the use andbenefitofsuchpersonorpersons,in-cluding the estate of the surviving Grantor, upon such conditions, with such powers, in such manner, and at such times as the surviving Grantor shall direct by his or her Last Will and Testament.”{19} Wells Fargo also argues that, in addition to the surviving grantor’s unre-stricted power to take all the trust assets during the surviving grantor’s lifetime un-der Section 2.4 and the unrestricted power to redistribute the remainder through a will provision, Section 9.1, “Power in Grantors During Lifetimes of Grantors,” also recog-nizes the right of the survivor to continue to exercise the right of amendment or revocation through any signed document: “Grantors reserve the right at any time or times to amend or revoke this instrument and the trusts hereunder, in whole or in part, by an instrument or instruments in writing, signed by Grantors and delivered in Grantors’ lifetimes to Trustee . . . .”{20} Gary argues, and the Court of Appeals agreed, that the use of the plural term “Grantors” in Section 9.1 excludes the power of one grantor, even after the deathofthefirst,tocontinuetoexercisethe power of revocation or amendment. We disagree for several reasons.{21} To begin with, such a narrow construction would be inconsistent with the thrust of the several provisions of

Sections One and Two that emphasize the unrestricted power of the survivor to use and control the trust assets, both before and after his or her death.{22} Second, there are a number of other provisions in the document that as-sist in the proper interpretation of Section 9.1. One of those is Section 4.2, “Gender and Number,” which provides that “[t]he neuter gender shall include the masculine and feminine, and the masculine gender shall include the neuter and feminine and words used in the singular shall include the plural and vice versa.” On that same subject,thetrustalsocontainedafinalsec-tion entitled “FURTHER TERMS AND PROVISIONS,” which “supersede any of the preceding provisions which may be in conflict”andwhichemphasizeinSectionI(G) that “[w]here the context permits, any gender shall be deemed to refer to the other genders, the singular to refer to the plural and the plural to refer to the singular.”{23} Following those commands, by properly reading “the plural to refer to the singular” in Section 9.1, makes it clear that after there are no longer two living grantors, the survivor is permitted to ex-ercise what was previously a joint power of amendment or revocation: “Grantor[] reserve[s] the right at any time or times to amend or revoke this instrument and the trusts hereunder, in whole or in part, by an instrument or instruments in writ-ing, signed by Grantor[] and delivered in Grantor[’s] lifetime[] to Trustee.”{24} The guidelines regarding gender and number interchangeability control a variety of the trust’s provisions. If we did not apply the section universally through-out the trust, absurdities would result. See Roberts v. Sarros, 920 So. 2d 193, 195-96 (Fla. Dist. Ct. App. 2006) (approving the use of singular and plural interchange-ability when doing otherwise would make other portions of the document absurd). For example, without substituting the singular for the plural, Section 5.1, giving the trustee the power tofile tax returns“on behalf of Grantors during Grantors’ lifetimes,” would not allow the trustee to filetaxreturnsonbehalfofthesurvivinggrantor. Section 6.6.a, which requires the trustee “[d]uring Grantors’ [l]ifetimes” to render accounts “to Grantors whenever requested to do so by Grantors,” would leave the survivor powerless to demand an accounting or learn the status of the trust’s income and principal. Section 7.1 provides that the trustee may resign by giving “written notice to Grantors during


Grantors’ lifetimes, or after the death of bothGrantors,toeachoftheadultbenefi-ciaries.” Not reading the provision to refer to the single survivor after the death of the firstspousewouldresultintheabsurditythat the trustee could resign only before thedeathofthefirstandafterthedeathofthe second, but not while only the second was still alive.{25} In contrast, there are a few provi-sions of the trust agreement where the instrument contains express language clari-fying that the context of those particular provisions would prohibit substitution of the singular for the plural. For example, Section 2.1, “Both Grantors Living and Competent,” uses qualifying language to delineate which construction, singular or plural, is exclusively intended:

While both Grantors are living, Trustee shall dispose of the net income and principal of the com-munity property of this trust as both Grantors may direct Trustee from time to time by a written in-strument signed by both Grantors and delivered to Trustee. If one Grantor becomes incapacitated, the competent Grantor shall have the right to dispose of the net income and principal of one-half of the community property as the competent Grantor may direct.

(Emphasis added.)By the express addition of limiting ad-jectives before the nouns “Grantor” and “Grantors,”Lowell andMartha clarifiedthat any disposal of the trust property dur-ing their joint lifetimes could be done only by their joint instruction. There is no such limiting language in Section 9.1.{26} The Court of Appeals was con-cerned that applying the trust’s direction to interchange the plural and the singular where context would permit would have allowed either Lowell or Martha to alter the trust unilaterally during their joint life-times, to the detriment of the other’s inter-ests. This concern ignores the clear import of other provisions, including particularly Section 2.1’s clear instruction that “[w]hile both Grantors are living, Trustee shall dispose of the net income and principal of the community property of this trust as both Grantors may direct Trustee from time to time by a written instrument signed by both Grantors . . . .” The trust’s provisions, including the singular-for-plural directives and the provisions of both Section 2.1 and Section 9.1, can be, and therefore must be, read in harmony. Where “two portions, read

in isolation, appear contradictory,” we are to presume “the various portions comple-ment or modify each other.” Restatement (Third) of Prop. § 10.2 cmt. b.{27} We recognize that courts should not “add words to those in the [instrument] to contradict its language,” and we emphasize that we have no interest in adding words to contradict the language of the trust agree-ment before us. Sanchez v. Quintana (In re Estate of Padilla), 97 N.M. 508, 513, 641 P.2d 539, 544 (Ct. App. 1982). Without adding or contradicting any terms, but sim-ply by combining Sections 2.1 and 9.1 and substituting the singular for the plural as directed in Sections 4.2 and I(G), the trust provides clear and consistent directives:

Grantor[] reserve[s] the right at any time or times to amend or re-voke this instrument and the trusts hereunder, in whole or in part, by an instrument or instruments in writing, signed by Grantor[] and delivered in Grantor[’s] lifetime[, provided that w]hile both Grantors are living, Trustee shall dispose of the net income and principal of the community property of this trust [only] as both Grantors may direct . . . by a written instrument signed by both Grantors . . . .

{28} When its provisions are read in har-mony, the trust agreement unambiguously provides that during the joint lifetimes of the grantors, amendments could be made only by direction of both; after the death ofthefirst,amendmentscouldbemadebydirection of the only one remaining to give directions. Testimony of Drafting Attorney{29} To the extent that it can be argued that there was any ambiguity in the proper interpretation of the documentation on its face, the extrinsic evidence provided by the attorney who was retained by Lowell and Martha to draft their trust agreement confirms our interpretation.All relevantevidence may be considered to determine a grantor’s intent, including relevant extrinsic evidence, so long as it does not contradict the clear terms of an otherwise unambiguous donative document. See Restatement (Third) of Prop. § 10.2; see also § 46A-1-103(R) (“[I]ntent . . . may be established by other evidence that would be admissible in a judicial proceeding[.]”); Garcia v. Taylor (In re Estate of Frietze), 1998-NMCA-145, ¶ 10, 126 N.M. 16, 966 P.2d 183 (noting that extrinsic evidence cannot contradict unambiguous terms). Here, attorneyMarsh’s affidavitwas the

only available extrinsic evidence of dona-tive intent, and it demonstrated that Sec-tion 9.1 was drafted by the attorney with the intent of, and explained to Lowell and Martha as, conferring “upon the surviving spouse the power to amend the trust agree-mentafterthedeathofthefirstspouse.”{30} Although our construction is con-sistent with that set forth in the drafting attorney’saffidavit,theextentofthelitiga-tion in this case should serve as a caution to those drafting similar instruments to take special care when drafting in order to mini-mize the risks of confusion and unnecessary litigation, and, even worse, frustration of a grantor’s intent by misinterpretation or invocation of default rules. Cf. Restate-ment (Third) of Trusts: Power of Settlor to Revoke or Modify § 63 cmts. b-d (“[N]o competent drafter ever leaves [the question of revocability] to default law.”). Community Property Concerns{31} Finally,weaddressspecificallythecommunity property concerns addressed by Gary. While we respect the values inherent in our community property laws and of the community property principles expressed in the trust documents, they do not call for a different interpretation of this trust instrument for several reasons. First, community property default rules do not override a grantor’s intent as manifested in the trust. Second, Gary’s citations to out-of-state cases are distinguishable from and inapplicable to this case. Finally, Lowell’s amendments to the trust were within the spirit of our community property prin-ciples because his proposed distribution mathematically affected only his half of the community property.{32} We start our community property analysis with a review of the relevant de-fault rules set forth in the New Mexico statutes. The UTC provides the default rule for the amendability of a revocable community property trust:

B. If a revocable trust is created or funded by more than one settlor: (1) to the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses[.]

Section 46A-6-602(B). The Restatement of the Law of Trusts bolsters the UTC’s restriction on community property trust amendments. The general rule in the Restatement for multiple settlor trusts is that “unless the terms of the trust provide otherwise, each settlor ordinarily . . . may revoke or amend the trust with regard to


that portion of the trust property attributable to the settlor’s contribution.” Restatement (Third) of Trusts § 63 cmt. k. However, the Restatement lists an exception for trusts “established by spouses and consisting of community property,” which states:

In the absence of a contrary provi-sion in the terms of the trust, the trust may be amended only by the joint action of both spouses during their joint lifetime; but it may be revoked by either spouse acting alone, thereby terminating the trust and causing the prop-erty to be restored to the spouses, free of trust, as their community property.

Id.{33} Both the UTC and the Restatement are careful to note that this default rule does not govern when the terms of the trust pro-vide otherwise. Section 46A-1-105 (stating that “[e]xcept as otherwise provided in the terms of the trust, the [UTC] governs . . . [and] [t]he terms of a trust [generally] prevail over any provision of the Uniform Trust Code”); Restatement (Third) of Trusts § 63 cmt. k (“The trust terms, of course, may make contrary provision[.]”). As we have noted, Lowell and Martha did make contrary provisions in the trust they jointly created.{34} In their trust agreement, Lowell and Martha manifested their desire to pro-tect their respective community property interests while both were alive. Sections 2.1 (“Both Grantors Alive and Compe-tent”) and 2.2 (“Incapacity of Grantor”) required written approval of both to dis-pose of community property and further provided that if one became incompetent or incapacitated, the other could dispose of only his or her own half of any community property.Section9.1specificallyprovidedthat amendments or revocations would not affect the community or separate nature of the property they had placed in the trust. This is consistent with the default rules expressed in the New Mexico statutes, that with respect to community property “the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses.” Section 46A-6-602(B)(1).{35} Afterthedeathofthefirstspouse,however, Section 2.3 (“Death of First Grantor to Die”) provided that Sections 2.1 and 2.2, dealing with revocations and amendments while both were alive, were no longer applicable. Lowell and Martha, through creation of their trust, chose to

retain their community property interests while both were alive but also chose to leave their respective shares of their com-munity property to the other after the death ofthefirst.See Bell v. Estate of Bell, 2008-NMCA-045, ¶ 23, 143 N.M. 716, 181 P.3d 708 (“After funding the Trust, Decedent no longer owned those assets because they became the property of the Trust and be-cause the title to the assets was thus in the Trustee.”). They each chose upon death to leave all community property in the trust, rather than make a separate testamentary disposition, which either would have had the power to do in the absence of the trust. NMSA 1978, § 45-2-805(A) (1993) (“Upon the death of either spouse, one-half of the community property belongs to the surviv-ing spouse, and the other half is subject to the testamentary disposition of the decedent . . . .”).{36} In affirming the district court’s grant of summary judgment in favor of trustee Wells Fargo, the Court of Appeals relied solely on the theory that Section 2.4’s recognition of the survivor’s power to withdraw all assets and do with them as he or she wished necessarily included the power to amend, because “it would serve no substantive purpose to permit revoca-tion and creation of a new trust with the same corpus but not allow amendment of the original trust.” Cable, 2008-NMCA-005, ¶ 16 (internal quotation marks and citation omitted). The opinion relied for that proposition on Kimberlin v. Dell, 218 S.W.3d 613, 617 (Mo. Ct. App. 2007) (holding that a power to revoke necessar-ily includes a power to amend), and Suzan Tantleff Trusts v. FDIC, 938 F. Supp. 14, 17-19 (D.D.C. 1996) (holding that a power to withdraw assets necessarily includes a power to revoke the trust entirely).{37} Gary challenges the Court of Ap-peals’ reliance on precedents from non-community property jurisdictions and cites instead two cases from intermediate appel-late courts in California, a community prop-erty jurisdiction. Those cases, however, construedifferenttrustlanguagereflectingdifferent donative intent. Parker v. Powell (In re Estate of Powell), 100 Cal. Rptr. 2d 501, 505 (Cal. Ct. App. 2000), held that a surviving spouse’s trust revocation was only effective as to half of the trust corpus because California’s probate code trans-muted the trust property “from community [property] to separate property upon [the wife’s] death.” Powell is distinguishable in several important respects: The Powell trust, unlike the Cable Family Trust, did not

grant an unrestricted power to withdraw to the surviving spouse, it did not allow sur-viving spouse amendments through a will, it did not contain a provision that favored a construction in the surviving spouse’s interests, and it did not contain other provi-sions expressing the grantors’ intent to give the surviving spouse the power to amend. The Powell court appropriately recognized that the controlling question was “one of interpretation of the trust instrument.” Id. at 504 (“In interpreting the trust instrument, we seek the intent of the trustors as revealed in the document considered as a whole.”). The simple difference between outcomes is that the Cable Family Trust contains many provisions clarifying that the surviving spouse has unrestricted amendment power, while the Powell trust was sufficiently ambiguous as to the scope of revocation to require that default rules be employed.{38} Crook v. Contreras (In re Estate of Kouba), 116 Cal. Rptr. 2d 319 (Cal. Ct. App. 2002), is also distinguishable. In Crook, a married couple executed a trust that by its express terms was expressly revocable and amendable only “during the joint lives of the Trustors,” but became irrevocable upon the death of one. Id. at 321 (emphasis added) (internal quotation marks omitted). The trust also provided that uponthedeathofthefirstgrantor,itwouldbe divided into two separate trusts: “Trust A” would contain the surviving spouse’s interest and “Trust B” would contain the remainder. The surviving spouse could not touch Trust B, but had substantial control over Trust A. The issue in the case only con-cerned the surviving spouse’s control over Trust A. While Trust A gave the surviving spouse an unrestricted power to withdraw and allowed amendment through last will and testament, its express terms provided that “[e]xcept as otherwise expressly pro-vided in this Declaration, on the death of either Trustor the trusts created by this Declaration shall become irrevocable and not subject to amendment or modification.” Id. at 322 (emphasis added) (internal quo-tation marks omitted). While the disputed beneficiary argued that an unrestricted power to withdraw implied the power to amend, the Crook court decided that, “[s]ince the trust instrument expressly deprived [the surviving spouse] of the power to re-voke, modify or amend the trusts, she also lacked any implied power to do so.” Id. at 331. The Cable Family Trust, on the other hand, has no provision denying the survivor the power to amend, and in fact contains clear grants of control to the survivor.


Beneficiaries Lowell’s Share(% of whole trust)

Martha’s Share (% of whole trust)

Total Received (% of whole trust)

Larrie Cable 1.63% 16.67% 18.30%

Gary Cable 1.63% 16.67% 18.30%

Shirley Trevino 7.73% 16.67% 24.40%

Grandchildren 27.50% 0.00% 27.50%

Charity 10.00% 0.00% 10.00%

Friends 1.50% 0.00% 1.50%

Approx. total 50.00% 50.00% 100.0%

{39} In addition to the fact that Powell and Crook are distinguishable, we note that both have been criticized for their reasoning and results in a judicial opinion and in the Estate Planning & California Probate Reporter. See Papich v. Papich, No. PR060208, 2007 WL 4181927, at *2 (Cal. Ct. App. Nov. 28, 2007) (“[T]he court’s reasoning in Powell is faulty.”); Continuing Educ. of the Bar, Validity of Wills; Revoca-tion of Trusts, 23 Est. Plan. & Cal. Prob. Rep.108cmt.(Feb.2002)(“[I]tisdifficultnot to be concerned about a conclusion [in Crook] that results in a triumph of form over substance.”). Martha’s Original Community Inter-

est Unaffected by 1999 Amendment{40} Even if the law were different and a trust could not be created that would give a surviving spouse the right to make a trust amendment affecting what was once a de-ceased’s half of their community property, the reality is that Lowell did not do so in this case. His 1999 amendments affected less than half of the assets remaining in the trust. By allowing what originally was Martha’s half share to go equally to their three children, as they had contemplated in thefirst remainder distribution schedule,the totality of the 1999 distribution amend-ments would be accomplished solely by dividing what originally was Lowell’s half share in the following manner:Lowell’s One-Half Interest (50% of the whole) Gary 1.63 % of the whole Larrie 1.63 % of the whole Shirley 7.73 % of the whole Grandchildren 27.50 % of the whole Charity 10.00 % of the whole Friends 1.50 % of the wholeBy adding these figures to Martha’s original distribution schedule, a one-third share to each child from what had been

her community interest, both Martha’s and Lowell’s desired distribution schemes could be achieved. The table below details the relevant calculations. {41} By contrast, Gary’s position would deny not only Lowell’s right to control the half of the community property that Martha intentionallyhadleftintrustforhisbenefit,it would also deny Lowell’s right to control the part that had been his own half of the community property before Martha’s death. There is no principle of New Mexico law that would dictate such an extreme result. Indeed, even the California precedent relied on by Gary would not dictate that result. See Powell, 100 Cal. Rptr. 2d at 504 (recognizing effectiveness of surviving spouse’s trust revocation as to his half of the trust corpus).{42} Finally,wefinditunnecessarytoreach the propriety of the Court of Appeals’ reliance solely on implying a right to amend from the surviving spouse’s unrestricted power to withdraw all assets of the trust. Our holding is based on the broader basis of thedonativeintentreflectedinthetotalityof the trust documentation and supporting extrinsic evidence in this case. While the provision granting an unrestricted right of the survivor to withdraw all assets is certainly helpful in that analysis, it is only

one of a number of manifestations of the intent expressed by Lowell and Martha in their trust. We do not need to, and by this Opinion explicitly do not, address hypothetical issues that might result from atrustinwhichthereisanapparentconflictbetween a provision granting a survivor total power to withdraw and a provision denying the survivor the right to amend, as was presented in Crook.IV. CONCLUSION{43} Lowell’s 1999 amendments, in-cluding the revised distribution schedule and appointment of Wells Fargo as suc-cessor trustee, were authorized by both the letter and the intent of the Cable Family Trust. We therefore affirm the grant ofsummary judgment in favor of Wells Fargo and remand to the district court for further proceedings in accordance with this opin-ion.{44} IT IS SO ORDERED. CHARLES W. DANIELS, Justice

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


Certiorari Denied, March 4, 2010, No. 32,218


Opinion Number: 2010-NMCA-029

Topic Index:Appeal and Error: Standard of ReviewCivil Procedure: Summary Judgment

Employment Law: Duties of Employee and Employer; Employer-Employee Relationship; and Independent Contractor

Negligence: Agency; and Wrongful Death

MONICA ELOISE KORBA, individually and as Personal Representative of the Estate of BRANDY ROSE KORBA, deceased,

and as Next Friend for BRYCE AARON KORBA, a minor; RUBY GERANDT, individually and as

Personal Representative of the Estate of ALICIA GERANDT, deceased; RICHARD HOOKE; and STEVEN ROUSE,

Plaintiffs-Appellants,versus

ATLANTIC CIRCULATION, INC., a Delaware Corporation; JAIME R. MILLER; MICHELLE R. SANCHEz;

DOES 1-20 inclusive; DOE MANAGERS 1-5 inclusive; and DOE CORPORATIONS 1-5 inclusive,

Defendants-Appellees.No. 28,774 (filed: January 11, 2010)

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTYJOHN A. DEAN, JR., District Judge

opinion

MicHael e. vigil, Judge

{1} This is a personal injury case in which Atlantic Circulation, Inc., a magazine subscription processing company, obtained summary judgment on the basis that maga-zine sales managers and salespersons were not its employees. Plaintiffs appeal, and we affirm.BACKGROUND{2} Sales managers and salespersons who process sales subscriptions through Atlantic Circulation were riding in a 1992 Chevrolet Suburbanoverloadedwithfifteenpeoplewhen a rear tire blew out, resulting in a single-vehicle accident. The vehicle was driven by Jamie Miller and owned by Michelle Sanchez. Two persons, Brandy

TURNER W. BRANCHTHE BRANCH LAW FIRM

Albuquerque, New Mexicofor Appellants

MICHAEL T. O’LOUGHLINGERDING & O’LOUGHLIN, P.C.

Farmington, New Mexicofor Appellees

Korba and Alicia Gerandt were killed, and two others, Richard Hooke and Steven Rouse, were injured. Korba and her estate, Gerandt and her estate, Hooke, and Rouse are Plaintiffs and allege a variety of claims based upon the accident. The liability of Atlantic Circulation hinges on whether it was the employer of Miller, Sanchez, Korba, Gerandt, Hooke, or Rouse at the time of the accident.{3} Atlantic Circulation moved for sum-mary judgment on the basis that it was not the employer of Miller, Sanchez, Korba, Gerandt, Hooke, or Rouse. The district court granted summary judgment and dismissed the complaint with prejudice. Plaintiffs appeal.STANDARD OF REVIEW{4} Summary judgment is proper “if the pleadings, depositions, answers to inter-

rogatoriesandadmissionsonfile,togetherwiththeaffidavits,ifany,showthatthereis no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 1-056(C) NMRA. Whether this standard is satisfiedpresentsaquestionoflaw,whichwe review de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. As the movant, Atlantic Circulation was required to make a prima facie showing that it was entitled to sum-mary judgment. See Savinsky v. Bromley Group, Ltd., 106 N.M. 175, 176, 740 P.2d 1159, 1161 (Ct. App. 1987) (noting that thedefendantsatisfieditsburdentoobtainsummary judgment by establishing it did not have the ability to control the work of the alleged employee). Once Atlantic Circulation satisfied its burden, the bur-den shifted to Plaintiffs to establish the existence of a genuine issue of material fact. Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263 (“[T]he opponent must come forward and establish with admissible evidence that a genuine issue of fact exists.”). DISCUSSIONA. Distinguishing an Employee From

an Independent Contractor{5} New Mexico courts have utilized the right to control test to determine whether an employer-employee or independent contractor relationship exists. Celaya v. Hall, 2004-NMSC-005, ¶ 11, 135 N.M. 115, 85 P.3d 239. The test focuses on “whethertheprincipalexercisedsufficientcontrol over the agent to hold the principal liable for the acts of the agent.” Id. ¶ 12. Recognizing that the right to control test is more complex and “demands a more nuanced approach, than simply determin-ing the degree of control over the details or methods of the work[,]” our Supreme Court has adopted the method used by the Restatement (Second) of Agency § 220(a)-(j) (1958) to distinguish an employee from an independent contractor. Celaya, 2004-NMSC-005, ¶ 14. {6} The Restatement approach continues to consider the degree of control exercised by the principal over the details of the agent’s work, but this factor is not exclusive. Id. ¶ 15. The analysis also requires an assess-ment of other factors which include: “1) the type of occupation and whether it is usually performed without supervision; 2) the skill required for the occupation; 3) whether the employer supplies the instrumentalities or tools for the person doing the work; 4) the length of time the person is employed; 5)


the method of payment, whether by time or job; 6) whether the work is part of the regular business of the employer; 7) whether the parties intended to create an employment relationship; and 8) whether the principal is engaged in business.” Id. A complete analysis may require the court to evaluate “the circumstances unique to the particular case.” Id. In the court’s consid-eration of the Restatement factors,

“[N]o particular factor should receive greater weight than any other, except when the facts so indicate, nor should the existence or absence of a particular factor be decisive. Rather, the totality of the circumstances should be con-sidered in determining whether the employer has the right to exercise essential control over the work or workers of a particular contractor.”

Id. (alteration in original) (quoting Harger v. Structural Servs., Inc., 121 N.M. 657, 667, 916 P.2d 1324, 1334 (1996)). B. The Undisputed Material Facts {7} The material facts establishing the relationships of sales managers and salespersons with Atlantic Circulation are undisputed. Atlantic Circulation is a processing center for direct sales of magazine subscriptions. Atlantic Circula-tion’s practice is to enter into independent contractor agreements with sales managers throughout the country. Sales managers in turn each hire their own sales crews—salespersons who sell magazine subscrip-tions to consumers. It is also the practice for sales managers to enter into a separate independent contractor agreement with salespersons, called an “Agreement for Subscription Solicitation Services.”{8} Atlantic Circulation has independent contractor agreements with sales managers Korba and Sanchez. There is no agreement in the record for Miller, who was the driver. He is a defendant, but was never served. However, Hooke, who was a salesperson andapassenger in thevan, testifiedthatMiller was also a sales manager, and his testimony is not disputed. Each sales man-ager operates his or her crew as a separate company, with a different name. Korba’s sales company was called Korba Sales, and Sanchez’s sales company was called either Power Sales, Inc., or Strictly Business, Inc. The independent contractor agree-ment between Atlantic Circulation and the sales managers expressly states, “[Atlantic Circulation] desires to engage Contractor as an independent contractor to perform

certain solicitation for magazine and book subscriptions and Contractor desires to perform the solicitation as an independent contractor under the terms and conditions set forth herein.” The agreement further provides, “The parties intend this Agree-ment to create an independent contractor relationship and not an employer-employee relationship. Nothing in this agreement shall be interpreted or construed to create an employer-employee relationship.”{9} Plaintiffs rely upon Chevron Oil Co. v. Sutton to argue that the independent contractor agreements are not disposi-tive of the issue of whether there is an employee-employer relationship. 85 N.M. 679, 681, 515 P.2d 1283, 1285 (1973) (“[T]he manner in which the parties designate a relationship is not controlling.”). While we agree that the agreements on their own do not establish that the sales managers were independent contractors, the agreements are persuasive under our totality of the circumstances analysis. See Restatement (Second) of Agency § 220(2)(i) (listing one factor as “whether or not the parties believe they are creating the relation of master and servant”); see also In re Comp. of Henn, 654 P.2d 1129, 1131 (Or. Ct. App. 1982) (“While the fact that either or both of the parties considered their relationship to be that of independent contractor is not con-trolling, a plain statement that the parties intend the relationship of independent con-tractor and not employe[e] is not always to be disregarded.” (citation omitted)). The contractual agreements between Atlantic Circulation and the sales managers, as well as the salespersons, are highly indicative of the parties’ state of mind concerning the nature of their relationship.{10} According to Atlantic Circulation, sales managers are paid through a credit/debit system which keeps a running track of commissions due and money owed by the sales managers. Ongoing expenses may be paid through the use of a card similar to a credit or debit card, but those expenses are deducted from the sales manager’s run-ning account with Atlantic Circulation. At-lantic Circulation produced Korba’s credit and expense sheet which contains a record of the credits and debits to her account while as a sales manager. To the extent that Plaintiffs rely upon Hooke’s testimony to establish a material fact concerning the method of compensation, Hooke himself testifiedthathehadnopersonalknowledgeof the “com card” and that the managers never told him anything. See Rule 1-056(E) (“Supportingandopposingaffidavitsshall

be made on personal knowledge, shall set forth such facts as would be admissible inevidence,andshallshowaffirmativelythat theaffiant iscompetent to testify tothe matters stated therein.”).{11} Plaintiffs also argue summary judgment is inappropriate because they claim there is a dispute over whether At-lantic Circulation paid for the maintenance and repairs to the vehicle, as well as other expenses sales managers incurred. Assum-ing Atlantic Circulation paid for the repairs to the vehicle and for other expenses, this does not establish that Atlantic Circulation exercised a right of control over the details of the sales managers’ tasks. Plaintiffs have failed to present any evidence that Atlantic Circulation determined where the sales teams traveled, when vehicles repairs were to be made, what expenses were to be incurred, or any other indication that Atlantic Circulation had exercised a right to control the details of the sales teams work.{12} Sales managers are free to hire and fireasmanyorasfewsalespersonsastheywish. Sales managers also determine where and when to solicit subscriptions. Atlantic Circulation does not determine work hours or work areas for the sales crews. There are no production quotas required of the sales managers, nor are they required to sell magazine subscriptions only for Atlantic Circulation. Atlantic Circulation does not withhold state and local taxes from the sales managers. {13} Gerandt, Hooke, and Rouse were salespersons. While there is a written agreement between Reagan and Hooke in the record, Hooke disputes its authenticity, and Atlantic Circulation conceded that the agreement was not signed by him for pur-poses of the summary judgment motion. However, there is no dispute that Hooke was a salesperson. In the “Subscription Solicitation Services” agreements, sales managers are identified as the “Sales Company,” and these agreements also expressly state that the salesperson is an independent contractor and not an em-ployee of the “Sales Company.” The Sales manager agrees to provide the salesperson with information concerning the necessary procedures for magazine subscription pro-cessing, the forms to be used and to make the forms, price lists, and other printed material available to the salespersons.{14} When soliciting magazine sub-scriptions, salespersons display a laminated identificationcardtopotentialcustomerswith the name of the salesperson, the name


of Atlantic Circulation, the words, “maga-zine sales subscription,” and information about the salespersons’ participation in a contest to sell magazines. Plaintiffs rely on Singer v. Star, 510 So. 2d 637 (Fla. Dist. Ct. App. 1987), to argue this is a material fact requiring reversal. However, Singer is not applicable. First, summary judgment was improperly granted in that case because discovery was outstanding. Id. at 639. Secondly, the plaintiffs in that case were relying on a theory of apparent authority to hold a newspaper company liable for the acts of one of its salespersons, and Plaintiffs successfully contended certain evidence,which included identificationbadges issued to minors by the newspaper company who were selling its newspapers, precluded summary judgment on this theory of liability. Id. at 640-41. Apparent authority as a theory of liability is not an issue in this case. {15} If a customer pays for a magazine subscription by check, the customer makes the check payable to Atlantic Circulation. Salespersons give customers a receipt in the name of Atlantic Circulation, and customer service calls are directed to Atlantic Circulation. Customers are also given Atlantic Circulation’s web site ad-dress by salespersons so they can verify the salesperson’s connection with Atlantic Circulation, and how many subscriptions that salesperson sold. If a salesperson is away from his or her home state while selling magazine subscriptions and wants to go home, Atlantic Circulation arranges for a bus ticket, but the sales managers pay for the ticket. In the context of this case,thesefactsareinsufficienttocreatea genuine issue of material fact on the question of whether Atlantic Circulation had an employee-employer relationship with the sales crews. These procedures are not “control” in the sense that Atlantic Circulation directed the operation of the sales crews. Instead, they are incidental requirements necessary to the relationship between a magazine subscription process-ing company and independently operating magazine subscription solicitors. C. Analysis of the Material Facts{16} We apply the Restatement ap-proach as described in Celaya to determine whether Atlantic Circulation established a prima facie showing that it was entitled to summary judgment and whether Plaintiffs then produced admissible evidence that a genuine issue of material fact exists on whether Atlantic Circulation was the em-ployer of Miller, Sanchez, Korba, Gerandt,

Hooke, or Rouse at the time of the accident. We consider the degree of control exercised by Atlantic Circulation over the details of the work performed by the managers and salespersons, and also assess what the sum-mary judgment record shows as to the other factors set forth in Section 220(a)-(j) of the Restatement (Second) of Agency. Celaya, 2004-NMSC-005, ¶ 15. {17} As to the sales managers, Korba, Sanchez, and Miller, there is no issue of material fact for a jury to decide. The sales managers enter into independent contractor agreements with Atlantic Circulation, and each operates his or her crew as a separate company to sell magazine subscriptions to consumers. Sales managers are free to hire and fire their salespersons, and they determine where and when to solicit subscriptions. The sales managers have no production quotas, and they are not re-quired to sell only for Atlantic Circulation. Sales managers are paid through a credit/debit system which keeps a running track of commissions due and money owed by the sales managers, and Atlantic Circula-tion does not withhold state and local taxes from sales managers.{18} WefindBond v. Harrel, 108 N.W.2d 552 (Wis. 1961) persuasive. In this case, the question presented was whether the man-ager of a magazine salesperson’s crew was an employee or independent contractor of a magazine subscription processing company when his automobile was involved in a motor vehicle accident, which resulted in the death of the plaintiff’s decedent. Id. at 553. The magazine subscription processing company contended it was entitled to sum-mary judgment on grounds that the sales manager was an independent contractor and not its employee. Id. The court used a right to control test and concluded the sales manager was an independent contractor. Id. at 555. As in the case before us, the magazine subscription processing company operated through solicitation crews and salespersons. Id. at 554. The sales crews were free to travel where they wished to make their house-to-house solicitations. Id. Crew managers were designated as in-dependent contractors who hire and make their own contract for compensation with salespersons. Id. Crew managers had no quota, they were paid on a commission basis, and they paid their salespersons out of their commissions. Id. The company fur-nished the receipt forms, report forms to be used, envelopes, and sales materials which were to be used by the sales manager and his crew. Id. The sales manager was also

furnishedwithafieldmanagercredentialwhich authorized him and the members of his crew as representatives of the company. Id. The company had no sales meeting or training program. Id. The company did not provide cars or means of transportation, it did not pay any expenses, and it did not withhold taxes. Id.{19} We also conclude that as to the salespersons, Gerandt, Hooke, and Rouse, there is no issue of material fact for a jury todecide.Salespersonsarehiredandfiredby their sales managers independent of Atlantic Circulation. Their employment agreement is with the sales company op-erated by their respective sales managers, and not Atlantic Circulation. Atlantic Cir-culation does not determine work hours or areas for sales crews—these are decisions which are made exclusively by the sales managers. In addition, the sales managers tell the sales crews what the procedures are for processing magazine subscriptions, and they provide their sales crews with the forms, price lists, and other necessary printed material.{20} Our Supreme Court has previously addressed whether a salesperson is an em-ployee or independent contractor within the context of our unemployment com-pensation statute. Solar Age Mfg., Inc. v. Employment Sec. Dep’t, 103 N.M. 780, 714 P.2d 584 (1986). See NMSA 1978, § 51-1-42(F)(5) (2007) (defining “employment”toqualifyforunemploymentbenefits).Indeciding the issue, the court used the right to control test without considering the additional Section 220(a)-(j) Restatement factors. Solar Age Mfg., Inc., 103 N.M. at 781-82, 714 P.2d at 585-86. We therefore consider this decision persuasive, while ac-knowledging it is not controlling. In Solar Age, the salesperson was free to operate in any location, he chose his own hours, he was not restricted on the manner of how the sale was presented, he was allowed to advertise on his own, he was allowed to sell other products from other wholesalers, in-cluding competitors, he was paid on a com-mission basis, he had no quotas, sales were completed with Solar Age invoices, and checks were made payable to Solar Age. Id. Because the salesperson “was free from control or direction over the performance of his job as a salesperson,” the Supreme Court concluded that the salesman was not an employee, but an independent contrac-tor. Id. at 783-84, 714 P.2d at 587-88.{21} Significantly, in deciding Solar Age ourSupremeCourtspecificallycon-sidered In re Compensation of Henn and


found it to be persuasive. Solar Age Mfg., Inc., 103 N.M. at 782, 714 P.2d at 586. In re Compensation of Henn concluded that a traveling magazine salesperson, under circumstances very similar to the case now before us, was an independent contractor and not an employee. 654 P.2d at 1130-31. The salesperson sold magazine subscrip-tions as an “authorized representative,” and had a “Representatives’ Agreement” with the company in which she was designated as an independent contractor. Id. at 1129 (internal quotation marks omitted). The company provided a training session for its salespersons and supplied invoices and other materials. Id. at 1130. The plaintiff used her own vehicle when selling sub-scriptions, no particular working hours werespecified,shewaspaidonacommis-sion basis, no income taxes were deducted from commissions, and the salesperson was free to engage in other employment. Id. at 1129-30. Utilizing a right to control test,thesefactsweresufficientforthecourtto conclude that the salesperson was an independent contractor. Id. at 1130-31.{22} In Indiana Insurance Co. v. Ameri-can Community Services, Inc., the Indiana Court of Appeals decided a nearly identical case. 768 N.E.2d 929 (Ind. Ct. App. 2002). A processor of magazine subscriptions had independent contractor agreements

with sales managers, who in turn had independent contractor agreements with their salespersons. Id. at 930. A van owned by a husband-wife crew manager was car-rying a sales crew when it was involved in a single-vehicle accident, and one of the salespersons was killed. Id. The court considered the factors set forth in Restate-ment (Second) of Agency § 220(a)-(j), and concluded that the magazine salesperson was an independent contractor and not an employee of the magazine subscription company. Indiana Ins. Co., 768 N.E.2d at 937. It held, “[g]iven the weight of such important factors as [the company]’s lim-ited control and supervision, the intent of the contracting parties, and the existence of multiple layers of independent contracts between [the company], its crew manag-ers,andsalespeople,wefindthat...[thesalesperson] was not an employee.” Id. at 939.{23} We therefore conclude that based on the record before us, Plaintiffs have not raised a genuine issue of material fact as to Atlantic Circulation’s right to exercise essential control over the work of the sales managers or salespersons such that a jury couldfind an employee-employerrelationship. The undisputed facts show the following. Sales managers enter into independent contractor agreements with

Atlantic Circulation, the terms of which expressly define the relationship.Thereis no evidence that Atlantic Circulation controls the details of how sales managers operate daily. Atlantic Circulation does not determine where sales crews operate, how long they operate in one location, or how many hours they work. Atlantic Circulation provides no supervision or direction and sales crews operate autonomously. The salespersons are expressly hired by each sales manager to work for that sales man-ager, and the details of the salesperson’s work is directed and controlled by the sales manager of each crew, not Atlantic Circulation. Thus, Plaintiffs have not pro-vided any material facts that would allow ajurytofindthatAtlanticCirculationhadan employee-employer relationship with Miller, Sanchez, Korba, Gerandt, Hooke, or Rouse at the time of the accident. CONCLUSION {24} Weaffirmthedistrictcourtordergranting Defendant Atlantic Circulation summary judgment and dismissing the complaint with prejudice. {25} IT IS SO ORDERED. MICHAEL E. VIGIL, Judge

WE CONCUR:CELIA FOY CASTILLO, JudgeLINDA M. VANZI, Judge


Certiorari Granted, April 1, 2010, No. 32,263


Opinion Number: 2010-NMCA-030

Topic Index:Appeal and Error: Preservation of Issues for AppealConstitutional Law: Fourth Amendment; Privacy;

and Suppression of EvidenceCriminal Law: Controlled Substances

Criminal Procedure: Exigent Circumstances; Motion to Suppress; Search and Seizure; Search Incident to Arrest; Warrantless Arrest;

and Warrantless SearchEvidence: Suppression of Evidence

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusTERRY WILLIAMS,

Defendant-Appellant.No. 28,034 (filed: February 8, 2010)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYROSS C. SANCHEz, District Judge

opinion

roBert e. roBles, Judge

{1} Terry Williams (Defendant) challenges the district court’s denial of his motion to suppress under the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Con-stitution. Additionally, Defendant claims ineffective assistance of counsel, and that his conditional plea was not entered into knowingly, voluntarily, or intelligently. We conclude that the Fourth Amendment re-quires suppression and, accordingly, we do not reach Defendant’s other arguments.I. BACKGROUND{2} At the hearing on Defendant’s motion tosuppress,OfficerSimbalatestifiedthat,on September 7, 2006, at approximately 4:00 p.m. while on patrol, he conducted a license plate check on Defendant’s vehicle as it was parked in front of a residence. The

GARY K. KINGAttorney General

NICOLE BEDERAssistant Attorney General

Santa Fe, New Mexicofor Appellee

HUGH W. DANGLERChief Public Defender

ELEANOR BROGANAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

check indicated that Defendant was the owner.TheofficerknewDefendantfrom“three or four” previous contacts, though he did not know it was Defendant’s car at the timehecheckedthelicenseplate.Theoffi-cer then conducted a check on Defendant’s name and discovered he had an outstanding felonywarrant forhis arrest.Theofficerthen positioned himself nearby on another street and, after waiting approximately twenty minutes, observed Defendant in his car making a right-hand turn and driv-ing through a stop sign without making a complete stop. Although the windows on Defendant’s carwere tinted, the officeridentifiedDefendantastheoperatorofthevehicle by seeing through the untinted front windshield as Defendant drove toward the officerandbyseeingDefendantthroughthedriver’s side window, which was down as Defendant passed by.{3} Officer Simbala testified that, after pulling Defendant over and approaching his

vehicle, he noticed that Defendant’s shoul-ders were moving, his hands were not up on the steering wheel, but were down low, and he appeared to be “fumbling around.” He testifiedfurtherthathethoughtDefendantwas hiding something or grabbing a weapon. After making contact with Defendant and obtaining his “information,” the officer again conducted a background check and confirmedtheexistenceofanoutstandingfelonywarrant.OfficerStephensonarrivedon the scene.Officer Simbala askedDe-fendant to step out of the vehicle, placed him under arrest, and then handcuffed him. Atthat time,OfficerSimbalanoticedthatDefendant’s pants were unzipped, and “half of his shirt was sort of pulled through it.” Defendant was placed between the two po-licecarsonthesideofthestreet,andOfficerSimbala performed a search of Defendant. OfficerSimbalatestifiedthat,althoughheperformed a pat-down of Defendant, which did not reveal anything he believed was a weapon, he faced Defendant, grabbed and shook his waistband, pulled the front of his pants outward six to eight inches, looked down, and observed and seized a plastic bag containing crack cocaine and heroin next to Defendant’s genitals. At the time ofthesearch,OfficerSimbalawaswearinggloves,andOfficerStephenson,afemale,was standing behind Defendant and had “no wayofseeinganything.”OfficerSimbaladidnot testifyabout the trafficconditionson the street at the time, whether there were members of the public watching the incident, or whether the public’s view was obstructed during the search. Defendant testifiedonhisownbehalfandstatedthatthe search was conducted around 4:25 in the afternoon at a “very busy intersection” with “hundreds and hundreds of people driving by.”{4} At the end of the suppression hearing, the district court found there was probable causefortheofficertostopDefendantandfound the search incident to his arrest was a lawful search. Five days following the district court’s denial of the motion to sup-press, Defendant entered a plea of no contest to traffickingbypossessionwith intent todistribute, reserving the right to appeal the denial of his motion to suppress.II. DISCUSSION{5} On appeal, Defendant argues that (1) the search incident to his arrest was unrea-sonable under the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution; (2) his trial counsel was inef-fective; (3) his plea was not entered into knowingly or voluntarily; and (4) this Court


should allow him to withdraw his plea and proceed to trial instead. We agree that the search was unreasonable under the Fourth Amendment, and we will not discuss De-fendant’s other issues.{6} An appellate court’s review of a district court’s ruling on a motion to suppress repre-sents a mixed question of fact and law. State v. Rowell, 2008-NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d 95. This Court will indulge all reasonable inferences that support the district court’s decision, and all contrary evidence and inferences will be dismissed. State v. Vandenberg, 2003-NMSC-030, ¶¶ 17-18, 134 N.M. 566, 81 P.3d 19. However, whether the district court correctly applied the facts to the law is reviewed under a de novo standard. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.{7} The Fourth Amendment of the United States Constitution, made applicable to the State of New Mexico through the Fourteenth Amendment, guarantees individuals the right to be secure in “their persons, houses, papers, and effects, against all unreasonable searches and seizures.” Mapp v. Ohio, 367 U.S. 643, 646-47 (1961) (internal quotation marks and citation omitted); see Bell v. Wolf-ish, 441 U.S. 520, 558 (1979) (“The Fourth Amendment prohibits only unreasonable searches[.]”). Likewise, Article II, Section 10 of the New Mexico Constitution pro-tects the right of the people to be free from unreasonable searches and seizures. State v. Gutierrez, 2004-NMCA-081, ¶ 6, 136 N.M. 18, 94 P.3d 18. Both the New Mexico and United States Constitutions provide overlapping protection against unreasonable searches, so we apply the interstitial ap-proach. Rowell, 2008-NMSC-041, ¶ 12. Un-derthisapproach,wefirstconsiderwhetherthe United States Constitution “makes the challenged police procedures unlawful under the United States Constitution [and i]f so, the fruits usually must be suppressed [and i]f not, we next consider whether the New Mexico Constitution makes the search unlawful.” Id. (citations omitted). We con-clude that this search was unreasonable under the United States Constitution, and we therefore do not analyze the issue under our state constitution.{8} Because a warrantless search or seizure is presumed to be unreasonable, the State has the burden of showing that the search or seizurewasjustifiedbyanexceptiontothewarrant requirement. State v. Vasquez, 112 N.M. 363, 366, 815 P.2d 659, 662 (Ct. App. 1991). Recognized exceptions to the warrant requirement include exigent circumstances,

consent, searches incident to arrest, plain view,inventorysearches,openfield,andhotpursuit. State v. Duffy, 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d 807, modified by State v. Gallegos, 2007-NMSC-007, 141 N.M. 185, 152 P.3d 828. While the immedi-ate case falls within the search incident to arrest exception, and Defendant does not challenge his arrest, he does challenge the reasonableness of the search that was con-ducted pursuant to his arrest.{9} Full warrantless searches of persons and their clothing, incident to any lawful arrest, regardless of the circumstances lead-ing up to the arrest, are not unreasonable. United States v. Robinson, 414 U.S. 218, 235(1973).Thejustificationforsuchbroadsearches incident to an arrest has been to allowofficerstodisarmarresteesinorderto take them into custody and to prevent the destruction or concealment of evidence. Id. at 234; see Chimel v. Calfornia, 395 U.S. 752 (1969). However, even in searches such as this, the Fourth Amendment pro-tects an arrestee’s privacy interests in his person and prohibits intrusions that are not justifiedunderthecircumstances.See Bell v. Wolfish, 441 U.S. 520, 558-59 (1979) (concluding that the Fourth Amendment to the United States Constitution prohibits unreasonable searches and requires a con-sideration of the circumstances in relation to the need for the particular search).{10} In the instant case, Defendant as-serts that the search underneath his clothing wasnotjustifiedunderthecircumstancesand was an unreasonable strip search. At the outset, we note that the United States Supreme Court has yet to address strip searches incident to an arrest. In Illinois v. Lafayette, the Court explicitly stated that “[w]e were not addressing . . . and do not discuss here, the circumstances in which a strip search of an arrestee may or may not be appropriate.” 462 U.S. 640, 646 n.2 (1983).{11} The First Circuit in Blackburn v. Snow noted that there are generally three types of strip searches:

A “strip search,” though an umbrella term, generally refers to an inspection of a naked in-dividual, without any scrutiny of the subject’s body cavities. A “visual body cavity search” extends to visual inspection of the anal and genital areas. A “manual body cavity search” includes some degree of touch-ing or probing of body cavities.

771 F.2d 556, 561 n.3 (1st Cir. 1985). Strip

searches, therefore, have usually referred to the removal of the arrestee’s clothing for inspection of the body. Black’s Law Dic-tionarydefinesastripsearchas“[a]searchof a person conducted after that person’s clothes have been removed, the purpose usu[ally] being to find any contraband the person might be hiding.” Black’s Law Dictionary, 1378–79 (8th ed. 2004). Some courts have determined that a “reach-in” search, where an individual remains clothed and the genitals are not exposed to onlook-ers, is something less than a “strip search.” See United States v. Williams, 477 F.3d 974, 976-77 (8th Cir. 2007) (contrasting cases where a suspect is forced to expose “private areas” in a public place, and holding that a reach-in search was permissible because the police took “steps commensurate with the circumstances to diminish the potential invasion of the suspect’s privacy,” and con-cluding that a reach-in search of a clothed suspect is something less than a “full-blown strip search”); Jenkins v. State, 978 So. 2d 116, 126-28 (Fla. 2008) (concluding that whereanofficer“merelypulledtheboxershorts away from [the suspect’s] body at the waist area and looked inside to discover the cocaine” and no body parts were publicly exposed, the search was not a strip search); but see State v. Nieves, 861 A.2d 62, 70 (Md. 2004) (acknowledging that a strip search is “any search of an individual requiring the removal or rearrangement of some or all clothing to permit the visual inspection of the skin surfaces of the genital areas, breasts, and/or buttocks” (internal quota-tion marks and citation omitted)); State v. Jenkins, 842 A.2d 1148, 1156 (Conn. App. Ct. 2004) (stating that a “reach-in” search is a type of “strip search”).{12} After a review of the case law, we conclude that this is not a strip search, and how a reach-in search is categorized will not affect the analysis. The focus of our in-quiry should be on whether the search was reasonable under the circumstances. The touchstone of Fourth Amendment analysis is the reasonableness of the governmental invasion of a citizen’s personal security. Terry v. Ohio, 392 U.S. 1, 12 (1968). Al-though an officer of the law may have the right to search a suspect following an arrest, the search must still be reasonable. Fontaine v. State, 762 A.2d 1027, 1032-33 (Md. Ct. Spec. App. 2000) (“While the legal arrest of a person should not destroy the privacy of his premises, it does for at least a reasonable time and to a reason-able extent take his own privacy out of the realm of protection from police interest in


weapons, means of escape, and evidence. However, the right of police to make an unqualified search of an arrestee’s per-son incident to an arrest is nevertheless limited in that any such search must still be reasonable.” (internal quotation marks and citation omitted)). Reasonableness determinations can be elusive because “reasonableness under the Fourth Amend-mentisnotcapableofprecisedefinitionor mechanical application.” Bell, 441 U.S. at 559. In determining the reasonableness of a search, each case requires a balanc-ing of the government’s need to conduct the search against the invasion of the individual’s privacy rights. Id. Reviewing courts have considered (1) the scope of the particular intrusion, (2) the manner in whichitisconducted,(3)thejustificationfor initiating it, and (4) the place in which it is conducted. Id. Accordingly, we follow other courts who have adopted the Bell factors in similar situations. See Jenkins, 842 A.2d at 1157; Paulino v. State, 924 A.2d 308, 316-17 (Md. 2007); Nieves, 861 A.2d at 73; Fontaine, 762 A.2d at 1033.{13} Thejustificationforinitiatingthesearch in the instant case is inexorably tied with the scope of the intrusion as it was conducted. Accordingly, we analyze these two factors together. New Mexico courts havepreviouslyheldthatanofficerneedsno reason to conduct a search incident to an arrest. Rowell, 2008-NMSC-041, ¶ 25 n.1 (“Given the exigencies always inher-ent in taking an arrestee into custody, a search incident to arrest is a reasonable preventative measure to eliminate any possibility of the arrestee’s accessing weapons or evidence, without any require-ment of a showing that an actual threat exists in a particular case.”). However, othercourtshaveconcludedthatajustifiedwarrantless search does not by itself give rise to the automatic right for a more in-trusive search such as a reach-in. See, e.g., United States v. Bazy, 1994 WL 539300, at *5 (D. Kan. 1994) (mem. and order). A majority of courts have determined that an officer needs additional reasonablesuspicion in order to conduct the more intrusive search. See, e.g., Jenkins, 842 A.2d at 1156 (“It has been recognized that under the [F]ourth [A]mendment to the[UnitedStatesC]onstitution,officersare permitted to strip[]search an individual when, subsequent to a lawful arrest and patdown, they have a reasonable suspicion that the individual is carrying a weapon or contraband.”). In People v. Jennings, the court concluded:

Strip searches of arrestees charged with misdemeanors or other minor offenses violate the Fourth Amendment of the United States Constitution unless there is a reasonable suspicion that the arrestee is concealing weapons or contraband based on the crime charged, the particular charac-teristics of the arrestee, or the circumstances of the arrest.

747 N.Y.S.2d 235, 236 (N.Y. App. Div. 2002); see Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 270 (S.D.N.Y. 2002) (“While the Second Cir-cuit has not spoken directly to the appropri-ate test for the validity of a strip search inci-dent to a felony arrest, this [c]ourt recently opined that the [c]ourt of [a]ppeals would apply the particularized reasonable suspi-cion test to searches of felony arrestees as well, rather than permitting strip searches of all felony arrestees solely because they had been arrested for a felony.”).{14} In the instant case, Defendant asserts that “OfficerSimbala lacked anyreasonable suspicion that [Defendant] was concealing evidence underneath his cloth-ingandthereforelackedanyjustification”for the search. We do not agree. “Reason-ablesuspicionmustbebasedonspecificarticulable facts and the rational inferences that may be drawn from those facts.” State v. Duran, 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836 (internal quotation marks omitted) (quoting State v. Flores, 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920 P.2d 1038). “In determining whether reasonable suspicion exists, we examine the totality of the circumstances.” Duran, 2005-NMSC-034, ¶ 23 (internal quotation marks and ci-tation omitted). “[I]n determining whether theofficeractedreasonablyinsuchcircum-stances, due weight must be given, not to his inchoate and unparticularized suspicion or‘hunch,’but to thespecificreasonableinferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27. In the instant case, OfficerSimbalatestifiedthatheobservedDefendant moving in his vehicle as the officerapproached.Hetestifiedfurtherhesuspected Defendant was getting a weapon or hiding something, that when Defendant exited the car, his pants were open with his shirt pulled through his zipper, and these actionsledtheofficertobelievethatDe-fendant may have been hiding something on his person. Defendant, however, testi-fiedinhisowndefensethathisbeltbucklemay have been undone, but his pants were

not,andOfficerSimbalastated,“[l]et’sseewhat you have” and lifted up his shirt and unbuttoned and opened his pants. Under our standard of review, we defer to the factualfindingsof thedistrictcourt.Thedistrictcourtfoundtheofficer’stestimonycredible, and we are, therefore, unwilling tosecond-guessthedistrictcourt’sfinding.In ruling, the district court was in a superior position to evaluate the credibility of the testimony. Although there may have been conflictingfactualevidenceregardingthejustification and scopeof the search,wewill indulge all reasonable inferences that supportthedistrictcourt’sfactualfindingsand disregard all evidence that supports the contrary. Accordingly, we conclude that, under the circumstances, there was sufficientjustificationtosearchDefendant,and the search was tailored to accommodate thereasonsforthejustification.{15} Defendant also argues that the area searched was not within his immedi-ate control and that once he was placed in handcuffs the situation was neutralized and there was no need for the search. However, the potential for the destruction of evidence may be diminished when an individual is in custody, but it is not eliminated, and an officermayassumetheinitiativebyseizingcontraband that an individual has chosen to hide in his underwear. Williams, 477 F.3d at 975. Our cases have previously held:

Our search incident to arrest exception is a rule of reasonable-ness anchored in the specific circumstances facing an officer[and d]eciding whether there is a reasonable threat of a suspect being able to gain access to an area to get a weapon or evidence isthekindofdecisionofficersaretrained to make.

Rowell, 2008-NMSC-041, ¶ 24; State v. Martinez, 1997-NMCA-048, ¶ 7, 123 N.M. 405, 940 P.2d 1200 (“Even a handcuffed arrestee may be foolhardy enough to try to seizeanearbyfirearm.”).Intheimmediatecase, we cannot say that the reasons and justificationsforthesearch,andthenarrowscope of the intrusion in direct response to thosejustifications,wereunreasonableun-der the unusual circumstances. Defendant’s own conduct gave rise to the inference that something was hidden in the front of his pants.{16} We next turn to the remaining Bell factors and consider the manner and place in which the search of Defendant was conducted. Our scope of inquiry is a nar-rowone.Specifically,weaskwhetherthe


facts as they were established in the district court justify the search as it was conducted. Defendant argues that no measures were taken to ensure his privacy interests, and the search was done in an unreasonable public location. The record reveals that, followingthetrafficstop,thesearchtookplace between two cars at approximately 4:25 p.m. We note that courts have taken into consideration whether individuals had their “private areas” exposed to the public, United States v. Williams, 209 F.3d 940, 943 (7th Cir. 2000), the location of the search, United States v. Ashley, 37 F.3d 678, 682 (D.C. Cir. 1994), the exigent circumstances justifying conducting the search, Bazy, 1994 WL 539300, *6, and whether any steps were taken to protect the individual’s privacy, State v. Smith, 454 S.E.2d 680, 687 (N.C. Ct. App. 1995), rev’d and dissent adopted, 464 S.E.2d 45 (N.C. 1995) (order), cert. denied, 517 U.S. 1189 (1996).Webegin by noting thatOfficerSimbala testified that nobodyother thanhe and Defendant could see Defendant’s genitals, and Defendant did not dispute this assertion. We therefore will focus our analysis on the location of the search, exigent circumstances, and measures taken to preserve privacy. Together, these factors attempt to balance the tension between the need for a particular search and the inva-sion of personal rights. See Bell, 441 U.S. at 558.{17} The State argues that steps were taken to protect Defendant’s privacy. How-ever,DefendantarguesthatOfficerSimbalanevertestifiedthatanymeasuresweretakento ensure that the search would be out of the view of passing cars. A review of the record reveals that the issue of whether steps were taken to minimize Defendant’s exposure was never brought up at the suppression hearing. We note, however, that Defendant admits he was placed between two cars beforethesearchbeganandtestifiedthatOfficerStephensonwasnotnearbywhenthe search took place.{18} In Lafayette, the United States Supreme Court noted that police conduct “that would be impractical or unreason-able[]or embarrassingly intrusive[]on the street[,] can more readily[]and privately[]be performed at the station. For example, the interests supporting a search incident to arrest would hardly justify disrobing an ar-restee on the street.” 462 U.S. at 645. Extra caution has been placed on strip searches because they can be degrading and inva-sive. See Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (en

banc) (noting that “strip searches involv-ing the visual inspection of the anal and genital areas [are] demeaning, dehuman-izing,undignified,humiliating,terrifying,unpleasant, embarrassing, [and] repulsive, signifying degradation and submission” (internal quotation marks and citation omitted)); Deserly v. Dep’t of Corrections, 2000 MT 42, ¶ 19, 298 Mont. 328, ¶ 19, 995 P.2d 972, ¶ 19 (noting that being strip searched “is an embarrassing and humiliat-ing experience” (internal quotation marks and citation omitted)). While a reach-in search may be something less than a strip search, it is clear that they are not a matter of course for searches incident to an arrest, and they often do involve a visual inspec-tion and/or touching of intimate areas. The court in Bazy concluded that a search of two suspects on the side of the road between parked police cars was a public search, and it was intrusive. 1994 WL 539300, at *8.The court confirmed that a publicand intrusive search is not commonplace and should be reserved for only the most unusual cases. Id. In that case, earlier at-tempts by the detained suspects to conceal evidence by kicking multiple packages of drugs out of their pants and under vehicles createdsufficientexigenciesthatjustifiedthe search. Id. at *3, 6. Additionally, the officerstestifiedthatthesearchwascon-ducted between two parked cars to protect thesuspects’modesty,andanofficerob-structed the public’s view. Id. at *7.{19} We observe that other cases have takenintoconsiderationthespecificstepsofficershave taken toprotectasuspect’smodesty when exigent circumstances were lacking, or where exigent circumstances were weighed against the location of the search. See Williams, 477 F.3d at 976-77 (allowing a reach-in search of a suspect where police drove him several blocks to a parking lot in a residential area); Williams, 209 F.3d at 943 (holding that a reach-in search on the side of the road at night where the suspect was never disrobed or exposed to public view was no greater an intrusion than would have occurred at a police station); United States v. Gordon, 2008 WL 3540007, at *1 (D. Utah 2008) (mem.andorder)(findingreasonablestepstaken to protect privacy where a reach-in search occurred at night on the passenger side of a vehicle); Jenkins, 842 A.2d 1148 (walking the suspect to the side of a build-ing and conducting a reach-in search struck the proper balance between the need for the search, and the manner in which it was conducted); Smith, 454 S.E.2d at 682 (hold-

ing that the search was not unreasonable where suspect’s pants were pulled down in betweenanofficerandanopencardooratnight); Ashley, 37 F.3d at 679 (determining that precautions were taken to ensure that the suspect was not subjected to public embarrassment when a reach-in search was conducted at the side of a bus station).{20} In this case, we are mindful of the fact that the search was conducted in broad daylight at rush hour on the side of a street. We cannot say that the search was notwitnessed,thattheofficerstookstepscommensurate with the circumstances to diminish the potential invasion of De-fendant’s privacy, or that the exigencies of the situation demanded that the search be done in the moment and fashion that it was conducted. The district court made no findingsof fact regarding the locationorthemannerof thesearch,and theofficerdid not testify about the reasonableness of the location. From the record, it is not clear to this Court whether this intrusive and public search of Defendant was conducted in view of the public, or whether members of the public observed the search. From the testimony, we conclude that the facts of this case do not demonstrate the necessity for the immediate search in public under the totality of the circumstances, and the record is devoid of any exigency that would justify a search in this location. While the availability of less intrusive means does not automatically transform an otherwise reasonable search into a Fourth Amend-ment violation, the lack of a demonstrated exigency and the public location in broad daylight during rush hour simply does not justify the reasonableness of this search’s location or manner. Lafayette, 462 U.S. at 647. The State did not carry its burden to demonstrate that this particular situation requiredorallowedtheofficerstoconductthis particular search in this particular man-ner because of exigency or location.{21} In this case, it is not clear that the district court even considered the reason-ableness of the location, or the manner in which the search was conducted. There is no evidence in the record regarding whether (1) Defendant was standing perpendicular or parallel to traffic, (2) trafficwas at agridlock or passing by at a high rate of speed, or (3) there were pedestrians in the vicinity. The only evidence regarding de-tails of the location of the search came from Defendant, who stated that it was a busy intersection, and there were hundreds of people driving by. While we will indulge in reasonable, factual inferences that support


the district court’s decision, the inferences in this case are not reasonable and tend to support the conclusion that passers-by witnessed this search. Whether the district court correctly applied the facts to the law is reviewed under a de novo standard. Urioste, 2002-NMSC-023, ¶ 6. The United States Constitution protects individuals from unreasonable and intrusive searches in public. Without evidence of an exigent situation, we decline to interpret the Consti-tution in a manner that would allow public intrusive searches as the norm. Government actors must have a healthy respect for a suspect’s privacy interests. Under the cir-cumstances,absentanaffirmativeshowingof the reasonableness of a search, the State has failed to carry its burden.{22} Asafinalmatter,weaddress theDissent. The Dissent begins by question-ing whether this matter was preserved. Although it is noted that the State never questioned the issue of preservation in its answer brief, and it is generally not appro-priate for this Court to raise preservation sua sponte, the Dissent nevertheless con-cludes that we should be hesitant to make new law on a less than “fully developed” record. We make several observations about this.{23} First, it would appear from the record that Defendant believed that this particular search violated his rights and that his counsel disagreed. The record reveals thatDefendantfiled a pro semotion fornew counsel and, at the hearing on that motion, the point of contention was that Defendantthoughthiscounselshouldfileamotion to suppress because the search was an unreasonable strip search, and his coun-sel thought otherwise. His counsel stated that she thought the search was a standard search incident to arrest, and there was no merit in a suppression motion. In his own defense, Defendant stated to the court:

[My attorney] wants me to believe by me having a warrant that I don’t haveanyrightsandthattheofficerhad the right to open my pants and go through my underwear and put his hand down in my private areas searching for contraband in front of hundreds of people. That’s not a reasonable search and what an unreasonable search produces doesn’t make it reasonable.

So I’m not arguing that he didn’t have a right to search me. He can search me, but he can’t open up my clothes and go inside my private areas for contraband

and do a strip search on a city street corner. And that’s the dif-ference between me and [my attorney].

{24} At the end of the hearing, the court allowed substitute counsel. Several months later, Defendant’s new counsel filedamotiontosuppressthatwaswrittenby Defendant acting pro se. The clearly worded motion expressed the substance of Defendant’s argument—that a public strip search is unreasonable. We also note that theStatefiledaresponsetoDefendant’sprose motion to suppress, in which the State argued directly on point that the search was made pursuant to a lawful arrest. All par-ties should have been aware that the heart of the motion to suppress was the extent towhichtheofficerconductedhissearch,and the extent to which such a search was reasonable in public.{25} On appeal to this Court, one of Defendant’s contentions is that he received ineffective assistance of counsel. His claims include that his attorney failed to fileamotiononhisbehalf,whichforcedDefendant tofilehisownprosemotion;and that his attorney failed to argue the substance of his motion at the suppression hearing. Because we conclude that the is-sue was clearly preserved and dispositive, we have declined to reach the ineffective assistance of counsel claim.{26} To the extent that the Dissent ar-gues that the record is deficient and thisCourt should therefore not address the is-sue, we disagree. The burden is on the State tomake a sufficient record.Adefendantshould not be required to spot the issues, file themotions,anddirectargumentsofcounsel. The lack of any development is testament to the State’s failure.{27} Next, the Dissent points out that the officerhadreasonablesuspiciontolookinDefendant’s pants; a point with which we agree.However,theofficertestifiedthatthesearch into Defendant’s pants occurred af-ter the pat-down and that the pat-down did notrevealanythingthatledtheofficertobelieve that he had a “weapon of any kind.” The facts as established do not demonstrate ashowingofexigentcircumstancessuffi-cient to justify searching Defendant in the intrusive and public manner that occurred. No facts were established by the State that Defendant was suspected of having a weapon after the pat-down, or that he had attempted to destroy evidence. We there-fore cannot hold that the mere suspicion of possession of contraband, without more, issufficienttocreateexigencythatwould

allow public searches of this nature.III. CONCLUSION{28} For the reasons stated above, we reverse the district court’s denial to sup-press and remand for further proceedings consistent with this Opinion.{29} IT IS SO ORDERED. ROBERT E. ROBLES, Judge

I CONCUR:RODERICK T. KENNEDY, JudgeCYNTHIA A. FRY, Chief Judge, dissenting

FRY, Chief Judge (dissenting).{30} I do not agree that the district court’s denial of Defendant’s suppression motion should be reversed. I do not think that Defendant adequately preserved his argument that the circumstances of the search were unreasonable. In addition, even if Defendant had properly preserved his challenge, I would conclude that the search as undertaken struck the appropri-ate balance between Defendant’s privacy interests and the public’s interest in safety and the preservation of evidence.{31} The transcript of the suppression hearing establishes that the litigants and the district court did not focus on the reasonableness of the search. Instead, the testimony and counsel’s arguments sur-rounded the validity of the traffic stop.The testimony comprises forty-three pages of the transcript, and of those forty-three pages, only seven pages contain testimony regarding the circumstances surrounding the search. Defense counsel’s closing ar-gument comprises almost three pages of the transcript, yet the only argument made regarding the search consisted of the fol-lowing sentences: “The search, itself[,] was overly intrusive. . . . [T]here was no reason for him to put his hand down [Defendant’s] pants, and fumble around his private areas looking for drugs.” Defense counsel made no argument at all about the area where the search took place, and he certainly did notcontendthattheofficersfailedtotakereasonable steps to protect Defendant’s privacy. Defense counsel did not cite a single case on the issue of strip searches or reach-in searches.{32} Generally speaking, I do not think it is appropriate for this Court to raise lack of preservation on our own initiative because I view that to be the responsibility of the appellee, and the State does not raise this issue in this case. However, on a record as deficientasthisone,Ibelieveweshouldbe reluctant to establish the constraints on


thepoliceofficer’sconductthatthemajor-ity has adopted.This is an issue of firstimpression in New Mexico jurisprudence, and I think we should make new law only on the basis of a fully developed record.{33} That being said, even if Defen-dant’s offhand argument below could be deemed adequate preservation, I would conclude that the search was reasonable under the circumstances. The testimony of the only witness found to be credible, Officer Simbala, established reasonablesuspicion (acknowledged by the major-ity) that Defendant may have concealed a weapon or contraband in his pants. Defen-dant was placed between the police car and Defendant’svehicle,andOfficerSimbalathen pulled the waistband of Defendant’s pants out—not down. Defendant himself

acknowledged that only he andOfficerSimbala could see Defendant’s genitals. Upon seeing the baggy in Defendant’s un-derwear,OfficerSimbalareachedinwithagloved hand and removed the baggy. Given the possibility that Defendant might have concealed a gun in his pants, it was reason-ableforOfficerSimbalatofindandremovethe concealed item immediately after he arrested Defendant and certainly before attempting to transport Defendant in the patrol car. See Rowell, 2008-NMSC-041, ¶ 13 (explaining that “searches incident to arrest have been considered reasonable because of the practical need to prevent the arrestee from destroying evidence or obtaining access to weapons”). In my view, this possibility constituted an exigency supporting the search as it was conducted.

Even if the officers could havewalkedDefendant to a more private location before conducting the search, “[t]he reasonable-ness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative less intrusive means.” Lafayette, 462 U.S. at 647 (inter-nal quotation marks omitted). As the court noted in Bazy, “[w]hile plainly more than a pat-down search, the intrusion here was still limited in scope. [D]efendant . . . was not required to disrobe or to submit to a visual body cavity search.” 1994 WL 539300, *7. Consequently, Iwould hold thatOfficerSimbala’s search struck the appropriate bal-ance between Defendant’s privacy interests and concern for the public’s safety and the preservationofevidence.Iwouldaffirm. CYNTHIA A. FRY, Chief Judge


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[email protected]

Family LawSPECIAL MASTER

(505) 286-8865

PILAR VAILE, P.C.Attorney // Arbitrator // Mediator // ALJ

Labor and employment lawand general practice

Former PELRB Deputy Directorand Hearing Examiner

(505) 247-0802

[email protected]





Duane Gilkey and Barbara Stephenson

announce the closure of

GILKEY & STEPHENSON, P.A.

Effective May 15, 2010

Attorneys BARBARA STEPHENSON and QUENTIN SMITH will join Sheehan & Sheehan, P.A.

DUANE GILKEY is retiring from the full-time practice of law, but will be available to serve as an arbitrator, mediator, settlement facilitator or consultant in employment matters.

Contact information after May 15, 2010:

Duane C. Gilkey 505-242-4530 Barbara G. Stephenson 505-242-4206 or 505-247-0411 Quentin Smith 505-242-4206 or 505-247-0411

Alice T. LorenzLORENZ LAW

APPELLATE SPECIALISTO�ce: 505.247.2456

Cell: [email protected]

BANKRUPTCY

“William F. Davis & Assoc., P.C. is a debt relief agency helping people file for bankruptcy relief under the bankruptcy code.”

William F. Davis & Assoc., P.C.FREE INITIAL CONSULTATION

*WILLIAM F. DAVIS, Esq.ANNE D. GOODMAN, Esq.BRETT A. STEINBOOK, Esq.ANDREA D. STEILING, Esq.

*Licensed in New Mexico, Texas & Colorado6709 Academy NE, Ste A, Albuquerque, NM 87109

(505) 243-6129(1-800-675-6129)

William F. Davis is a Board Recognized Specialist in Bankruptcy Business Law by the NM Board of Legal Specialization



Caren I. Friedman

APPELLATE SPECIALIST

________________

505/466-6418

[email protected]

Mediation

DUANE C. GILKEYFormerly practicing with Gilkey & Stephenson, P.A.

Opening a solo practice to focus on Mediations, Arbitrations and Settlement Facilitation

GILKEY LAW OFFICE, LLC6565 Americas Parkway NE, Suite 200

Albuquerque, NM 87110

Office: 505.242.4530Cell: 505.235.9444

[email protected]

� 47 years experience in Employment & Labor Law� Fellow-College of Labor & Employment Lawyers� Listed in Best Lawyers in America (Labor/Employment)� Listed in Chambers, USA

The Law Of f i ce of

GE O RG E (DA V E) G I D D E N S , P.C.■ ■ ■

Dave GiddensPatricia A. BradleyDenise J. Trujillo

Christopher M. Gatton■ ■ ■

Real Estate Transactions, Commercial Litigation,Bankruptcy Creditors/Debtors, Business Planning

Estate Planning, Probate, Guardianships

Tel: 505.271.1053 Fax: 505.271.4848 www.giddenslaw.com

10400 Academy N.E., Suite 350, Albuquerque, New Mexico 87111

No need for another associateBespoke lawyering for a new millennium

THE BEZPALKO LAW FIRM Legal Research and Writing

(505) 341-9353 www.bezpalkolawfirm.com

Expert WitnessCommercial Real Estate

Daniel Boardman CCIM [email protected]



http://www.giddenslaw.com

http://www.bezpalkolawfirm.com



INSURANCE BAD FAITH

COVERAGE COUNSEL & CONSULTING

STEVEN VOGEL, ESQUIRE ! 30 Years Litigation Experience

! Insurance Bad Faith Issues

" Insurance Cases

" Coverage

" Damages

! Bad Faith Mediation/Arbitration/Special Master Services

(505)293-8888 – [email protected]

posiTions

ClassifiedAssistant District AttorneyThe Fifth Judicial District Attorney’s office has immediate positions open to new as well as expe-rienced attorneys. 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].

ProsecutorProsecutor wanted for immediate employment with the Seventh Judicial District Attorney’s Office, which includes Catron, Sierra, Socorro and Torrance counties. Employment will based primarily in Socorro County. Must have a min-imum of 4 years criminal law experience and must be willing to relocate within six months of hire. Salary range: $50,896 - $72,575. Salary will be commensurate with experience, and budget availability. Send resume to: Seventh District Attorney’s Office, Attention: J.B. Mauldin, P.O. Box 1099, 302 Park Street, Socorro, New Mexico 87801.

AttorneyMid-size Personal Injury Law Firm in Albu-querque has an opening for an experienced personal injury attorney. Must be licensed to practice law in New Mexico. Fax resumes to 303-639-8447.

Eleventh Judicial District Attorney’s Office, Div II The McKinley County District Attorney’s Office is currently seeking immediate resumes for one (1) Assistant Trial Attorney. Position is ideal for persons who recently took the NM 09 bar exam. Persons who are in good stand-ing with another state bar or those with New Mexico criminal law experience are welcome to apply. Agency guarantees regular courtroom practice. Salary is negotiable based on experi-ence. Submit letter of interest and resume to Karl R. Gillson, District Attorney, 201 West Hill, Suite 100, Gallup, NM 87301, or e-mail letter to [email protected] By 5:00 p.m. May 21, 2010.

Part Time or Full Time Estate Planning AttorneySenior Citizens’ Law Office, a non-profit legal services organization, is seeking an at-torney with two to three years estate planning experience for its sliding scale fee practice. Salary DOE, hours flexible, bilingual a plus, current New Mexico license required. Please email your resume with three references to [email protected] SCLO is an Equal Op-portunity Employer.

APPEALSrequire uninterrupted time.

BILL LAZAR505.988.7100

ROBERT BRUCE COLLINS

~ Attorney at Law ~

Available for

SETTLEMENT FACILITATIONS and

ARBITRATIONS

1009 Marquette Ave. NE, Albuquerque, NM 87106

Office: (505) 243-6948 ~ Fax: (505) 243-7708

E-mail: [email protected]

The New Mexico Center on Law and Poverty Staff AttorneyThe New Mexico Center on Law and Poverty is a nationally recognized non-profit law firm engaging in systemic advocacy and impact litigation regarding poverty. We engage in policymaking to include the interests of poor New Mexicans in decisions that affect them. We use the law to protect and expand the rights of low-income people through administra-tive advocacy and the courts. We watch-dog programs that intend to address poverty and seek to ensure that they do so well. And we provide information, training and legal services to advocacy organizations and direct service providers. We are looking for a highly capable lawyer to join our staff. This is a full time position with goals to achieve in two or three program areas. The position’s primary focus will be on land, housing and contract issues in New Mexico’s colonias, though there will be work in one of our other program areas as well The work at the Center on Law and Poverty is varied, challenging and highly rewarding. The work week is reasonable, the environment very positive and the staff superb. The starting salary range is $40,000 to $50,000 and the benefits package is excellent. Requirements: Law degree with 0 to 5 years of legal experience; Spanish fluency; excellent research and writing skills; strong verbal skills; ability to problem-solve creatively and develop innovative advocacy strategies; detail-oriented. Preferred: Advo-cacy experience; familiarity with poverty law; familiarity with land use and contract law. Apply in confidence by sending a letter of interest and resume to [email protected]. We are an equal opportunity employer. To learn more about the work of the New Mexico Center, please visit our web site at www.nmpovertylaw.org

Associate Attorney5-10 years experience in Family Law, Guard-ianships, Estate Planning, Probate, and Civil Litigation: 2019 Galisteo, C3, SF,NM, 87505. Fax 505.989.3440






http://www.nmpovertylaw.org


posiTions WanTed

Legal Assistant/Legal SecretaryLegal Assistant needed for established mid-sized law firm. 5+ years experience required, and previous workers compensation experience preferred. Must have excellent software and or-ganizational skills. Must be self motivated and use time efficiently to complete tasks within deadlines. Salary DOE, excellent benefits. Please send resume with salary requirements to: Yenson, Lynn, Allen & Wosick P.C. Attn: Serra del Castillo, 4908 Alameda Blvd NE, Albuquerque, NM 87113 or [email protected] or Fax to: 505-268-6694 No Telephone Calls.

NM Independent Medical EvaluationsDr. Keith W. Harvie announces the opening of his new office. After 36 years of practic-ing orthopedic surgery in Albuquerque Dr. Harvie is now specializing in: Chart Reviews, Independent Medical Evaluations (IME), Court Testimony, and Malpractice Reviews. To Schedule an appointment for your client call 505-830-4IME 505-830-4463

serviCes

Rose and Ray Transcription ServiceRosario Chavez, Certified Electronic Tran-scriber. Member, AAERT, American Associa-tion of Electronic Reporters and Transcribers. Eighteen years of experience. Fast, accurate, and dependable. Translate interviews from Spanish to English. E-mail, [email protected]. Phone, 505-881-2711.

Legal Secretaries / ParalegalsHigh Desert Staffing seeks candidates with 2-5+ years experience for both permanent and temporary positions. Call for interview: (505) 881-3449

Freelance LawyerAppeals, briefs, arbitrations, mediations, research, joint ventures, piecework. Probably been there/done that -- trust your excess and needs to capable hands. [email protected]; (505) 299-6314.

Expert Witness—BankingEdward T. O’Leary, former CEO of First Security Bank of NM with over 40 years of experience in problem asset workouts, com-mercial lending, credit administration and bank management, seeks assignments as expert witness. See www.etoleary.com.

Paralegal Paralegal needed for established mid-sized law firm. 5+ years experience required and previ-ous insurance defense litigation experience preferred. Trial experience helpful, experi-ence in requesting and summarizing medical records a plus. Must be able to work with multiple attorneys on diverse projects such as research, discovery, workers’ compensation, civil rights, medical malpractice and trial preparation. Must have excellent software and organizational skills. Must be self motivated and use time efficiently to complete tasks within deadlines. Very friendly work environ-ment. Prefer Paralegal certificate. Salary DOE, excellent benefits. Please send resume with salary requirements to: Yenson, Lynn, Allen & Wosick P.C. Attn: Hiring Manager, 4908 Alameda Blvd NE, Albuquerque, NM 87113 or [email protected] or Fax to: 505-268-6694 No Telephone Calls.

Well Known Veteran Real Estate ParalegalSeeking PT home, to FT in-office job. With previous employer for 26+ years. Had to sepa-rate due to temporary medical disability. Please contact me for resume and further details. Candy Klein; 892-3539; [email protected] or [email protected].

All advertising must be submitted by e-mail by 5 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Monday). 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 classified 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, two weeks prior to publication.

For more advertising information, contact: Marcia C. Ulibarri at 505.797.6058

or e-mail [email protected]

SUBMISSION DEADLINES

Trial Attorneys - Valencia CountyThe 13th Judicial District Attorney’s Office is accepting applications for an entry level Associate Trial Attorney and a senior level Trial Attorney. The senior level position requires prosecution of complex criminal cases . Requirement for senior level is a minimum of 7 years experience in prosecuting major felony cases. Positions are available for the Valencia County Office, located in Belen, NM. Salary is dependant on experience. Send resumes to Carmen Gonzales, Human Resources Administrator, 333 Rio Rancho Blvd., Suite 201, Rio Rancho, NM 87124, or via E–Mail to: [email protected]. Deadline: Open until position is filled.

Experienced Civil LitigatorThe Rubin Katz Law Firm in Santa Fe (www.rubinkatzlaw.com) seeks a New Mexico li-censed attorney with 8 to 15 years experience in commercial, business, real estate, construction and employment litigation matters and with substantial courtroom experience. Candidates must have strong references, writing skills and academic credentials. A good work ethic and associate/staff management skills are required. Please submit cover letter, résumé, transcript, references and writing samples to [email protected]. This position is available immediately.

www.nmbar.org

http://www.rubinkatzlaw.com

http://www.rubinkatzlaw.com



http://www.etoleary.com







Beautiful Adobe Close to downtown, courthouses, hospitals. Reception area, conference rooms, employee lounge included. Copy machine available. Ample free parking and easy freeway access. From $250.00 per mo. Utilities included. Oak Street Professional Bldg., 500 Oak St. N. E. Call Jon, 507-5145; Orville or Judy, 867-6566.

Two Offices AvailableBest location in town, one block or less from the federal, state, metropolitan courts. Includes secretarial space, phones and service, parking, library, janitorial, security, receptionist, daily runner, etc. Contact Thomas Nance Jones, (505) 247-2972.

offiCe spaCe

Downtown OfficesOne (1) or two (2) offices available for rent, including secretarial areas, located at 2040 Fourth Street, NW.(4th Street & I-40), Albuq. Rent includes receptionist; use of conference rooms; high speed internet; phone system; free parking for staff and clients; use of copy machine; and employee lounge. Contact Jerry at 505-243-6721 or [email protected]

Available Office SpaceAvailable Office SpaceOffice available near Paseo/I-25 with separate secretarial area. The renter will have use of our conference room, color copy machine, kitchen and we provide free high speed internet. Please call 710-9245 for more information.

STATE OF NEW MEXICO COUNTY OF SANTA FE FIRST JUDICIAL DISTRICT COURT. FIRST NATIONAL BANK OF SANTA FE; Plaintiff in Interpleader, Case No. D-101-CV-2010-00632, v. AB-BASID, INC.; CADIGAN & PARK, P.C.; DALE & KLEIN, L.L.P; RICHARD S. LEES, P.A.;WHITE, KOCH, KELLY & MCCARTHY, P.A.; CUDDY & MCCA-RTHY, L.L.P.; DAN CRON LAW FIRM P.C.; SCHEUER YOST & PATTERSON PC; JOHN W. LAWIT P.C.; and ADDI-TIONAL UNKNOWN CLAIMANTS, Defendants in Interpleader. NOTICE OF PENDENCY OF LAWSUIT To all un-known claimants: Greetings: You are hereby notified that the above-named plaintiff has filed suit against you in the above cause in the District Court of the First Judicial District of the State of New Mexico that being the court in which said cause is now pending and that the general object thereof is to resolve claims to funds the above-named plaintiff has agreed to pay in settlement of a lawsuit filed against the above-named plaintiff by Abbasid, Inc. (Case No. 09-CIV-347 in the U.S. District Court for the District of New Mexico). You are further notified that unless you file a responsive pleading or motion within 30 days of the date of the last publication of this Notice, judgment by default may be entered against you. If you file a responsive pleading in this matter you must also serve a copy on the plaintiff’s attorneys: Jay D. Hertz & Michelle K. Ostrye of Sutin, Thayer & Browne, P.O. Box 1645 Albuquerque, NM 87103 Tel: (505) 883-2500. WITNESS MY HAND AND SEAL this ___ day of March, 2010. STEPHEN T. PACHECO Clerk of the District Court By______________________________ Deputy.

legal noTiCesLaw Office For RentLaw office for rent, sharing office space with two other attorneys. Located at 8010 Menaul N.E. Front door parking. Hal Simmons, 505-299-8999

Professional Office ParkGranada Square, Montgomery near I-25. Beau-tiful Campus setting! Suites from 414 to 7,700 sq ft., Free Conference Room, Berger Briggs Real Estate and Insurance. Inc. 505-247-0444. Larry or Vangie

Professional Office DowntownOffice with Separate Secretarial Area if Need-ed, Office Furnishings Optional, Free Client Parking, Library/Conference Room, Kitchen, Telephone, High-Speed Internet, Copier, Fax, Security System, Within Walking Distance from Courthouses. 715 Tijeras Ave. NW. Call Holly at 842-5924.

Search for WillWe are searching for a last will and testament for James H. Kibler, of Santa Fe County, NM, who died in Albuquerque, NM on July 27, 2007. If you have any information, please con-tact Kristi A. Wareham, P.C. at 505.820.0698/[email protected].

MisCellaneous

Executive Office For RentGreat location, end unit with high end fin-ishes (on Montgomery between Wyoming and Eubank) 2 end offices, large common area between offices, 3rd office in back, recep-tion & kitchenette area. Please call Jim Sahd (505)263-8001.

620 Roma Building620 Roma, N.W. Located within two blocks of the three downtown courts. Rent of $550.00 per month includes five conference rooms, receptionist, all utilities (except phones). Call 243-3751 for appointment to inspect.

Law Offices for Lease:- 2,665 SF plus basement storage at 1005 Marquette Av NW, a short walk to the courthouses. Beautiful interior f inishes. Off-street parking. Available June 1st. - 4,050 SF at First and Lomas. 2,650 SF office on first floor, 1,400 SF office or living quarters upstairs. Can be leased separately. Fenced park-ing area. Available immediately. Call Anne Apicella, Grubb&Ellis, 880-7059

NEW Office Sharing SpaceBusiness Office Condo near Jefferson/McLeod NE; Office with secretarial area/storage. In-cludes: utilities, reception, conference rooms, new phones, DSL, bathroom w/shower and kitchen. Easy access to I-25/Jefferson. Potential referrals. Call Sue 883-8787.

Exceptional OfficeExceptional Office space in the heart of Santa Fe located in the Lensic Building on San Fran-cisco Street, Suites ranging from 488 to 2185 square feet. Monthly rates starting at $945.00 per month including monthly operating expenses. For additional information please contact Adella L. Loggains at Greer Enter-prises, Inc. (505) 983-6504 x-111 or [email protected]

Law Office For RentAcross street from Metro Court and less than one block from Federal and State District Courts. Parking. Partially furnished. Jeff Romero, (505) 244-0274.

Visit the State Bar of New Mexico’s web site

www.nmbar.org

www.nmbar.org





Sponsor and exhibitor opportunities still available for the 2010 Annual Meeting – Bench & Bar Conference

Find the most current information about the annual meeting at www.nmbar.org

For more information contact:Marcia C. Ulibarri, Account Executive

Office: 505.797.6058 • Cell: 505.400.5469E-mail: [email protected]

Current Sponsors

ARAGgroup

Cuddy & McCarthy LLP

Montgomery & Andrews

Paralegal Division

The Bar Plan

Vicki R. Wilcox

Inn of the Mountain Gods, Mescalero, New Mexico • July 15-17, 20102010 Annual Meeting – Bench and Bar Conference

Current Exhibitors

ABA Retirement Funds

ARAGgroup

Bean & Associates

Casemaker

Court Call

Health Agencies of the West

LAI Professional Insurance Group

NM Compilation Commission

The Bar Plan

The Edward Group

FastCase

Thomson Rueters/West Law

