State v. Vigil, 336 P.3d 380

Charles Vigil was convicted in metropolitan court of DWI (first offense) and speeding after an officer testified and read portions of her police report into the record when she lacked present recollection of field sobriety test details.
Vigil timely appealed to the district court; the district court conducted an on-record review and affirmed on April 19, 2012.
Vigil filed a notice of appeal to the Court of Appeals four days late (due May 21, filed May 25, 2012).
The Court of Appeals sua sponte raised whether the conclusive presumption of ineffective assistance of counsel from State v. Duran applies when counsel fails to timely file an appeal from a district court’s on-record review of a metropolitan court decision.
On the merits, Vigil argued (1) the officer’s reading from the police report violated confrontation clause rights and evidence rules, and (2) portions of the report should not have been admitted even as a recorded recollection.
The Court considered jurisdictional questions, statutory right-to-appeal and right-to-counsel frameworks, and conflicting authority about using police reports as recorded recollections.

Issue	State's Argument	Vigil's Argument	Held
Whether Duran’s conclusive presumption of ineffective assistance applies when counsel fails to file a timely notice of appeal from the district court’s on-record review of a metropolitan court decision	Duran should be limited: presumption only applies where an appeal as of right and a right to counsel (as defined federally) exist; extension to this context is inappropriate	Court should apply Duran presumption and reach the merits	Court extended Duran: conclusive presumption applies to untimely appeals from district court on-record review of metropolitan court decisions and thus excused the late filing here
Whether the metropolitan court erred by allowing an officer to read portions of her police report into the record (Confrontation clause and hearsay/recorded recollection issues)	Argued that the confrontation argument was abandoned on appeal to the district court; on hearsay, State argued Rule 11-803(5) permits recorded recollection if proper foundation is laid	Contended admission violated confrontation clause and that the public-records exclusion should bar using a police report even as a recorded recollection (relying on Oates)	Confrontation argument waived on appeal to district court and not addressed on appeal to this Court; on hearsay, Court held Rule 11-803(8)(a)(ii) (public records) does not bar a testifying officer from reading a report as a recorded recollection when Rule 11-803(5) foundation is satisfied

State v. Duran, 731 P.2d 374 (N.M. Ct. App. 1986) (establishes conclusive presumption of ineffective assistance when counsel fails to timely file notice of appeal)
Evitts v. Lucey, 469 U.S. 387 (U.S. 1985) (right to counsel on first appeal as of right and requirement of effective assistance to make appeal meaningful)
Trujillo v. Serrano, 871 P.2d 369 (N.M. 1994) (timely filing of notice of appeal is a jurisdictional prerequisite)
State v. Leon, 292 P.3d 493 (N.M. Ct. App. 2013) (extended Duran presumption to probation revocation context and recognized presumption applies where right to counsel exists)
State v. Peppers, 796 P.2d 614 (N.M. Ct. App. 1990) (discussing Duran and counsel’s obligation to consult regarding appeal)
State v. Roybal, 54 P.3d 61 (N.M. 2002) (standards for evaluating ineffective-assistance claims on direct appeal versus habeas)
United States v. Oates, 560 F.2d 45 (2d Cir. 1977) (held police/chemistry reports inadmissible under public-records exception and suggested limitation on other hearsay exceptions)
United States v. Sawyer, 607 F.2d 1190 (7th Cir. 1979) (refused to extend Oates to bar recorded recollections of testifying officers)
Parker v. Reda, 327 F.3d 211 (2d Cir. 2003) (approved admission of officer’s testimony from memorandum as recorded recollection despite business-records exclusion)
State v. Scally, 758 P.2d 365 (Or. Ct. App. 1988) (permitted officer to read report as recorded recollection when officer testifies)