State v. Vigil, 2014 NMCA 096

Background

Defendant (Charles Vigil) was convicted in metropolitan court of DWI (first offense) and speeding after a bench trial where Officer Enyart read portions of her police report into the record because she could not recall certain field sobriety test details.
The police report itself was not admitted; the metropolitan court relied in part on the officer’s testimony that incorporated readings from that report.
Defendant timely appealed to district court; the district court conducted an on‑record review and affirmed on April 19, 2012.
Defendant’s subsequent notice of appeal to this Court was filed late (due by May 21, 2012; filed May 25, 2012).
The appellate court sua sponte asked whether the Duran conclusive‑presumption rule (ineffective assistance of counsel when counsel fails to file a timely appeal) applies to untimely appeals from district court on‑record reviews of metropolitan court decisions; the court also reviewed the evidentiary challenge to admitting recorded recollections from a police report.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Duran conclusive presumption applies to untimely appeal from district court’s on‑record review of metropolitan court decision	State: Duran should be limited to appeals as of right and to situations where a right to counsel exists (first appeal as of right); should not extend here	Vigil: counsel’s failure to file timely notice of appeal warrants Duran presumption and merits review	Court: Duran presumption applies; New Mexico law and statutes provide a right to counsel on “any appeal,” so effective assistance extends and Duran is extended to this context
Whether the court has jurisdiction to hear the untimely appeal despite lateness	State: challenges jurisdiction	Vigil: seeks excusal based on counsel error	Court: jurisdiction exists (post‑Carroll precedent); timeliness excused under Duran presumption of ineffective assistance
Whether Defendant preserved a Confrontation Clause objection to the officer reading the report into the record	State: objected below but abandoned confrontation claim at district court; thus not preserved on appeal	Vigil: claims confrontation preserved in metropolitan court	Court: Confrontation argument abandoned on appeal to district court; court declines to address it
Whether an officer may read a police report into the record as a recorded recollection despite the public‑records hearsay exception barring police reports	Vigil: urges extending Oates (2d Cir.) to bar police reports even as recorded recollection	State: argues recorded recollection admission is distinct and permissible with proper foundation	Court: Rule 11‑803(8)(a)(ii) (public records) does not bar a testifying officer from reading recorded recollection from her report if Rule 11‑803(5) foundation is met; admission affirmed

Key Cases Cited

State v. Duran, 105 N.M. 231 (N.M. Ct. App. 1986) (establishes conclusive presumption of ineffective assistance when counsel fails to file timely appeal)
Evitts v. Lucey, 469 U.S. 387 (U.S. 1985) (right to effective counsel on first appeal as of right; rationale for protecting appellate review)
Trujillo v. Serrano, 117 N.M. 273 (N.M. 1994) (timely filing of notice of appeal is mandatory precondition to appellate jurisdiction)
State v. Dominguez, 142 N.M. 631 (N.M. Ct. App. 2007) (untimely appeal excused only in exceptional circumstances beyond parties’ control)
State v. Peppers, 110 N.M. 393 (N.M. Ct. App. 1990) (discussion of reliance on procedural rules to infer counsel’s consultation about appeal)
United States v. Sawyer, 607 F.2d 1190 (7th Cir. 1979) (refuses to extend Oates to bar recorded recollections of testifying officers)
Parker v. Reda, 327 F.3d 211 (2d Cir. 2003) (allows admission of officer’s recorded recollection even if business‑records exception would not apply)
State v. Roybal, 132 N.M. 657 (N.M. 2002) (explains procedural options when ineffective assistance claims first raised on direct appeal)