No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney general or their deputies, except in cases arising in the militia when in actual service in time of war or public danger. No person shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.

A grand jury shall be composed of such number, not less than twelve, as may be prescribed by law. Citizens only, residing in the county for which a grand jury may be convened and qualified as prescribed by law, may serve on a grand jury. Concurrence necessary for the finding of an indictment by a grand jury shall be prescribed by law; provided, such concurrence shall never be by less than a majority of those who compose a grand jury, and, provided, at least eight must concur in finding an indictment when a grand jury is composed of twelve in number. Until otherwise prescribed by law a grand jury shall be composed of twelve in number of which eight must concur in finding an indictment. A grand jury shall be convened upon order of a judge of a court empowered to try and determine cases of capital, felonious or infamous crimes at such times as to him shall be deemed necessary, or a grand jury shall be ordered to convene by such judge upon the filing of a petition therefor signed by not less than the greater of two hundred registered voters or two percent of the registered voters of the county, or a grand jury may be convened in any additional manner as may be prescribed by law.

In all criminal prosecutions, the accused shall have the right to appear and defend himself in person, and by counsel; to demand the nature and cause of the accusation; to be confronted with the witnesses against him; to have the charge and testimony interpreted to him in a language that he understands; to have compulsory process to compel the attendance of necessary witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. (As amended November 4, 1924, effective January 1, 1925, November 4, 1980, and November 8, 1994.)

ANNOTATIONS

The 1994 amendment, proposed by S.J.R. No. 5 (Laws 1993) and adopted at the general election held on November 8, 1994, by a vote of 203,496 for and 192,549 against, substituted "greater of two hundred registered voters or two percent of the registered voters" for "lesser of two hundred registered voters or five percent of the registered voters" near the end of the second paragraph.

The 1980 amendment which was proposed by S.J.R. No. 10 (Laws 1979) and adopted at the general election held on November 4, 1980, by a vote of 124,996 for and 108,056 against, substituted "the lesser of two hundred registered voters or five percent of the registered voters" for "seventy-five resident taxpayers" in the last sentence of the second paragraph.

1924 amendment. — The amendment to this section was proposed by H.J.R. 14 (Laws 1923, p. 351) and was adopted by the people at the general election November 4, 1924, by a vote of 28,420 for to 21,166 against. The amendment inserted "or information filed by a district attorney or attorney general or their deputies" in the first sentence of the first paragraph; added the second sentence of that paragraph; added the entire second paragraph; and added a fourth paragraph, which has been omitted by the compiler as executed, which read: "After the submission and approval by the electors of the state, the provisions hereof shall take effect on January 1, 1925."

Cross references. — For right to jury trial, see N.M. Const., art. II, § 12.

For right to bail, see N.M. Const., art. II, § 13.

For prohibition against double jeopardy and self-incrimination, see N.M. Const., art. II, § 15.

For waiver of indictment, see N.M. Const., art. XX, § 20.

See the Kearny Bill of Rights, cl. 6, on NMOneSource.com.

For duties of examining magistrate, see 31-3-1 to 31-3-9 NMSA 1978.

For grand juries generally, see 31-6-1 to 31-6-13 NMSA 1978.

For indictments and informations generally, see Rules 5-201 and 5-204 NMRA.

Comparable provisions. — Iowa Const., art. I, §§ 10, 11.

Montana Const., art. II, § 24.

Utah Const., art. I, §§ 12, 13.

Wyoming Const., art. I, §§ 10, 13.

I. GENERAL CONSIDERATION.

Selection of a grand jury must be under the control of the district court. — Where, after the orientation and swearing of the grand jurors, the district court transferred the process of selecting and excusing jurors to the district attorney’s office without further apparent involvement by the district court; the list of grand jurors used by the district attorney’s office contained notations that suggested that someone in the district attorney’s office excused several grand jurors; and the district court found that there was no fraud or prejudice to defendant in the conduct of the grand jury proceeding and denied defendant’s pretrial motion to quash the indictment, the district court should have quashed the indictment irrespective of whether any actual fraud or prejudice was established when the improper involvement of the district attorney in the excusal of grand jurors was brought to the attention of the district court. De Leon v. Hartley, 2014-NMSC-005.

Courts have inherent authority to insure that defendants are afforded their constitutional rights in criminal proceedings. State v. Brown, 2004-NMCA-037, 135 N.M. 291, 87 P.3d 1073, rev'd, 2006-NMSC-023, 139 N.M. 466, 134 P.3d 753.

Review by writ of certiorari. — Where defendant alleged in his petition for a writ of certiorari that the state violated his rights as provided under the fifth, sixth, and fourteenth amendments to the United States constitution, and Article II, Section 14 of the New Mexico constitution, the state supreme court had jurisdiction to review defendant’s case by writ of certiorari because it involved a significant question of law under the constitution of New Mexico or the United States. State v. Urban, 2004-NMSC-007, 135 N.M. 279, 87 P.3d 1061.

This section is self-executing and needs no further legislation to put it in force. State v. Rogers, 1926-NMSC-028, 31 N.M. 485, 247 P. 828.

The term "criminal prosecution" as used in the constitution means the criminal "proceedings". Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, overruled by State v. Lopez, 2013-NMSC-047.

A criminal prosecution is commenced when a criminal complaint is filed with a magistrate and a warrant issued thereon. Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, overruled by State v. Lopez, 2013-NMSC-047.

Guilty but mentally ill verdicts constitutional. — New Mexico statutory provisions authorizing a verdict of guilty but mentally ill do not impinge upon a defendant's right to a fair trial and do not violate the equal protection clauses of the United States and New Mexico constitutions. State v. Neely, 1991-NMSC-087, 112 N.M. 702, 819 P.2d 249.

Constitutional rights of juveniles. — When a juvenile is transferred to district court for criminal proceedings, all of the rights and safeguards in such cases required by law and the constitution of the United States and the constitution of New Mexico must be accorded him. Williams v. Sanders, 1969-NMSC-124, 80 N.M. 619, 459 P.2d 145.

Waiver of jury by juvenile. — The jury may be waived but, insofar as the juvenile is concerned, this should be permitted only when advised by counsel and it is amply clear that an understanding and intelligent decision has been made. If the juvenile, after considering all the advantages and disadvantages attendant thereon, and having been advised by counsel, waives a trial by jury, then the benefits generally felt to attach through trial to the court would be his. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.

Rights waived by plea of guilty. — A voluntary plea of guilty waives the right to preliminary hearing, right to counsel and the right to aid with defense, and defendant's claim that he was denied the use of a telephone is not ground for relief, absent some showing of prejudice. State v. Maimona, 1969-NMCA-081, 80 N.M. 562, 458 P.2d 814.

Prior procedural state court defects are waived by the voluntary entry of plea of guilty. Baez v. Rodriguez, 381 F.2d 35 (10th Cir. 1967).

Impartial judge. — It seems very unlikely that the New Mexico constitution makers displayed the solicitude for an impartial trial shown by this section, and at the same time intended to curtail power of legislature to provide means in furtherance of such end, by disqualification of judges believed by litigants to be partial. What would it avail accused to have trial by impartial jury, if proceedings were presided over by biased judge? State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511.

Language that defendant understands. — Under this provision, defendant is entitled to have testimony interpreted to him in a language which he understands. While such right cannot be denied, it is incumbent upon defendant, in some appropriate manner, to call attention of trial court to fact that he does not understand the language in which testimony is given. State v. Cabodi, 1914-NMSC-009, 18 N.M. 513, 138 P. 262.

Where instructions were translated into Spanish by court interpreter, who had to be corrected several times, and defendant's attorney assisted in the translation without making objection, defendant was not denied his constitutional rights. State v. Garcia, 1939-NMSC-006, 43 N.M. 242, 89 P.2d 619.

Habeas corpus relief did not lie on claim that guilty plea was not intelligently made where record showed that defendant answered both by himself and through an interpreter to questions put by the judge to be sure that defendant knew what he was doing when he pleaded guilty. Orosco v. Cox, 359 F.2d 764 (10th Cir. 1966).

The existence of a language barrier is a circumstance probing both the totality of understanding premising the entry of plea and the adequacy of representation by counsel. Orosco v. Cox, 359 F.2d 764 (10th Cir. 1966).

Mandatory revocation of driving license. — Mandatory revocation by state authorities of the driving license of any person convicted under former 64-13-59, 1953 Comp. (similar to 66-5-29 NMSA 1978) for a period of one year does not deny the right to trial by a jury in district court on appeal, in violation of this section or N.M. Const., art. II, § 12. City of Tucumcari v. Briscoe, 1954-NMSC-103, 58 N.M. 721, 275 P.2d 958.

Probation revocation proceeding. — The right of personal liberty is one of the highest rights of citizenship and this right cannot be taken from a defendant in a probation revocation proceeding without notice and an opportunity to be heard without invading his constitutional rights. State v. Brusenhan, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.

Cumulative irregularities. — Any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial must be reversed. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937; State v. Wilson, 1990-NMSC-019, 109 N.M. 541, 787 P.2d 821.

Capital, felonious or infamous crime. — Contempt of court is not a capital, felonious or infamous crime. State v. Pothier, 1986-NMSC-039, 104 N.M. 363, 721 P.2d 1294.

Writ of prohibition. — Where trial court is without jurisdiction to enter any judgment, prohibition will issue as a matter of right, but an alternative writ of prohibition should be discharged as having been improvidently issued where relator has been denied no privilege or right to which he is entitled. State ex rel. Prince v. Coors, 1948-NMSC-023, 52 N.M. 189, 194 P.2d 678.

Rights not violated by monitoring telephone calls. — The monitoring of the defendant's phone calls from jail did not violate his attorney-client privilege, his privilege against self-incrimination, protections against unreasonable searches and seizure, or his right of privacy. State v. Coyazo, 1997-NMCA-029, 123 N.M. 200, 936 P.2d 882, cert. denied, 123 N.M. 168, 936 P.2d 337.

Combination of factors invading rights. — Failure to grant a continuance to allow defendant a reasonable time to prepare and present a defense, denial of his rights to subpoena witnesses and to have medical records produced, and granting the state's motion to suppress any evidence going to defendant's mental or physical condition, invaded defendant's constitutional rights to due process and a fair trial. March v. State, 1987-NMSC-020, 105 N.M. 453, 734 P.2d 231.

Courtroom closure. — A courtroom closure that is determined to be trivial does not meaningfully infringe upon the values protected by the right to a public trial. State v. Telles, 2019-NMCA-039, cert. denied.

Brief, inadvertent courtroom closure did not deny defendant his right to a public trial. — Where, during defendant's trial, the courtroom had been closed to several members of the public, including members of defendant's family, for a ten to fifteen minute period during closing arguments when a court security officer barred entry to the would-be spectators in response to a "Do Not Enter" sign that, for reasons unknown, had been affixed to the courtroom door, defendant's right to a public trial was not violated, because the closure was a brief, inadvertent, partial closure and was remedied by the bailiff as soon as the problem was reported. Moreover, the judge and the parties were unaware of the courtroom closure and the closure occurred following the evidentiary stage of the trial when counsel were commenting on evidence presented during proceedings that were open to the public. State v. Telles, 2019-NMCA-039, cert. denied.

Right to a public trial. — Whether general public may be excluded from trial is discretionary with trial court, and in determining whether discretion was abused the appellate court starts with the view that the interest of a defendant in having ordinary spectators present during trial is not an absolute right but must be balanced against other interests which might justify excluding them. State v. Padilla, 1978-NMCA-066, 91 N.M. 800, 581 P.2d 1295.

Where disinterested persons were excluded from courtroom during rape victim's testimony, whereupon she controlled her emotions while testifying, there was no denial of a public trial, and the defendant's claim of actual prejudice, asserting that the absence of spectators lent credibility to the victim's testimony, was no more than speculation since the absence of spectators might just as well have lessened the impact of the testimony. State v. Padilla, 1978-NMCA-066, 91 N.M. 800, 581 P.2d 1295.

Prohibiting handwritten notes during court sessions restricts the public's right of access. — Where, during defendant's trial for first-degree murder, the district court instructed an observer in the courtroom to surrender notes she had been taking during the trial, the district court wrongly construed notetaking by a member of the public as a problematic rather than protected activity. Prohibiting handwritten notes during court sessions restricts the public's and press's rights of access, distancing the judicial process from public scrutiny and weakening the opportunity for informed discussions on judicial matters. State v. Cardenas, 2025-NMSC-020.

II. INDICTMENT AND INFORMATION.

Suppression of favorable evidence. — Where defendant, who was a gang member, shot and killed a member of another gang; the state called cooperating witnesses who were former gang members; defendant subpoenaed the witnesses’ informant files to determine whether any consideration had been given to the witnesses for their cooperation as a basis for cross-examining the witnesses as to bias and motive to lie; the state produced a redacted file of one witness, asserted that files did not exist on the other witnesses, and that no witnesses were paid; at trial, it was discovered that one the witnesses struck a deal with the state to be released from jail in exchange for the witness’ testimony; the information was disclosed to defendant; and defendant failed to establish that any evidence was suppressed, defendant’s due process rights were not violated. State v. Turrietta, 2013-NMSC-036, aff’g 2011-NMCA-080, 150 N.M. 195, 258 P.3d 474.

Right to public trial was violated. — Where defendant, who was a gang member, shot and killed a member of another gang; the state requested that the courtroom be closed during the testimony of cooperating witnesses who were former gang members because the state believed that gang members would pack the courtroom and intimidate the witnesses so that they would not testify; the witnesses testified that they had experienced threats and violence prior to trial; the state never offered sufficient proof that the threats and violence were directly related to defendant’s case or that a link existed between the threats and violence and the witnesses’ ability or willingness to testify; although the witnesses named gang members who had threatened or intimidated them, the district court excluded more than thirty people from the courtroom, including members of defendant’s family and friends, without knowing whether the excluded people were gang affiliated; the district court did not consider all alternatives to closure, such as increased security or the wait-and-see method; and the district court’s justification for the closure, which was based on the danger to the witnesses and the fact that a gang etching had been found outside the courtroom door, failed to mention any specific threat or possibility of intimidation, defendant’s right to a public trial was violated. State v. Turrietta, 2013-NMSC-036, rev’g 2011-NMCA-080, 150 N.M. 195, 258 P.3d 474.

Right to public trial was not violated. — Where defendant was involved in a gang-related shooting in which the victim was killed; the state called as witnesses four confidential informants who were current or former gang members; two of the informants had been threatened by members of defendant’s gang; two of the informants had not been threatened; twice before trial, graffiti tagging had been found outside the court room; the graffiti tagging had been done by a member of defendant’s gang who had threatened one of the informants; the trial court partially closed the trial to the public during the testimony of the two informants who had been threatened, but did not exclude the immediate family members of defendant and the victim, attorneys, staff members and the press; and the court room was open to the public during the testimony of the informants who had not been threatened, defendant’s sixth amendment right to a public trial was not violated. State v. Turrietta, 2011-NMCA-080, 150 N.M. 195, 258 P.3d 474, rev’d, 2013-NMSC-036.

Courtroom closure violated sixth amendment. — Where defendant was charged with trafficking cocaine; the state called an undercover officer, who bought crack cocaine from defendant, to testify; the district court excluded all members of the public during the officer’s testimony to protect the officer and the officer’s undercover identity; the state did not provide any evidence regarding the identification of any persons whose presence during the officer’s testimony may have imperiled ongoing investigations or threatened the officer’s safety in those investigations; and the district court did not consider pursuing alternatives to closure or issue findings as to any specific threats to the officer’s identify, safety or the viability of the officer’s undercover operations, or the breath of reasonable alternatives to closure, the courtroom closure violated defendant’s constitutional right to a public trial under the sixth amendment. State v. Hood, 2014-NMCA-034.

Right to public trial not violated where defendant consented to partial courtroom closure. — Defendant waived his right to a public trial when his attorney expressly stipulated to and encouraged the partial courtroom closure during a defense witness’s testimony. State v. Hobbs, 2016-NMCA-006, cert. denied, 2015-NMCERT-012.

Familial relationship between defendant and district attorney. — Where defendant claimed that the district attorney was a third cousin of the defendant and that in Navajo culture, defendant and the district attorney had a clan relationship that made the district attorney culturally the grandfather of defendant, and the district attorney swore in an affidavit that although the district attorney was one-half Navajo, the district attorney was unaware of any clan relationship with defendant, that the district attorney had never had personal or direct contact with defendant until after the prosecution of defendant’s case had begun, and that the district attorney had only recently discovered that the district attorney’s grandmother was the sister of defendant’s great-grandfather, the trial court did not abuse its discretion in determining that the familial relationship between the district attorney and defendant was insufficient to create a personal bias that warranted disqualification. State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.

Language that defendant understands. — The word "charge" used in clause "to have the charge and testimony interpreted to him in a language that he understands" refers to the indictment or information, and not to instructions. State v. Cabodi, 1914-NMSC-009, 18 N.M. 513, 138 P. 262.

Length of charging period. — Where, as often occurs in child sexual abuse cases, the indictment sets forth a lengthy charging period, the due process rights of the defendant are implicated and the court must consider multiple factors to determine the reasonableness of the state's efforts to narrow the time of the indictment and the potential prejudice to the defendant of the time frame chosen by the state. State v. Baldonado, 1998-NMCA-040, 124 N.M. 745, 955 P.2d 214.

Where indictment charged defendant with sexual abuse of a child, defendant was not prejudiced or denied due process by state's failure to reduce charging period from 16 months to a more definite four months because defendant could not have raised a viable alibi defense. State v. Ervin, 2002-NMCA-012, 131 N.M. 640, 41 P.3d 908, cert. denied, 131 N.M. 619, 41 P.3d 345.

Alteration of charge from a misdemeanor to a felony. — Absent some clerical error, where charges have been submitted by criminal information and where those charges were not included in the bind-over order for trial in district court, the defendant has not been afforded due process. State v. Rodriguez, 2009-NMCA-090, 146 N.M. 824, 215 P.3d 762, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Where the criminal complaint charged defendant with a misdemeanor count of possession of a controlled substance without a prescription; the magistrate judge bound defendant over for trial on the misdemeanor charge; the criminal information filed by the state in district court charged defendant with a felony count of possession of a dangerous drug without a prescription; in district court, defendant waived arraignment and entered a plea of not guilty to the felony count, defendant was deprived of due process because defendant was subjected to criminal prosecution without probable cause. State v. Rodriguez, 2009-NMCA-090, 146 N.M. 824, 215 P.3d 762, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Effect of amendment of information. — Defendant is not injured where amendment to information apprises him of facts he might have requested by bill of particulars. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444.

Information must conform to the magistrate's bind-over order holding the accused to answer. State v. McCrary, 1982-NMCA-003, 97 N.M. 306, 639 P.2d 593.

Information may be amended to conform to bind-over order. — Where a magistrate held a preliminary hearing and orally announced that there was evidence to bind the defendant over for trial on three counts, but because of a clerical error the written bind-over order omitted two of the counts, the trial court may, upon motion, amend the information originally drawn up to conform to the written bind-over order, to include all three courts. State v. Coates, 1985-NMSC-091, 103 N.M. 353, 707 P.2d 1163.

Charge in complaint kindred to that in information. — Procedural due process was satisfied where crime charged in complaint in magistrate's court was kindred to that to which defendant was held to answer in district court after a preliminary examination which was otherwise adequate and where information was in substantial accord with magistrate's commitment. State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768.

Information need not correspond to arrest complaint. — Information may be framed according to facts developed at preliminary examination and need not correspond with complaint which served as basis for warrant on which accused was arrested, since it must be presumed that magistrate performed his duty fairly. State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768.

Waiver of right to probable cause hearing. — Entering a not guilty plea to a defective criminal information at arraignment does not itself constitute a waiver of defendant’s right to a probable cause hearing. State v. Rodriguez, 2009-NMCA-090, 146 N.M. 824, 215 P.3d 762, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Where the magistrate judge bound defendant over for trial on a misdemeanor count of possession of a controlled substance without a prescription; the criminal information filed by the state in district court charged defendant with a felony count of possession of a dangerous drug without a prescription; defendant waived arraignment and entered a plea of not guilty to the felony count in district court, defendant did not waive the right to a probable cause hearing on the felony charge. State v. Rodriguez, 2009-NMCA-090, 146 N.M. 824, 215 P.3d 762, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Jury instruction on an uncharged crime. — Where the district court submits an uncharged crime to the jury as a basis for conviction, it deprives a defendant of the defendant’s constitutional right to notice and the opportunity to prepare a defense, unless the crime is a lesser-included offense of the crime charged. State v. Davis, 2009-NMCA-067, 146 N.M. 550, 212 P.3d 438.

Where the defendant was charged with intentional child abuse; the defendant was not indicted for negligent child abuse and the state did not seek to amend the indictment to charge negligent child abuse; the trial court instructed the jury on both intentional and negligent child abuse; the jury found the defendant guilty of abuse of a child without specifying whether the jury found intentional or negligent child abuse; and negligent child abuse is not a lesser-included offense of intentional child abuse, the submission of the negligent child abuse instruction constituted fundamental error. State v. Davis, 2009-NMCA-067, 146 N.M. 550, 212 P.3d 438.

Prosecuting by information constitutional. — The provisions of this section, permitting the prosecution of a felony by information, does not violate either the fifth amendment requirement of a grand jury indictment or the due process clause of the U.S. Const., amend. XIV. State v. Reyes, 1967-NMCA-023, 78 N.M. 527, 433 P.2d 506.

Simplified forms of information provided for by New Mexico statutes do not offend against the constitution. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444.

The purpose of an indictment or information is, first, to furnish an accused with such a description of the charge against him as will enable him to make his defense and to avail himself of his conviction or acquittal against a subsequent prosecution for the same offense; and second, that the court may be informed as to the facts alleged so it may determine whether the facts are sufficient to support a conviction, if one should be had. State v. Blea, 1973-NMCA-013, 84 N.M. 595, 506 P.2d 339.

A formal accusation is required to be filed before a person may be punished for a crime. Smith v. Abram, 1954-NMSC-061, 58 N.M. 404, 271 P.2d 1010.

That a person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court cannot be questioned, as it is regarded as fundamental that the accused must be tried only for the offense charged in the information. State v. Villa, 1973-NMCA-125, 85 N.M. 537, 514 P.2d 56.

Purposes of transcript. — Original purpose of transcript of evidence was to inform district attorney and to enlighten judgment of grand jury in determining whether an indictment should be presented; it now serves additional purpose of enlightening district attorney and attorney general as to what, if any, information is to be filed. State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768.

Felony must be prosecuted by indictment or information. — A criminal complaint subscribed by a county sheriff and charging defendant with burglary and grand larceny was insufficient to invoke the jurisdiction of the court in that the crimes charged therein purport to be in each case a felony and such as can be prosecuted only upon indictment or presentment by a grand jury, or by an information filed by the district attorney, attorney general or their deputies, as required by this section. State v. Chacon, 1957-NMSC-030, 62 N.M. 291, 309 P.2d 230.

Either indictment or information may be used. — District court has jurisdiction to try defendant who is proceeded against by criminal information filed by district attorney, even where defendant did not waive his right to be charged by grand jury indictment, because this section provides that district court proceedings may be based upon either method. State v. Vaughn, 1971-NMSC-015, 82 N.M. 310, 481 P.2d 98, cert. denied, 403 U.S. 933, 91 S. Ct. 2262, 29 L. Ed. 2d 712 (1971).

Since the 1924 amendment to this section, defendant has had no right to be charged by a grand jury; rather he may be proceeded against by information. Flores v. State, 1968-NMCA-057, 79 N.M. 420, 444 P.2d 605.

Defendant who was charged by a criminal information was not entitled to be indicted by a grand jury because under this section, a defendant may be charged either by grand jury action or by a criminal information. State v. Mosley, 1968-NMCA-077, 79 N.M. 514, 445 P.2d 391.

Under this section, a defendant may be proceeded against either by a grand jury indictment or by a criminal information. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271 (1971).

State may choose to proceed by indictment or information. — In the district court a prosecution proceeds either on the basis of indictment or information, and the choice is the state's. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.

Right not to be tried. — In the sense of a right not to be tried in the absence of a grand jury indictment, the right is satisfied by an indictment valid on its face and returned by a legally constituted grand jury. Once such an indictment is returned, there exists no right not to be tried in the sense relevant to the underlying rationale for the collateral order doctrine nor a right for immediate review pursuant to a writ of error or pursuant to N.M. Const., art VI, § 2. State v. Augustin M., 2003-NMCA-065, 133 N.M. 636, 68 P.3d 182, cert. quashed, 2004-NMCERT-002, 135 N.M. 170, 86 P.3d 48.

State may proceed by information after no-bill from grand jury. — Neither the N.M. Const. art. II, § 14, nor 31-6-11.1 NMSA 1978, limits the state's ability to proceed by information after a grand jury has returned a no-bill. State v. Isaac M., 2001-NMCA-088, 131 N.M. 235, 34 P.3d 624, cert. denied, 131 N.M. 221, 34 P.3d 610.

State’s burden of proof in rebutting the presumption of inadmissibility in 32A-2-14F NMSA 1978. — To overcome the presumption of inadmissibility in 32A-2-14F NMSA 1978, the state must prove by clear and convincing evidence that at the time the thirteen or fourteen-year-old child made his or her statement to a person in a position of authority, the child had the maturity to understand his or her constitutional and statutory rights and the force of will to invoke such rights. In order to obtain the clear and convincing evidence needed to rebut the presumption of inadmissibility, the interrogator who is in a position of authority must first adequately advise the thirteen or fourteen-year-old child of his or her Miranda and statutory rights and then invite the child to explain, on the record, his or her actual comprehension and appreciation of each Miranda warning. State v. DeAngelo M., 2015-NMSC-033, aff’g on other grounds 2015-NMCA-019.

Where thirteen-year-old child, charged with murder, residential burglary, tampering with evidence, and larceny, was subjected to a custodial interrogation by three law enforcement officers, during which child made inculpatory statements regarding a burglary that connected child to a murder, the trial court erred in denying child’s motion to suppress the statements where the officers failed to advise child of his Miranda and statutory rights in a clear and intelligible manner and where it was not clear from the record that child fully comprehended and appreciated his constitutional and statutory rights. Moreover, the fact that child continued to answer questions after unambiguously asserting his right to remain silent provided additional evidence that child did not possess either the maturity to understand his rights or the force of will to assert those rights. The state did not meet its burden of rebutting the presumption of inadmissibility under 32A-2-14F NMSA 1978. State v. DeAngelo M., 2015-NMSC-033, aff’g on other grounds 2015-NMCA-019.

Due process does not require a bill of particulars. — In order to satisfy due process, the primary determination is whether the accused had enough information to adequately prepare his defense, and a bill of particulars or statement of facts is generally not required when the state maintains an open file policy. State v. DeAngelo M., 2015-NMCA-019, cert. granted, 2015-NMCERT-002.

Where child, charged with murder, burglary and other delinquent acts, was furnished with the state’s witness list, had access to all material relevant to the state’s case against him, and the delinquency petition stated with particularity each of the crimes charged, including relevant statutory provisions, the dates and locations of the alleged offenses as well as a list of the items alleged to have been stolen, the child had enough information to prepare his defense in accordance with due process and was not entitled to a bill of particulars. State v. DeAngelo M., 2015-NMCA-019, cert. granted, 2015-NMCERT-002.

Right to demand nature and cause of accusations. — Accused's right to demand nature and cause of accusation is expressly protected by bill of particulars. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444.

The New Mexico constitution does not require that an indictment recite all particulars of an offense. It says only that the accused shall have the right to "demand the nature and cause of the accusation." This can be done by a bill of particulars. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444; Ex parte Kelley, 1953-NMSC-011, 57 N.M. 161, 256 P.2d 211.

Appellant was entitled "to demand the nature and cause of the accusation" against him under this section, and while that remedy was available by way of bill of particulars, he did not choose to make use of it. Consequently, any claimed error is waived. State v. Romero, 1961-NMSC-139, 69 N.M. 187, 365 P.2d 58.

Although defendant has the right to demand the nature and cause of the accusations, in order to exercise this right defendant must pursue it, and where defendant never requests a hearing, the constitutional provision is waived. State v. Cebada, 1972-NMCA-140, 84 N.M. 306, 502 P.2d 409.

Where the defendant argues that he did not have official notice of the specific charge until the day of trial but his objection to proceeding to trial was pro forma only, he requested no continuance, he made no plea of surprise, he made no claim that he was not prepared for trial, nor did he assert prejudice, then his claim of error is without merit. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

"Filing" required. — Neither the New Mexico constitution nor the rules of criminal procedure require that indictments be "returned in open court." Those provisions speak only in terms of "filing." State v. Ellis, 1976-NMCA-036, 89 N.M. 194, 548 P.2d 1212, cert. denied, 89 N.M. 206, 549 P.2d 284.

Time of war or public danger. — When no war or state of public danger exists during the period in which the alleged felonious acts occurred, a military court would be wholly without jurisdiction to try members of the national guard for the felonies with which they were charged. Clearly then, the civil courts must have jurisdiction to try for alleged violations. State ex rel. Sage v. Montoya, 1959-NMSC-029, 65 N.M. 416, 338 P.2d 1051.

Waiver of indictment. — Prior to the 1924 amendment to this section, and in the constitution, as adopted, the permissive use of an information was surrounded by so many safeguards as to render it unlikely that the framers could have contemplated the requirements of this section could be waived otherwise than by the proviso in N.M. Const., art. XX, § 20. State v. Chacon, 1957-NMSC-030, 62 N.M. 291, 309 P.2d 230.

Compliance with the terms of this section that no person shall be held to answer for certain crimes unless on presentment of indictment or information is mandatory and may not be made the subject of waiver. State v. Chacon, 1957-NMSC-030, 62 N.M. 291, 309 P.2d 230.

"Criminal complaint" not sufficient. — Where a "criminal complaint" fails to meet the requirements of this section, it thereby denies the district court jurisdiction to accept the defendant's guilty plea and impose sentence upon him. State v. Chacon, 1957-NMSC-030, 62 N.M. 291, 309 P.2d 230.

Information filed before magistrate's transcript. — An information for murder, filed six days before magistrate's transcript is filed, is not void for lack of jurisdiction, where defendant does not allege or offer to show that preliminary examination was not in fact held. State v. Parker, 1930-NMSC-004, 34 N.M. 486, 285 P. 490.

Crimes not capital, felonious or infamous. — The constitution only requires capital, felonious or infamous crimes to be charged by indictment or information, and this provision of the New Mexico constitution is clear and unambiguous. State v. Marrujo, 1968-NMSC-118, 79 N.M. 363, 443 P.2d 856.

Where the appellant is not charged with a capital, felonious or infamous crime, there is neither a constitutional nor statutory requirement that the appellant be charged by information or indictment. State v. Marrujo, 1968-NMSC-118, 79 N.M. 363, 443 P.2d 856.

So long as the fine for criminal contempt which is, or may be, imposed is not more than $1,000, there is no federal constitutional right to jury trial as the crime is a petty offense, nor need prosecution be by information. Seven Rivers Farm, Inc. v. Reynolds, 1973-NMSC-039, 84 N.M. 789, 508 P.2d 1276.

The use of initials instead of words in a criminal complaint to identify the offense deprives defendant of due process of law. State v. Raley, 1974-NMCA-024, 86 N.M. 190, 521 P.2d 1031, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Failure to allege value of embezzled property. — Although information should have alleged value, jurisdiction does not depend upon the value of the property embezzled; value merely denotes the grade of the offense. Roehm v. Woodruff, 1958-NMSC-083, 64 N.M. 278, 327 P.2d 339.

Allegation of ownership in larceny case. — Where alleged crime constituted both common-law larceny and statutory grand larceny, allegation that defendant "committed the crime of larceny" would be sufficient, since ownership was not "of the essence of the crime." State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444.

Ownership need not be alleged in larceny cases where name given to offense by the common law or by statute is used in information. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444.

Since ownership in a particular individual is not an element of larceny, a statute may dispense with allegation of ownership in information. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444.

Murder. — Information stating that defendant did "murder" a named person is sufficient apprisal of offense charged. State v. Roy, 1936-NMSC-048, 40 N.M. 397, 60 P.2d 646.

Manslaughter. — Information charging manslaughter was sufficient to satisfy constitutional requirement where it was in the form provided by 41-6-41, 1953 Comp., now repealed, and it enumerated the section defining the offense and the section fixing the penalty. State v. Romero, 1961-NMSC-139, 69 N.M. 187, 365 P.2d 58.

Failure to name rape victim. — An information is not fatally defective in failing to name the victim of the statutory rape charged. Ex parte Kelley, 1953-NMSC-011, 57 N.M. 161, 256 P.2d 211.

Indictment sufficient though arrest delayed. — Reasonableness of the conduct of the police in a particular case is to be weighed against the possible prejudice to the defendant resulting from delay in arrest, and where defendant's arrest was postponed in the interest of effective police work, and was not unreasonably delayed after the general investigation was concluded, refusal of the trial court to dismiss the indictment was not error. State v. Baca, 1970-NMCA-121, 82 N.M. 144, 477 P.2d 320.

III. PRELIMINARY EXAMINATION.

Right of confrontation. — The right of confrontation guaranteed by the sixth amendment to the United States constitution and Article II, Section 14 of the constitution of New Mexico is a trial right that does not apply to probable cause determinations in preliminary examinations. State v. Lopez, 2013-NMSC-047, overruling Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789.

Right of confrontation did not apply at preliminary examination. — Where police officers found a bag containing a green leafy substance and a bag that contained a white powdery substance in defendant’s vehicle during a search incident to defendant’s arrest for driving with a suspended license; at defendant’s preliminary examination, the magistrate court admitted a forensic laboratory report into evidence without an opportunity for the defense to personally cross-examine the laboratory analyst who prepared the report; and the report concluded that the white powdery substance was cocaine and the green leafy substance was marijuana, the magistrate court did not violate defendant’s confrontation rights under the United States constitution and the New Mexico constitution, because the constitutional right of confrontation does not apply to probable cause determinations in preliminary examinations. State v. Lopez, 2013-NMSC-047, overruling Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789.

A preliminary examination is unknown to the common law and an accused is not entitled to such an examination, unless it is given him by constitutional or statutory provision. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976, 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966).

Defendant has a state constitutional right to a preliminary hearing. Baez v. Rodriguez, 381 F.2d 35 (10th Cir. 1967).

Where defendant is charged by an information, he has a constitutional right to a preliminary examination. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241 (1971).

When the charge is by criminal information, defendant has a right to a preliminary examination. State v. Vasquez, 1969-NMCA-082, 80 N.M. 586, 458 P.2d 838.

Right to hearing is matter of law. — The right to a preliminary hearing is not discretionary with the judge. A person is either entitled to it as a matter of law, or not at all. Williams v. Sanders, 1969-NMSC-124, 80 N.M. 619, 459 P.2d 145.

But there exists no absolute right to a preliminary hearing, and this section leaves it in the discretion of the prosecutor to proceed by indictment and thus to obviate the requirement of preliminary examination. State v. Peavler, 1975-NMCA-037, 87 N.M. 443, 535 P.2d 650, rev'd, 1975-NMSC-035, 88 N.M. 125, 537 P.2d 1387; State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.

Meaning of term "preliminary examination". — Court may assume that term "preliminary examination" was understood to mean preliminary examinations as were in vogue under existing laws of state at time constitutional amendment which is being construed was proposed and adopted. State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768.

Purpose and nature of hearing. — A preliminary hearing is not a trial of the person charged with the view of determining his guilt or innocence. Purposes of preliminary examination are, inter alia, (1) to inquire concerning commission of crime and accused's connection with it, (2) to inform accused of nature and character of crime charged, (3) to enable state to take necessary steps to bring accused to trial in event there is probable cause for believing him guilty, (4) to perpetuate testimony and (5) to determine amount of bail which will probably secure attendance of accused to answer charge. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241 (1971); State v. Garcia, 1968-NMSC-119, 79 N.M. 367, 443 P.2d 860; State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768.

Hearing as federal right. — The right to a preliminary hearing in the state of New Mexico is one guaranteed by the state constitution and only becomes a federal constitutional guarantee by the equal protection clause of the fourteenth amendment because it is a part of the due process of the state. Silva v. Cox, 351 F.2d 61 (10th Cir. 1965), cert. denied, 383 U.S. 919, 86 S. Ct. 915, 15 L. Ed. 2d 673 (1966).

A defendant in a state court is not entitled to a preliminary examination by virtue of a federal constitutional right. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976, 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966).

Magistrate's jurisdiction over complaint is to conduct a preliminary hearing and, if probable cause is found that the defendant committed an offense, to bind him over to district court for trial. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.

Duties of magistrate. — Magistrate must determine from preliminary examination as a whole, and not merely from complaint alone, what offense has been committed; commitment by magistrate must name the offense found as a result of such examination. State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768.

The effect of denying a constitutional right at a preliminary examination is the same as though there had been no hearing. State v. Vaughn, 1964-NMSC-158, 74 N.M. 365, 393 P.2d 711.

No right to preliminary examination under indictment. — A reading of this section clearly reveals that no right to a preliminary examination exists when the presentment against an accused is by a grand jury indictment. State v. Mosley, 1965-NMSC-081, 75 N.M. 348, 404 P.2d 304.

If the state chooses to proceed by indictment, the defendant has no right to a preliminary hearing, even where the proceedings against the defendant are initiated by a criminal complaint in magistrate court. State v. Peavler, 1975-NMSC-035, 88 N.M. 125, 537 P.2d 1387, rev'g 1975-NMCA-037, 87 N.M. 443, 535 P.2d 650.

Where defendant is not proceeded against by information, but by indictment, he is not entitled to a preliminary examination. The fact that proceedings against him are first initiated by a criminal complaint in the magistrate court does not obligate the state to proceed by preliminary examination and information rather than by indictment. State v. Ergenbright, 1973-NMSC-024, 84 N.M. 662, 506 P.2d 1209.

This provision affords a right to a preliminary hearing when the accused is charged by a criminal information, but does not afford a right to a preliminary hearing when the accused is indicted by a grand jury. State v. Salazar, 1970-NMCA-056, 81 N.M. 512, 469 P.2d 157.

Standard of proof at preliminary hearing. — The test at a preliminary hearing is not whether guilt is established beyond a reasonable doubt, but whether there is that degree of evidence to bring within reasonable probabilities the fact that a crime was committed by the accused. State v. Garcia, 1968-NMSC-119, 79 N.M. 367, 443 P.2d 860.

Admissibility in appellate court of preliminary hearing testimony. — The district attorney's statements that the state attempted to subpoena a material witness and that he was out of state were no more than bare recitals unsupported by factual elaboration, and where the record contained no evidence as to the circumstances of the state's alleged attempt and inability to subpoena the witness, the court of appeals refused to hold that the witness was unavailable for trial, and under Rule 804, N.M.R. Evid. (see now Rule 11-804 NMRA) the witness's preliminary hearing testimony was not admissible in evidence. State v. Mann, 1975-NMCA-045, 87 N.M. 427, 535 P.2d 70.

Hearing is prerequisite to holding on information. — This section requires a preliminary examination before an examining magistrate, or its waiver, as a prerequisite to holding any person on a criminal information. Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, overruled by State v. Lopez, 2013-NMSC-047.

Accused may challenge right of state to proceed against him until he has been accorded a valid preliminary hearing, unless he has theretofore waived his right thereto. Such challenge may be made by a plea in abatement or any other appropriate manner. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976, 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966).

The absence of either a preliminary examination or its intelligent waiver, or the denial of representation by counsel at such hearing, may be called to the attention of the court at any time prior to arraignment, by plea in abatement or in any other appropriate manner. State v. Vaughn, 1964-NMSC-158, 74 N.M. 365, 393 P.2d 711; State v. Vega, 1967-NMSC-255, 78 N.M. 525, 433 P.2d 504.

The jurisdiction of the district court, acquired by the filing of the information, may be lost "in the course of the proceeding" by failure to remand for a preliminary examination when its absence is timely brought to the court's attention. State v. Vaughn, 1964-NMSC-158, 74 N.M. 365, 393 P.2d 711; State v. Vega, 1967-NMSC-255, 78 N.M. 525, 433 P.2d 504.

Violation determined initially by state courts. — Where defendant, in federal habeas corpus, alleges that he was denied a preliminary hearing in violation of this section, when the federal court can find no indication, either in the record or by reference in appellant's brief, that the contention has been presented to and argued before New Mexico's state courts, the argument will not be decided by the federal court until first referred to the state judiciary. Campos v. Baker, 442 F.2d 331 (10th Cir. 1971).

Denial of the right of a defendant to call witnesses in his behalf, at a preliminary examination, was error which required the trial judge to sustain a plea in abatement for a full and complete preliminary examination. Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, overruled by State v. Lopez, 2013-NMSC-047.

Determination of probable cause based on judicially-noticed testimony. — Where no witnesses testified at defendant’s preliminary hearing; the state offered testimony that the victim and a detective had given at a previous hearing before the magistrate pertaining to a different charge; the magistrate took judicial notice of the testimony and based solely on the judicially-noticed testimony, issued a determination of probable cause; defendant proceeded to a jury trial without challenging the preliminary hearing; and defendant claimed that defendant was deprived of the right to a preliminary hearing, defendant had no remedy for the error in the preliminary hearing. State v. Perez, 2014-NMCA-023, cert. denied, 2014-NMCERT-001.

Arraignment. — The statutes do not provide for an arraignment before a justice of the peace; rather, they provide for a preliminary examination by a committing magistrate and arraignment and trial before the district court. However, it is the practice for the magistrate to arraign the defendant at preliminary examination. State v. Elledge, 1967-NMSC-143, 78 N.M. 157, 429 P.2d 355.

Powers of visiting judge. — Nonresident judge who sits at request of resident judge is vested with all the latter's powers, including that of holding preliminary hearings. State v. Encinias, 1949-NMSC-044, 53 N.M. 343, 208 P.2d 155.

Hearing or waiver need not be proved by state. — The state, prosecuting by information, need not allege or prove that accused has had or waived preliminary examination. State v. Vigil, 1928-NMSC-012, 33 N.M. 365, 266 P. 920.

Same charge in hearing and amended information. — Where information is amended, defendant has no constitutional right to an additional preliminary hearing when the preliminary hearing and the amended information pertain to the same statutory charge. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241 (1971).

The preliminary hearing is a critical stage of a criminal proceeding in which counsel must be made available. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949.

Driving while intoxicated. — An accused has no right to a preliminary hearing on a misdemeanor charge of driving while intoxicated. State v. Greyeyes, 1987-NMCA-022, 105 N.M. 549, 734 P.2d 789, cert. denied, 105 N.M. 521, 734 P.2d 761.

Counsel at preliminary examination. — The amount of time counsel spends with defendant prior to a hearing provides no basis for post-conviction relief, as the competence and effectiveness of counsel cannot be determined by the amount of time counsel spends or fails to spend with defendant. Maimona v. State, 1971-NMCA-002, 82 N.M. 281, 480 P.2d 171.

If represented by counsel when arraigned in district court, if no objection is made to a lack of counsel at the preliminary hearing stage, or even of the total absence of a preliminary hearing, without a showing of prejudice, there is a waiver of the right to counsel at the earlier stages. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949.

Defendant's assertion that two prior felony convictions could not be used against him in prosecution under habitual criminal statute because they were constitutionally defective due to the absence of counsel at his preliminary examination in both prior felony convictions was without merit where the record showed that in each of the two prior felony convictions, defendant entered pleas of guilty, that in each of the guilty pleas, defendant had the advice of counsel, and where no claim was made that the pleas were involuntary, defendant's claimed defect was therefore waived when he pleaded guilty in the two prior felony proceedings. State v. Lopez, 1973-NMCA-014, 84 N.M. 600, 506 P.2d 344.

Absent a showing of prejudice, complaint of absence of counsel during interrogation by authorities and at preliminary hearing is waived by guilty plea. State v. Archie, 1967-NMSC-227, 78 N.M. 443, 432 P.2d 408.

The right to representation at the preliminary hearing is waived upon entering a plea in district court when represented by counsel. State v. Sisk, 1968-NMSC-087, 79 N.M. 167, 441 P.2d 207.

Failure to assign counsel prior to preliminary examination of an indigent defendant in a noncapital case is not ground for vacating a conviction or sentence based upon a plea of guilty, at least without a showing that prejudice resulted therefrom. Sanders v. Cox, 1964-NMSC-214, 74 N.M. 524, 395 P.2d 353, cert. denied, 379 U.S. 978, 85 S. Ct. 680, 13 L. Ed. 2d 569 (1965).

Representation of juvenile by counsel at or during the preliminary investigation can be waived, if this is done knowingly and intelligently. Further, waiver is accomplished when, upon arraignment with counsel in district court, no objection is made to the failure to be represented by counsel during the juvenile court investigation. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949.

If, at the time of arraignment, complaint had been made that counsel had not been provided in juvenile court, it would possibly have been error for the district court to refuse to remand to the juvenile court for a proper hearing. But if no objection is voiced, no reason can be advanced to hold there was no waiver of such defect in juvenile court when it is clear that the same shortcoming in the preliminary hearing was effectively waived. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949.

Where juvenile petitioner received all benefits to which he would have been entitled as an adult, his voluntary plea of guilty after consulting counsel, and no showing of prejudice being made, amounted to a waiver of prior failure to provide counsel at a preliminary hearing. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949.

The right to counsel at the preliminary hearing or arraignment in the district court can be competently and intelligently waived and in doing so the constitutional rights of the accused will not be abridged. State v. Cisneros, 1967-NMSC-015, 77 N.M. 361, 423 P.2d 45.

The entry of a plea in the district court after intelligent waiver of counsel, or when represented by competent counsel, served as a waiver of any defects in the preliminary hearing, including failure to advise of right or to provide counsel. State v. Blackwell, 1966-NMSC-088, 76 N.M. 445, 415 P.2d 563.

Waiver of preliminary examination. — Where the state informed the defendant prior to the videotaped deposition of the child victim that the state would add criminal sexual penetration of a minor charges if the child articulated facts sufficient to support the charges; the child testified that the defendant "licked" her vagina; the defendant was present at the deposition, but did not cross-examine the child; the state added a criminal sexual penetration of a minor charge on the day of trial; the defendant did not request a preliminary hearing and entered a plea of not guilty to the additional charges; the defendant waived his right to a preliminary hearing and he was not prejudiced by the addition of the criminal sexual penetration of a minor charge. State v. Ervin, 2008-NMCA-016, 143 N.M. 493, 177 P.3d 1067, cert. denied, 2008-NMCERT-001, 143 N.M. 398, 176 P.3d 1130.

A defendant who enters plea on arraignment without raising his objection waives right to a preliminary examination. State v. Gallegos, 1942-NMSC-043, 46 N.M. 387, 129 P.2d 634.

In case where accused, when brought before examining magistrate, was told that he was entitled to have counsel represent him, that he was entitled to a continuance if he desired, and that it was not necessary for him to plead, but after being so advised accused stated that he was ready to plead, and pleaded guilty, he expressly waived a preliminary examination. State v. Alaniz, 1951-NMSC-049, 55 N.M. 312, 232 P.2d 982.

Defendant, by his voluntary plea of guilty to the charge on which he was convicted and sentenced, waived his rights to a preliminary hearing with representation by counsel. State v. Marquez, 1968-NMSC-046, 79 N.M. 6, 438 P.2d 890.

Objection that preliminary examination has not been waived must be raised before plea. State v. Vigil, 1928-NMSC-012, 33 N.M. 365, 266 P. 920.

The trial court did not err in putting appellant to trial upon an information filed prior to the preliminary examination since, although no person shall be held on information without having had or waived a preliminary examination, appellant not only was accorded a hearing but waived this right by his plea. State v. Bailey, 1956-NMSC-123, 62 N.M. 111, 305 P.2d 725.

The entry of a plea after intelligent waiver of counsel or when represented by competent counsel serves as a waiver of the right to a preliminary examination. State v. Darrah, 1966-NMSC-171, 76 N.M. 671, 417 P.2d 805.

Where defendant enters a plea of guilty, he waives his right to a preliminary examination. State v. Darrah, 76 N.M. 671, 417 P.2d 805 (1966).

A plea of guilty or not guilty to an information filed in a district court, in which case no preliminary hearing has been held, constitutes a waiver of the constitutional right to a preliminary examination. Silva v. Cox, 351 F.2d 61 (10th Cir. 1965), cert. denied, 383 U.S. 919, 86 S. Ct. 915, 15 L. Ed. 2d 673 (1966).

The state constitutional guarantee of a preliminary hearing may be waived before a magistrate if the accused acknowledges his guilt of the offense charged. Silva v. Cox, 351 F.2d 61 (10th Cir. 1965), cert. denied, 383 U.S. 919, 86 S. Ct. 915, 15 L. Ed. 2d 673 (1966).

A defendant waives his right to a preliminary hearing when he competently, understandingly and voluntarily pleads to a charge, without asserting the absence of a preliminary hearing. Guerra v. Rodriguez, 372 F.2d 472 (10th Cir. 1967).

Defendant waived his right to a preliminary examination when he competently, understandingly and voluntarily pled to an information, without challenging the information on the ground that he had not been accorded a valid preliminary examination. Cranford v. Rodriguez, 373 F.2d 22 (10th Cir. 1967).

A defendant waives his right to a preliminary examination when he competently, understandingly and voluntarily pleads to an information, without challenging the information on the ground that he had not been accorded either a preliminary examination or a valid preliminary examination. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976, 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966).

Defendant was entitled to a preliminary examination, at which he would be accorded his constitutional rights, before being placed on trial on the information, but he waived that right by his plea of not guilty, entered when he was adequately represented by counsel. The fact that the preliminary examination proceedings were void did not render defendant immune from a trial on the information, since at such trial he was provided with competent counsel and otherwise accorded his constitutional rights. Pece v. Cox, 354 F.2d 913 (10th Cir. 1965), cert. denied, 384 U.S. 1020, 86 S. Ct. 1984, 16 L. Ed. 2d 1044 (1966).

Defendant may be charged by information in the state district court, notwithstanding he either has not had a preliminary examination or has not had a valid preliminary examination. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976, 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966).

The question of whether a preliminary hearing was competently waived is one of fact and cannot be established by the mere written waiver executed without the advice of counsel. The competency of such a waiver can only be determined after a hearing thereon. State v. Vega, 1967-NMSC-255, 78 N.M. 525, 433 P.2d 504.

There is nothing in either the due process clause, nor in any decision which requires a remand to the magistrate's court, to permit an accused to waive his right to have a preliminary examination represented by counsel, rather than to waive the right in the district court to be so remanded. State v. Vaughn, 1964-NMSC-158, 74 N.M. 365, 393 P.2d 711.

Where defendant's defense may have been prejudiced by the failure to grant a preliminary examination and when its absence was timely called to the court's attention, entry of a plea upon arraignment in the district court did not operate as a waiver of defendant's right to the preliminary examination. State v. Vega, 1967-NMSC-255, 78 N.M. 525, 433 P.2d 504.

If the accused has waived a preliminary examination, the state does not have an independent right to compel a preliminary examination over the defendant's waiver. State ex rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126, 124 N.M. 375, 950 P.2d 818, cert. denied, 124 N.M. 268, 949 P.2d 282.

IV. GRAND JURY.

History of institution of grand jury. Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.

Number of grand jurors. — The amendment to this article which took effect January 1, 1925, changing the number of grand jurors necessary to find an indictment, did not infringe any substantial or constitutional guaranty and was not ex post facto in applying to offenses committed prior to its adoption. State v. Kavanaugh, 1927-NMSC-038, 32 N.M. 404, 258 P. 209.

A grand jury composed of more than 12 members is not a grand jury under the state constitution, and an indictment returned by that body is void and ineffective. State v. Garcia, 1956-NMSC-085, 61 N.M. 404, 301 P.2d 337.

Fair cross section of community. — The right to a jury reflecting a fair cross section of the community under the New Mexico constitution is at least as broad as that guaranteed by the sixth amendment of the federal constitution. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

Method of convening. — A grand jury may be convened either upon a taxpayer's petition or by an order of the district judge. State v. Mosley, 1965-NMSC-081, 75 N.M. 348, 404 P.2d 304.

Duty of judge to comply with petition for grand jury. — A district judge does not enjoy discretionary authority to refuse to convene a grand jury requested by petition; a judge is mandated to convene the grand jury or otherwise substantially comply with the request. Cook v. Smith, 1992-NMSC-041, 114 N.M. 41, 834 P.2d 418.

Petitions must contain sufficient information. — District courts may limit grand jury investigations to specific incidents identified in the petition. Therefore petition to convene a grand jury must contain sufficient information to enable the court to determine whether the petitioners seek a legitimate inquiry into alleged criminal conduct or malfeasance of a public official or whether petitioners seek nothing more than a witch hunt. District Court v. McKenna, 1994-NMSC-102, 118 N.M. 402, 881 P.2d 1387, cert. denied, 514 U.S. 1018, 115 S. Ct. 1361, 131 L. Ed. 2d 218 (1995).

The district court may require that a grand jury petition contain sufficient information to determine the signatories’ status as registered voters. — The determination of whether the signatories of a grand jury petition are actually registered voters of the county is a factual determination properly within the discretion of the district court. Although Article II, Section 14 of the constitution of New Mexico does not require that the addresses of signatories appear on a grand jury petition and there are other possible forms of evidence of registered voter status, the district court may, in its discretion, require that the addresses of signatories appear on a grand jury petition for purposes of confirming the signatories registered voter status. Requiring a district court to accept a grand jury petition as sufficient to order a grand jury inquiry simply because the petition contains signatures that are spelled the same way as those of registered voters overlooks the judicial duty of the district court to ensure the actual validity of a grand jury petition. Convisser v. Ecoversity, 2013-NMSC-039, rev’g 2012-NMCA-008.

The addresses of persons signing a grand jury petition are not required. — Article II, Section 14 of the constitution of New Mexico requires only that the requisite number of signatures that can be matched to the voter rolls as those of registered voters be submitted in support of a petition for a grand jury investigation. The constitution does not require that the addresses of persons signing the petition accompany their signatures so that the county clerk may verify that the signatories are registered voters. Once the county clerk determines that the required number of persons purporting to be registered voters in the county have provided their names and signatures, and those names correspond to the names of registered voters within the county, the constitution has been satisfied. In re Rescue Ecoversity Petition, 2012-NMCA-008, 270 P.3d 104, cert. granted, 2012-NMCERT-001.

The court of appeals’ three-step burden-shifting procedure for evaluating grand jury petitions is not justified by law or reason. — Neither Article II, Section 14 of the constitution of New Mexico nor supreme court precedent prescribe shifting burdens or other special standards by which a district court is constrained in exercising judicial discretion to determine whether a grand jury petition has met the constitutional requirement of being signed by a specified number of actual registered voters of the county. The court of appeals’ three-step burden-shifting procedure for evaluating grand jury petitions adds provisions to the constitutional mandate that are not justified by law or reason. Convisser v. Ecoversity, 2013-NMSC-039, rev’g 2012-NMCA-008.

Grand jury petition did not contain information to determine the status of the signatories as registered voters. — Where a grand jury petition was signed by more than the required number of voters; the names to the signatories were the same as the names of people who appeared on the county’s voter registration rolls; the county clerk could not confirm that any of the signatories were actually registered voters, because the petition did not contain the signatories’ addresses or any other information which could be used to confirm the signatories’ registered voter status; and petitioner did not provide any evidence to prove that the signatories were actually registered voters of the county, the district court did not abuse it discretion in denying the petition on the ground that the petition did not contain sufficient information to determine the registered voter status of the signatories. Convisser v. Ecoversity, 2013-NMSC-039, rev’g 2012-NMCA-008.

Burden of proof that a grand jury petition is legally sufficient. — Once petitions to convene a grand jury are submitted, which demonstrate on their face that the signatories purport to be registered voters within the county and that they contain the names and signatures corresponding to the greater of two percent of registered voters or two hundred registered voters in the county, the petitioners have met their initial burden. Those who oppose the petition then have the burden to produce evidence demonstrating that the signatures on the petition are not those of registered voters within the county. Nevertheless, the ultimate burden of proof still generally rests with the petitioners whose evidence must be sufficient to overcome those objections raised by the opposition when the district court reviews the petition’s sufficiency. In re Rescue Ecoversity Petition, 2012-NMCA-008, 270 P.3d 104, cert. granted, 2012-NMCERT-001.

Burden of proof that the grand jury petition is legally sufficient was met. — Where petitioners filed petitions to convene a grand jury which contained the printed names and signatures of the signatories below a heading which stated that the persons signing the petition were registered voters of the county; the petitions did not contain the addresses of the signatories; and the county clerk confirmed that the petitions contained a sufficient number of signatures of individuals whose names matched the names of registered voters in the county, but could not verify that any of the individuals who signed the petitions were actually registered voters in the county without the addresses of the individuals, the petitioners met their burden of production upon presenting the names and signatures of a sufficient number of registered voters as confirmed by the county clerk. In re Rescue Ecoversity Petition, 2012-NMCA-008, 270 P.3d 104, cert. granted, 2012-NMCERT-001.

Effect of improper motives of signatory. — If a petition to convene a grand jury sufficiently delimits an area of inquiry that colorably lies within the permissible scope of grand jury inquiry and there is no challenge to the geographical jurisdiction or to the applicable statute of limitations, the petition should be granted. Although our system of justice does not allow the grand jury to be used as a tool by any dissatisfied person or political faction to intimidate or threaten a governing body, the improper motives of one signatory in the petition cannot be imputed to all of the other signatories. Pino v. Rich, 1994-NMSC-105, 118 N.M. 426, 882 P.2d 17.

Residence as qualification for grand jury service is question of fact. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Residence for jury service similar to voting residence. — There is a similarity between residence for the purpose of voting and residence for the purpose of serving as a juror. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Residency not destroyed by temporary absence. — The temporary absence of a person from the county of his residence, without the intention of abandoning that residence, will not destroy that person's qualification to serve as a grand juror. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Effect of attack on eligibility of grand juror. — An attack on the eligibility of one grand juror does not raise an issue as to the jurisdiction of the court, but goes only to the procedural requirements for returning an indictment. State v. Velasquez, 1982-NMCA-154, 99 N.M. 109, 654 P.2d 562, cert. denied, 99 N.M. 148, 655 P.2d 160.

V. PERSONAL APPEARANCE.

"Critical stage of a criminal proceeding" construed. — A particular stage of a criminal proceeding may be critical if the defendant's presence at the proceeding would contribute to the defendant's opportunity to defend himself against the charges, such that a fair and just hearing would be thwarted by his absence. If a particular stage of a criminal proceeding is critical, then due process confers upon the defendant the right to be present at that stage in the proceeding. State v. Sloan, 2019-NMSC-019.

Waiver of right to appear. — Waiver of a defendant's constitutional right to appear generally requires the defendant's express consent, unless the defendant voluntarily elects to absent himself, or is excluded from the courtroom by reason of disruptive conduct. State v. Sloan, 2019-NMSC-019.

Defendant's presence not required at a pretrial hearing on qualifying a witness as an expert. — Where defendant was charged with burglary and felony murder, and where defense counsel orally waived defendant's appearance at a pretrial hearing on whether to qualify the blood spatter analyst as an expert witness, defendant's constitutional right to be present at critical stages of his criminal proceedings was not violated, because evidence did not support a conclusion that his presence would have increased the fairness of the pretrial hearing or resulted in a more assured determination of whether the analyst could testify as an expert witness, and therefore the pretrial hearing was not a critical stage of the proceeding and defendant did not have a due process right to be present. Moreover, defendant did not have a due process right to be present because the testimony concerned the blood spatter analyst's qualifications, not evidentiary facts related to defendant's guilt or innocence. State v. Sloan, 2019-NMSC-019.

Presence not required at a pretrial hearing dealing with scheduling matters and a possible conflict of interest with the trial judge. — Where defendant was charged with burglary and felony murder, and where defense counsel orally waived defendant's appearance at a pretrial hearing in which scheduling matters and a possible conflict with the trial judge was discussed, defendant did not have a due process right to be present, because the hearing, which did not provide an opportunity for either party to address the charges against defendant, was not a critical stage of defendant's criminal proceeding and the judge's potential conflict of interest was an uncontested issue. State v. Sloan, 2019-NMSC-019.

Presence not required at pretrial hearing where the scope of a witness's testimony was discussed. — Where defendant was charged with burglary and felony murder, and where defense counsel orally waived defendant's presence at a pretrial hearing in which the scope of defendant's sister's testimony was discussed, defendant did not have a due process right to be present, because the hearing only involved a legal issue and was not a critical stage of defendant's criminal proceeding because the district court was enforcing a well-accepted principle of law concerning limiting the scope of witness testimony about defendant's character or state of mind and the hearing afforded no opportunity to defend against the charge. State v. Sloan, 2019-NMSC-019.

Private conversation between judge and individual juror not reversible error. — No reversible error exists where the judge confers with prospective individual jurors without the presence of defendant or defense counsel when the conversation was invited by defense counsel and did not prejudice defendant. State v. Henry, 1984-NMCA-040, 101 N.M. 277, 681 P.2d 62.

Post-conviction relief. — Under Rule 93, N.M.R. Civ. P. (see now Rule 5-802 NMRA) (only applied to post-conviction motions made prior to September 1, 1975), a court could hear and determine a post-conviction motion without the presence of the prisoner. To do so was not a denial of the constitutional right "to appear and defend" in criminal proceedings because prior to enactment of Rules of Criminal Procedure, post-conviction proceedings were civil, not criminal. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

Where the motion for post-conviction relief is completely groundless, the trial court may determine the motion without the presence of defendant. State v. Sanchez, 1966-NMCA-002, 78 N.M. 25, 420 P.2d 786.

VI. REPRESENTATION BY COUNSEL.

A. RIGHT TO COUNSEL.

1. IN GENERAL.

Right to proceed pro se. — Where defendant did not file a motion to proceed pro se until three days into trial, the trial court did not abuse its discretion in denying defendant's motion based solely on the timeliness of the motion. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057.

To proceed pro se, a defendant must timely and unequivocally assert his intention to represent himself. — Where, prior to trial, defendant was granted repeated requests for a new attorney and was granted several continuances resulting in a three-year delay, the trial court did not err in denying defendant’s motion to proceed pro se, because defendant did not clearly and unequivocally assert his intention to represent himself and defendant’s motion, made on the morning of trial, was untimely. State v. Barela, 2018-NMCA-067, cert. denied.

Deprivation of counsel of choice. — Where the defendant’s attorney interviewed the police officer who had arrested the defendant for drunk driving; the officer appeared to the attorney to be combative, called the attorney a "son of a bitch", did not respond to all of the attorney’s questions, and used the officer’s middle finger to point to documents; the attorney believed, based on information received through other officers, that the officer was making sure that the attorney could not do the attorney’s job representing the defendant; the officer neither threatened to commit perjury nor threatened repercussions if the attorney did not withdraw as counsel for defendant; the prosecutor did not force the attorney to withdraw; the attorney withdrew voluntarily; and the attorney did not know how the defendant’s case would be negatively impacted if the attorney continued to represent the defendant, the defendant’s right to counsel of the defendant’s choice was not violated. State v. Gamlen, 2009-NMCA-073, 146 N.M. 668, 213 P.3d 818.

The district court did not abuse its discretion in disqualifying defendant's choice of counsel. — Where defendant was charged with numerous counts of criminal sexual penetration of a minor and criminal sexual contact of a minor, and where defendant sought to be represented by an attorney who had previously represented the mother of the victim in a related matter, the state had the obligation and the duty to diligently alert the district court to the conflict of interest arising from counsel's representation of defendant, and the district court did not abuse its discretion in disqualifying counsel based on evidence in the record that counsel had previously withdrawn from representing defendant in this case because of a conflict of interest based on his past representation of the mother and had made no effort to obtain waivers from defendant or the mother. State v. Dyke, 2020-NMCA-013, cert. denied.

Representation at critical stage of proceeding. — Defendant is entitled to be represented by counsel at every critical stage of the proceeding. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976, 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966).

Defendant’s plea of no contest was void where defendant was denied his right to counsel at the guilt-determination stage. — Where defendant was charged with criminal damage to property of a household member, and where, at arraignment in magistrate court, defendant asked to be represented by a public defender, and where the magistrate court judge entered an order conditionally appointing the Law Offices of the Public Defender (LOPD), finding that "the defendant was unable to obtain counsel and desires representation by the LOPD", and where, in that same proceeding while defendant stood accused of a crime and had requested but had not yet received legal representation, the magistrate court judge accepted defendant’s plea of no contest and adjudicated defendant’s guilt, and where on de novo appeal to the district court, the district court judge dismissed the appeal for lack of prosecution, finding that defendant had not taken action on the case in more than 180 days, the district court erred in dismissing defendant’s de novo appeal, because after the Sixth Amendment right to counsel has attached, courts may not adjudicate a person’s guilt in the absence of counsel or valid waiver of counsel, and in this case, defendant’s right to counsel had attached at the arraignment in magistrate court, and the magistrate court judge’s deprivation of defendant’s right to counsel at the guilt-determination stage was reversible error. Defendant’s plea is void because the magistrate court deprived defendant of the right to counsel and due process by accepting his plea of no contest without providing him with counsel. State v. Cruz, 2021-NMSC-015, rev’g A-1-CA-37581, mem. op. (May 24, 2019) (non-precedential).

Right to counsel at a lineup is essential to due process. State v. Garcia, 1969-NMSC-017, 80 N.M. 21, 450 P.2d 621.

Right to counsel during custodial interview. — Defendant had a right to have counsel present at the time of statement made during interview while defendant was in custody. State v. Lewis, 1969-NMCA-041, 80 N.M. 274, 454 P.2d 360, overruled by State v. Nemrod, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885.

Right to assistance of counsel applies to both trial and appeal. State v. Lewis, 1986-NMCA-038, 104 N.M. 218, 719 P.2d 445.

Right while under DUI custodial arrest. — A person issued a citation and placed under custodial arrest for driving while under the influence of intoxicating liquor does not have a constitutional right to counsel immediately following a breath alcohol test since it did not amount to initiation of judicial criminal proceedings or prosecutorial commitment, nor was the period following administration of the test a critical stage. State v. Sandoval, 1984-NMCA-053, 101 N.M. 399, 683 P.2d 516.

Mandatory jail sentence upon DWI conviction. — Provision of 66-8-102 NMSA 1978 subjecting a defendant who refuses to submit to chemical testing to a mandatory jail sentence upon conviction of DWI does not violate the constitutional right to counsel. State v. Kanikaynar, 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091, cert. quashed, 124 N.M. 269, 949 P.2d 283; Kanikaynar v. Sisneros, 190 F.3d 1115 (10th Cir. 1999), cert. denied, 528 U.S. 1090, 120 S. Ct. 821, 145 L. Ed. 2d 691 (2000).

Right to counsel at arraignment. — A defendant has a constitutional right to counsel in criminal proceedings and thus has a constitutional right to be represented by counsel at his arraignment. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Hearing for suspension of jail sentence. — Where petitioner had no counsel at hearing where the suspension of jail sentence was revoked and he was ordered committed, where he was not advised of his right to have counsel appointed if he desired and was indigent, and where there was no intelligent waiver of that right, there was a denial of his constitutional rights. Blea v. Cox, 1965-NMSC-070, 75 N.M. 265, 403 P.2d 701, overruled on other grounds by State v. Mendoza, 1978-NMSC-048, 91 N.M. 688, 579 P.2d 1255.

Right to court-appointed counsel. — Absent competent and intelligent waiver, a person charged with crime in a state court who is a pauper and unable to employ counsel is entitled to have an attorney appointed to defend him. State v. Dalrymple, 1965-NMSC-124, 75 N.M. 514, 407 P.2d 356.

When the offense with which the defendant is charged is punishable by imprisonment in the penitentiary, the court is required to assign counsel if the prisoner has not the financial means to procure counsel. State v. Anaya, 1966-NMSC-144, 76 N.M. 572, 417 P.2d 58.

Showing of indigency is prerequisite to the right of court-appointed counsel. State v. Powers, 1965-NMSC-046, 75 N.M. 141, 401 P.2d 775.

It is not necessary for indigent defendant to request the appointment of counsel in order to preserve his right to counsel. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976, 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966).

Determination of indigency. — The limited determination of indigency for purposes of right to court-appointed counsel under the standard of pauperism does not conform to constitutional mandate. Anaya v. Baker, 427 F.2d 73 (10th Cir. 1970).

No right to appointment of particular counsel. — An indigent defendant may not compel the court to appoint such counsel as defendant may choose. Such appointment lies within the sound discretion of the trial court. State v. Salazar, 1970-NMCA-056, 81 N.M. 512, 469 P.2d 157.

Defendant is not entitled as matter of right to participate as counsel in his own defense with his court-appointed counsel. State v. Martinez, 1981-NMSC-016, 95 N.M. 421, 622 P.2d 1041.

Standby counsel. — Even when standby counsel is appointed, the trial court must ensure that defendant is aware of the hazards and disadvantages of self-representation. Although appointment of standby counsel is preferred, the presence of advisory counsel in the courtroom does not, by itself, relieve the trial court of its duty to ensure that defendant's waiver is made knowingly and intelligently. State v. Castillo, 1990-NMCA-043, 110 N.M. 54, 791 P.2d 808, cert. denied, 110 N.M. 44, 791 P.2d 798.

A knowing and voluntary waiver of counsel was not established, where the trial court, without further inquiry of defendant concerning whether he in fact desired to proceed pro se, informed the jury that defendant had fired his public defender and would be representing himself, and then instructed the trial attorney to remain at counsel table as standby counsel. State v. Castillo, 1990-NMCA-043, 110 N.M. 54, 791 P.2d 808, cert. denied, 110 N.M. 44, 791 P.2d 798.

Reappointment of counsel. — When a defendant requests the court to reappoint counsel, the court should apply the following factors: (1) the defendant’s prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation; (2) the reasons set forth for the request; (3) the length and stage of the proceedings; (4) disruption or delay which reasonably might be expected to ensue from the granting of the motion; and (5) the likelihood of the defendant’s effectiveness in defending against the charges if required to continue to act as defendant’s own attorney. State v. Archuleta, 2012-NMCA-007, 269 P.3d 924, cert. denied, 2011-NMCERT-012.

Where defendant, who was initially represented by counsel, requested that defendant be allowed to appear pro se; the trial court thoroughly and adequately advised defendant of the risks of self-representation and defendant understood the risks; defendant had the benefit of previously appointed counsel who assisted defendant before defendant appeared pro se; months later, defendant moved to reappoint counsel on the day before trial; defendant did not articulate why defendant needed additional assistance to prepare a defense; the case was a routine stolen property matter and defendant never expressed any concern regarding the nature or complexity of the case; and reappointing counsel would have caused the court and the prosecution significant inconvenience, the court did not abuse its discretion in denying defendant’s motion. State v. Archuleta, 2012-NMCA-007, 269 P.3d 924, cert. denied, 2011-NMCERT-012.

Refusal to permit counsel to argue point. — On charge that buyer under conditional sales contract unlawfully obtained possession of automobile valued at more than $100, refusal to permit accused's counsel to argue whether such value had been established by evidence violated accused's constitutional right to representation by counsel and statutory right to be heard before jury by an attorney. State v. Shedoudy, 1941-NMSC-044, 45 N.M. 516, 118 P.2d 280.

No right to counsel when motion groundless. — Where the motion for post-conviction relief is completely groundless, the trial court need not appoint counsel to represent defendant in connection with the motion. State v. Sanchez, 1966-NMCA-002, 78 N.M. 25, 420 P.2d 786.

Right to counsel when substantial issue raised. — Counsel was not required to be appointed to represent defendant in connection with his post-conviction motion until a factual basis was alleged which raised a substantial issue. State v. Barefield, 1969-NMCA-040, 80 N.M. 265, 454 P.2d 279.

Determination of whether right has been denied. — The obligation of the state court trial judge to fully safeguard the right to counsel has been stated many times by the United States supreme court. That court has stated that no hard and fast rule may be promulgated whereby it can be determined that a defendant's constitutional right to due process of law has been infringed. Rather, this determination must turn on the particular facts of each case, the circumstances present, which shall include consideration of the background, training, experience and conduct of the defendant. State v. Coates, 1967-NMSC-199, 78 N.M. 366, 431 P.2d 744.

Denial of right does not invalidate subsequent proceedings. — Where for six days after his arrest defendant was interrogated from time to time by officials but gave no statement and was not allowed to retain or consult with an attorney, defendant was denied his constitutional right to counsel during the first six days after his arrest. However, the denial of a naked constitutional right does not invalidate all subsequent proceedings nor necessarily prevent an accused from acting voluntarily in such proceedings, and where defendant subsequently retained counsel and pleaded guilty upon his advice, the plea was held to be voluntarily given. Murillo v. Cox, 360 F.2d 29 (10th Cir. 1966).

Failure to advise defendant of right to counsel. — Where failure of the police to advise the petitioner of his right to counsel or of his right to remain silent prior to interrogation of him was not shown to have been prejudicial to him at the trial, and no statement was in fact made nor was any testimony offered at the trial concerning any statement asserted to have been made by him, and there was nothing to indicate that the officers may have obtained evidence of any nature as a result of petitioner's statements, then the denial of a naked constitutional right does not invalidate all subsequent proceedings. State v. Selgado, 1967-NMSC-147, 78 N.M. 165, 429 P.2d 363.

It is always open to an accused to subjectively deny that he understood the precautionary warning and advice with respect to his right to remain silent and to assistance of counsel, and when the issue is raised in an admissibility hearing it is for the court to objectively determine whether in the circumstances of the case the words were sufficient to convey the required warning. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Where no prejudice results from failure to assign counsel. — Failure to assign counsel to represent defendant before the magistrate or at his arraignment did not abridge defendant's constitutional rights where no prejudice was shown. Gantar v. Cox, 1964-NMSC-215, 74 N.M. 526, 395 P.2d 354.

The absence of counsel at arraignment, the lack of a specific waiver by defendant, or the failure of the judge to specifically advise the defendant of his right to have appointed counsel at the arraignment does not amount to reversible error absent a showing of prejudice. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Where there was no evidence that the circumstances surrounding the arrest, the fact that the defendant had been in jail overnight without arraignment or the fact that he had no lawyer, in any way rendered his statement involuntary and as the trial court ruled, as a matter of law, that the confession was voluntary before submitting it to the jury under proper instructions requiring the jury to consider any questions concerning whether it was voluntary, defendant's constitutional rights were not abridged. State v. James, 1971-NMCA-156, 83 N.M. 263, 490 P.2d 1236, overruled by State v. Victorian, 1973-NMSC-008, 84 N.M. 491, 505 P.2d 436.

Where defendant was given a hearing to ascertain if his confession was in fact involuntary on his Rule 93, N.M.R. Civ. P. motion (see now Rule 5-802 NMRA), (only applied to post-conviction proceedings prior to September 1, 1975) and the trial court found the statement or confession was voluntary, the fact that he was not furnished counsel prior to giving the statement is not a basis for setting aside his conviction. Burton v. State, 1971-NMSC-028, 82 N.M. 328, 481 P.2d 407.

Reference in testimony to exercise of right to counsel. — Defendant's argument that if the exercise of defendant's right to counsel lacked significant probative value any reference to the exercise of the right had an intolerable prejudicial impact requiring reversal was without merit since the relevant question is whether the particular defendant has been harmed by the state's use of the fact that he engaged in constitutionally protected conduct, not whether, for the particular defendant or for persons generally, the state's reference to such activity has burdened or will burden the exercise of the constitutional right. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.

Where the state elicited the fact that defendant engaged in constitutionally protected conduct (having a lawyer present at a lineup) only to show the fairness of the lineup procedure, defendant was not harmed by testimony that defendant had a right to counsel, and the trial court properly denied his motion for a mistrial. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.

Statement admissible though advice to right of counsel not given. — Trial court did not err in allowing admission of evidence of incriminating statement without prior showing of evidence that at the time of the claimed admission the defendant had been fully advised of his right to advice of legal counsel and his right not to be compelled to testify against himself where the statement was voluntarily made by defendant after he was arrested and released on bond, but was no longer in custody or being questioned, and where such statement was obtained neither surreptitiously nor by threat or promise. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

Inadvertent or accidental out-of-court identification was not illegal and inadmissible even though defendant, at that time, was without an attorney, was not advised of his right to an attorney and did not waive this right. State v. Samora, 1971-NMCA-149, 83 N.M. 222, 490 P.2d 480.

2. WAIVER OF RIGHT TO COUNSEL.

Right to proceed pro se. — The defendant who wishes to exercise the right of self-representation must clearly and unequivocally assert his or her intention to proceed pro se, make the assertion in a timely manner, and knowingly and intelligently waive the right to counsel. State v. Stallings, 2020-NMSC-019.

A defendant may waive counsel by conduct. — When a defendant has made a clear and unequivocal, timely assertion of the right to self-representation, the defendant's waiver of counsel is knowing and intelligent as long as the district court conducts a proper Faretta colloquy on the record and the defendant manifests an understanding of the rights being relinquished and the risks involved. Thereafter, the district court must allow the defendant to proceed pro se. State v. Stallings, 2020-NMSC-019.

When right to self-representation is clearly invoked. — Where defendant was charged with first-degree murder, and where, prior to trial, defendant fired his first appointed attorney and requested that the court allow a second attorney to be appointed or allow defendant to proceed pro se, and where the district court, although finding defendant competent to represent himself, appointed a second attorney to represent defendant, and where defendant later demanded to fire his second attorney and sought either the appointment of a third attorney or to proceed pro se, and where the district court declined to appoint a third attorney to represent defendant and allowed defendant to proceed pro se, the district court did not abuse its discretion by refusing to appoint a third attorney in the case and allowing defendant to proceed pro se, because the district court protected defendant's right to counsel by providing him with competent appointed counsel, and in this case, where defendant clearly and unequivocally asserted his intention to proceed pro se, made the assertion in a timely manner, and knowingly and intelligently waived his right to counsel, the district court properly respected defendant's right to self-representation. State v. Stallings, 2020-NMSC-019.

Failure to object to lack of counsel. — Where defendant, with counsel, proceeded to trial without raising the issue of lack of counsel at arraignment or failure of the trial judge to advise defendant of his right to counsel, defendant waived the claimed error. Under such circumstances, court of appeals was not presuming waiver from a silent record, because the waiver appeared affirmatively. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Failure to object constitutes waiver of defects in proceedings. — Appellant could not complain of deprivation of constitutional rights when he was provided with competent counsel in the district court before arraignment, was allowed to preserve his right to object to any prior denial of rights, and then went to trial without raising the issue of prior failure to provide counsel. By so proceeding, he effectively waived his right to object to prior defects in the proceedings. State v. Blackwell, 1966-NMSC-088, 76 N.M. 445, 415 P.2d 563.

Vacillation by defendant may constitute waiver. — When an indigent defendant vacillates as to whether he desires to act pro se or have the services of court-appointed counsel, his vacillation may constitute a waiver of his right to self-representation. State v. Lewis, 1986-NMCA-090, 104 N.M. 677, 726 P.2d 354.

To proceed pro se, a defendant must timely and unequivocally assert his intention to represent himself. — Where, prior to trial, defendant was granted repeated requests for a new attorney and was granted several continuances resulting in a three-year delay, the trial court did not err in denying defendant’s motion to proceed pro se, because defendant did not clearly and unequivocally assert his intention to represent himself and defendant’s motion, made on the morning of trial, was untimely. State v. Barela, 2018-NMCA-067, cert. denied.

Effect of guilty plea. — By pleading guilty the defendant admits the acts well pleaded in the charge, waives all defenses other than that the indictment or information charges no offense, and waives the right to trial and the incidents thereof, and the constitutional guarantees with respect to the conduct of criminal prosecutions, including right to jury trial, right to counsel subsequent to guilty plea and right to remain silent. State v. Daniels, 1968-NMSC-039, 78 N.M. 768, 438 P.2d 512.

Defendant, who voluntarily pleaded guilty, was not entitled to a post-conviction hearing under Rule 93, N.M.R. Civ. P. (see now Rule 5-802 NMRA) (only applied to post-conviction motions before September 1, 1975), for the purpose of determining whether or not the state obtained evidence, which warranted the filing of the complaint, as a result of a claimed questioning of him contrary to his constitutional rights to remain silent and to the aid of counsel. State v. Brewster, 1968-NMSC-035, 78 N.M. 760, 438 P.2d 170.

Waiver of right to counsel. — Where officer knew that defendant had counsel and interviewed defendant without giving counsel an opportunity to be present, the officer's conduct was disapproved, but that did not make defendant's statement inadmissible if he intelligently waived the right to have counsel present. State v. Lewis, 1969-NMCA-041, 80 N.M. 274, 454 P.2d 360, overruled by State v. Nemrod, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885.

Where a defendant, old enough to act intelligently, dismissed his attorney following advice from relatives and friends and thereafter entered a plea of guilty, fact that he was disappointed in severity of his sentence was insufficient for setting it aside. State v. Garcia, 1943-NMSC-040, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394.

Defendant charged with murder who had competent legal assistance from time shortly following his arrest until a day or two before sentence, when he discharged counsel, was not denied due process when shortly thereafter he withdrew his plea of not guilty and pleaded guilty to second-degree murder. State v. Garcia, 1943-NMSC-040, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394.

It may be assumed that a defendant, who had assistance of counsel for three months prior to pleading guilty to second-degree murder, knew of his constitutional right to counsel and had been advised concerning other important rights and details concerning his defense. State v. Garcia, 1943-NMSC-040, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394.

The exercise of the right to assistance of counsel is subject to the necessities of sound judicial administration; and the right may be waived if the defendant knows what he is doing and his choice is made with eyes open. Where defendant consistently asked for continuances and fired one counsel after another, the defendant had a full understanding of his right to counsel and deliberately discharged both his appointed counsel and his retained counsel with his eyes wide open. The right to counsel may not be used to play "a cat and mouse game" with the court, and by his actions the defendant waived his right to counsel. Leino v. United States, 338 F.2d 154 (10th Cir. 1964).

Where defendant voluntarily and knowingly waived his right to the aid of counsel at the time he made and signed the confession, and there is no evidence in the record from which it can be said that defendant was illiterate, inexperienced or otherwise not of normal intelligence, nor that his will was overborne in any respect by the officers, and he was adequately warned, the conclusion that he was fully aware of his right to aid of counsel and waived the right is clearly supportable. State v. Lopez, 1969-NMCA-019, 80 N.M. 130, 452 P.2d 199.

Accused may waive right to counsel provided that he has competent and intelligent knowledge as to his right. State v. Garcia, 1943-NMSC-040, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394.

Advising a defendant of technical defenses which, as a layman, he could not reasonably be expected to understand would contribute nothing in arriving at an intelligent and understanding waiver of his right to counsel. State v. Coates, 1967-NMSC-199, 78 N.M. 366, 431 P.2d 744.

Failure of district judge to explain any possible defenses to criminal charges does not preclude a valid waiver of right to counsel. State v. Gilbert, 1967-NMSC-226, 78 N.M. 437, 432 P.2d 402.

Defendant's understanding of the advice concerning appointment of counsel is an item to be considered on the issue of waiver of those rights, but that understanding is to be considered with all the other evidence on the question. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271.

Court's obligation to make sure that the waiver of right to counsel is valid, and is predicated upon a meaningful decision of the accused, does not require any particular ritual or form of questioning. State v. Gilbert, 1967-NMSC-226, 78 N.M. 437, 432 P.2d 402.

No hard and fast rule can be laid down as to what must be stated in each case in order to adequately explain an accused's rights before permitting him to waive counsel. Each case must be decided on its own peculiar facts which shall include consideration of the background, education, training, experience and conduct of the accused and should proceed as long and as thoroughly as the circumstances demand. State v. Montler, 1973-NMSC-043, 85 N.M. 60, 509 P.2d 252.

The trial judge, to assure that a defendant's waiver of counsel is intelligently and understandingly made, must investigate to the end that there can be no question about the waiver, which should include an explanation of the charge, the punishment provided by law, any possible defenses to the charge or circumstances in mitigation thereof and explain all other facts of the case essential for the accused to have a complete understanding. Cranford v. Rodriguez, 373 F.2d 22 (10th Cir. 1967).

When a defendant expressly waives his right to counsel, he is not entitled to claim that he was denied the right. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33.

A valid Miranda waiver is sufficient to waive the sixth amendment right to counsel. — Where defendant was arrested on charges of criminal sexual penetration of a minor, and where, at his first appearance, defendant requested and was appointed counsel to assist in his defense, and where defendant's counsel advised defendant not to speak with anyone, including the police, about the case, and where, notwithstanding the fact that defendant was represented by counsel, police interviewed defendant in jail the following day after defendant agreed to sign a waiver of his Miranda rights, defendant's sixth amendment right to counsel was not violated because defendant knowingly, intelligently, and voluntarily waived his right to counsel through his waiver of Miranda rights, notwithstanding counsel's advice. The sixth amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. State v. Mares, 2024-NMSC-002, overruling State v. Desnoyers, 2002-NMSC-031, 132 N.M. 756, 55 P.3d 968, and abrogating Collins ex rel. Collins v. Tabet, 1991-NMSC-013, 111 N.M. 391, 806 P.2d 40, and Rhein v. ADT Auto., 1996-NMSC-066, 122 N.M. 646, 930 P.2d 783.

Juvenile sixth amendment right to counsel. — The sixth amendment guarantees defendants the right to rely on counsel as an intermediary between themselves and the state, not just at trial, but from the time of initiation of criminal proceedings onward, when consultation, investigation and preparation are vitally important for purposes of promoting fundamental fairness, and the juvenile sixth amendment right to counsel is absolute and indelible; once the right has attached, it may not be waived outside the presence of counsel. State v. Rivas, 2017-NMSC-022.

Juvenile defendant’s right to counsel, once attached, may not be waived without counsel present. — Where fifteen-year-old defendant, charged with first-degree murder, aggravated burglary, tampering with evidence, and unlawful taking of a motor vehicle, agreed to be interviewed by a police detective without his appointed counsel being present, it was error for the district court to deny defendant’s motion to suppress the statements made in the interview, because once the record had established that the sixth amendment right to counsel had attached, the right to counsel could not be waived outside the presence of defendant’s counsel, and the district court had no alternative but to suppress defendant’s statements in their entirety. State v. Rivas, 2017-NMSC-022.

Burden of proof for enhanced sentence. — Once a defendant makes a prima facie showing, challenging the validity of his prior uncounseled convictions, the burden shifts to the state to establish by a preponderance of the evidence that the conviction was not obtained in violation of defendant's constitutional rights. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, cert. denied, 111 N.M. 529, 807 P.2d 227, overruled by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595.

Burden of establishing waiver of right to counsel. — Claims that the state's burden of establishing a waiver of right to counsel is not met where there is a conflict in the evidence is not the law, since it is for the trial court to weigh the evidentiary conflicts. State v. Briggs, 1970-NMCA-062, 81 N.M. 581, 469 P.2d 730.

Where upon the first interview defendant expressly declined to make any statement, then a second or further interview was not barred, but there was imposed upon the prosecution a "heavy burden" to establish that defendant knowingly and intelligently waived his privilege against self-incrimination and his right to the aid of counsel. State v. Lopez, 1969-NMCA-019, 80 N.M. 130, 452 P.2d 199.

Waiver of counsel at interrogation. — Where defendant accompanied a police officer to the police station for questioning about the death of defendant’s infant child; defendant was given Miranda warnings in full and signed a waiver of rights form; after defendant had been questioned for some time by the officer, defendant asserted the right to counsel and the officer stopped questioning defendant and left the room; after defendant had been left in the interview room for approximately one hour, defendant knocked on the door and asked to speak to the officer; defendant told the officer that defendant had changed defendant’s mind about wanting an attorney; the officer reminded defendant that defendant had invoked the right to counsel; and defendant then made an incriminating statement, defendant willingly and freely waived the previously invoked right to counsel. State v. Quinones, 2011-NMCA-018, 149 N.M. 294, 248 P.3d 336, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901.

Interrogation must end once the right to counsel is invoked. — Officers must scrupulously honor a suspect’s right to counsel, once invoked, by ending the interrogation, so in a murder investigation, where the defendant made clear that he wanted the assistance of a lawyer and that he did not have anything to say to the officers, but where the investigating officers, instead of immediately terminating the interrogation, showed the defendant his bible to keep the defendant talking in hopes that he would make incriminating statements, and tried to convince the defendant to waive his rights and tell the officers what happened, the officers violated the defendant’s constitutional rights. State v. Madonda, 2016-NMSC-022.

Defendant will not be presumed to have waived right to counsel at arraignment if the record is silent as to waiver. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Burden on defendant to show that waiver not effective. — The burden is upon appellant to show that his waiver of right to counsel was not intelligently and understandingly made. State v. Gonzales, 1967-NMSC-054, 77 N.M. 583, 425 P.2d 810.

Where the accused is found to have expressly waived counsel, the burden falls upon him, in a later federal habeas corpus proceeding, to show by a preponderance of the evidence that his acquiescence was not sufficiently, understandingly and intelligently made to amount to an effective waiver. Bortmess v. Rodriguez, 375 F.2d 113 (10th Cir. 1967).

B. EFFECTIVE REPRESENTATION.

Representing a mistrial as the only remedy for failure to find an interpreter for a juror in need of assistance. — Where, after voir dire, a juror informed the court that the juror did not understand the proceedings because English was not the juror’s first language and needed an interpreter; defense counsel told the court that it was too late to obtain an interpreter and requested a mistrial; the court dismissed the juror for cause; and defendant claimed that defense counsel was ineffective in advising the court that it was too late to find an interpreter and in representing that a mistrial was the only appropriate remedy, defendant failed to establish a prima facie case of ineffective assistance of counsel. State v. Jim, 2014-NMCA-089, cert. denied, 2014-NMCERT-006.

Presumption of ineffective assistance of counsel. — The conclusive presumption of ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105 N.M. 231, 731 P.2d 374 applies to appeals from a de novo trial in district court following a conviction in magistrate or municipal court. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006.

Where defendant was convicted of aggravated DWI by a jury in magistrate court; defendant timely appealed the conviction to district court and filed a demand for a jury trial; the district court denied defendant’s request for a jury trial; at a bench trial, the district court found defendant guilty of DWI; and defendant filed an untimely notice of appeal with the district court, defense counsel was conclusively presumed to be ineffective. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006.

Consideration of claim of ineffective assistance of counsel without an evidentiary hearing. — Although the court is reluctant to consider an ineffective assistance of counsel claim on appeal without an evidentiary hearing, the court generally does not demand preservation of the issue, because effective assistance of counsel is a fundamental right. Depending on the adequacy of the record, the court may either dismiss or remand an ineffective assistance of counsel claim to allow for further development of the issue before the trial court. However, if the record is sufficiently developed, the court can rule on the issue without further inquiry by the trial court. Garcia v. State, 2010-NMSC-023, 148 N.M. 414, 237 P.3d 716.

Failure to correctly advise defendant of the possible sentence resulting from a guilty plea. — Where defendant was charged with the offense of intentional child abuse resulting in death; the child, who was 17 months of age, died in 2007; defendant was never charged with negligent child abuse resulting in death; and defendant entered a plea of guilty based on defense counsel’s erroneous advise that negligent and intentional child abuse resulting in death are both first degree felonies carrying a 30-year prison sentence and that defendant could be convicted and sentenced as a first degree felon even if the death of the child was an accident; because the relevant statutes and case law provided that negligent child abuse resulting in death required proof of criminal negligence, conviction of intentional child abuse resulting in the death of a child under the age of 12 was a noncapital felony, which carried a sentence of life imprisonment; and because defendant could have avoided conviction altogether by successfully arguing that if defendant caused the child’s death, defendant did so negligently and not intentionally, defendant’s guilty plea was not knowing and voluntary due to ineffective assistance of counsel; and because there was a reasonable probability that, given the state’s evidence against defendant, defendant would have chosen to go to trial had defendant received adequate advise; and because defense counsel’s misunderstanding of defendant’s potential sentence prevented defense counsel from competently negotiating a plea agreement, defense counsel’s deficient performance prejudiced defendant and defendant should be allowed to withdraw the guilty plea. Garcia v. State, 2010-NMSC-023, 148 N.M. 414, 237 P.3d 716.

A prima facie case of ineffective assistance of counsel is not made when a rational strategy or tactic can explain the conduct of defense counsel. — Where defendant’s first trial on two counts of criminal sexual penetration resulted in a mistrial, and where thirty-two months elapsed between defendant’s first trial and his second trial, which resulted in a conviction of criminal sexual penetration, defendant did not establish a prima facie case of ineffective assistance of counsel on the grounds that defense counsel failed to assert defendant’s right to a speedy trial, because a prima facie case is not made when a plausible, rational strategy or tactic can explain the conduct of defense counsel, and in this case, defendant faced immigration consequences as a result of the criminal proceedings against him, and therefore one plausible strategic reason for not aggressively pursuing his speedy trial right was the delay of immigration consequences. State v. Castro, 2017-NMSC-027, rev’g 2016-NMCA-085, 381 P.3d 694.

Defense counsel's decision not to strike a potentially biased juror may have been a strategic decision. — Where defendant was convicted of second degree murder and tampering with evidence relating to the shooting death of his son's friend, and where, during voir dire at defendant's trial, one of the empaneled jurors revealed that he knew the investigator in the case, but defendant did not inquire into the juror's potential bias during jury selection, did not challenge the juror for cause, did not use an available peremptory challenge on the juror, and did not otherwise object to the juror during jury selection, and where, on appeal, defendant claimed ineffective assistance of counsel because his defense counsel failed to object to the seating of a biased juror and because defendant did not knowingly, intelligently, and voluntarily waive his constitutional right to an impartial jury, defendant failed to establish a prima facie case of ineffective assistance of counsel where it was plausible that choosing not to exercise a peremptory strike on the empaneled juror could have been a strategic decision, based on the fact that numerous jurors stated during voir dire that they had been exposed to details of the case through pretrial publicity, numerous jurors stated that they knew the prosecutor prior to trial, and at least two of the jurors stated that they knew defendant before trial. Where so many potential jurors knew defendant or the prosecution or had some other connection to the case, counsel had to make strategic decisions about which jurors with knowledge about the case to keep and which to strike. State v. Romero, 2023-NMSC-014, aff'g A-1-CA-38757, mem. op. (N.M. Ct. App. Oct. 15, 2021) (nonprecedential).

Defendant failed to establish a prima facie case of ineffective assistance of counsel where challenged action may be considered sound trial strategy. — Where defendant was convicted of trafficking controlled substances, and where defendant claimed that he received ineffective assistance of counsel when his trial attorney failed to object to the investigating officer’s expert testimony when the officer was not qualified as an expert and for not challenging the search warrant, defendant failed to establish a prima facie case of ineffective assistance of counsel, because the challenged action could be considered sound trial strategy. The officer’s expertise regarding any intent to traffic was irrelevant where trial counsel’s strategy was to raise a reasonable doubt about whether defendant possessed any of the narcotics or the other items seized by the law enforcement officers, and a reasonable attorney could have concluded that the law enforcement officers had sufficient probable cause to support a search warrant of the residence, based on evidence that the officers had observed the residence for a period of time, saw activity that indicated trafficking, and identified defendant as a person who lived at the residence, and thus decided a motion to suppress was unwarranted. State v. Paglinawan, 2026-NMCA-044.

Failure to protect a defendant’s constitutional rights creates a presumption of ineffective assistance of counsel. — Defendant established a prima facie factual basis to support a hearing regarding whether his trial counsel was ineffective by failing to sufficiently assert and preserve defendant’s right to a speedy trial under the sixth amendment, where defendant’s trial counsel never asserted defendant’s right to a speedy trial, pro forma or otherwise, where defendant did not acquiesce with any of his trial counsel’s actions to postpone trial, where there was nothing in the record indicating that it was reasonable or necessary for trial counsel to disregard defendant’s constitutional right to a speedy trial or fail to assert that right for nearly four years in his case, and where the evidence established that defendant’s speedy trial claim had merit and a reasonable probability of success. The failure to protect a defendant’s constitutional rights will create the presumption of ineffective assistance of counsel when counsel’s action is critical to the preservation of the right itself. State v. Castro, 2016-NMCA-085, cert. granted.

Defense counsel's refusal to participate in jury trial rose to the level of a constructive denial of counsel sufficient to create a presumption of prejudice. — Where defendant was charged with aggravated battery against a household member, and where defense counsel, due to the denial of his motion for continuance, refused to participate in defendant's trial, including refusing to participate in jury selection, refusing to cross-examine any of the state's witnesses, and refusing to call any witnesses on behalf of defendant, defendant was denied effective representation of counsel, because defense counsel's conduct rose to the level of a constructive denial of counsel and such conduct was sufficient to create a presumption of prejudice. State v. Hildreth, 2019-NMCA-047, 448 P.3d 585, rev'd in part on other grounds by 2022-NMSC-012.

Failure to assert defendant’s right to a speedy trial at every stage of the process did not result in ineffective assistance of counsel. — Where defendant was convicted of aggravated battery with a deadly weapon three years after his arrest, defendant failed to establish a prima facie claim of ineffective assistance of counsel based on defense counsel’s failure to assert defendant’s right to a speedy trial at every available juncture, because in this case, defense counsel made a pro forma assertion to the magistrate court of defendant’s right and made several mentions of the lengthy timeline of the case to the district court, and the delay caused by defense counsel’s diligence in trying to suppress the victim’s testimony was a plausible, rational trial strategy. State v. Lopez, 2018-NMCA-002, cert. denied.

Failure to interview the prosecution’s medical experts and to retain a defense medical expert. — Where defendant was convicted of child abuse resulting in great bodily harm; the state presented the expert testimony of three doctors who were critical to proving the state’s case; defense counsel possessed a list of the state’s witnesses and a means of contacting the witnesses; defense counsel did not interview the state’s medical experts and failed to consult with or retain a defense expert; and expert testimony was necessary to establish a factual basis for defendant’s theory that the child’s injuries were not new injuries that occurred during the time the child was with defendant, but stemmed from reinjury or exacerbated existing injuries, defendant established a prima facie case of ineffective assistance of counsel, because defense counsel acted unreasonably and without a strategic or tactical basis which prejudiced defendant’s ability to present defendant’s theory through effective cross-examination of the state’s experts and to explain defendant’s theory through defendant’s own expert witness. State v. Aragon, 2009-NMCA-102, 147 N.M. 26, 216 P.3d 276.

Trial counsel’s failure to apprise himself of current law and failure to investigate significant issues raised by his client resulted in ineffective assistance of counsel. — Where defendant was convicted of criminal sexual penetration of a minor, criminal sexual contact of a minor, and bribery of a witness, defendant established a prima facie case of ineffective assistance of counsel by presenting evidence that his trial counsel failed to object to the state’s use of a psychological evaluation, created and given to the state as part of plea negotiations, that contained statements that contradicted defendant’s testimony during direct examination and statements seeming to admit to the alleged acts, that trial counsel failed to apprise himself of 11-410(A)(5) NMRA which prohibits using statements made during plea discussions for either substantive or impeachment purposes, that trial counsel failed to investigate allegations of sexual abuse of the victim by another individual around the same time period, that trial counsel failed to pursue specific leads that called into question the victim’s credibility, and that there was no plausible, rational strategy or tactic that explains defense counsel’s conduct. State v. Miera, 2018-NMCA-020.

Failure to present evidence of victim’s past inability to stand trial. — Where defense counsel failed to present evidence that the shooting victim, who testified as a prosecution witness, had, in the past, been found incompetent to stand trial in several criminal cases in which the victim was a defendant; defense counsel tried to impeach the victim’s credibility by using the victim’s prior inconsistent statements, the victim’s history of drug addiction and impaired mental state at the time of the crime for which defendant was being prosecuted, and the victim’s felony convictions for burglary and forgery; and defense counsel’s cross examination showed that the victim was unstable and defensive and was unable to focus during the cross examination, defense counsel’s handling of the victim’s credibility during cross examination was objectively reasonable. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604.

Failure to file motion in mitigation of sentence. — Where defendant was convicted of child abuse resulting in great bodily harm; at the sentencing hearing, the district court spoke about the difficulties surrounding mandatory sentencing provisions and the unfairness that stemmed from removing the trial court’s discretion; the court imposed the mandatory sentence; defense counsel suggested that the trial court could reduce the sentence based on mitigating factors; the court expressed doubt, but stated that if defense counsel filed a motion, the court would consider it; and defense counsel failed to file the motion, defendant failed to establish a prima facie case of ineffective assistance of counsel because defendant failed to establish that defendant was prejudiced by defense counsel’s failure to file the motion. State v. Aragon, 2009-NMCA-102, 147 N.M. 26, 216 P.3d 276.

Counsel was not rendered ineffective by rulings of the court. — Where defendant was convicted of child abuse resulting in great bodily harm; the court denied a defense motion to exclude the testimony of two of the state’s medical expert witnesses that were disclosed late by the state and any reference to certain medical records that the state had disclosed seven days earlier; the motion was filed three days before trial; defense counsel had two months to interview the witnesses before trial; the delay in securing interviews of the state witnesses was not late notice, but defense counsel’s inaction and disagreement with the state about who was responsible for arranging the interviews; the state disclosed the medical records to defendant as soon as the state received the records; the records were as accessible to defense counsel as they were to the state; and the records pertained to the child’s condition at the time of trial and not at or before the time the child was injured, the trial court’s denial of the motion did not render defendant’s counsel ineffective. State v. Aragon, 2009-NMCA-102, 147 N.M. 26, 216 P.3d 276.

Court's limits on the method and proximity of defendant's communications with defense counsel during COVID-19 pandemic did not render counsel ineffective. — Where defendant was convicted of second degree murder and tampering with evidence, and where defendant moved for a new trial, claiming that the district court's enforcement of the New Mexico supreme court's order setting forth procedures for jury trials during the COVID-19 public health emergency, including the requirement that all individuals maintain a minimum distance of six feet between one another, resulted in defendant being unable to have privileged communications with his trial counsel before and during trial, and thus denying him effective assistance of counsel, the trial court did not err in denying defendant's motion for a new trial, because although defendant's ability to freely communicate with defense counsel was constrained by method and proximity, the record demonstrates that defendant was able to communicate with defense counsel through written communications during trial, through virtual meetings during pretrial preparation, and through in-person communications during breaks from the trial. The limited means of communication did not render counsel deficient to the extent it establishes a prima facie showing of ineffective assistance of counsel. Moreover, defendant failed to establish a reasonable probability that the result of the trial would have been different, and therefore fails to establish the requisite prejudice necessary for a prima facie case of ineffective assistance of counsel. State v. Steele, 2023-NMCA-053, cert. denied.

Prima facie case for ineffective assistance of counsel. — Where defendant was charged with criminal sexual penetration of a child under thirteen; defense counsel did not object to clearly prejudicial hearsay testimony of the state’s expert regarding defendant as the perpetrator and to character witnesses who testified to the truthfulness of the child; defense counsel did not retain and use or have available a defense expert to question or rebut the state’s expert testimony as to the expert’s qualifications to testify as a therapist with a master’s degree, to diagnose adjustment disorder, to conclude that adjustment disorder was consistent with sexual abuse, and to testify in a manner that would lead the jury to believe that there was sexual abuse and that it caused adjustment disorder; defense counsel asked the state’s expert to give an opinion on causation; and defense counsel allowed damaging pretrial statements of the child, defendant established a prima facie case for ineffective assistance of counsel. State v. Dylan J., 2009-NMCA-027, 145 N.M. 719, 204 P.3d 44.

Failure to make a prima facie case of ineffective assistance of counsel. — A prima facie case for ineffective assistance of counsel is not made if there is a plausible, rational strategy or tactic to explain the counsel’s conduct, and on direct appeal, the record is frequently insufficient to establish whether an action taken by defense counsel was reasonable or if it caused prejudice. State v. Astorga, 2015-NMSC-007.

Where defendant was charged with the murder of a law enforcement officer, defense counsel’s failure to litigate evidence of a recording of the officer’s call to dispatch, just prior to his murder, in which the officer may have indicated that he terminated all contact with defendant, it is impossible to determine, on direct appeal, whether defense counsel’s performance fell below an objective standard of reasonableness without affording the State an opportunity to question defense counsel about whether he chose not to litigate the evidence as a matter of trial strategy, and it cannot be said to a reasonable probability that litigating the dispatch call would have produced a different result; defendant has failed to make a prima facie case of ineffective assistance of counsel. State v. Astorga, 2015-NMSC-007.

Defendant failed to make a prima facie case of ineffective assistance of counsel. — Where defendant was charged with arson, breaking and entering, and violating an order of protection, and where, at trial, the state indicated that it intended to elicit testimony from the investigating detective about two phone calls defendant made from jail which had been recorded and transcribed, and where defendant objected to admitting only certain portions of the telephone calls, arguing that he wanted to read additional portions of the phone calls in which he denied starting the fire, and proposed that the entire recording of the telephone calls could be played for jury, and where the district court ruled that instead of reading to the jury multiple portions of the phone calls, defendant could ask the detective on cross-examination whether defendant denied committing the arson, and where, on appeal, defendant argued that his counsel was ineffective because he failed to raise a hearsay objection to the detective reading the portions of defendant's telephonic statements that he inserted into his report and failed to introduce the CD recording of the jail phone calls, defendant was not denied effective representation because the statements were admissible as non-hearsay statements of a party opponent and thus it was not error for counsel not to object to the detective's testimony on hearsay grounds and the decision not to introduce the entire recording of the phone calls, which also contained references to defendant's probation officer and parole revocation, was a matter of trial strategy. There being no error, defendant has failed to make a prima facie case for ineffective assistance of counsel. State v. Pamphille, 2021-NMCA-002, cert. denied.

Failure to prove prima facie case for ineffective assistance of counsel. — Where the state sought to revoke defendant’s probation; defense counsel met with defendant for the first time in court on the day of defendant’s probation violation hearing and informed defendant that the state was offering defendant a seven-year sentence to resolve the case; defendant indicated that defendant did not want to accept the state’s offer; the district court revoked defendant’s probation because defendant failed to report to defendant’s probation officer, failed to provide documentation that defendant received morphine while hospitalized, and missed counseling appointments; defense counsel admitted that defense counsel was ineffective in failing to properly advise defendant about the state’s plea offer and proceeding to the hearing shortly after meeting defendant; defendant claimed that counsel was ineffective for failing to speak to the probation officer or drug counselor and failing to investigate defendant’s claim that defendant had been hospitalized and could not report to the probation officer; and there was no evidentiary hearing on defendant’s claims, defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Cordova, 2014-NMCA-081, cert. denied, 2014-NMCERT-007.

Where defendant was charged with intentional child abuse; defense counsel did not call an expert witness on shaken baby syndrome; the record disclosed only that defense counsel made unsuccessful attempts to interview and consult with experts; the record did not contain any information regarding defense counsel’s efforts with respect to any potential defense experts; and there was nothing in the record to indicate that a defense expert was actually available to testify in support of defendant and what the content of the expert’s testimony would have been, defendant did not make a prima facie case of ineffectiveness of counsel. State v. Quinones, 2011-NMCA-018, 149 N.M. 294, 248 P.3d 336, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901.

Failure to establish prima facie case of ineffective assistance of counsel. — Where defendant was convicted of aggravated battery upon a peace officer and aggravated assault upon a peace officer, and where defendant claimed that his defense counsel failed to introduce evidence establishing defendant’s innocence, defendant failed to establish a prima facie case of ineffective assistance of counsel where the record reflects that during trial defense counsel questioned technicians about the state’s failure to perform the gun shot residue tests, specifically inquiring about why the case agent chose not to perform gun shot residue tests on defendant’s palms after the incident and asking questions that made it clear gun shot residue tests, unlike DNA tests, are conclusive evidence of a person firing a firearm, and where defense counsel highlighted the absence of gun shot residue tests during closing argument. State v. Uribe-Vidal, 2018-NMCA-008.

Defendant failed to establish a prima facie ineffective assistance of counsel claim. — Where defendant was convicted of stalking and escape or attempted escape from a peace officer, defendant failed to establish a prima facie case of ineffective assistance of counsel based on trial counsel’s failure to file an acceptable docketing statement, failure to file a motion for self-representation on behalf of defendant after learning of defendant’s intention to proceed pro se, failure to consult with defendant before the day of trial, and for failure to call witnesses on defendant’s behalf, because defendant failed to show how trial counsel’s performance on appeal impacted the outcome of his trial, there was no basis in the record to conclude that trial counsel knew of defendant’s intention to proceed pro se, the record was deficient of information regarding the extent to which trial counsel consulted with defendant, and the record was deficient of evidence that there were additional witnesses for trial counsel to call. State v. Barela, 2018-NMCA-067, cert. denied.

Failure to establish a prima facie case of ineffective assistance of counsel. — Where defendant was convicted in two separate cases of kidnapping with intent to commit a sexual offense, two counts of criminal sexual penetration in the second degree (in the commission of a felony), two counts of felony aggravated battery against a household member, criminal sexual contact with a deadly weapon and misdemeanor aggravated battery against a household member, and where defendant claimed his counsel was ineffective in failing to watch a video recording of defendant's interview with police before trial, in failing to move for joinder of the two cases, and in failing to object to lay-witness testimony, defendant's right to effective assistance of counsel was not violated because defendant failed to show that he was prejudiced by his counsel's failure to watch the video recording, there were strategic reasons why defense counsel would want the cases tried separately, and defendant failed to establish that the lay-witness's testimony rose to the level of opinion requiring expert qualification or how the admission of testimony prejudiced defendant enough to warrant a new trial. State v. Jackson, 2020-NMCA-034, cert. denied.

Defendant failed to make a prima facie case of ineffective assistance of counsel. — Where defendant was convicted of armed robbery, conspiracy to commit armed robbery, false imprisonment, possession of a firearm by a felon, aggravated battery with a deadly weapon, and two counts of aggravated assault with a deadly weapon, based on evidence that defendant and a co-conspirator robbed a restaurant in Alamogordo, New Mexico, and where defendant claimed that he was denied effective representation when his trial counsel did not move to sever the charge of felon in possession of a firearm from his remaining charges and because trial counsel did not cross-examine defendant's co-conspirator, who testified against defendant, concerning the co-conspirator's prior criminal history, defendant failed to make a prima facie showing of ineffective assistance of counsel because based on the appellate record, it was unclear whether trial counsel had a strategic reason for failing to move to sever felon in possession charge, and it was not clear whether the district court would have unequivocally admitted evidence of the co-conspirator's criminal conduct. State v. Reed, 2022-NMCA-025, cert. denied.

Defendant failed to establish a prima facie case of ineffective assistance of counsel. — Where defendant was convicted of criminal sexual penetration (CSP) and criminal sexual contact (CSC), and where defendant claimed that he received ineffective assistance of counsel because had his trial counsel objected appropriately, the evidence in support of his convictions would have been insufficient without the evidence that should have been excluded and that defense counsel failed to allow the victim to be recalled as a witness, defendant's claim of ineffective assistance of counsel was without merit, because the state presented ample evidence to support defendant's convictions based on the victim's testimony, forensic DNA evidence and the SANE nurse's testimony, and, where defendant had an opportunity to cross-examine the victim and other witnesses, failed to show sufficient prejudice. State v. Urquidi-Martinez, 2025-NMCA-028, cert. granted.

Prima facie showing of ineffective assistance of counsel must be supported by facts in the record. — Where defendant was convicted of trafficking cocaine by distribution and possession of cocaine with intent to distribute, defendant failed to make a prima facie showing that his defense counsel was ineffective for failing to call certain witnesses, because he failed to point to any facts in the record that supported his claim that the two witnesses were necessary defense witnesses whose testimony would likely have exculpated him. State v. Bello, 2017-NMCA-049, cert. denied.

Ineffective representation caused by court ruling. — Where the defendant was declared indigent; the defendant’s family raised enough funds to retain private counsel to represent him; neither the defendant nor his family could afford to pay for expert witnesses that were essential to his defense; and given no alternative, defense counsel tried unsuccessfully to withdraw in favor of the public defender so that, with public financing, the defendant could put on an adequate defense, the court, by refusing to allow counsel to withdraw or to otherwise order that the necessary services be provided, put the defendant in the position of receiving ineffective assistance of counsel. State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105, rev'g 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302.

Failure to give advice about Sex Offender Registration and Notification Act registration requirements. — In a sex crimes case, defense counsel’s performance is deficient when defense counsel fails to advise the defendant that a plea of guilty or no contest will almost certainly result in the defendant having to register as a sex offender under the Sex Offender Registration and Notification Act, and under such circumstances the defendant does not enter a plea knowingingly and voluntarily, and if the omission is prejudicial to the defendant, the district court must allow the defendant to withdraw the plea. State v. Edwards, 2007-NMCA-043, 141 N.M. 491, 157 P.3d 56, cert. quashed, 2007 NMCERT-008, 142 N.M. 436, 166 P.3d 1090.

Failure to advise a defendant of collateral sex offender registration requirements is per se deficient performance. — A defense attorney’s failure to advise a defendant entering into a plea which requires Sex Offender Registration and Notification Act registration of that consequence is per se deficient performance under the first prong of the Strickland test. State v. Trammell, 2016-NMSC-030, rev’g 2014-NMCA-107, 336 P.3d 977.

Where defendant, who stole a truck, unaware that there was a twelve-year-old boy in the back seat, pleaded guilty to false imprisonment of a minor, which at the time was a sex offense requiring registration under the Sex Offender Registration and Notification Act (SORNA), and where, prior to defendant’s plea, defense counsel failed to advise defendant of the SORNA registration consequences of his guilty plea, defendant’s attorney’s performance was per se deficient, because the failure to advise a defendant of collateral SORNA registration requirements has been a well-established prerequisite to the effective assistance of counsel when arranging a plea agreement, but defendant’s claim of ineffective assistance of counsel failed, because defendant failed to establish a reasonable probability that, but for defense counsel’s unprofessional errors, he would not have pleaded guilty and instead gone to trial, based on defendant’s testimony that had he been advised that he was pleading to a sex offense, he would have tried to negotiate a different plea agreement, the fact that defendant received some benefits by accepting the plea, and that the state had a strong case against defendant. State v. Trammell, 2016-NMSC-030, rev’g 2014-NMCA-107, 336 P.3d 977.

The rule of State v. Edwards, 2007-NMCA-043, applies retroactively. — The rule of State v. Edwards, 2007-NMCA-043, 141 N.M. 491, 157 P.3d 56, that defense counsel has an affirmative duty to advise a defendant charged with a sex offense that a guilty plea or no contest will almost certainly subject the defendant to the registration requirements of the Sex Offender Registration and Notification Act, was not a new rule of procedure and applies retroactively. State v. Trammell, 2014-NMCA-107, cert. granted, 2014-NMCERT-010.

Failure to give advise about Sex Offender Registration and Notification Act requirements. — Where defendant, who stole a vehicle, discovered after driving away that a minor child was in the vehicle; in 2004, defendant pleaded guilty to false imprisonment of a minor which at the time was a sex offense that required registration under the Sex Offender Registration and Notification Act; defense counsel did not inform defendant that as a consequence of defendant’s plea, defendant would be subject to sex offender registration or conditions of sex offender probation and parole; and defendant was not informed that defendant was subject to sex offender registration until defendant was released from custody, defendant’s assistance of counsel was ineffective and defendant should be allowed to withdraw the guilty plea. State v. Trammell, 2014-NMCA-107, cert. granted, 2014-NMCERT-010.

Failure to advise defendant of changes in sex offender registration law. — Where defendant, after pleading guilty to child solicitation by electronic device in 2014, claimed that he received ineffective assistance of counsel because his attorney failed to advise him that, due to a change in the law while his case was pending, sex offender registration for convictions of child solicitation by electronic device was required after, but not before July 1, 2013, defendant failed to demonstrate that the fact that his case persisted beyond July 1, 2013 was caused by his attorney’s failure to advise him of his opportunity for amnesty from sex offender registration, and defendant failed to demonstrate that he suffered prejudice as a result of his attorney’s failure to advise him of the legislature’s sex offender registration amnesty window for pending child solicitation charges resolved between the enactment of the new law and its effective date. State v. Morgan, 2016-NMCA-089, cert. denied.

Advice regarding immigration consequences of a guilty plea. — The general rule that criminal defense counsel, after determining the immigration status of the defendant, must read and interpret federal immigration law and specifically advise the defendant whether a guilty plea will result in almost certain deportation requires at a minimum that the attorney advise the defendant of the specific federal statutes that apply to the specific charges contained in a proposed plea agreement and of consequences, as shown in the statutes, that will flow from a plea of guilty. State v. Carlos, 2006-NMCA-141, 140 N.M. 688, 147 P.3d 897.

Inadequate advice regarding immigration consequences of guilty plea. — Where defendant pleaded guilty to possession of eight ounces or more of marijuana, a fourth degree felony and a deportable offense under federal law, defense counsel’s advice that it was a possibility that defendant might be deported was misleading and deficient, because given the provisions of the applicable federal provisions, defendant’s deportation was a virtual certainty given the crime to which she was pleading, and the district court could have reasonably concluded that defendant’s lack of understanding was due to her counsel’s failure to explain the consequences to her well or clearly enough, and that defendant was prejudiced by the deficient performance. State v. Gutierrez, 2016-NMCA-077.

Guilty plea not voluntary and intelligent when counsel fails to advise the defendant of the specific immigration consequences of a guilty plea. — Where defendant, an undocumented immigrant who pled guilty to drug possession and driving while under the influence of alcohol in exchange for a conditional discharge of his drug charge, was taken into custody by the United States Immigration and Customs Enforcement Services after violating the terms of his probation, and filed a motion to withdraw his guilty plea, arguing that his attorney had only advised him that a possible consequence of pleading guilty would be deportation, not that he would be barred reentry into the United States forever, the district court erred in denying defendant’s motion to withdraw his plea, because defendant’s attorney rendered deficient representation by failing to advise defendant of the specific immigration consequences, beyond deportation, that would follow as a result of his guilty plea, and defendant was prejudiced by his attorney’s deficient performance as evidenced by his pre-conviction and post-conviction actions showing a reasonable probability that defendant would have rejected the plea deal. State v. Gallegos-Delgado, 2017-NMCA-031.

Retroactive application of State v. Paredaz. — The holding of State v. Paredaz, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799, that a criminal defense attorney who represents a noncitizen client must advise that client of the specific immigration consequences of pleading guilty to pending charges and that an attorney’s failure to do so will be ineffective assistance of counsel if the client was prejudiced applies retroactively to 1990 when New Mexico rules and forms were amended to require attorneys to advise their client about the possible immigration consequences of a guilty plea. Ramirez v. State, 2014-NMSC-023, aff'g 2012-NMCA-057, 278 P.3d 569.

Where in 1997, petitioner pleaded guilty to misdemeanors; in 2009, petitioner learned that the guilty pleas rendered petitioner inadmissible to the United States; petitioner’s attorney never advised petitioner about any immigration consequences of petitioner’s guilty pleas; had petitioner known about the immigration consequences of petitioner’s guilty pleas, petitioner would not have pleaded guilty; and petitioner sought to vacate the guilty pleas on the basis of ineffective assistance of counsel, petitioner had a viable claim for withdrawal of petitioner’s 1997 guilty pleas based on ineffective assistance of counsel. Ramirez v. State, 2014-NMSC-023, aff'g 2012-NMCA-057, 278 P.3d 569.

Attorney’s affirmative duty to inform defendants of immigration consequences. — A defendant’s attorney has an affirmative duty to determine the specific risk of deportation for his client and to inform his client of the possible impact on his immigration status if he accepts a guilty plea, and the law requires a definite prediction as to the likelihood of deportation based on the crimes to which a defendant intends to plead and the crimes listed in federal law for which a defendant can be deported; if an attorney provides incorrect advice or misrepresents the consequences of a plea to his client, his performance is objectively unreasonable. State v. Tejeiro, 2015-NMCA-029.

Where defendant’s trial counsel failed to inform defendant of the risk of deportation or other possible immigration consequences, trial counsel’s performance fell below the objective standard of reasonableness. State v. Tejeiro, 2015-NMCA-029.

Prejudice, in the context of a motion to withdraw a guilty plea. — To establish prejudice in an ineffective assistance of counsel claim in the context of a motion to withdraw a guilty plea, a petitioner need only demonstrate a reasonable probability that he would have rejected the plea as offered had he known of the immigration consequences, and show that a decision to reject the plea bargain would have been rational under the circumstances. State v. Tejeiro, 2015-NMCA-029.

Where defendant who was convicted of a trafficking charge claimed ineffective assistance of counsel and moved to withdraw his guilty plea after learning that he could be removed from the United States, the evidence of defendant’s pre-conviction efforts to inform the trial court of defendant’s circumstances and his intent to avoid deportation, his post-conviction behavior in moving to withdraw his guilty plea after learning of his deportation consequences, along with evidence of the harshness of immigration consequences, established a reasonable probability that defendant would have rejected the plea offer if his attorney had competently advised him. State v. Tejeiro, 2015-NMCA-029.

District court's denial of defendant's motion to withdraw guilty plea not an abuse of discretion where defense counsel was not ineffective. — Where defendant moved to withdraw his guilty plea to criminal sexual penetration and criminal sexual contact of a minor, claiming that defense counsel was ineffective, the district court did not abuse its discretion in denying defendant's motion where, although defense counsel erroneously informed defendant that his DNA was found on the couch where the incident occurred, defendant failed to establish that he was prejudiced by counsel's performance. Moreover, the evidence against defendant was significant and there was sufficient evidence in the record to support the district court's determination that defendant made a strategic decision to plead guilty. Defendant failed to show that there was a reasonable probability that but for counsel's error regarding the non-existent DNA evidence he would not have pleaded guilty and, instead, would have insisted on going to trial. State v. Montano, 2019-NMCA-019, cert. denied.

Ineffective assistance claim arising out of a plea agreement. — Where defendant was indicted on 211 counts of securities fraud, forgery and identity theft, where defendant pleaded guilty to 13 counts of securities fraud and one count of conspiracy to commit securities fraud, where the plea and disposition agreement provided an avenue under which defendant could possibly serve no jail time, and where defense counsel obtained two different caps on sentencing and was able to negotiate for defendant’s immediate release from jail, the district court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea, because there was nothing in the record, either in the form of testimony from defense counsel or defendant to support defendant’s claim of ineffective assistance of counsel, and it was improbable that defendant, who was facing a life sentence if convicted and against whom the state had a strong case, would have gone to trial, and therefore, defendant failed to meet his burden of proving that defense counsel’s performance was deficient and that her performance prejudiced him. State v. Turner, 2017-NMCA-047, cert. denied.

Court’s warning regarding immigration consequences does not cure prejudice caused by defense counsel’s deficient representation. — A judicial warning of immigration consequences, by itself, cannot cure the prejudice caused by a defense attorney’s deficient performance in failing to advise his client of the specific immigration consequences of a guilty plea. State v. Favela, 2015-NMSC-005, aff’g 2013-NMCA-102, 311 P.3d 1213.

Where defendant, who was a Mexican national, pleaded guilty to aggravated battery and driving under the influence of alcohol, defense counsel failed to advise defendant of the specific immigration consequences of his guilty plea; at defendant’s plea and disposition hearing, the trial court warned defendant that a conviction would result in defendant’s deportation, and defendant responded that he understood the consequences of pleading guilty, the trial court’s warning was not sufficient to cure the prejudice caused by defense counsel’s deficient performance because the judge cannot gauge the defendant’s priorities, counsel defendants on how to proceed, or use the information strategically in negotiating pleas. State v. Favela, 2015-NMSC-005, aff’g 2013-NMCA-102, 311 P.3d 1213.

Court’s warning regarding immigration consequences does not cure counsel’s deficient representation. — A court’s warning or advisement to a defendant regarding possible immigration consequences of accepting a plea is never, by itself, sufficient to cure the prejudice that results from ineffective assistance of counsel in failing to advise the defendant of the immigration consequences of a plea. State v. Favela, 2013-NMCA-102, cert. granted, 2013-NMCERT-010.

Where defendant, who was a Mexican national, pleaded guilty to aggravated battery and driving under the influence; defense counsel failed to advise defendant of the immigration consequences of pleading guilty; at defendant’s plea and disposition hearing, the trial court warned defendant that a conviction would result in defendant’s deportation; and defendant responded that defendant understood the consequences of a guilty plea, the trial court’s warning was not sufficient to cure defense counsel’s deficient representation. State v. Favela, 2013-NMCA-102, cert. granted, 2013-NMCERT-010.

Court inquiry into defense counsel’s advisement concerning immigration consequences of a plea. — In cases in which the district court is presented with a guilty or nolo contendere plea by a foreign national, the district court should inquire of both the defendant and the defendant’s lawyer the extent to which the immigration consequences of accepting the plea were discussed (1) before the defendant signed the plea agreement, (2) before the defendant entered a plea in court, and (3) before sentencing. State v. Favela, 2013-NMCA-102, cert. granted, 2013-NMCERT-010.

Failure of attorney to advise defendant of all possible defenses is no basis for post-conviction claim of incompetency of counsel. Burton v. State, 1971-NMSC-028, 82 N.M. 328, 481 P.2d 407.

Where the trial court's finding that petitioner did not discuss with his attorney any fight between himself and the deceased was supported by substantial evidence, there could have been no obligation on or reason for the attorney to discuss with defendant the matter of self-defense, and petitioner could not claim any violation of any constitutional or other right which would make his conviction on a voluntary plea of guilty subject to collateral attack under Rule 93, N.M.R. Civ. P. (now Rule 5-802 NMRA). Burton v. State, 1971-NMSC-028, 82 N.M. 328, 481 P.2d 407.

Failure to raise violation of the Religious Freedom Restoration Act as a defense. — Where defendant, who was the spiritual leader of a religious group that lived together, was convicted of criminal sexual contact of a minor and of contributing to the delinquency of a minor based on unclothed experiences with two teenage children; defendant claimed that because defendant believed that touching the children was a religious act, defendant was not guilty of committing a crime; defendant claimed that defense counsel's failure to raise a defense based specifically on the Religious Freedom Restoration Act, 28-33-1 NMSA 1978 et seq., constituted ineffective assistance of counsel; defense counsel frequently raised defendant's religion as a defense; and the criminal sexual contact of a minor statute, 30-9-13 NMSA 1978, and the contributing to the delinquency of a minor statute, 30-6-3 NMSA 1978, do not violate the Religious Freedom Restoration Act, because the statutes are laws of general applicability that do not directly discriminate against or among religions, the protection of minors from sexual abuse and delinquency is a compelling governmental interest, and the statutes are the least restrictive means of achieving the government's goal of protecting minors from sexual abuse and delinquency, defense counsel was not ineffective for failing to raise a defense based specifically on the Religious Freedom Restoration Act. State v. Bent, 2013-NMCA-108, cert. denied, 2013-NMCERT-012.

Failure to advise defendant of all possible penalties. — Where defendant's original attorney testified at the hearing on the motion for post-conviction relief that he had advised defendant of all possible penalties for the offense charged, the trial court found defendant had been fully advised by competent counsel as to the penalties, and this finding was supported by substantial evidence. The mere fact that defendant testified the attorney had told him the penalty would be imprisonment for a period of from three to 25 years, which was contrary to the attorney's testimony, did not make the attorney's testimony insubstantial and thereby provide a basis for post-conviction relief on grounds of incompetency of counsel. Burton v. State, 1971-NMSC-028, 82 N.M. 328, 481 P.2d 407.

Though the accused should ordinarily be advised of the maximum and minimum sentences which can be imposed as well as the consecutive sentence possibilities, failure to do so does not preclude a valid waiver of right to counsel where defendant clearly understood that consecutive sentences could be imposed. State v. Gilbert, 1967-NMSC-226, 78 N.M. 437, 432 P.2d 402.

Failure to advise defendant that judge could be precluded from sitting. — Defendant's post-conviction claim that he was denied adequate counsel because his attorney had failed to advise him that the judge who resentenced him could be precluded from sitting since that judge had been district attorney at original criminal proceedings was without merit where defendant was aware that the judge had been prosecuting attorney, had been so informed by both the judge and his attorneys, and had specifically consented to the judge. State v. French, 1970-NMSC-159, 82 N.M. 209, 478 P.2d 537.

Failure to advise of right to appeal a conviction and sentence on a guilty plea, standing by itself, does not establish incompetency of counsel. State v. French, 1970-NMSC-159, 82 N.M. 209, 478 P.2d 537.

Failure to file a timely notice of appeal. — A criminal defendant, whose counsel files an untimely notice of appeal from the district court’s on-record review of a metropolitan court decision, is entitled to a conclusive presumption of ineffective assistance of counsel. State v. Vigil, 2014-NMCA-096, cert. granted, 2014-NMCERT-009.

Presumption of ineffective assistance of counsel for failure to timely file a notice of appeal still applies after four years of inaction. — The first and foremost reason that the passage of time alone does not prevent application of the presumption of ineffective assistance of counsel for failure to timely file a notice of appeal is based on the fundamental premise that the rights implicated by the presumption, the right to appeal and the right to effective assistance of counsel, protect a defendant’s fundamental liberty interest in a fair trial. This interest is no less significant after the deadline for appeal than it was before the deadline, nor does it diminish over time, and therefore where defendant appealed from a stipulated corrected sentence that was entered four years after the original judgment and sentence, after which defendant filed neither an appeal nor an affidavit of waiver, the presumption of ineffective assistance of counsel for failure to file a timely notice of appeal still applied. State v. Dorais, 2016-NMCA-049, cert. denied.

Representation to which defendant is entitled is something more than a pro forma appearance. State v. Dalrymple, 1965-NMSC-124, 75 N.M. 514, 407 P.2d 356.

Sham, farce or mockery of justice need not be shown. — The "sham and mockery" standard is rejected in favor of the "reasonably competent" test. State v. Orona, 1982-NMSC-002, 97 N.M. 232, 638 P.2d 1077.

"Reasonably competent" test. — The sixth amendment demands that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney. State v. Orona, 1982-NMSC-002, 97 N.M. 232, 638 P.2d 1077.

In considering a claim of ineffective assistance, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. State v. Dean, 1986-NMCA-093, 105 N.M. 5, 727 P.2d 944, cert. denied, 104 N.M. 702, 726 P.2d 856.

Adoption of the "reasonably competent" standard does not represent a departure from case law in this state but merely formalizes a trend found in assistance of counsel cases over the last several years. State v. Orona, 1982-NMSC-002, 97 N.M. 232, 638 P.2d 1077.

Even though courts have articulated the "sham and mockery" test, they have been in fact applying the more stringent "reasonably competent" test, and formal adoption of this standard represents only a change in name. State v. Orona, 1982-NMSC-002, 97 N.M. 232, 638 P.2d 1077.

Court decides whether counsel to be discharged. — Whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide. State v. Salazar, 1970-NMCA-056, 81 N.M. 512, 469 P.2d 157.

Burden of sustaining charge of inadequate representation rests upon defendant. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209.

Where appellant attributed his conviction to the incompetence of his court-appointed counsel, the burden of sustaining this charge was on the appellant. State v. Hudman, 1967-NMSC-201, 78 N.M. 370, 431 P.2d 748.

Burden of showing prejudice from defective performance. — Even if counsel's performance was constitutionally defective, the defendant must still affirmatively prove prejudice. In other words, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Brazeal, 1990-NMCA-010, 109 N.M. 752, 790 P.2d 1033, cert. denied, 109 N.M. 631, 788 P.2d 931.

Defendant failed to establish a prima facie case of ineffective assistance of counsel. — Where defendant was convicted of two counts of vehicular homicide and possession of methamphetamine, and where on appeal, defendant claimed that he received ineffective assistance of counsel because his trial counsel did not discuss whether defendant would testify at trial or explain habitual offender enhancements and did not object to certain expert testimony, defendant failed to establish a prima facie case of ineffective assistance of counsel, because defendant did not show that the results of any proceeding would have been different but for defense counsel's action and therefore did not show prejudice. State v. Ensor, 2026-NMCA-007, cert. denied.

Defendant was not prejudiced by his attorney's late filing of the witness list. — Where defendant was charged with first-degree willful and deliberate murder, and where defendant's counsel filed a list of eleven potential witnesses well after the deadline and just two business days prior to jury selection, and where at a pretrial hearing, defense counsel explained that he only intended to call three of the witnesses on the list, including the custodian of records for the district court, the custodian of evidence for the police department, and a witness that would attack the credibility of the state's main witness, and where the only potential witness that was excluded by the district court was the credibility witness, defendant has not shown that he was prejudiced by the late filing because the credibility witness's testimony would merely have been cumulative of other evidence at trial. State v. Gutierrez, 2021-NMSC-008.

Three months to prepare a defense in a first-degree murder case did not result in ineffective assistance of counsel. — Where defendant was charged with first-degree murder (willful and deliberate), conspiracy to commit first-degree murder, kidnapping, aggravated burglary, and tampering with evidence, and where defendant claimed that three months was insufficient time for trial counsel to prepare to defend him on first-degree murder charges, defendant failed to show that he was denied effective assistance of counsel where the record established that the case was relatively straightforward, that trial counsel had the benefit of prior counsel’s preparations, that trial counsel pursued a reasonable defense strategy, arguing that defendant’s co-conspirator only incriminated defendant in exchange for a plea deal, and that trial counsel effectively cross-examined the State’s witnesses and appeared to be well versed in the issues and evidence presented in the case. Defendant has not shown that he was prejudiced by any deficient performance. State v. Smith, 2025-NMSC-025.

Defendant failed to make a prima facie showing of prejudice where suppression would not have changed the outcome of the trial to a reasonable probability. — Where the district court denied defendant's two untimely motions he filed to suppress evidence of the victim's prior, out-of-court identification of defendant as well as the victim's forthcoming in-court identification of defendant, arguing that police procedures used to obtain the victim's out-of-court identification at the scene of the arrest were unduly suggestive of defendant's guilt in violation of his due process rights, and where defendant claimed that he received ineffective assistance of counsel for his attorney's failure to properly raise the identification issue in a pretrial suppression motion, defendant failed to make a prima facie showing of prejudice resulting from his counsel's error, if any, because the victim's out-of-court and in-court identifications of defendant were effectively cumulative of the evidence already presented against him, and therefore suppression of the evidence would not have changed the outcome of the trial to a reasonable probability. State v. McCalep, 2024-NMCA-083.

Appellate counsel’s deficiencies did not result in prejudice to defendant. — In a habeas corpus action, where petitioner alleged that his appellate counsel was so deficient that he was deprived of his constitutional right to appeal his conviction, the district court did not err in denying the petition for writ of habeas corpus, because appellate counsel’s errors did not deprive petitioner of his constitutional right to one appeal and therefore did not justify presumed prejudice, and appellate counsel’s errors did not amount to actual prejudice in violation of petitioner’s constitutional right to an appeal. Lukens v. Franco, 2019-NMSC-002.

Claim that appointed counsel was not experienced in criminal practice and therefore defendant was not given adequate assistance of counsel was too general. Where the claim was not supported by specific factual allegation, it did not provide a basis for post-conviction relief. State v. Hibbs, 1968-NMCA-093, 79 N.M. 709, 448 P.2d 815.

Where defendant's assertions as to competency of counsel are conclusions, they fall far short of raising an issue that the trial was a mockery of justice, a sham or a farce. Pavlich v. State, 1968-NMSC-147, 79 N.M. 473, 444 P.2d 984.

A claim of "failing to properly represent" is too general to raise an issue as to incompetency of counsel. State v. Follis, 1970-NMCA-083, 81 N.M. 690, 472 P.2d 655.

Claim that defendant's counsel was grossly incompetent is too vague to provide a basis for relief. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005.

Defendant's statement, "I don't believe my lawyer did his level best to win the case," raised no issue as to whether the proceedings leading to defendant's conviction were a sham, farce or mockery, and thus presented no issue for review. State v. Ford, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535.

Counsel must be given a wide latitude in his representation of his client. State v. Helker, 1975-NMCA-141, 88 N.M. 650, 545 P.2d 1028, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976), cert. denied, 429 U.S. 836, 97 S. Ct. 103, 50 L. Ed. 2d 102 (1976).

Reviewing court will not second guess counsel. — On questions of whether counsel effectively represented his client, reviewing court will not attempt to second guess trial counsel on appeal. State v. Helker, 1975-NMCA-141, 88 N.M. 650, 545 P.2d 1028, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976), cert. denied, 429 U.S. 836, 97 S. Ct. 103, 50 L. Ed. 2d 102 (1976).

Bad tactics or strategy do not amount to incompetency. — If in fact the trial attorney, by introducing the portion of the transcript, used bad tactics or improvident strategy, this did not amount to incompetency or ineffective assistance of counsel. State v. Garcia, 1973-NMSC-083, 885 N.M. 460, 513 P.2d 394.

Bad tactics and improvident strategy do not necessarily amount to ineffective assistance of counsel. State v. Hines, 1967-NMSC-237, 78 N.M. 471, 432 P.2d 827.

Bad tactics and improvident strategy do not necessarily amount to ineffective assistance of counsel, and defendant is denied effective assistance of counsel only where the trial considered as a whole was a mockery of justice, a sham or farce. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209.

Ineffectiveness of counsel is not established just because a case is lost. Neither is it established when there is a showing of improvident strategy, bad tactics, mistake, carelessness or inexperience on the part of counsel. State v. Chacon, 1969-NMCA-112, 80 N.M. 799, 461 P.2d 932; State v. Baca, 1969-NMCA-070, 80 N.M. 488, 458 P.2d 92.

Where, with knowledge of the inadmissibility, no objection was made to evidence concerning the polygraph test and the results, this was seen as a trial tactic which, in hindsight, was unsuccessful and not as a failure of the trial court to protect defendant's rights, a denial of a fair trial, or a denial of due process. The admission of the evidence which could have been excluded was the decision of defendant and his counsel. State v. Chavez, 1969-NMCA-109, 80 N.M. 786, 461 P.2d 919.

Unsuccessful trial tactics do not amount to ineffective assistance of counsel. — Where defendant was convicted of burglary and felony murder, and where defendant's trial counsel failed to meaningfully challenge expert blood spatter opinion testimony, failed to object to the admission of a voice recording that was not authenticated, and failed to request a hearing to determine the voluntariness of defendant's voice-recorded statements to police, defendant was not denied effective assistance of counsel because a reasonably competent attorney could have decided that further objection was unwarranted and a reasonably competent attorney could have decided that moving the district court to suppress the evidence was ill-advised based on the possible benefit to the defense of the recorded statements. State v. Sloan, 2019-NMSC-019.

Defense counsel was not ineffective for allowing inflammatory and prejudicial evidence when it was part of defense counsel’s trial strategy. — In defendant’s trial for possession of child pornography, where the prosecutor advised the district court that he wanted to tell the jury in his opening statement that bestiality was found on defendant’s computer, and where defense counsel stated that she did not object because similar terms are used to find material related to bestiality and child pornography, defense counsel was not ineffective, because a reasonable trial strategy could be that the bestiality pornography evidence, together with the other evidence in the case, e.g., that defendant had massive amounts of non-child pornography on the external hard drive to his computer, including cartoon pornography, and that there was no active or accessible child pornography on the hard drive, demonstrated that defendant’s interest in sexual matters, while extreme and dangerous, did not include an interest in child pornography. State v. Adamo, 2018-NMCA-013, cert. denied.

Failure to request lesser included offense instruction not ineffective assistance of counsel where counsel’s strategy may have been to defeat robbery conviction leaving no step-down charge. — Where defendant, with the assistance of others, robbed and then killed the victim, left the scene only to return several hours later to empty the victim’s pocket of cash and pour gasoline throughout the residence and on the victim’s body and set the residence on fire, defendant’s counsel was not ineffective for failing to request a lesser included offense instruction on theft, because counsel may have consciously determined that the better strategy was to defeat the second robbery conviction leaving no step-down charge. State v. Montoya, 2017-NMCA-033, cert. denied.

Failure to call a witness does not establish inadequacy and provides no basis for relief as the decision to call or not to call a witness is a matter of trial tactics and strategy within the control of counsel. Maimona v. State, 1971-NMCA-002, 82 N.M. 281, 480 P.2d 171.

Failure to call expert witness, without specifying what expert would testify to, did not establish a prima facie case of ineffective assistance of counsel. — Where defendant was convicted of voluntary manslaughter, his claim that his attorney was ineffective for failing to call an expert witness, to provide expert testimony on the trajectory of bullets, to corroborate the theory of self-defense failed to establish a prima facie case of ineffective assistance of counsel, because defendant’s claim that the expert could have provided useful information, without specifying what the expert would have testified to, did not demonstrate that his counsel’s errors prejudiced the defense such that there was a reasonable probability that the outcome of the trial would have been different. State v. Hobbs, 2016-NMCA-006, cert. denied, 2015-NMCERT-012.

Amount of time counsel spends with client. — The competence of court-appointed counsel at probation revocation hearings could not be determined by the amount of time he spent or failed to spend with the accused. Such an allegation, therefore, did not constitute grounds upon which relief could be granted under Rule 93, N.M.R. Civ. P. (see now Rule 5-802 NMRA) (only applied to post-conviction motions made before September 1, 1975). The failure of an attorney to confer with his client, without more, could not establish the incompetence of that attorney. State v. Brusenhan, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.

Sufficient time to prepare. — Defendant's trial counsel had adequate time to prepare for trial, which resulted in an adequate defense effort where counsel who represented defendant at trial testified in the evidentiary hearing that he was appointed prior to and represented appellant at his arraignment, that he conferred with defendant at length on several occasions, conducted other investigations, and filed a variety of motions prior to the trial, and that even with additional time he could not have afforded a better defense for defendant. Campos v. Baker, 442 F.2d 331 (10th Cir. 1971).

Prejudice not presumed from short time for preparation. — Prejudice would not be presumed solely from the short time (one week) between the appointment of defense counsel and the trial, where, although a week was a short time to prepare for a felony case, it was a simple case, defense counsel was experienced, and defense counsel was greatly aided in preparation by the prior work on the case. State v. Brazeal, 1990-NMCA-010, 109 N.M. 752, 790 P.2d 1033, cert. denied, 109 N.M. 631, 788 P.2d 931.

Lack of preparedness due to defendant. — Defendant's claim that his right to "prepared" counsel was denied him by the terms the trial court attached to a continuance was without merit where the record showed any lack of preparedness on the part of defendant's counsel was due to defendant's dilatoriness. In such circumstances, it could not be said that the trial court abused its discretion. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.

Refusal of counsel to discuss certain issues with defendant. — Defendant's plea of guilty could not have been freely, intelligently or knowingly given if court-appointed counsel did not and would not discuss any of such possible issues as police reports, potential defenses or relevant statutory requirements, with defendant. The items, considered together and in relation to the "facts" related in the police report, show manifest error was committed by the trial court in not permitting defendant to withdraw his plea of guilty. The issue is whether under the foregoing undisputed facts, defendant had effective assistance of counsel. State v. Kincheloe, 1974-NMCA-126, 87 N.M. 34, 528 P.2d 893.

Fact that counsel advises defendant to plead guilty does not establish incompetence and does not provide a basis for post-conviction relief. State v. Montoya, 1970-NMCA-016, 81 N.M. 233, 465 P.2d 290.

The bare fact that counsel advised appellant to plead guilty to one count rather than to risk the consequences of conviction of other charges does not indicate ineffectual representation by counsel. The plea by the appellant may well have been most beneficial to him. State v. Pavlich, 1969-NMSC-155, 80 N.M. 747, 461 P.2d 229.

Defense counsel's failure to interview key witnesses prior to trial, to file appropriate motions, interpose timely and proper objections, submit appropriate instructions, and failure to move to exclude the hearsay statement of defendant's husband, all combined to deprive defendant of a fair trial. State v. Crislip, 1989-NMCA-092, 109 N.M. 351, 785 P.2d 262, cert. denied, 109 N.M. 262, 784 P.2d 1005.

Failure of counsel to allege perjury. — Defendant's post-conviction claim that his counsel was incompetent because he failed to bring "perjury" to the attention of the trial judge, apart from the vagueness of the claim, was insufficient in that it is not contended that counsel knew of the alleged "perjury." State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

Failure of counsel to check on legality of arrest. — Post-conviction claim of incompetency of counsel based on defense attorney's failure to have subpoenas issued for witnesses and to check on the circumstances of the allegedly illegal arrest was insufficient to raise an issue as to incompetency of counsel. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

Advice concerning testimony by defendant. — Defense counsel's asking defendant to provide an innocent explanation for the use of a straw and razor blade, in the face of evidence that those items are frequently used as drug paraphernalia and uncontroverted stitpulated testimony that residue on the items taken from defendant's residence tested positive for cocaine, constituted prima facie ineffective assistance of counsel. State v. Richardson, 1992-NMCA-112, 114 N.M. 725, 845 P.2d 819, cert. denied, 114 N.M. 550, 844 P.2d 130, abrogated, Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806.

Representation of two defendants by same attorney is not per se a violation of constitutional guarantees of effective counsel. Only where a court requires an attorney to represent two codefendants whose interests are in conflict is one of the defendants' sixth amendment right to effective counsel denied. State v. Hernandez, 1983-NMSC-101, 100 N.M. 501, 672 P.2d 1132.

Separate counsel for codefendant. — Appellant's claim of prejudice arising from the failure of the trial court to assign separate counsel for him was found to be lacking in merit because no conflict of interest is shown to exist between appellant and his codefendant. State v. Gutierrez, 1968-NMCA-090, 79 N.M. 732, 449 P.2d 334, cert. denied, 80 N.M. 33, 450 P.2d 633.

Where defendant and codefendant were tried jointly and convicted for murder, defendant's assertion on motion for post-conviction relief that he was denied effective counsel on basis of conflict between interests of the two defendants due to fact that codefendant did actual killing while defendant was convicted of aiding and abetting, and due to variations in their confessions concerning details of the crime, was without merit where trial court's unattached finding was that confessions were consistent with one another, and that information concerning defendant in the confession of codefendant were cumulative only, and did not prejudice defendant. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93.

Joint representation of defendants is not inherent error; it is error only if there was a conflict of interest or if prejudice resulted. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93.

Conflict of interest on part of attorney. — A defendant is denied his constitutional right of effective assistance of counsel if his attorney represents conflicting interests without a disclosure of such facts and a waiver of the conflict by the defendant and when ineffective assistance of counsel is alleged due to conflict of interest between the defendant and the victim, an appellate court will assume prejudice and none need be shown or proved. State v. Aguilar, 1975-NMCA-060, 87 N.M. 503, 536 P.2d 263.

Constitutional rights violated only by actual conflict of interest, not mere possibility. — The possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his constitutional rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance. State v. Robinson, 1983-NMSC-040, 99 N.M. 674, 662 P.2d 1341, cert. denied, 464 U.S. 851, 104 S. Ct. 161, 78 L. Ed. 2d 147 (1983); State v. Hernandez, 1983-NMSC-101, 100 N.M. 501, 672 P.2d 1132.

Indigent defendants are deprived of the effective assistance of counsel when counsel for the defendants are inadequately compensated. State v. Young, 2007-NMSC-058, 143 N.M. 1, 172 P.3d 138.

Constitutionality of flat-fee arrangements for indigent defense contract counsel. — Where the New Mexico legislature, in its 2015 general appropriation to the law office of the public defender (LOPD), specifically provided that the appropriations to the public defender department shall not be used to pay hourly reimbursement rates to contract attorneys, the district court erred in entering an order requiring the LOPD to pay contract counsel hourly rates and the state to provide additional funding, nullifying the legislature’s prohibition of the payment of hourly rates to indigent defense contract counsel as violative of the federal and state constitutions, based on its conclusion that the flat-fee rates paid to contract counsel by the LOPD contravene the constitutional guarantee of effective assistance of counsel; an indigent criminal defendant who is represented by contract counsel who is compensated under a flat-fee arrangement does not necessarily receive ineffective assistance of counsel. Kerr v. Parsons, 2016-NMSC-028.

Indigent defendant represented by pro bono counsel is constitutionally entitled to public funding for expert witness fees, provided that the expert witness meets all of the standards promulgated by the public defender department. Constitutional right to be provided with basic tools of an adequate defense is not contingent upon the appointment of counsel by the public defender department. State v. Brown, 2006-NMSC-023, 139 N.M. 466, 134 P.3d 753, rev'g 2004-NMCA-037, 135 N.M. 291, 87 P.3d 1073.

A district court has no authority to order the public defender department to pay expert witness fees from unspecified state funds where counsel represent the indigent defendant pro bono for no fee. State v. Brown, 2004-NMCA-037, 135 N.M. 291, 87 P.3d 1073, rev'd, 2006-NMSC-023, 139 N.M. 466, 134 P.3d 753.

Payment for expert witness. — Defendants who select their own counsel must take all the consequences that go along with that selection, and one such consequence is that public funding will not be available for expert witness services. State v. Brown, 2004-NMCA-037, 135 N.M. 291, 87 P.3d 1073, rev'd, 2006-NMSC-023, 139 N.M. 466, 134 P.3d 753.

Adequate representation by one attorney sufficient. — Court would not inquire as to the number of attorneys necessary to represent a criminal defendant but as to whether he was effectively represented, and where defendant's trial counsel adequately cross-examined the state's witnesses, including its expert witnesses, and offered witnesses to attack the credibility of state's main witness, defendant was adequately represented. State v. Hernandez, 1993-NMSC-007, 115 N.M. 6, 846 P.2d 312.

Special assistant attorney general acting as defense attorney. — Convicted defendant did receive the effective assistance of counsel in fact and did receive the assistance of competent counsel as a matter of law, even though defense counsel was engaged as a special assistant attorney general of New Mexico, where the court found that representation of defendant, both in pretrial proceedings and during the trial, was entirely adequate and professionally competent, and said that statute prohibiting any assistants of the attorney general from acting as defense counsel would be modified in special cases to avoid injustice, and that it was well within the trial court's discretion to refuse strict application and to treat the rule as having been modified to "avoid injustice." Lucero v. United States, 335 F.2d 912 (10th Cir. 1964).

A failure to object does not establish ineffective assistance of counsel. — Where defense counsel did not object to reference in testimony to defendant’s impending court date, prior jail time, and previous altercations with the victim and the state presented strong evidence of defendant’s guilt of the charges, defendant failed to establish a prima facie case of ineffective assistance of counsel based on the failure to object. State v. Sotelo, 2013-NMCA-028, 296 P.3d 1232, cert. denied, 2013-NMCERT-001.

A failure to object does not establish ineffective counsel. State v. Chacon, 1969-NMCA-112, 80 N.M. 799, 461 P.2d 932; State v. Rubio, 1990-NMCA-090, 110 N.M. 605, 798 P.2d 206cert. denied, 110 N.M. 641, 798 P.2d 591.

Counsel's failure to object at trial to a prior conviction did not amount to ineffective assistance, since defendant did not show counsel's performance to be deficient or prejudicial. United States v. Mejia-Alarcon, 995 F.2d 982 (10th Cir.), cert. denied, 510 U.S. 927, 114 S. Ct. 334, 126 L. Ed. 2d 279 (1993).

The defense counsel's failure to object to the trial court's failure to instruct the jury on the element of mens rea in the defendant's case did not constitute ineffective assistance of counsel since the defendant's mens rea with respect to felony murder was conclusively established by his own testimony and was fully corroborated by the state's evidence; there was no evidence presented by either side that cast doubt on the fact that the defendant fired his rifle at the intended robbery victim, knowing his act created a strong probability of death or great bodily harm; the outcome of the trial would most assuredly have been the same had the jury been instructed on the omitted mens rea element. State v. Lopez, 1996-NMSC-036, 122 N.M. 63, 920 P.2d 1017.

Failure to object to search and seizure. — Where police, who were looking for an intoxicated driver, found defendant’s car, which matched the description of the car of the intoxicated driver, parked in front of a house; the police entered the house, found defendant sleeping on a couch and administered field sobriety tests and a breath test which indicated that defendant was intoxicated; defendant was arrested for aggravated DWI; because defense counsel did not file a motion to suppress the evidence obtained as a result of the officers’ warrantless entry into the house, defendant claimed that defense counsel provided inadequate assistance of counsel; and defendant was not the owner of the house or a guest and did not have permission to be in the house, defendant failed to establish a prima facie claim of ineffective assistance of counsel because the police entry into the other person’s house did not violate defendant’s own reasonable expectation of privacy in the house. State v. Crocco, 2014-NMSC-016, rev'g 2013-NMCA-033, 296 P.3d 1224.

Failure to object to unconstitutional search and seizure. — Where police officers, who were attempting to locate an individual who had driven a car into the front yard of a residence, entered the residence, and left when confronted by the owner of the residence; the officers found the car parked in front of another residence; the front door of the residence was unlocked and the officers entered the residence without a warrant, announced that they were police officers, and found the defendant passed out on a couch; defendant exhibited signs of extreme intoxication; the officers administered field sobriety tests and breath tests which showed that defendant was intoxicated; defendant was convicted of aggravated driving while intoxicated; the record did not support a warrantless entry based on the emergency assistance doctrine, because the officers did not have reasonable grounds to believe that there was an emergency that required their immediate assistance to protect life or property, the officers had no basis for believing that any one was inside the house or that delaying entry would endanger a person’s life or health, and other than the location of defendant’s car in front of the residence, the officers had no reasonable basis to believe that defendant was in the residence; and defense counsel did not move to suppress the evidence gained from the warrantless entry, defendant made a prima facie showing of ineffective assistance of counsel based on defense counsel’s failure to move to suppress the evidence gained from the warrantless search and defendant suffered prejudice as a result. State v. Crocco, 2013-NMCA-033, 296 P.3d 1224, rev’d, 2014-NMSC-016.

Failure to move to suppress evidence seized during illegal search. — Where police officers responded to a disturbance at defendant’s apartment; the officers knocked on defendant’s door and asked to come into the apartment to speak with defendant about some concerns the officers had; defendant allowed the officers to enter the apartment to speak to defendant; when the officers became aware that another person was in a bedroom, an officer went down the hallway to clear the bedroom and observed cocaine in the kitchen; the officers arrested defendant for possession of cocaine and drug paraphernalia; defense counsel moved to suppress the evidence on the grounds that the police entered defendant’s apartment without consent or a warrant and that the officers lacked probable cause to conduct the knock-and-talk procedure; defense counsel did not move for suppression on the ground that by entering the hallway and bedroom, the officers exceeded the scope of defendant’s consent to enter the apartment; and defendant’s argument regarding the scope of consent was not preserved, defendant made a prima facie showing of ineffective assistance of counsel for failing to move to suppress the evidence based on the scope of defendant’s consent to search the apartment. State v. Mosley, 2014-NMCA-094.

Failure to move to suppress drug evidence seized during an unconstitutional search. — Where defendant was charged with possession of controlled substances and possession of drug paraphernalia, defense counsel’s failure to move to suppress drugs and drug paraphernalia fell below the standard of a reasonably competent attorney where the evidence established that the arresting officer found drug paraphernalia in defendant’s vehicle during a search of defendant’s vehicle that did not fall within one of the recognized exceptions to the warrant requirement, and the evidence recovered was subject to suppression. Defendant made a prima facie case of ineffective assistance of counsel by showing that a reasonably competent attorney would have moved to suppress the evidence against him under established principles of New Mexico’s search and seizure jurisprudence, and that he was prejudiced by trial counsel’s deficient performance. State v. Howl, 2016-NMCA-084, cert. denied.

Failure to move to suppress juvenile defendant’s voluntary statements does not establish ineffective assistance of counsel. — Where fifteen-year-old defendant, charged with first-degree murder, aggravated burglary, tampering with evidence, and unlawful taking of a motor vehicle, agreed to be interviewed by a police detective after being advised of his rights, after being given an opportunity to read, and read aloud from, a standard advice of rights form before signing the form and indicating a desire to speak to the detective, where nothing in the record indicated that defendant lacked sufficient intelligence to understand his rights or the repercussions of waiving those rights or that defendant suffered from any impairment of mental or physical condition, and where there was no coercive or manipulative conduct by law enforcement, defendant failed to make a prima facie case of ineffective assistance of counsel where the totality of the circumstances indicated that defendant knowingly, intelligently, and voluntarily waived his right against self-incrimination. State v. Rivas, 2017-NMSC-022.

Failure to investigate lack-of-capacity defense. — Where defendant had a history of mental illness and refused to cooperate with defense counsel; upon motion of the prosecutor, the trial court ordered a psychological evaluation of defendant; and the evaluation did not determine defendant's ability to form the requisite intent to commit the charged offense, defense counsel had a duty to ascertain whether a defense of mental capacity was warranted, and if the defense was warranted, to present the defense at trial. State v. Lewis, 1986-NMCA-090, 104 N.M. 677, 726 P.2d 354.

Failure to request instruction. — The defendant in a prosecution for criminal sexual penetration was denied effective assistance of counsel where his trial counsel failed to request, and the trial court did not issue, an intoxication instruction, even though the evidence plainly would have been sufficient to require such an instruction, such an instruction would not have been inconsistent with the defense's "strategy" of arguing consent, and the absence of such an instruction was clearly prejudicial. Florez v. Williams, 281 F.3d 1136 (10th Cir. 2002), cert. denied, 537 U.S.1054, 123 S. Ct. 624, 154 L. Ed. 2d 532 (2002).

The defendant in a prosecution for criminal sexual penetration was denied effective assistance of counsel when his trial counsel failed to request lesser included offense instructions since it was unreasonable to rely on an unbelievable simple consent defense and there was a reasonable probability that the judge would have issued instructions on the lesser included offenses and that the jury would have convicted on those offenses. Florez v. Williams, 281 F.3d 1136 (10th Cir. 2002), cert. denied, 537 U.S. 1054, 123 S. Ct. 624, 154 L. Ed. 2d 532 (2002).

Defendant's trial counsel was not ineffective for failing to request a jury instruction that conflicted with defendant's theory of the case at trial. — Where defendant was convicted of armed robbery, conspiracy to commit armed robbery and tampering with evidence, and where defendant claimed that her trial counsel's failure to request a defense of duress instruction constituted ineffective assistance of counsel, defendant was not denied her constitutional right to effective representation, because defendant did not establish that she was entitled to a duress instruction when her theory of the case at trial was that she did not commit the crimes with which she was charged. State v. Radasa-Gleason, 2026-NMCA-057, cert. denied.

Failure to object to instruction. — Where there was evidence that defendant had consumed alcohol and marijuana; there was no evidence that defendant was intoxicated at the time defendant murdered the victim; and defendant's counsel did not request a voluntary intoxication instruction, but chose to pursue defendant's alibi-based defense rather than the contradictory voluntary intoxication defense, defendant's counsel did not render ineffective assistance of counsel on behalf of defendant. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057.

Failure to subpeona police officers. — Where defendant and another assailant broke into the home of the victim armed with metal bars or bats and defendant struck victim with a metal bar; defendant’s aggravated burglary conviction was supported by the testimony of the victim, the victim’s spouse and the victim’s child; the trial court excluded testimony from two police officers to the effect that damage done to the victim’s back door had occurred prior to the night of the break-in; and defense counsel decided not to take steps to secure the testimony of the officers because defense counsel did not believe that the officer’s testimony would make a difference in the case, defense counsel was not ineffective because the decision not to call the officers was a tactical decision. State v. Trujillo, 2012-NMCA-112, 289 P.3d 238, cert. granted, 2012-NMCERT-011.

Counsel who moves for mistrial following juror's prejudicial comment not deficient. — Defense counsel's performance was not deficient where, following a juror's comment in open court that the defendant should not be allowed close to a gun and shells, the attorney moved for a mistrial (though there was no proof that there was sufficient evidence to justify a mistrial) rather than asking the trial court to voir dire the juror or excuse the juror. State v. Price, 1986-NMCA-036, 104 N.M. 703, 726 P.2d 857, cert. quashed, 104 N.M. 702, 726 P.2d 856, modified, State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.

Counsel on appeal must be active advocate, rather than a mere friend of the court assisting in a detached evaluation of appellant's claim. However, once counsel, in his professional judgment, finds a nonfrivolous issue and vigorously argues it, the federal constitutional right to effective assistance of counsel is satisfied. State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1.

Illness of defendant's attorney. — Trial court's denial of defense counsel's motion for a continuance based on his illness was not a violation of defendant's right to effective representation absent proof that the condition compromised counsel's ability to provide effective representation on the day in question. State v. Aragon, 1999-NMCA-060, 127 N.M. 393, 981 P.2d 1211.

There was no error in the district court's denial of defendant's claim of ineffective assistance of counsel. — Where defendant pleaded guilty to multiple counts of sexual exploitation of a child (both possession and manufacturing) in 2013, and where, nearly seven years later, defendant was permitted to withdraw his plea, and where, prior to trial on the remaining charges, defendant filed a motion to dismiss for ineffective assistance of counsel, claiming that his attorney was ineffective for allowing him to enter into the original plea agreement, for failing to file a motion to suppress the search warrant, for failing to seek exculpatory evidence, and for failing to provide an adequate defense, the district court did not err in denying defendant's motion, because, as the district court found, if defendant were successful in his claim, the remedy would be to allow him to withdraw his original plea agreement and defendant had already received this very relief. State v. Castillo, 2023-NMCA-063.

VII. RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES.

A. IN GENERAL.

Principles of confrontation clause analysis. — The following principles are essential to confrontation clause analysis: (1) an out-of-court statement that is both testimonial and offered to prove the truth of the matter asserted may not be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant; (2) a statement can only be testimonial if the declarant made the statement primarily intending to establish some fact with the understanding that the statement may be used in a criminal prosecution; (3) when determining whether an out-of-court statement is testimonial, there is no meaningful distinction between factual observations and conclusions requiring skill and judgment; (4) even if a statement does not target a specific individual, the statement may still be testimonial; (5) the fact that an out-of-court statement is not inherently inculpatory does not make it non-testimonial; (6) the confrontation clause is violated only if the testimonial statement is offered to prove the truth of the matter asserted; and (7) an out-of-court statement that is disclosed to the fact-finder as the basis for an expert’s opinion is offered for the truth of the matter asserted and therefore, the declarant must testify at trial and be subject to cross-examination, or alternatively, must be unavailable, and the defendant must have had a prior opportunity to cross-examine the declarant. State v. Navarette, 2013-NMSC-003, 294 P.3d 435.

Autopsy reports are testimonial. — Autopsy reports regarding individuals who suffered a violent death are testimonial for purposes of confrontation clause analysis, because medical examiners are required by 24-11-8 NMSA 1978 to report their findings to the district attorney. State v. Navarette, 2013-NMSC-003, 294 P.3d 435.

Opinions of a pathologist based on the observation in an autopsy report performed by an non-testifying pathologist. — The confrontation clause precludes a forensic pathologist from relating subjective observations recorded in an autopsy report as a basis for the pathologist’s trial opinions, when the pathologist neither participated in nor observed the autopsy performed on the decedent. State v. Navarette, 2013-NMSC-003, 294 P.3d 435.

Where defendant, who was a passenger in a parked vehicle, shot and killed the victim, who was leaning into the open driver’s window; defendant was more than two feet from the victim; there was conflicting evidence as to whether defendant or the driver of the vehicle shot the victim; to assist the jury in determining who shot the victim, the state’s expert witness was permitted to give an opinion, based on the observations recorded in the autopsy report, that the gun was not within two feet of the victim; the autopsy report was never offered into evidence; the witness testified that another pathologist had performed the autopsy as part of a homicide investigation and that the witness had neither participated in nor observed the pathologist perform the autopsy; the pathologist did not testify at trial; and defendant did not have a prior opportunity to cross-examine the pathologist, defendant’s confrontation rights were violated because the witness related testimonial hearsay to the jury in support of the witness’ opinions. State v. Navarette, 2013-NMSC-003, 294 P.3d 435.

Right to confront witnesses is a trial right. — A defendant's right to confront witnesses against him is primarily a trial right, not a pretrial right. State v. Sloan, 2019-NMSC-019.

Where defendant was charged with burglary and felony murder, and where defendant's trial counsel waived defendant's presence at a pretrial hearing on whether to qualify the blood spatter analyst as an expert witness, defendant's right to confront witnesses against him was not violated because defendant confronted and cross-examined the blood spatter analyst at trial. State v. Sloan, 2019-NMSC-019.

Hearsay rule and the confrontation clause. — The hearsay rule and the confrontation clause are not co-extensive. The hearsay rule is intended to ensure that the jury is not exposed to unreliable evidence, even when the declarant testifies at trial and is subject to cross-examination. The confrontation clause guarantees the accused in a criminal trial the right to be confronted with the witnesses against the accused, regardless of how trustworthy the out-of-court statement may appear to be. State v. Mendez, 2010-NMSC-044, 148 N.M. 761, 242 P.3d 328, rev'g 2009-NMCA-060, 146 N.M. 409, 211 P.3d 206, overruling in part State v. Ortega, 2008-NMCA-001, 143 N.M. 261, 175 P.3d 929.

Admission of a co-defendant’s conviction violated the confrontation clause. — Where defendant was charged with accessory to murder and kidnapping and conspiracy to murder and kidnap the victim; defendant’s co-conspirators pled guilty or no contest to conspiracy to murder the victim in the same homicide underlying the charges against defendant; the trial court instructed the jury that without requiring testimony or other proof, the court had taken judicial notice of the co-conspirators’ convictions and that the jury could accept the convictions as fact; and the co-conspirators did not testify at defendant’s trial, the admission of the co-conspirators’ convictions violated defendant’s right to confront the witnesses against defendant. State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Testimony about the victim's death based on an autopsy report prepared by a non-testifying medical examiner. — Where the forensic pathologist who performed the autopsy on the victim was not available to testify at defendant's trial; the state qualified a substitute pathologist who was not present at the autopsy and did not prepare any of the autopsy records to testify as to the cause and manner of the victim's death; the substitute pathologist relied on the autopsy report, diagrams produced by the pathologist who performed the autopsy, medical reports, the field-investigator report, the toxicology report, photographs and x-rays taken during the autopsy, and photographs taken at the scene of the homicide; the substitute pathologist not rely on raw data to express an independent opinion, but essentially parroted the subjective statements of the pathologist who performed the autopsy, the district court erred in allowing testimony about the victim's autopsy from a witness who had no personal knowledge about the autopsy. State v. Sisneros, 2013-NMSC-049.

Testimony about an autopsy report prepared by a non-testifying medical examiner violated the defendant’s right of confrontation. — Where the former supervisor of the medical examiner who prepared an autopsy report of the infant victim testified to the autopsy; the supervisor testified that the supervisor was testifying for the medical examiner, read directly some of the contents of the autopsy report to the jury, and testified to the medical examiner’s observations and notations that were made during the autopsy; the statements in the autopsy report were testimonial; defendant did not have an opportunity to cross-examine the medical examiner prior to trial; and the State did not show that the medical examiner was unavailable as a witness, the admission of the autopsy report into evidence violated defendant’s right to confrontation. State v. Jaramillo, 2012-NMCA-029, 272 P.3d 682, cert. denied, 2012-NMCERT-002.

Admission of testimony about a non-testifying medical examiner’s autopsy report was not harmless error. — Where the trial court erroneously admitted an autopsy report of the infant victim based on the testimony of the former supervisor of the medical examiner who prepared the autopsy report; the autopsy report contained the signatures of four other medical examiners who had reviewed and confirmed the autopsy report; the cause and manner of death as human caused was critical; no other evidence could have proven that the victim’s death was a homicide caused by defendant’s abuse; and the credibility of the supervisor’s testimony was bolstered by the autopsy report and the corroborative opinions of the four other medical examiners who signed the autopsy report, the erroneous admission of the autopsy report was not harmless error. State v. Jaramillo, 2012-NMCA-029, 272 P.3d 682, cert. denied, 2012-NMCERT-002.

Testimony about the victim’s death based on an autopsy report prepared by a non-testifying medical examiner. — Allowing an expert to testify based on information in the autopsy report of another analyst, assuming the autopsy report itself is not introduced into evidence is not a per se violation of the confrontation clause. Until the expert testimony crosses the line from the formation of an independent opinion based on underlying raw data to a reliance on the conclusions and opinions of the author of the autopsy report or a mere parroting of the report’s findings, the testimony is admissible subject to the rules of evidence. State v. Gonzales, 2012-NMCA-034, 274 P.3d 151.

Where the state called an expert witness to testify about the circumstances of the victim’s death; the witness did not perform the autopsy on the victim or prepare the autopsy report; and the state told the court that the state did not intend to offer the autopsy report into evidence, that the witness would not rely on the conclusions or opinions of the forensic pathologist who prepared the autopsy report, and that the witness would rely on the witness’s review of photographs of the body and other raw data, if the witness offered the witness’ own opinions and conclusion as an expert witness and avoided parroting the testimonial statements of the forensic pathologist who prepared the autopsy report, then the witness’ testimony would not run afoul of defendant’s right to confrontation. State v. Gonzales, 2012-NMCA-034, 274 P.3d 151.

Testimony of supervising pathologist regarding autopsy. — Where defendant was charged with intentional child abuse resulting in the death of a child under the age of twelve; the court admitted the testimony of the supervising pathologist who did not actually perform the autopsy on the child; the supervising pathologist went through every feature of the autopsy with the forensic pathologist who performed the autopsy, including the microscopic exam, examination of the body and the injuries, and examination of all the photographs; the supervising pathologist participated in making the autopsy report findings; the autopsy report was not introduced into evidence; and the supervising pathologist’s testimony included the supervising pathologist’s own opinion reached after reviewing the records prepared with the assistance of the forensic pathologist, the supervising pathologist had sufficient personal knowledge to testify as to what the forsenic pathologist had discovered through the autopsy and the testimony of the supervising pathologist regarding the autopsy did not violate the confrontation clause. State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705.

Testimony of participating pathologist regarding autopsy. — In defendant’s felony murder trial, where the chief medical investigator who had personal knowledge of and participated in the autopsy and preparation of the autopsy findings, and reviewed and signed the autopsy report, it was not a violation of defendant’s confrontation rights to allow the witness to testify about his own observations from his examination of the body, the wounds, and the bullet trajectories. State v. Marquez, 2016-NMSC-025.

Testimony of supervising pathologist regarding autopsy report. — Where expert in forensic pathology testified regarding the victim’s autopsy in a murder trial, but only supervised and oversaw a trainee pathologist in the execution of the autopsy, defendant was not denied his right to confront witnesses against him where the autopsy report was prepared in the expert’s office under her direction and supervision, was reviewed, altered, and approved in accordance with her professional judgment, and was the product of her own independent participation in the autopsy, and thus testimony in connection to the autopsy report, including the opinions she rendered, was her own, was made under oath, and was subject to cross-examination. State v. Smith, 2016-NMSC-007.

Testimony concerning a forensic laboratory report. — Where the court admitted a forensic laboratory report that a substance was cocaine; the report was admitted into evidence through the testimony of a forensic chemist who did not conduct the tests underlying the report; the witness’s testimony was an explanation regarding how the test was performed and the witness’s approval of the testing chemist’s results; there was nothing in the witness’s testimony indicating that the witness relied on the witness’s own analysis to arrive at the witness’s own conclusions; the only other evidence that the substance was cocaine was the testimony of a police officer who performed a field test on the substance; and the state failed to prove the scientific reliability of the field test, the admission of the laboratory report and the witness’s testimony regarding the testing chemist’s opinion was error, the error was not harmless, and the error violated defendant’s right of confrontation. State v. Delgado, 2010-NMCA-078, 148 N.M. 870, 242 P.3d 437, cert. denied, 2010-NMCERT-007.

Testimony and opinion based on raw data from infrared spectrophotometer. — Where police officers sent a substance that field tested as methamphetamine to the crime laboratory for testing; the forensic laboratory supervisor, who was a forensic scientist, reviewed the raw data produced by a spectrophotometer and testified that the substance was methamphetamine based on the supervisor’s own analysis of the raw data; the laboratory analyst who placed the substance onto the spectrophotometer did not testify; and the state did not attempt to admit into evidence any declaration or conclusion of the laboratory analyst or any report of the testing process, defendant was not denied the right to confront the laboratory analyst because the laboratory analyst’s activities did not come within the confrontation requirement and the supervisor testified to the supervisor’s independent conclusion as to the nature of the substance based on the supervisor’s analysis of the raw data and not upon any testimonial statement or conclusion of the laboratory analyst. State v. Huettl, 2013-NMCA-038, 305 P.3d 956, cert. granted, 2013-NMCERT-003.

Confrontation of witnesses at probation revocation hearings. — The right to confront and cross-examine witnesses at probation revocation hearings is guaranteed by the due process clause of the fourteenth amendment, not by the confrontation clause of the sixth amendment. State v. Guthrie, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, rev’d, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.

The right protected in probation revocations is not the sixth amendment right to confrontation, which is guaranteed every accused in a criminal trial, but rather the more generally worded right to due process of law secured by the fourteenth amendment and a probationer is entitled to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904, rev'g 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, overruling State v. Phillips, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546.

The need-for-confrontation analysis in probation revocations is a spectrum that requires the trial court to focus on the relative need for confrontation to protect the truth-finding process and the substantial reliability of the evidence. If the need is significant and the court specifies the reasons why, then the witness must appear and be subject to confrontation, regardless of the reasons for the witness’s absence. If the need for confrontation is not significant and the court specifies why, then it does not matter whether the witness is available or not. The end of the spectrum where there is good cause for not requiring confrontation, where live testimony and cross-examination has no utility to the fact-finding process, includes situations in which the state’s evidence is uncontested, corroborated by other reliable evidence, and documented by a reliable source without a motive to fabricate and situations where an objective conclusion, a routine recording, or a negative fact, make the demeanor and credibility of the witness less relevant to the truth-finding process. The end of the spectrum where there is no good cause for not requiring confrontation, where the state’s failure to produce the witness deprives the defendant of due process, includes situations where evidence is contested by the defendant, unsupported or contradicted, and its source has a motive to fabricate and situations where the evidence is about a subjective, judgment-based observation that is subject to inference and interpretation, and makes a conclusion that is central to the necessary proof that the defendant violated probation. State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904, rev'g 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, overruling State v. Phillips, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546.

Where defendant agreed to attend a residential treatment program as a condition of supervised probation; defendant failed to complete the treatment program; defendant’s probation officer, who had filed the probation violation report, was not called to testify at the probation revocation hearing; the probation officer’s supervisor, who was called to testify, referred to documents in defendant’s probation file, including the probation violation report and a fax from the treatment center, to testify that defendant had not completed the treatment program; the supervisor had no personal knowledge about defendant or about the case, had never spoken to anyone from the treatment center and had not independently investigated the allegations against defendant; defendant did not contest the allegations or offer any evidence in mitigation; the fact of defendant’s non-compliance with the condition of probation was established by the written statement from the treatment center; and the district judge’s observation that defendant had been arrested in a county in which there was no residential treatment center corroborated the state’s evidence that defendant had violated probation, the district judge had good cause for not allowing defendant to confront and cross-examine defendant’s probation officer. State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904, rev'g 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, overruling State v. Phillips, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546.

Admission of accomplice’s interrogation statement. — Where the trial court granted the defendant’s accomplice, who had invoked the accomplice’s fifth amendment privilege against self-incrimination to avoid testifying at the defendant’s trial, limited immunity which extended only to the accomplice’s verification of the accuracy of the transcript of the accomplice’s police interrogation statement, but did not cover the accomplice’s answers to substantive questions about the events described in the statement, the admission into evidence of the accomplice’s statement denied the defendant the constitutional right to confront the witness against the defendant. State v. Zamarripa, 2009-NMSC-001, 145 N.M. 402, 199 P.3d 846.

Breath alcohol test certification. — Evidence of the certification process for breath alcoholic content machines and the actual certification of the machine used to test the breath alcohol content of the defendant is preliminary factual evidence to establish a foundation for the admission of evidence to be used at trial and defendant was not denied his right to confront witnesses against him where the state did not offer the testimony of the person who had actual knowledge of the certification process of breath alcohol content machines and the actual certification of the machine that was used to test the defendant’s breath alcohol content. State v. Granillo-Marcias, 2008-NMCA-021, 143 N.M 455, 176 P.3d 1187, cert. denied, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 672.

Rebuttal witness. — Where a prosecution rebuttal witness was not named on the state’s witness list, the rebuttal witness was not discovered as a witness until the same day she was presented as a witness, the trial court allowed counsel for the defendant and the co-defendant to interview the rebuttal witness before she was called as a witness, and the rebuttal witness testified about statements made by the co-defendant and said nothing about the defendant, the trial court did not abuse its discretion when it allowed the rebuttal witness to testify for the state. State v. Dominguez, 2007-NMSC-060, 142 N.M. 811, 171 P.3d 750.

Telephonic evidence. — The mere inconvenience to a witness in a criminal case is not a sufficient ground to permit the witness to testify by telephone. State v. Almanza, 2007-NMCA-073, 141 N.M. 751, 160 P.3d 932.

Purpose of the confrontation clause. — The central purpose of the Confrontation Clause, to ensure the reliability of evidence, is served by the combined effect of physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. A defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. State v. Thomas, 2016-NMSC-024.

Inconvenience to the witness is not sufficient reason to dispense with right to confront accusatory witness. — In defendant’s first-degree murder trial, where a police forensic scientist, living outside of New Mexico, testified via Skype, there was nothing in the record to demonstrate that the use of two-way video was necessary to further an important public policy, where the district court did not conduct an evidentiary hearing or enter any findings on the issue, the admission of remote testimony violated defendant’s sixth amendment right to confrontation. Moreover, the constitutional error was not harmless because there was no reasonable probability that the testimony of the absent forensic analyst did not influence the verdict, where the expert witness was the only analyst who had actually tested the DNA samples, and she testified to the results of the measurements she performed, and the DNA profiles were offered as the sole evidence that implicated defendant in the crime. State v. Thomas, 2016-NMSC-024.

Witness’ medical condition was insufficient to justify video conference. — Where, at defendant’s trial for murder and tampering with evidence, defendant’s parent was allowed to testify using Skype; and based on a letter from the parent’s doctor that the parent was suffering from severe stress, anxiety and depression and was physically and psychologically unable to travel, the district court found that it was medically necessary for the parent to testify via video, the doctor’s letter was inadequate as a matter of law to support the conclusion that the parent could not testify in person. State v. Schwartz, 2014-NMCA-066, cert. denied, 2014-NMCERT-006.

Evidence by video conference. — Where defendant lived with the victim for approximately one and a half months before the victim disappeared; two months later, the victim’s decomposed body was discovered wrapped in a blue air mattress and sheets, and covered with a mattress in an alley approximately 500 feet from defendant’s apartment; at defendant’s trial for murder and tampering with evidence, two forensic scientists and defendant’s parent were allowed to testify using Skype; the forensic scientists testified about DNA analysis that resulted in the identification of the body and provided a possible link between the body and defendant, which were essential elements of the state’s case; and the parent testified about defendant’s relationship with the victim and that the parent had purchased and sent defendant a blue air mattress, a set of sheets and a blanket, and authenticated letters from defendant acknowledging receipt of the air mattress and stating that the victim had gone to Mexico, the district court erred in permitting the witnesses to testify via video and the error was not harmless. State v. Schwartz, 2014-NMCA-066, cert. denied, 2014-NMCERT-006.

Evidence by video conference. — Where, at defendant’s trial for driving while under the influence, the district court allowed an analyst to testify via two-way video conference as to the conduct and results of a blood test on the grounds that to appear in person, the analyst would have to drive seven hours, resulting in the state laboratory division being shorthanded and the analyst inconvenienced in the analyst’s work, and the analyst provided the only testimony proving that defendant had alcohol in defendant’s system, the error was the district court did not establish the requisite necessity for allowing video testimony in lieu of live testimony with the result that defendant’s rights under the confrontation clause were violated and not harmless, because there was a reasonable possibility that the results of defendant’s blood test influenced the jury’s decision to convict defendant. State v. Smith, 2013-NMCA-081, cert. denied, 2013-NMCERT-006.

Testimony by video conference. — Where a witness from the scientific laboratories division was necessary to prove that the substance defendant transferred was marijuana; the trial occurred in Aztec, New Mexico; the witness worked in Santa Fe, New Mexico; and for the convenience of the witness, the court allowed the witness to testify by video conference without giving defendant an opportunity to respond to the state’s motion or to be heard, defendant was denied the constitutional right to confront a critical witness against defendant. State v. Chung, 2012-NMCA-049, 290 P.3d 269, cert. quashed, 2013-NMCERT-003, 300 P.3d 1182.

Child's right of confrontation was not violated by requirement that witnesses wear facemasks during a pandemic. — Where child was charged in delinquency proceedings with unlawful taking of a motor vehicle and reckless driving, and where, during the proceedings, the child's counsel objected to the requirement that witnesses wear face masks due to the COVID-19 pandemic, asserting that the requirement violated the child's state and federal right of confrontation, the child's right to confront witnesses was not violated because a child's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial where denial of such confrontation is necessary to further an important public policy, and because COVID-19 has been declared a public health emergency in New Mexico, preventing the transmission of COVID-19 is an important public policy matter. Moreover, the jury was able to physically see the witnesses' body language as well as hear them; the face mask requirement did not interfere with the child's constitutional right to confront witnesses. State v. Jesenya O., 2021-NMCA-030, 493 P.3d 418, rev'd on other grounds by 2022-NMSC-014.

Officer’s observations of victim during interview. — Although the taped interview of the victim was testimonial and inadmissible, the testimony of the officer who was present during the interview regarding his observations of the victim during the interview was admissible. State v. Romero, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694, aff'g 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842.

Police case agent not required to testify. — Where defendant was charged with criminal sexual contact of a minor because defendant caused the ten-year-old victim to touch defendant’s unclothed penis while in bed; a police case agent interviewed all witnesses in the case and was responsible for the entire investigation; the state listed the agent as a witness and subpoenaed the agent for trial; the state did not call the agent as a witness or use information from the agent’s investigation to prove its case; defendant did not subpoena the agent; and the trial court did not require the agent to testify, the trial court did not violate defendant’s confrontation rights or due process rights by not requiring the agent to testify. State v. Trujillo, 2012-NMCA-092, 287 P.3d 344, cert. denied, 2012-NMCERT-008, 296 P.3d 491.

Requirements for establishing forfeiture by wrongdoing. — To make a finding that a defendant forfeited his confrontation right by wrongdoing, the state must establish by a preponderance of the evidence that a declarant was expected to be a witness, the declarant became unavailable, the defendant’s misconduct caused the unavailability of the declarant, and the defendant intended by his misconduct to prevent the declarant from testifying. State v. Maestas, 2018-NMSC-010, rev’g No. 31,666, mem. op. (N.M. Ct. App. Jun. 3, 2014) (non-precedential).

Wrongdoing need not take the form of overt threat of harm. — Wrongdoing encompasses a variety of conduct, not all of which need constitute overt or specific threat. The emphasis in making the forfeiture determination is not typically on the wrongdoing itself but on the question of whether the wrongdoing was intended to cause, and did cause, unavailability. Generally, any use of coercion, undue influence or pressure may silence testimony and impede the truth-seeking function of trial, and thus any pressure of that kind may interfere with the background interests giving rise to the forfeiture by wrongdoing exception to the right of confrontation. State v. Maestas, 2018-NMSC-010, rev’g No. 31,666, mem. op. (N.M. Ct. App. Jun. 3, 2014) (non-precedential).

Where defendant was charged with aggravated battery against a household member, battery against a household member, intimidation of a witness, child abuse, and assault against a household member following a domestic dispute with his girlfriend, and where the state presented evidence that defendant, while in jail, exchanged nearly 600 phone calls with his girlfriend over a two-month period, during which defendant repeatedly demanded that his girlfriend change her story and expressed frustration and anger when she was not immediately compliant, preceding his girlfriend’s signing an affidavit of nonprosecution and assertion of her fifth amendment right and refusal to testify, defendant’s conduct had the potential for persuasive and coercive effect and thus constituted wrongful conduct, and the repeated demands that his girlfriend lie for him and give the prosecution an account different from the one previously given support an inference that defendant intended to prevent his girlfriend from testifying and caused her unavailability. State v. Maestas, 2018-NMSC-010, rev’g No. 31,666, mem. op. (N.M. Ct. App. Jun. 3, 2014) (non-precedential).

Forfeiture by wrongdoing. — The prosecution is required to prove intent to procure the witness’s unavailability in order to bar a defendant’s right to confront that witness. State v. Romero, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694, aff'g 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842.

Intent to silence. — The state must prove intent to silence a witness in all cases, including the murder of a witness, where the state contends that defendant forfeited all of his confrontation clause objections under the doctrine of forfeiture by wrongdoing. State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, aff'd, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.

Right of confrontation is fundamental. — It is fundamental that a person accused of crime is entitled to be confronted with the witnesses against him as well as the right to cross-examine said witnesses. State v. Holly, 1968-NMCA-075, 79 N.M. 516, 445 P.2d 393.

There can be no question that every defendant has the right, subject to certain exceptions, to be confronted by the witnesses who testify against him and to cross-examine such witnesses. State v. Trimble, 1967-NMSC-192, 78 N.M. 346, 431 P.2d 488.

Right of cross-examination is a valuable one which cannot be so restricted as to deprive party entirely of opportunity to test witness's credibility. State v. Martin, 1949-NMSC-050, 53 N.M. 413, 209 P.2d 525.

Every person accused of a crime has the constitutionally protected right to face his accuser. State v. Martinez, 1981-NMSC-005, 95 N.M. 445, 623 P.2d 565, overruled by Fuson v. State, 1987-NMSC-034, 105 N.M. 632, 735 P.2d 1138.

Right of confrontation is essential to fair trial. — The right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal. State v. Mann, 1975-NMCA-045, 87 N.M. 427, 535 P.2d 70.

Right of confrontation must be interpreted in light of existing law. — A person's constitutional right to face his accuser in a criminal prosecution must be interpreted in light of the law as it existed at the time it was adopted. State v. Martinez, 1981-NMSC-005, 95 N.M. 445, 623 P.2d 565, overruled by Fuson v. State, 1987-NMSC-034, 105 N.M. 632, 735 P.2d 1138.

Extent of right of confrontation. — The right of confrontation extends only to the right to be confronted with witnesses against the accused. State v. Roybal, 1988-NMCA-040, 107 N.M. 309, 756 P.2d 1204, overruled by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Violation of right to confrontation was harmless error. — Where the trial court erroneously admitted the testimony of a forensic pathologist who, prior to trial, consulted a forensic odontologist for his expert opinion regarding bite marks on the decedent, and who testified at trial, based on the forensic odontologist’s opinions, that one of the bite marks was more likely than not an adult human bite mark, another injury was suggestive of an adult human bite mark, and a third injury was probably not a bite mark; the testimony based on the odontologist’s opinions deprived the defendant of her constitutional right to confront witnesses against her. The error, however, was harmless because the forensic pathologist’s testimony about the apparent bite marks was a very minor portion of her overall testimony, and her testimony about bite marks did not relate to the cause and manner of decedent’s death which was blunt force trauma and traumatic brain injury, not from injuries resulting in bite marks; moreover, defendant admitted during her police interview that she had bitten the decedent. The bite mark testimony, though rising to the level of constitutional error, had little, if any, effect on the verdict and there was no reasonable possibility that the error contributed to the verdict. State v. Cabezuela, 2015-NMSC-016.

Infringement of the right of confrontation cannot be harmless error. — It is a right so basic to a fair trial that its infraction can never be treated as harmless error. State v. Mann, 1975-NMCA-045, 87 N.M. 427, 535 P.2d 70.

Right of confrontation is equal to right against self-incrimination. — One person's right against self-incrimination and another's right to be confronted with the witnesses against him cannot be balanced. Both rights stand on an equal footing, and neither is more important than the other. State v. Curtis, 1974-NMCA-140, 87 N.M. 128, 529 P.2d 1249.

Confrontation is right, not rule of evidence. — The right of confrontation is not a mere rule of evidence or procedure but a constitutional right of primary importance in the truth-finding process, because a more effective method of eliciting the truth than effective cross-examination has not yet been devised. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486.

Right to ascertain what testimony will be. — Defendant has constitutional right to compulsory process to obtain witnesses in his behalf. He has also right, personally or by attorney, to ascertain what their testimony will be. State v. Cooley, 1914-NMSC-035, 19 N.M. 91, 140 P. 1111.

Right applies to preliminary examination. — When the constitution grants to an accused the right to be confronted by the witness against him, it grants that right at all of the criminal proceedings, including the preliminary examination. Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, overruled by State v. Lopez, 2013-NMSC-047.

No right to confront witness who is not "against" defendant. — The constitutional guarantee of confrontation extends only to the right "to be confronted with the witnesses against him." Where witness was not a witness against defendant and nothing stated by witness to the police in any way could be construed as connecting defendant with the crime, trial court did not err in not allowing defendant to confront witness at trial. State v. Barton, 1968-NMSC-065, 79 N.M. 70, 439 P.2d 719.

Where defense witnesses are beyond jurisdiction of court, but state has admitted that they would testify to facts stated in motion for continuance, if present, overruling the motion is not a denial of rights under this section. State v. Nieto, 1929-NMSC-060, 34 N.M. 232, 280 P. 248.

Prior testimony of witness usually inadmissible. — Unless there has been a waiver of the right of confrontation, or it has been shown that the witness is unavailable after due diligence has been used by the state to attempt to produce him at trial, admission of a witness's prior recorded testimony violates a defendant's right of confrontation. State v. Mann, 1975-NMCA-045, 87 N.M. 427, 535 P.2d 70.

Prior sexual conduct. — Even though evidence of a victim's prior sexual conduct may be admissible to show bias, motive to fabricate or for other purposes consistent with the constitutional right of confrontation, the trial court did not err in rejecting such evidence where defendant failed to show that it was material and relevant, and that its probative value equaled or outweighed its inflammatory nature. State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869, rev'g 1995-NMCA-127, 121 N.M. 77, 908 P.2d 770.

De novo review is the proper standard of review for analyzing cases implicating both the rape shield rule and the Confrontation Clause. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470.

Analysis of cases implicating both the rape shield rule and the Confrontation Clause. — When a defendant makes a claim that the rape shield law bars evidence implicating the defendant’s confrontation rights, the district court must first identify a theory of relevance implicating the defendant’s constitutional right to confrontation and then weigh whether evidence elicited under that theory would be more prejudicial than probative. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470.

Application of rape shield rule violated Confrontation Clause. — Where defendant and the victim, who had a sexual relationship for two years, began arguing about a telephone call that defendant had received; during the argument, defendant indicated to the victim that defendant wanted sex; defendant and the victim went into defendant’s bedroom where defendant got on top of the victim and tried to remove the victim’s clothes; the victim told the defendant "no" several times and pushed and kicked defendant until defendant stopped making sexual advances; defendant was indicted for kidnapping with intent to commit a sexual offense; the district court refused to allow defendant on cross-examination to ask the victim whether the victim and defendant had a long-standing sexual relationship and whether they had a history of engaging in sex after an argument as "make-up sex" to resolve disputes for the purpose of showing that defendant never intended to sexually assault the victim but was pursuing consensual "make-up sex" as defendant and the victim had done after arguments in the past; the victim was the sole material witness against defendant and the only witness who could provide testimony necessary for defendant’s theory of the case; and the evidence was relevant to defendant’s defense and would not have had a prejudicial impact on the victim, the district court’s ruling violated defendant’s confrontation right because it denied defendant an opportunity to present a full and fair defense. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470.

Application of the rape shield rule did not implicate the confrontation clause. — Where defendant and the victim had been arguing; defendant wanted to have sex with the victim, but the victim refused; defendant got on top of the victim and attempted to remove the victim’s clothing; the victim pushed and kicked defendant until defendant stopped; defendant did not force the victim to have sex; defendant was charged with kidnapping and attempt to commit criminal sexual penetration; to show that defendant did not have specific intent to commit the crimes, defendant sought to introduce evidence of the sexual history of the victim and defendant to show that the defendant’s intent and the victim’s belief was that defendant was trying to have sex to "make-up" just as they had done in the past; the district court precluded defendant from inquiring into the party’s sexual history; defendant claimed that defendant’s confrontation rights had been violated because defendant was unable to challenge an opposing version of the facts, the district court’s exclusion of the evidence did not implicate or violate the confrontation clause, because defendant sought not to confront the victim, but to use the victim’s testimony as evidence unrelated to the truth or accuracy of the victim’s testimony. State v. Montoya, 2013-NMCA-076, rev’d by 2014-NMSC-032.

Telephone company records used for verification. — Telephone company records used only to verify that a telephone number given by a person who had called an embezzlement victim was assigned to someone named "Armijo" did not constitute a statement by an "accuser" within the constitutional guaranty of confrontation. State v. Roybal, 1988-NMCA-040, 107 N.M. 309, 756 P.2d 1204, overruled by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Right to inspect prior statement of witness. — When a witness called to testify by the state in a preliminary examination has made a prior written statement concerning the matter about which he is called to testify, the accused is entitled to an order directing the prosecution to produce for inspection all statements or reports of such witness in its possession touching the events about which the witness will testify. Any other result would be to deny the accused his constitutional right to confront the witnesses against him and would have the same effect as though he were denied a preliminary examination. Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, overruled by State v. Lopez, 2013-NMSC-047.

No right to confront victim who is not a witness. — The words, "to be confronted with the witnesses against him," which appear in this section should not be construed as being synonymous with the words, "to be confronted with his victim." A witness is one who testifies under oath, and the constitutional guarantee contemplates confrontation only by those who actually testify against the accused, or whose testimony or statements are in some way brought to the attention of the court and jury upon the trial. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

There was no deprivation of appellant's right of confrontation by the alleged victim of his crime as guaranteed by this section, where at no time did appellant seek a continuance based on the absence of evidence, where he made no statement as to what evidence he believed might be developed from the victim, if called as a witness, where at no time did he indicate that he desired to call the victim as a witness, and where the victim was not called as a witness, nor was one word of his testimony even offered by the state by way of deposition, prior testimony or otherwise. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

The right of confrontation does not embrace a situation where no prior testimony, statement or utterance of any kind by the victim was brought to the attention of the jury, and none was offered by the state. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

Admission of co-defendants’ custodial statements was harmless error. — The erroneous admission of the custodial statements of defendant’s co-defendants was harmless beyond a reasonable doubt where the co-defendants’ statements were merely additional evidence tending to prove what had already been demonstrated by physical evidence and the defendant’s own statements. State v. Lopez, 2007-NMSC-037, 142 N.M. 138, 164 P.3d 19, rev'g 2006-NMCA-671, 139 N.M. 705, 137 P.3d 645.

Inadmissibility of codefendant's extrajudicial statement. — The trial court erred in permitting a codefendant's written extrajudicial statement to be read to the jury since the state cited no other independent corroborative evidence which tended to lend reliability to the codefendant's untested and unsworn statement. State v. Lancaster, 1993-NMCA-098, 116 N.M. 41, 859 P.2d 1068, superseded by rule, State v. Gutierrez, 1998-NMCA-172, 126 N.M. 366, 969 P.2d 970.

Right to obtain transcripts. — The state must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. There can be no doubt that the state must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. Two factors that are relevant to the determination of need are: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript. This rule should be construed liberally in favor of a defendant's right to equal protection of the law and effective cross-examination. State v. Romero, 1975-NMCA-017, 87 N.M. 279, 532 P.2d 208.

A particularized need for the grand jury testimony of a witness must be shown before a grand jury transcript may be made available to an accused, but where such need is shown, a failure to furnish the transcript would impair the accused's right of cross-examination, and, thus, the full exercise of his right of confrontation. State v. Felter, 1973-NMSC-102, 85 N.M. 619, 515 P.2d 138.

Where defendant's basic defense was to persuade the jury that certain statements relied on heavily by the state were involuntary, and that the officer who testified about the circumstances of these statements testified differently at trial than at the suppression hearing, a copy of the prior hearing transcript would have been invaluable, and where there were different judges, court reporters and attorneys in the hearing on the motion to suppress, on the motion for a transcript, and at trial, there were no reasonable alternatives to a transcript of the prior hearing. State v. Romero, 1975-NMCA-017, 87 N.M. 279, 532 P.2d 208.

A transcript of prior testimony is a most useful tool in mounting an attack upon the credibility of witnesses, and the refusal to give a defendant a copy of the grand jury testimony of witnesses who would also testify at trial on the same subject matter has been held to deny him the right of effective cross-examination. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486.

Statute authorizing testimony of any witness taken in any court in state to be used in subsequent trial permits transcript of testimony of witness, taken at preliminary hearing, to be read in at trial; such statute is declaratory of common law and does not contravene constitutional right to be confronted by witnesses. State v. Moore, 1936-NMSC-044, 40 N.M. 344, 59 P.2d 902.

Transcript inadmissible where no cross-examination took place. — Where accused, in former trial, has been denied right to cross-examine hostile witness, it is error to admit transcript of witness's testimony in subsequent trial. State v. Halsey, 1929-NMSC-059, 34 N.M. 223, 279 P. 945.

Inadmissibility of guilty pleas of third persons. — Upon trial of one charged with unlawfully and knowingly permitting game of chance for money to be played on premises occupied by him, record of information charging third persons with unlawfully gaming and their pleas of guilty thereto were inadmissible as depriving defendant of constitutional right to be confronted by witness against him. State v. Martino, 1918-NMSC-128, 25 N.M. 47, 176 P. 815.

The alibi rule does not violate the right to compulsory process, since it does not prevent a defendant from compelling the attendance of witnesses, but, rather, provides reasonable conditions for the presentation of alibi evidence. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834.

Proceeding pursuant to rules. — The question of a denial of the constitutional right of confrontation was cognizable under a proceeding pursuant to Rule 93, N.M.R. Civ. P. (now superseded by Rule 5-802 NMRA). Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486.

Waiver of right of confrontation. — Where defendant, who had consumed a large quantity of alcohol and who was walking along a ditch with friends, encountered the victim sitting with a friend; defendant’s friend began punching and kicking the victim; defendant provided the friend with a knife that the friend used to fatally stab the victim; during defendant’s police interview, defendant maintained that defendant remembered little of what took place due to intoxication; the police told defendant what witnesses said had happened; in response, defendant stated that "I’m guessing that’s what happened" and that the witnesses were sober and knew everything; the transcript of the interview contained the testimonial statements of absent witnesses; defendant refused to accept the state’s redaction proposals, which would have safeguarded defendant’s confrontation right, and sought to redact incriminatory witness statements and retain exculpatory statements, which the state would not accept; and defendant first sought admission of the entire, unredacted transcript, then sought to exclude the transcript as a violation of defendant’s confrontation right, and finally requested that the entire transcript be admitted, the admission of the transcript into evidence did not violate defendant’s confrontation right because defendant waived the constitutional objection and invited the error. State v. Jim, 2014-NMCA-089, cert. denied, 2014-NMCERT-006.

Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) requires that state criminal records show an understanding waiver by a defendant entering a guilty plea of three constitutional rights: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury and (3) the right to confront one's accusers. State v. Guy, 1970-NMCA-080, 81 N.M. 641, 471 P.2d 675.

While the right of cross-examination is a fundamental right, it does not follow that such a fundamental right equates with the concept of fundamental error. There is a difference between such a fundamental right and fundamental error. The latter cannot be waived and is always available to this court on behalf of the accused. But the theory of fundamental error is bottomed upon the innocence of the accused or a corruption of actual justice. On the other hand, most rights, however fundamental, may be waived or lost by the accused. State v. Rogers, 1969-NMCA-034, 80 N.M. 230, 453 P.2d 593.

Intentional waiver of right did not occur. — Where defense counsel initially acquiesced to the admission of two-way video testimony by a state’s witness, but where there was no discussion in the record between the district court and defendant concerning his confrontation rights, there is no evidence that defendant understood those rights or that he voluntarily agreed to waive them. It is the court’s obligation to make sure that a waiver is valid and predicated upon a meaningful decision by the defendant. State v. Thomas, 2016-NMSC-024.

Right to confront witnesses not waived. — Where, over the defendant’s objection, the trial court granted the state leave to give the defendant’s accomplice, who had invoked the fifth amendment privilege against self-incrimination, limited immunity which extended only to the accomplice’s verification of the accuracy of the transcript of the accomplice’s police interrogation statement, but did not cover the accomplice’s answers to substantive questioning about the events described in the statement, and where, in the context of the trial court’s ruling, the defendant stipulated to the introduction of the statement and then waived cross-examination of the accomplice on the accuracy of the statement, the defendant did not waive the right to cross-examine the accomplice on the events described in the statement. State v. Zamarripa, 2009-NMSC-001, 145 N.M. 402, 199 P.3d 846.

Compulsory process within discretion of trial court. — Compulsory process in criminal cases involves such disparate elements as surprise, diligence, materiality and maintenance of orderly procedures; and the decision is largely within the discretion of the trial court. State v. Montoya, 1978-NMCA-052, 91 N.M. 752, 580 P.2d 973, cert. denied, 91 N.M. 751, 580 P.2d 972.

Where four days prior to trial the family of an 80-year-old woman suffering from severe hypertension and anxiety showed the judge a physician's note stating that the woman should not appear as a witness, and the court promptly referred the matter to defense counsel, but defense counsel neither sought a continuance, sought to take the woman's deposition nor took any other action on the pretrial information but rather waited until the trial was in progress and then sought the issuance of a bench warrant, there was no abuse of discretion and no violation of the right to compulsory process by the trial court's refusal to issue the bench warrant. State v. Montoya, 1978-NMCA-052, 91 N.M. 752, 580 P.2d 973, cert. denied, 91 N.M. 751, 580 P.2d 972.

Compulsory process was not denied. — Where defendant and the occupants of a house exchanged multiple gun shots; the shots defendant fired at the house killed one victim and injured another victim; defendant was tried for first degree murder with the predicate felony of shooting at a dwelling and separately for shooting at a dwelling; defendant subpoenaed a witness whom defendant believed shot at defendant; the witness failed to appear to testify; the district court suggested that the proper remedy was a bench warrant for the arrest of the witness; and defendant declined the issuance of a bench warrant because it would be a waste of time, defendant’s right to compulsory process was not violated. State v. Torrez, 2013-NMSC-034.

Right denied where unexplained comparison of computer printouts with defendant's records. — Defendant was denied her constitutional right of confrontation at her trial for embezzlement, where the only evidence of shortages attributable to her was obtained by an unexplained comparison of computer printouts with her own records and there was no evidence that the state's only witness understood how the printouts were prepared. State v. Austin, 1985-NMCA-118, 104 N.M. 573, 725 P.2d 252, cert. quashed, 104 N.M. 632, 725 P.2d 832 (1986).

B. TESTIMONIAL STATEMENTS.

Statements in autopsy report prepared to establish the cause and manner of death were testimonial. — Where an autopsy of the infant victim was requested, because the child had symptoms of a severe brain injury commonly associated with trauma; the medical examiner conducted the autopsy to establish the cause and manner of the victim’s death and prepared the autopsy report for use in a criminal prosecution; and the medical examiner’s finding of homicide was critical to substantiate allegations that defendant abused the victim and caused the victim’s death, the statements contained in the autopsy report were testimonial. State v. Jaramillo, 2012-NMCA-029, 272 P.3d 682, cert. denied, 2012-NMCERT-002.

Statements made during police interrogation. — Where circumstances surrounding victim's statement taken by police officer bear indicia of a formal police interrogation, the statement is testimonial in nature and should be excluded unless the trial court finds that defendant forfeited his confrontation right. State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, aff'd, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.

Statements to sexual abuse nurse examiner. — Victim’s statements to a sexual abuse nurse examiner, which identified the defendant and accused him of sexual assault, and that were made several weeks after the assault, were testimonial statements and were inadmissible. State v. Romero, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694, aff'g 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842.

A district court must articulate any credibility concerns regarding uncontradicted testimony. — A district court should be alert to considerations of a sexual assault nurse examiner's (SANE) testimony that raise credibility concerns, especially where such testimony is uncontradicted and is the sole evidence regarding the testimonial nature of an unavailable declarant's statements. Accordingly, a district court must articulate any credibility concerns regarding a SANE nurse's uncontradicted testimony where the district court determines that testimony regarding a SANE nurse's medical care role is pretextual in masking a forensic primary purpose. State v. Tsosie, 2022-NMSC-017, rev'g A-1-CA-37791, mem. op. (N.M. Ct. App. July 21, 2020) (nonprecedential).

Focus or motive of participants is a relevant factor in determining primary purpose of interrogation. — The testimonial inquiry cannot turn simply on the content of the statements as relating to identification or accusations of criminal acts. Instead, the focus or motive of the participants is a relevant factor in determining whether the primary purpose of challenged statements was to establish or prove past events potentially relevant to a later criminal prosecution or whether the primary purpose was to meet an ongoing emergency. A significant factor necessary for participants' nontestimonial focus on medical care is whether the information sought was important to enable the provision of medical care. State v. Tsosie, 2022-NMSC-017, rev'g A-1-CA-37791, mem. op. (N.M. Ct. App. July 21, 2020) (nonprecedential).

Surrounding circumstances supported a conclusion that SANE exam was motivated toward the provision of medical care as the primary purpose of questions that elicited challenged statements. — Where defendant was charged with criminal sexual penetration, and where the alleged victim died prior to trial and was therefore unavailable to testify at trial, and where the state sought to admit statements made by the alleged victim (declarant) during the course of a sexual assault nurse exam (SANE), and where the district court ruled, prior to trial, that almost all of the statements made by declarant were inadmissible as violating defendant's confrontation rights under the sixth amendment, the district court erred in finding that the declarant's statements were testimonial, because all of the relevant circumstances, including the time elapsed between the alleged assault and the SANE exam, the location of the SANE exam, the level of law enforcement involvement in the SANE exam, the SANE nurse's role as a medical care provi der as opposed to her forensic role, support the conclusion that the SANE exam was motivated toward the provision of medical care as the primary purpose of the exam, and the primary purpose of the majority of declarant's statements made during the course of the SANE exam was nontestimonial, and therefore admission of those nontestimonial statements at trial does not violate defendant's constitutional right to confrontation. State v. Tsosie, 2022-NMSC-017, rev'g A-1-CA-37791, mem. op. (N.M. Ct. App. July 21, 2020) (nonprecedential).

Surrounding circumstances of out-of-court statements by sexual abuse victim to SANE nurse supported a testimonial primary purpose. — Where defendant was convicted of ten counts arising from allegations that he sexually abused his stepdaughter over a period of more than ten years, and where the district court admitted out-of-court statements made by the victim to a sexual assault nurse examiner (SANE), and where defendant claimed that the admission of those statements violated his confrontation rights under the sixth amendment of the United States constitution, the district court erred in admitting the victim's out-of-court statements, because the primary purpose of most of the statements was testimonial. The surrounding circumstances demonstrate that the victim's statements to the SANE nurse were much more about developing evidence to support a criminal prosecution than any remote medical purpose. State v. Romanis-Beltran, 2026-NMCA-024, cert. denied.

Document not testimonial. — Where there was no showing that the declarants of an intake report and psychological assessment of minor victims of sexual abuse had a relationship with law enforcement or that the documents were prepared in a manner to suggest possible law enforcement or prosecutorial abuse in order to facilitate proof in an anticipated criminal proceeding, neither the intake report nor the prior assessment were testimonial in nature. State v. Paiz, 2006-NMCA-144, 140 N.M. 815, 149 P.3d 579, cert. denied, 2006-NMCERT-011, 140 N.M. 846, 149 P.3d 943.

Sexual assault nurse examiner examination. — The primary purpose of a sexual assault nurse examiner (SANE) examination is to prepare, collect, evaluate and dispose of evidence relevant to later criminal prosecution and statements made by a child victim of criminal sexual penetration to a SANE nurse are testimonial in nature. State v. Ortega, 2008-NMCA-001, 143 N.M. 261, 175 P.3d 929, cert. denied, 2007-NMCERT-012, 143 N.M. 213, 175 P.3d 307.

Sexual assault nurse examiner’s statements on labels affixed to an examination kit are testimonial hearsay. — A sexual assault nurse examiner’s (SANE) statements on labels affixed to an examination kit are testimonial hearsay because the SANE nurse would have reasonably understood those statements’ sole purpose to be for use in investigating and prosecuting criminal charges against defendant, and allowing an expert witness, who was not present when the child victim’s examination kit examination was performed, to testify that defendant’s DNA had been found on the child victim based on inferences from labels on the examination kit prepared by the SANE nurse would violate defendant’s confrontation clause rights, because the statements identifying various swabs affixed to the examination kit go to the issue of whether defendant improperly touched the child victim and therefore reflect directly on defendant’s guilt or innocence. State v. Carmona, 2016-NMCA-050, cert. denied.

The Confrontation Clause prohibits the admission of DNA evidence collected by an unavailable SANE nurse regardless of whether the perpetrator was known. — Where defendant was charged with two counts of criminal sexual penetration and kidnapping, and where, at trial, the state sought admission of DNA evidence collected from the victim in a SANE exam, performed by a SANE nurse who died during the eleven-year period between the SANE exam and the processing of the rape kit, and where the State asked the district court for a pretrial ruling on the use of the SANE nurse's statements in the rape kit, which included the SANE nurse's affirmative statements on the packaging that the contents were collected from the victim shortly after the assault and the SANE nurse's act of placing the swabs in a labeled collection bag, the district court did not err in suppressing the SANE nurse's statements as to the evidence swabs, because the labelled swabs collected during the SANE exam constituted the SANE nurse's testimonial statements that the evidence was what it claimed to be, DNA evidence collected from the victim, and those testimonial statements were subject to a confrontation clause analysis, which the state could not satisfy as the SANE nurse was not available for cross-examination at trial nor did defendant have a prior opportunity to cross examine the SANE nurse. State v. Lea, 2023-NMCA-061.

Ongoing emergency exception did not apply. — Where defendant was charged with two counts of criminal sexual penetration and kidnapping, and where, at trial, the state sought admission of DNA evidence collected from the victim in a SANE exam, performed by a SANE nurse who died during the eleven-year period between the SANE exam and the processing of the rape kit, and where the state asked the district court for a pretrial ruling on the use of the SANE nurse's statements in the rape kit, which included the SANE nurse's affirmative statements on the packaging that the contents were collected from the victim shortly after the assault and the SANE nurse's act of placing the swabs in a labeled collection bag, the district court did not err in suppressing the SANE nurse's statements as to the evidence swabs and declining the state's suggestion that this case fell into an ongoing emergency exception to the confrontation clause, because the SANE nurse's statements were made to collect evidence for the future prosecution of the unknown and yet unapprehended rapist and not as a communication made during an ongoing emergency. The emergency associated with the crime in this case, despite its violence, had very likely ended. State v. Lea, 2023-NMCA-061.

Statements for use at later trial. — Where statements were made by victim to a non-government sexual assault nurse examiner during physical examination, and where the victim visited the sexual assault nurse examiner in connection with a police investigation and at the suggestion of the investigating police officer, and not merely to obtain medical treatment, the victim's statements were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial and should be excluded unless the trial court finds that defendant forfeited his confrontation right. State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, aff'd, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.

Motive of person eliciting statement. — Motive of person eliciting statement from victim is relevant in determining whether victim's statement is testimonial because it bears on the intent and understanding of the declarant as to the production of testimony for use at a later trial. State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, aff'd, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.

The facts that sexual assault nurse examiner who was specifically trained in forensic evidence collection and chain of custody and who had qualified as an expert witness indicated that nurse and victim interviewed by nurse realized that statements taken by nurse might be used at later trial and were testimonial in nature. State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, aff'd, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.

Victim’s statements to 911 operator and police officer were nontestimonial. — Where an altercation occurred between defendant and the victim and defendant shot the victim who later died from the gunshot wounds; defendant drove away from the scene of the shooting; the victim told a 911 operator and a police officer that defendant shot the victim; the location of defendant after the shooting was unknown; the interrogations of the victim by the 911 operator and the police officer were quick, unstructured, and conducted at the scene of the shooting; the victim told the police officer that defendant was going to a school to shoot their children; and defendant was a former SWAT team member, the victim’s statements were non-testimonial and did not violate defendant’s right to confrontation because the interrogations by the 911 operator and the police officer were conducted in the context of an ongoing emergency to enable the police to meet the emergency. State v. Largo, 2012-NMSC-015, 278 P.3d 532.

Witness' statements told to 911 operator were non-testimonial statements. — Where the victim was shot when the victim and a friend went outside the victim's house to see who was sitting in a car in front of the house; within five minutes of the shooting, the victim's spouse called 911 and in response to questions asked by the 911 operator, the spouse told the operator what the friend had told the spouse about the description of the shooter, the car in which the shooter left the scene and the direction the shooter fled; defendant was subsequently apprehended and convicted of the murder of the victim; at trial, the friend’s statements were introduced through the testimony of the spouse; and the friend, who was incarcerated in another state, did not testify and was not previously subject to cross-examination, the friend's statements were non-testimonial and the introduction of the friend's statements did not violate the confrontation clause. State v. Sisneros, 2013-NMSC-049.

Statements made during secretly videotaped conversations by police were not testimonial. — Where defendant was accused of murdering the victim in the presence of defendant’s friend; the police placed defendant and the friend in a room together and secretly videotaped their conversation; defendant and the friend both made inculpatory statements implicating themselves in the shooting; the videotaped conversation was admitted at trial; and because the friend was unavailable to testify at trial, defendant was unable to cross-examine the friend, no police interrogation occurred, the statements of defendant and the friend were not testimonial, and the admission of the videotaped conversation did not violate the confrontation clause. State v. Telles, 2011-NMCA-083, 150 N.M. 465, 261 P.3d 1097, cert. denied, 2011-NMCERT-007, 268 P.3d 46.

On-scene statement to police officers. — Although on-scene statements to police officers in response to initial questioning will generally be non-testimonial, such statements should be considered testimonial if there are articulable indications that either the officer or the declarant was trying to procure or provide testimony. However, when it appears that the officer's primary goal was to secure the scene or give immediate aid to victims and the declarant's primary goal was to get aid, the statement will be considered non-testimonal. State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, aff'd, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.

Defendant’s confrontation rights were not violated where he failed to identify the occurrence of an out-of-court statement. — Where law enforcement officers executed an arrest warrant during a traffic stop for charges pending against defendant, and during that arrest, law enforcement found approximately twenty grams of heroin and seven grams of methamphetamine in defendant’s underwear, and where defendant was subsequently charged with two counts of trafficking a controlled substance, and where, at trial, officers testified to the circumstances that led to defendant’s arrest, including information regarding law enforcement’s coordination with a confidential informant, and where defendant claimed that such testimony violated the confrontation clause because it conveyed to the jury out-of-court statements intended to prove the truth of the matter asserted, that defendant had an intent to distribute the drugs found in his possession, defendant’s confrontation rights were not violated, because in order to demonstrate a confrontation clause violation, the state must elicit testimony conveying a specific statement made by an out-of-court declarant who is unavailable for cross-examination, and in this case, defendant failed to identify an actual statement made by the confidential informant, and therefore there is no actual statement to analyze for its testimonial nature. State v. Scott, 2023-NMCA-031, cert. denied.

On-scene videotapes. — Where the trial court admitted videotaped statements of the victims of defendant’s attack; the videotape was taken from a police officer’s patrol car when the officer responded to a call about a fight in progress and when the police were trying to secure the scene by finding out if there were other suspects or victims; and the statements were spontaneous and made in response to a general inquiry by the police about what was happening; the statements were not testimonial. State v. Gutierrez, 2011-NMCA-088, 150 N.M. 505, 263 P.3d 282, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Surveillance videos are not testimonial in nature. — At defendant’s trial for forgery and identity theft based on allegations of check fraud at Wal-Mart, where the state offered into evidence retail surveillance video, which contained computer-generated graphics indicating the date and time, the confrontation clause was not implicated, because there are numerous non-prosecutorial purposes for surveillance systems in a retail environment, and defendant failed to present any evidence establishing that the primary purpose of Wal-Mart’s surveillance system is to create a record for trial, and therefore the surveillance video was not testimonial in nature. State v. Imperial, 2017-NMCA-040, cert. denied.

Autopsy photographs are not testimonial. — An autopsy photograph depicting a murder victim’s wounds does not depict a person making an oral or written assertion or performing nonverbal conduct intended as an assertion, and as such, photographs of this nature are not statements and do not constitute testimonial statements, and therefore the forensic pathologist’s testimony and the autopsy photographs introduced in defendant’s murder trial did not violate defendant’s sixth amendment right to confront the evidence against him. State v. Smith, 2016-NMSC-007.

The scientific aspects of a breathalyzer machine are non-testimonial facts. — The scientific reliability and functionality of a breathalyzer machine, which are foundational issues that are only subject to challenge through expert testimony, are non-testimonial facts and do not implicate the confrontation clause. State v. Anaya, 2012-NMCA-094, 287 P.3d 956, cert. denied, 2012-NMCERT-007.

Scientific accuracy and reliability of a breathalyzer machine. — Where the court admitted the results of defendant’s breath alcohol test results after police officers testified regarding the procedure for administering defendant’s breathalyzer test, the regulations and procedures for certifying and calibrating the breathalyzer machine, the officers’ belief that the breathalyzer machine was working properly and that the test was properly administered, and the officers’ certification to administer breathalyzer tests and experience administering breathalyzer tests; the officers testified that they had no knowledge of the breathalyzer machine’s inner workings; and defendant claimed that defendant’s confrontation rights had been violated because the breath test results had been admitted without testimony from a witness, whom defendant could cross-examine, as to the scientific accuracy and reliability of the breathalyzer machine, the confrontation clause did not apply because the scientific aspects of the breathalyzer machine are non-testimonial facts. State v. Anaya, 2012-NMCA-094, 287 P.3d 956, cert. denied, 2012-NMCERT-007.

Blood alcohol test reports are testimonial statements governed by the confrontation clause. State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, rev’g in part, 2008-NMCA-097, 144 N.M. 546, 189 P.3d 679, overruling State v. Dedman, 2004-NMSC-037, 136 N.M. 561, 102 P.3d 628, rev’d, 131 S.Ct. 621, 177 L.Ed. 2d 1152.

Forensic laboratory report is not testimonial evidence. — The report of the analysis and test results of a forensic chemist from the New Mexico public safety crime lab is not testimonial evidence. State v. Delgado, 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828, cert. granted, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43.

Chemical forensic reports prepared for use in prosecution of criminal cases are testimonial statements. — Where an analyst at a public laboratory prepared a chemical forensic report of the analyst’s analysis of a white, crystal-like substance at the request of police officers who had found the substance in defendant’s possession; the analyst performed the analysis and prepared a report in the normal and ordinary course of business of the laboratory; the generation and maintenance of the report was part of the duties and responsibilities of the laboratory; the majority of work done in the laboratory was for criminal prosecution purposes; the laboratory’s purpose for conducting forensic analysis and reporting the results was for prosecuting criminal cases at trial and not as a function of the laboratory’s administrative activities; the analyst who performed the analysis and prepared the report was not present to testify at defendant’s trial; and the report was admitted into evidence through the testimony of a separate analyst who did not perform the analysis or prepare the report, the report was inadmissible as a testimonial statement and the admission of the report into evidence violated defendant’s right to confrontation. State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, overruling State v. Christian, 1995-NMCA-027, 119 N.M. 776, 895 P.2d 676, overruled by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Testimony concerning a forensic laboratory report. — Where a forensic chemist from the New Mexico department of public safety testified concerning the analysis of another chemist from the crime lab based on the report of the other chemist’s test results, the defendant’s right to confront and cross-examine the chemist who wrote the report was not violated, because the report was admissible as a business record and the report was not testimonial evidence. State v. Delgado, 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828, cert. granted, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43.

Content of note from anonymous observer. — A note that an anonymous observer handed the victim of auto burglary that contained a physical description of the thief and a description and license plate number of the vehicle in which the thief left the scene was not testimonial and its admission into evidence through the testimony of the victim was not barred by the confrontation clause. State v. Chavez, 2008-NMCA-125, 144 N.M. 849, 192 P.3d 1226, cert. denied, 2008-NMCERT-008, 145 N.M. 254, 195 P.3d 1266.

A plea of guilty or no contest constitutes a testimonial statement because such a knowing and voluntary statement would lead an objective witness to believe that the statement would be available for use at a later trial. State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Admission of plea of guilty or no contest implicates the confrontation clause. — As a testimonial statement, a co-defendant’s plea of guilty or no contest is inadmissible against a defendant to prove the truth of the matter asserted unless the demands of the confrontation clause have been met. The defendant must have an opportunity to cross-examine the co-defendant concerning the plea agreement. State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Testimonial statements. — Codefendants’ statements to police that were given at the police station during the police investigation of a child’s death and that were given soon after the death of the child when the police were attempting to discover the cause of the child’s death and to obtain inculpatory statements from the codefendants were testimonial and the admission of the statement constituted a per se violation of the defendant’s right to confront the witnesses against him. State v. Walters, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068, aff'g in part, rev'g in part 2006-NMCA-071, 139 N.M. 705, 137 P.3d 645.

Where, after police officers searched defendant’s residence for child pornography, the codefendant told the codefendant’s child that the codefendant caught defendant looking at child pornography on the computer and it was reasonable to anticipate that the statement would be used in a later trial, the statement was a testimonial statement and was properly excluded from the evidence. State v. Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, rev’d, 2013-NMSC-025.

Statements between family members are not testimonial statements. — Where defendant’s codefendant told the codefendant’s child that the codefendant had witnessed defendant watching child pornography on their computer, the statement was a non-testimonial statement made between two family members and did not implicate the confrontation clause. State v. Gurule, 2013-NMSC-025, rev’g 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992.

Admission of testimonial statements not harmless. — Where defendant was charged with conspiracy to commit intentional child abuse; there was no direct evidence of conspiracy; and the testimonial statements of defendant’s codefendants, which constituted circumstantial evidence of the conspiracy, were important to the prosecution’s case, the admission of the codefendant’s statements was not harmless beyond a reasonable doubt. State v. Walters, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068, aff'g in part, rev'g in part, 2006-NMCA-071, 139 N.M. 705, 137 P.3d 645.

Admission of testimonial statements was harmless. — The admission of the codefendant’s testimonial statements was harmless beyond a reasonable doubt where the statements were cumulative of defendant’s confession and defendant’s confession was consistent with the physical evidence. State v. Walters, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068, aff'g in part, rev'g in part, 2006-NMCA-071, 139 N.M. 705, 137 P.3d 645.

A co-defendant’s statements to a friend that the co-defendant murdered the decedent and that defendant told him to shoot the decedent was not testimonial. State v. Silva, 2007-NMCA-117, 142 N.M. 686, 168 P.3d 1110, cert. granted, 2007-NMCERT-008, aff'd in part, rev'd in part, 2008-NMSC-051, 144 N.M. 815, 192 P.3d 1192.

Admission of codefendants’ custodial statements. — Where the questioning of the defendant’s codefendants by the police was an attempt to prove past events potentially relevant to later criminal prosecution, the admission of the codefendants’ statements to the police was a per se violation of the defendant’s right to confront the witnesses against her. State v. Lopez, 2007-NMSC-037, 142 N.M. 138, 164 P.3d 19, rev'g 2006-NMCA-071, 139 N.M. 705, 137 P.3d 645.

Grand jury testimony by a victim is testimonial in nature and is not admissible absent a finding that the defendant forfeited his confrontation right. State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, aff'd, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.

C. HEARSAY EVIDENCE.

Factors considered in constitutional analysis of hearsay. – In evaluating the "sufficient guarantees of trustworthiness" of a hearsay statement required under the confrontation clause of the New Mexico constitution, New Mexico courts consider four factors leading to unreliability: (1) ambiguity; (2) lack of candor; (3) faulty memory; and (4) misperception; the statement may be admitted only where the test of cross-examination would be of marginal utility, a standard that precludes admission of hearsay statements that contain equivocation and contradiction. State v. Gurule, 2004-NMCA-008, 134 N.M. 804, 82 P.3d 975.

Blood alcohol test reports are admissible through separate qualified analyst. — Where defendant was convicted of aggravated DWI; the analyst who prepared the laboratory report of defendant’s blood draw merely transcribed the results generated by a gas chromatograph machine to prepare the laboratory report; the analyst was not required to interpret the test results, exercise independent judgment or employ any particular methodology in transcribing the results from the gas chromatograph machine to the laboratory report; the analyst who prepared the laboratory report was not available to testify at defendant’s trial; and the state presented the laboratory report though a separate analyst at the laboratory, the live, in-court testimony of the separate qualified analyst was sufficient to fulfill defendant’s right to confrontation. State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, rev'g in part, 2008-NMCA-097, 144 N.M. 546, 189 P.3d 679, overruling State v. Dedman, 2004-NMSC-037, 136 N.M. 561, 102 P.3d 628, rev’d, 131 S.Ct. 2705, 177 L.Ed. 2d 610.

Where a forensic toxicologist, who was qualified as an expert, testified that the toxicologist received the kit containing defendant’s blood, checked the seals to assure that they had not been tampered with, tested defendant’s BAC using a gas chromatograph, and prepared a report; that defendant’s blood sample came in a standard SLD blood kit; that the toxicologist checked the identifications on the specimen against the report of blood alcohol analysis form and identified the blood-drawer’s signature on the form as a registered nurse and the blood-drawer’s employer as a medical center; that the toxicologist recorded the results of the lab tests after which a reviewer reviewed the work; and that the test results were entered on the form and signed by the toxicologist as an analyst for SLD; and the toxicologist was available to be cross-examined regarding the operation of the testing machine and the SLD’s procedures, defendant’s confrontation right was not violated and the blood-alcohol report of the results of the machine-tested blood sample was admissible into evidence. State v. Nez, 2010-NMCA-092, 148 N.M. 914, 242 P.3d 481, cert. denied, 2010-NMCERT-009, 149 N.M. 49, 243 P.3d 753.

Admission of hearsay statements was harmless error. — Where defendant’s co-defendant was arguing with the victim over money owed by the victim to the co-defendant; the co-defendant pulled a gun and told the victim to go with the co-defendant; the victim got into the victim’s car and while the co-defendant was standing outside the car, the victim started the car and hit the gas; defendant and the co-defendant shot and killed the victim; at trial, the chief medical investigator testified that a toxicology report, which was prepared by and signed by the chief of the state laboratory division’s toxicology bureau, showed that small amounts of alcohol, marijuana metabolites, amphetamine and methamphetamine were found in the victim’s body; and the state used the toxicology report to prove that the victim did not die from drug or alcohol use but rather from gunshot wounds, the witness’ testimony regarding the toxicology report violated defendant’s confrontation rights, but the violation was harmless error because the victim’s toxicity levels were not important to the state’s first degree murder case, and the state had presented evidence that the victim died of gunshot wounds, and the toxicology evidence was not important to the state’s attempted kidnapping case because the toxicology evidence was proffered to establish the cause of death. State v. Ortega, 2014-NMSC-017.

Where defendant was convicted of aggravated DWI; defendant’s vehicle rear-ended another vehicle; defendant fled the scene of the accident; the arresting officer testified that defendant’s brother told the officer that defendant had been driving the vehicle; the admission of the brother’s statement had no other purpose than to prove that defendant was the driver of the vehicle; the driver of the other vehicle testified that defendant had bloodshot eyes and alcohol on defendant’s breath when defendant fled the accident scene; and two officers testified that when defendant was apprehended, defendant had watery, bloodshot eyes, slurred speech, smelled of alcohol, and failed field sobriety tests, there was substantial evidence to support defendant’s conviction without reference to the brother’s statement and the admission of the hearsay statement was harmless. State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, rev'g in part 2008-NMCA-097, 144 N.M. 546, 189 P.3d 679, overruling State v. Dedman, 2004-NMSC-037, 136 N.M. 561, 102 P.3d 628, rev’d, 131 S.Ct. 2705, 177 L.Ed. 2d 610.

Any consideration of the reliability of forensic reports is irrelevant to a determination of confrontation clause requirements. State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, overruling State v. Christian, 1995-NMCA-027, 119 N.M. 776, 895 P.2d 676, overruled by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Testimony about a non-testifying analyst’s chemical forensic report was inadmissible hearsay. — Where an analyst at a public laboratory prepared a chemical forensic report of the analyst’s analysis of a white, crystal-like substance at the request of police officers who had found the substance in defendant’s possession; the analyst who performed the analysis and prepared the report was not present to testify at defendant’s trial; the report was admitted into evidence through the testimony of a separate testifying analyst who did not perform the analysis or prepare the report; the testifying analyst’s testimony was a restatement of the non-testifying analyst’s conclusory opinion regarding the narcotic content of the substance, its weight, and its purity as stated in the non-testifying analyst’s report; and the testifying analyst did not express an opinion based on the data in the report, the report was inadmissible testimonial hearsay and the admission of the report into evidence violated defendant’s right to confrontation. State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, overruling State v. Christian, 1995-NMCA-027, 119 N.M. 776, 895 P.2d 676, overruled by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Admission of non-testifying analyst’s chemical forensic report was harmless error. — Where police officers found a small bag and a large bag of a white, crystal-like substance associated with defendant; separate analysts at a public laboratory each analyzed a bag of the substance and prepared separate reports of the results; the analyst who performed the analysis of the substance in the small bag and prepared the report of the results was not present to testify at defendant’s trial; the report of the non-testifying analyst was admitted into evidence through the testimony of the analyst who analyzed the substance in the large bag; and defendant’s conviction of possession of a controlled substance was supported by the testifying analyst’s testimony concerning the analysis of the substance in the large bag, the admission of the hearsay testimony about the non-testifying analyst’s report was harmless error. State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, overruling State v. Christian, 1995-NMCA-027, 119 N.M. 776, 895 P.2d 676, overruled by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Admission of non-testifying analyst’s chemical forensic report was not harmless error. — Where police officers sent a substance in a baggie that was in defendant’s possession to the crime laboratory for forensic testing; the testing analyst completed a report finding cocaine; at defendant’s trial, an expert witness, who had not personally tested the substance or completed the report, testified about whether the report contained a result, whether the testing analyst had reached a conclusion about the substance, what the testing analyst’s conclusion was, and whether the expert witness agreed with the testing analyst’s conclusion; the expert witness never testified unequivocally that the conclusion in the report was the expert witness’s opinion, and not the opinion of the testing analyst; defendant had no opportunity to cross-examine the testing analyst; the state did not contend that the testing analyst was unavailable for trial; and a police officer who field tested the substance did not testify to the results of the field test, the admission of the report violated defendant’s right to confrontation and was not harmless error because without the admission of the report and the testimony based on it, there was no evidence that the substance was cocaine. State v. Moncayo, 2012-NMCA-066, 284 P.3d 423.

Hearsay not offered to prove the truth of matter asserted. — Where a police officer testified that in the course of the officer’s investigation of the alleged burglary of the defendant’s home, the officer interviewed a suspect in the burglary, that the suspect told the officer that the defendant tried to rape the suspect when the suspect was a minor, that the defendant drugged the suspect and tried to get the suspect to do sexual favors for the defendant, and that the defendant took nude and sexually explicit photographs of the suspect and other people; the suspect did not appear at the defendant’s trial; and the testimony was offered to show why the officer’s investigation proceeded from burglary to sexual misconduct, not to prove the elements of the offenses for which the defendant was convicted, the admission of the officer’s statements regarding the suspect did not constitute fundamental error. State v. Dietrich, 2009-NMCA-031, 145 N.M. 733, 204 P.3d 748, cert. denied, 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29, overruled in part by State v. Marquez, 2021-NMCA-046

Admission of child’s hearsay statements identifying defendant as the perpetrator of sexual abuse was not plain error. — Where defendant was charged with criminal sexual penetration of a child under thirteen; a counselor for sexually abused children testified once on direct examination that the victim stated to the counselor that defendant told the victim to hold defendant’s penis, that the victim was made to perform oral sex with defendant, and that defendant made the victim promise to keep the abuse secret; and the statements were made at the end of the victim’s treatment and were not necessary for the counselor’s diagnosis or to explain the basis of the counselor’s expert opinion, the error in admitting the victim’s statements that defendant was the perpetrator of the sexual abuse was not plain error. State v. Dylan J., 2009-NMCA-027, 145 N.M. 719, 204 P.3d 44.

Admissibility of transcript of 911 call. — Where defendant was charged with aggravated battery and aggravated assault against a household member; on the date the incident occurred, defendant’s cohabitant called 911 from a neighbor’s house only moments after defendant attacked the cohabitant; the cohabitant was crying throughout the call; the cohabitant informed the operator that the cohabitant was experiencing pain and reported that defendant had violently attacked the cohabitant with a metal pole; the cohabitant stated that the cohabitant was uncertain whether defendant would harm the cohabitant’s children; the cohabitant informed the operator that defendant appeared to be under the influence of alcohol or drugs; the cohabitant provided the operator with the identity and description of defendant and informed the operator about whether defendant had a proclivity for violence, whether defendant was likely to flee the area, and whether defendant was armed with a dangerous weapon; the cohabitant was not available at trial; and defendant had not had an opportunity to cross examine the cohabitant, the cohabitant’s statements were not testimonial in nature and the admission of the 911 transcript did not violate defendant’s sixth amendment rights under the confrontation clause. State v. Soliz, 2009-NMCA-079, 146 N.M. 616, 213 P.3d 520, cert. quashed, 2010-NMCERT-008, 148 N.M. 943, 242 P.3d 1289.

Double hearsay to establish private search. — Defendant was denied her right to confrontation where the state sought to justify a warrantless search of a package addressed to the defendant on the basis that the state was merely repeating a search previously undertaken by private parties without state involvement by the testimony of a law enforcement officer that an employee of a bus company in Los Angeles had informed the officer that another employee of the bus company had opened the package in Denver and discovered that it contained marijuana. State v. Rivera, 2007-NMCA-104, 142 N.M. 427, 166 P.3d 488, rev'd, 2008-NMSC-056, 144 N.M. 836, 192 P.3d 1213.

Admission of statement with "indicia of reliability". — The trial court may admit, as substantive evidence, a statement by an accomplice who was not subject to cross-examination where the statement bears sufficient "indicia of reliability" to satisfy confrontation clause concerns. State v. Earnest, 1987-NMSC-023, 106 N.M. 411, 744 P.2d 539, cert. denied, 484 U.S. 924, 108 S. Ct. 284, 98 L. Ed. 2d 245 (1987).

Unavailability of hearsay declarant. — When a hearsay declarant is not present for cross-examination at trial, a showing that he or she is unavailable is required, and, even then, the declarant's statement is admissible only if it bears adequate indicia of reliability. State v. Lopez, 1996-NMCA-101, 122 N.M. 459, 926 P.2d 784, cert. denied, 122 N.M. 279, 923 P.2d 1164.

Use of hearsay predisposition report to determine delinquency held unconstitutional. — When a predisposition report received by a judge in a juvenile delinquency case is composed primarily of hearsay evidence which would be clearly incompetent within the meaning of former 32-1-31 NMSA 1978 in either of the adjudicatory phases of the proceedings, and it is not shown to be competent, material and relevant in nature, then to use such evidence to determine delinquency is constitutionally impermissible as a denial of the child's constitutional right to confront and cross-examine the witnesses against him; the juvenile is entitled to a fact-finding process that measures up to the essentials of due process and fair treatment. Doe v. State, 1978-NMSC-068, 92 N.M. 74, 582 P.2d 1287.

Statement against penal interest. — The exception to the hearsay rule for statements against penal interest found in Rule 11-804(B)(3) NMRA is a firmly rooted hearsay exception for purposes of satisfying the indicia of reliability requirement of the constitutional right to confrontation. State v. Torres, 1998-NMSC-052, 126 N.M. 477, 971 P.2d 1267, overruled by State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699.

Admissibility of shooting victim's statements. — Victim's statement in greeting defendant just prior to shooting was supported by particularized guarantees of trustworthiness and the trial court's admission of the statement did not violate defendant's right of confrontation. State v. Salgado, 1999-NMSC-008, 126 N.M. 691, 974 P.2d 661.

Parties to hearsay statements available for cross-examination. — Because the victim of the crime was subject to cross-examination and all of the witnesses whose testimony indicated the guilt of the defendant were present and cross-examined, the defendant's rights to due process and to confront and cross-examine witnesses against him were not violated when the trial court admitted into evidence statements made by the victim after the crime was committed to her mother, sister and sister-in-law. State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182.

Testimony that communicates no hearsay does not implicate the confrontation clause. — Where defendant was charged with being a felon in possession of a firearm and evading or attempting to evade a police officer, and where the state presented physical evidence seized from defendant’s car through the testimony of the officer that personally collected the evidence from defendant’s vehicle, and where defendant exercised the opportunity to confront the officer regarding her collection and handling of the evidence in question, the trial court did not err in denying defendant’s motion to suppress evidence seized from his vehicle based on defendant’s argument that he had the right to confront other officers involved in his arrest, because the confrontation clause was not implicated because the officer that testified regarding the physical evidence offered no testimonial hearsay regarding the origin or seizure of any evidence from defendant’s car, and the confrontation clause only prohibits the introduction of testimonial hearsay, but is not implicated where a witness testifies from personal knowledge and neither makes a statement nor draws a conclusion that is based on hearsay. State v. Jimenez, 2017-NMCA-039, cert. denied.

D. RIGHT TO CROSS-EXAMINE WITNESSES.

Defendant was deprived of right to confront and cross-examine state's witness where deposition, taken for purposes of the preliminary hearing with the defense counsel's consent, had been recorded but the tape recorder malfunctioned and rendered the recording inaudible, whereupon the parties, to facilitate the preliminary hearing, had entered into a stipulation summarizing the deposition testimony, and subsequently at trial the state, unable to secure the witness' attendance because he had moved from the state, offered into evidence the tape recording. Millican v. State, 1978-NMSC-061, 91 N.M. 792, 581 P.2d 1287.

Evidence of prior sexual conduct must be admitted if a defendant shows that the evidence implicates their constitutional right of confrontation. — Where defendant was charged with criminal sexual penetration, kidnapping and aggravated battery, and where, prior to trial, defendant filed a pretrial motion to admit the sexual conduct of the complaining witness, claiming that the victim had a sexual encounter with a neighbor after she left defendant’s house, the district court erred in excluding evidence of the victim’s sexual encounter with the neighbor pursuant to the rape shield law and 11-412 NMRA, because defendant presented a theory of relevance of the victim’s sexual encounter implicating his constitutional right to confrontation, and the prejudicial nature of the proffered evidence did not outweigh its probative value. State v. Foote, 2026-NMCA-042.

Defendant was not denied the opportunity to confront the witness who offered testimony against him. — In defendant’s trial for shoplifting and conspiracy to commit shoplifting, where the security officer of the department store testified that he received from the police the merchandise that defendant stole, that he handed each item received from the police to the customer service manager to scan for value, and that he supervised the scanning of each item, defendant was provided with the opportunity to confront the witness providing the testimonial statement establishing the fact used against him, i.e., the selection of the merchandise to be priced. State v. Gallegos, 2016-NMCA-076, cert. denied.

Trial court's limitations on cross-examination of accomplice did not violate defendant's confrontation rights. — Where defendant was charged with willful and deliberate first-degree murder in connection with a dispute over missing drugs in which the victim was shot and killed, and where, at trial, one of defendant's accomplices testified about defendant's involvement in the victim's murder, and where, on cross-examination, defendant sought to inquire into federal drug charges made against the witness's uncle to show that the witness was knowledgeable about drug trafficking which supported defendant's theory of the case that it was the accomplice and others who stole the drugs and needed someone to blame, and where the trial court excluded the testimony about the uncle's drug charges, finding that the witness's uncle's federal drug trafficking charges had limited relevance to the witness's knowledge of drug trafficking and therefore the value of the evidence was substantially outweighed by its prejudicial effect, the district court did not abuse its discretion in excluding evidence of the uncle's drug charges and defendant's right to confrontation was not violated, because although the district court did not allow defendant to ask about the federal indictment, it gave defendant great latitude to ask questions regarding the uncle's status as a drug dealer and to inquire about the knowledge and experience in the drug trafficking trade gained from his uncle, including the time frame during which the witness received this information from his uncle; these questions gave defendant the opportunity for effective cross-examination of the witness about his experience and knowledge of the drug trade. State v. Veleta, 2023-NMSC-024.

Limitation on cross-examination regarding witness's cooperation with law enforcement did not violate defendant's confrontation rights. — Where defendant was charged with willful and deliberate first-degree murder in connection with a dispute over missing drugs during which the victim was shot and killed, and where, at trial, one of defendant's accomplices testified about defendant's involvement in the victim's murder, and where defendant claimed that the district court violated his right to confront a witness and abused its discretion by limiting his cross-examination into the witness's cooperation with law enforcement, and further asserted that the district court erred by precluding him from impeaching the witness with sealed pleadings after the witness denied cooperating with authorities, defendant's arguments were without merit, because he was permitted to inquire into the witness's cooperation with both state and federal authorities, and he was only precluded from inquiring into matters for which the district court determined the witness lacked personal knowledge. State v. Veleta, 2023-NMSC-024.

Right denied by admission of certain res gestae statements. — Admission of testimony concerning statements of children of shooting victims admitted under res gestae exception to hearsay rule denied defendant his constitutional right of confrontation where cross-examination might have revealed poor memory and that statements of one child were partly based on what other child had told him or on what he had overheard. State v. Lunn, 1971-NMCA-048, 82 N.M. 526, 484 P.2d 368.

Admission of calibration logs of breath-alcohol device. — Admission as business records of calibration logs and printout from a breath-alcohol device in a prosecution for careless driving and driving while intoxicated did not deny the defendant his right to confront witnesses. State v. Ruiz, 1995-NMCA-098, 120 N.M. 534, 903 P.2d 845, cert. denied, 120 N.M. 498, 903 P.2d 240, abrogated, State v. Martinez, 2007-NMSC-025, 141 N.M. 713, 160 P.3d 894.

The admission of testimony about a non-testifying analyst’s blood alcohol report violated defendant’s right of confrontation. — Where a certified report showing defendant’s blood alcohol content was admitted into evidence, where the analyst who certified the results of the blood testing did not testify, and where another state laboratory division employee, who reviewed the analyst’s documentation but did not observe the testing, testified about the results of the test, defendant’s right to confront the analyst whose certified statement was admitted into evidence was violated. State v. Dorais, 2016-NMCA-049, cert. denied.

Accused’s right of confrontation denied. — Where the defendant’s sole defense in his rape trial was that the child victim consented to sexual intercourse with him and then fabricated an allegation of rape because her parents, who were opposed to premarital sex because of their deep religious convictions, had previously punished the victim for engaging in consensual sex with someone else, the defendant was denied his constitutional right of confrontation when the trial court prohibited the defendant from cross-examining the victim and her parents about the victim’s prior sexual encounter and the punishment that the victim received from her parents as a result of that encounter and the error was not harmless beyond a reasonable doubt. State v. Stephen F., 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84, aff'g, 2007-NMCA-025, 141 N.M. 199, 152 P.3d 842.

Error not to allow defense counsel opportunity to recross-examine the witness after witness testified to new matters on redirect examination. — Where defendant was charged with criminal sexual penetration of a minor under thirteen (CSPM), and where, on direct and cross-examination, the victim testified that defendant had not digitally penetrated her until after she turned thirteen years of age, but on redirect examination, after the prosecutor showed the victim a police report in which she told police that she was twelve years old when defendant first put his finger in her vagina, testified that defendant had penetrated her when she was twelve years old, and where the district court judge denied defense counsel's request to recross-examine the victim, the district court violated defendant's confrontation rights in prohibiting recross-examination, because the victim's testimony on redirect marked the first occasion at trial in which she indicated that defendant had perpetrated CSPM against her before she turned twelve, a fact that was an essential element of the first-degree CSPM offense with which defendant was charged. A criminal defendant has a confrontation clause right to recross-examination on new matters brought out on redirect examination. State v. Little, 2020-NMCA-040.

Limitation of cross-examination concerning witness perjury. — The district court’s refusal to allow the defendant to cross-examine the state’s main witness concerning the state’s promise not to prosecute the witness for perjury if his trial testimony varied from his deposition testimony, violated the defendant’s confrontation right and the error was not harmless because the witness’ testimony was crucial to the state’s case and the witness’ credibility and bias was an important issue in the case. State v. Silva, 2007-NMCA-117, 142 N.M. 686, 168 P.3d 1110, aff'd in part, rev'd in part, 2008-NMSC-051, 144 N.M. 815, 192 P.3d 1192.

Limitation on cross-examination did not violate defendant’s rights. — Where defendant, in his trial for criminal sexual penetration perpetrated in the commission of a felony, claimed that the district court erred by limiting the cross-examination of the child victim, the district court did not err in limiting how defendant could refer to two of the victim’s prior adult felony convictions when the court allowed defendant to elicit that the victim had frequent encounters with the criminal justice system and allowed defendant to argue that the victim was exaggerating his story to get a deal on some of his other charges. The district court’s limitations on cross-examination did not violate defendant’s rights under the confrontation clause, where the court did not prevent defendant from creating a record regarding potential credibility problems with the victim’s testimony, did not limit defendant’s cross-examination regarding the victim’s prior convictions for crimes of dishonesty, and permitted defendant to elicit general information illustrating that the victim had significant experience with the criminal justice system. State v. Samora, 2016-NMSC-031.

The Confrontation Clause requires the defendant to be permitted to cross-examine a victim about the fact of a U-Visa or T-Visa application; it provides no further right to discovery of the application. — In consolidated cases, where both defendants learned of, and sought disclosure of, their alleged victims' U-Visa and T-Visa applications, which allow crime victims to obtain lawful residency in the United States, and where, in both cases, the victims sought to protect those documents from disclosure, and where the district courts in each case ultimately ordered production of the respective documents for in-camera review and disclosure to the defendants, the district courts erred in ordering disclosure, because although a defendant may cross-examine witnesses, including victims, as to their knowledge and participation in the U/T-Visa application process and the benefits it offers, the Confrontation Clause did not create a constitutionally compelled rule of pretrial discovery. Allowing a defendant to introduce the fact of a U/T-Visa application satisfies the defendant's confrontation rights; a defendant does not have the additional right to inspect the application materials themselves. Ramirez v. Marsh, 2025-NMSC-050.

Opportunity and similar motive to cross-examine. — Where defendant was freely allowed to cross-examine prosecution witness without any restrictions at the preliminary hearing about whether any crime was committed and whether defendant was involved, defendant had an opportunity and similar motive to cross-examine the witness at the preliminary hearing as defendant would have at trial, there were no circumstances showing a real difference in defendant's motive to cross-examine the witness differently at the preliminary hearing than at trial, and the witness later became unavailable to testify at trial, the admission of defendant's recorded preliminary hearing testimony at the trial did not violate defendant's right to confront the witness against him. State v. Henderson, 2006-NMCA-059, 139 N.M. 595, 136 P.3d 1005, cert. denied, 2006-NMCERT-005, 139 N.M. 567, 136 P.3d 568, cert denied, 549 U.S. 999, 127 S. Ct. 503, 166 L. Ed. 2d 376 (2006).

The purposes of confrontation are to secure for the accused the right of cross-examination; the right of the accused, the court and the jury to observe the deportment and conduct of the witness while testifying; and the moral effect produced upon the witness by requiring him to testify at the trial. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350; Millican v. State, 1978-NMSC-061, 91 N.M. 792, 581 P.2d 1287; State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182.

The right of cross-examination is a part of the constitutional right to be confronted with the witnesses against one. State v. Sparks, 1973-NMCA-108, 85 N.M. 429, 512 P.2d 1265; Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert denied, 90 N.M. 637, 567 P.2d 486.

State has interest in rigorous cross-examination. — The state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and, in particular, the state should have no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486.

Latitude to be given cross-examiner. — Cross-examination is necessarily exploratory, and it is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them, and to say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486.

Restricted cross-examination may violate right to confront. — Trial court may not so restrict the cross-examination of a witness by the defendant that the defendant's right to confront the witnesses against him is infringed: the defense should have great latitude in cross-examining prosecution witnesses. Sanchez v. State, 1985-NMSC-060, 103 N.M. 25, 702 P.2d 345.

Right is satisfied by opportunity to cross-examine. — The right of confrontation as provided by this section is satisfied if there was the opportunity to cross-examine; the observation of demeanor on the witness stand is a result of cross-examination but it is not part of the confrontation rights. State v. Tijerina, 1972-NMCA-169, 84 N.M. 432, 504 P.2d 642, aff'd, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674 (1974).

Where accused has once had opportunity of meeting witness face to face in a lawfully constituted tribunal with opportunity for cross-examination, the constitutional provision has been met. State v. Jackson, 1924-NMSC-054, 30 N.M. 309, 233 P. 49.

Even though the state failed to provide the defendant with the statement of a witness for almost one month after it was available, the defendant was not unfairly prejudiced since she had the opportunity to review the statement at length and to conduct an extensive cross-examination. State v. Setser, 1997-NMSC-004, 122 N.M. 794, 932 P.2d 484.

No right to cross-examine grand jury witnesses. — The constitution does not give defendant the right to cross-examine witnesses appearing before the grand jury. State v. Salazar, 1970-NMCA-056, 81 N.M. 512, 469 P.2d 157.

Trial witness's grand jury testimony on same subject to cross-examination. — Once the witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness's grand jury testimony relating to the crime for which defendant is charged. The witness may be cross-examined concerning that testimony. If otherwise, an accused is denied the right to confront the witnesses against him. State v. Sparks, 1973-NMCA-108, 85 N.M. 429, 512 P.2d 1265.

The function and importance of the constitutional right to be confronted with the witnesses against one and the concomitant right of cross-examination mandates retroactivity of the rule that once a witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness's grand jury testimony relating to the crime for which defendant is charged. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486.

Counsel, not judge, decides whether grand jury minutes helpful. — Whether there is or is not anything in the grand jury minutes that might be of aid to the defendant in cross-examination should not be determined by a court; in the adversary system, it is enough for judges to judge, and a determination of what may be useful to the defense can properly and effectively be made only by an advocate. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486.

Use of prior testimony when witness unavailable at trial. — Where defendant was charged with the rape and murder of the victim; the trial court admitted the preliminary hearing testimony of an unavailable witness; defendant had the opportunity to cross-examine the witness at the preliminary hearing; and defendant had the same motive for cross-examining the witness at the preliminary hearing and at trial to show that defendant did not rape and murder the victim, the admission of the witness’s preliminary hearing testimony did not violate defendant’s right to confront and cross-examine the unavailable witness. State v. Lopez, 2011-NMSC-035, 150 N.M. 179, 258 P.3d 458.

Where defendant's counsel cross-examined witness at the preliminary hearing, the trial court's admission into evidence of the transcript of the testimony of the witness taken at the preliminary hearing did not deny defendant's right of confrontation of witnesses where all reasonable attempts to locate witness had failed. State v. Mitchell, 1974-NMCA-057, 86 N.M. 343, 524 P.2d 206.

Where there was introduction at trial of prior testimony of a witness at the preliminary hearing, and that witness was not present at trial, but the record showed diligent efforts to locate the witness and showed defense counsel had opportunity to cross-examine the witness at the preliminary examination, there was no denial of the constitutional right to confront witnesses. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

Prior testimony found admissible. — Trial court did not err in admitting testimony given at the bail bond hearing, in spite of the fact that defendant did not expect that any testimony taken there would be used for any other purpose and therefore did not cross-examine as fully as he might otherwise have done, since the bond hearing was conducted for the limited purpose of determining whether the accused should be admitted to bail, and in spite of the fact that the jury did not have the opportunity to observe witness's demeanor on the witness stand at the trial. State v. Tijerina, 1972-NMCA-169, 84 N.M. 432, 504 P.2d 642, aff'd, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674 (1974).

Deposition admitted where deponent dead but opportunity for cross-examination existed. — Where the trial court admitted into evidence the videotaped deposition of the state's eyewitness, there were reasons of "public policy" and "necessities of the case" to allow the admission of the deposition, including the death of the deponent, and there was sufficient opportunity for cross-examination at the time of the deposition so that its introduction did not run counter to the confrontation clause. State v. Martinez, 1981-NMSC-005, 95 N.M. 445, 623 P.2d 565, overruled by Fuson v. State, 1987-NMSC-034, 105 N.M. 632, 735 P.2d 1138.

Use of sex crime child-victim's videotape deposition held proper. — In a prosecution for criminal sexual contact with a minor, use of the victim's videotape deposition did not deny the defendant the right of confrontation: the defendant was not deprived of his right to fairly and fully cross-examine the child during the deposition, and the jury, which heard the child's testimony and viewed the child, via videotape, while she testified, had an adequate opportunity to observe the child's demeanor. State v. Vigil, 1985-NMCA-103, 103 N.M. 583, 711 P.2d 28.

In a prosecution for sexual abuse, trial judge did not abuse his discretion in allowing the children to testify by way of depositions that were videotaped outside the presence of the defendant and then shown to the jury, as he made the requisite findings that the individualized harm which would otherwise result in the child victims outweighed the defendant's right to a face-to-face confrontation with his accusers. State v. Fairweather, 1993-NMSC-065, 116 N.M. 456, 863 P.2d 1077.

Videotaped depositions do not violate the Confrontation Clause where the essence of effective confrontation is preserved. — Where the requisite findings are made as to the particular child witness, and the witness testifies under oath, subject to full cross-examination, observed by the judge, jury and the defendant, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserving the essence of effective confrontation. State v. Berry, 2025-NMCA-009, cert. denied.

State's evidence was adequate to support trial court's findings justifying the need for a video-taped deposition of the child victim. — Where defendant was convicted of one count of criminal sexual contact of a minor, and where, prior to trial, the state filed a motion to take a videotaped deposition of the child victim pursuant to 5-504(A) NMRA, arguing that the special procedure was necessary to prevent the child from suffering unreasonable and unnecessary mental or emotional harm, and where, at a pretrial hearing on the 5-504(A) NMRA motion, the state presented the sworn testimony of a licensed professional clinical counselor who offered unrebutted expert opinions that the child would be traumatized by testifying both in court and in defendant's physical presence, and where, despite defendant's objections to the expert testimony as speculative and in violation defendant's right to confrontation, the district weighed defendant's confrontation rights against the potential for unreasonable and unnecessary emotional harm to the child and granted the state's 5-504(A) NMRA motion and granted the state's separate request that defendant not be present in the room while the child was being deposed, the trial court's order to take the child's deposition under 5-504(A) NMRA was supported by the evidence where the trial court found that, based on expert testimony, requiring the child to testify in court would cause her mental or emotional harm, exacerbate existing somatic symptoms, lead to other negative changes in her behavior, and that the harm would be unreasonable under the circumstances. State v. Berry, 2025-NMCA-009, cert. denied.

Defendant failed to preserve claims that the trial court's order excluding defendant from the State's Rule 5-504(A) deposition and admitting the deposition at trial was erroneous. — Where defendant was convicted of one count of criminal sexual contact of a minor, and where, prior to trial, the state filed a motion to take a videotaped deposition of the child victim pursuant to 5-504(A) NMRA, arguing that the special procedure was necessary to prevent the child from suffering unreasonable and unnecessary mental or emotional harm, and where, at a pretrial hearing on the 5-504(A) NMRA motion, the state presented the sworn testimony of a licensed professional clinical counselor who offered unrebutted expert opinions that the child would be traumatized by testifying both in court and in defendant's physical presence, and where, despite defendant's objections to the expert testimony as speculative and in violation of defendant's right to confrontation, the district weighed defendant's confrontation rights against the potential for unreasonable and unnecessary emotional harm to the child and granted the state's 5-504(A) NMRA motion and granted the state's separate request that defendant not be present in the room while the child was being deposed, defendant's claims that his exclusion from the deposition and the admission of the deposition at trial in lieu of in-court testimony were erroneous were not preserved where defendant failed to object to his exclusion from the child's videotaped deposition and failed to object when the child's videotaped deposition was played at defendant's bench trial. State v. Berry, 2025-NMCA-009, cert. denied.

Cross-examination as to prior convictions denied. — The defendant was not deprived of the opportunity to test the credibility of a key witness against him in violation of the sixth amendment where the trial court refused to allow the defense counsel to cross-examine the witness as to prior convictions which were 25 years old. State v. Litteral, 1990-NMSC-059, 110 N.M. 138, 793 P.2d 268.

Reading testimony of absent witness. — In allowing the testimony of the witness to be read, the accused was denied his constitutional right of being confronted by the witnesses against him. The mere fact that the witness was absent from the jurisdiction of the court was not enough. The exercise of due diligence on the part of the officers, in an effort to secure his attendance, was essential to the admission of the testimony of the absent witness. State v. Bailey, 1956-NMSC-123, 62 N.M. 111, 305 P.2d 725.

This section guarantees to an accused in a criminal prosecution the right to be confronted with the witnesses against him and as early as State v. Archer, 1927-NMSC-002, 32 N.M. 319, 255 P. 396, it was held that it was error in the trial of a criminal case to deny an accused the right to cross-examine a witness concerning a prior written statement made by him. The denial of the right of an accused to fully cross-examine a hostile witness deprives him of the right guaranteed by the constitution "to be confronted with the witnesses against him." Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, overruled by State v. Lopez, 2013-NMSC-047.

Interlocking confessions of joint defendants. — Defendants were denied their constitutional rights to confrontation and cross-examination at their joint jury trial when the interlocking statements of each defendant to police were admitted into evidence and none of the defendants testified. State v. Walters, 2006-NMCA-071, 139 N.M. 705, 137 P.3d 645, aff'd in part, rev'd in part, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068.

No harmless error. — Where statements by defendants interlocked in material respects such that each statement was corroborated by the other in a form that was immune from cross-examination, no juror could reasonably be expected to isolate and consider each statement only in connection with the defendant who made it. Where prosecutor urged jury to consider each defendant's statement against the other defendants, error in admitting defendants' statements at joint jury trial was not harmless error. State v. Walters, 2006-NMCA-071, 139 N.M. 705, 137 P.3d 645, aff'd in part, rev'd in part, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068.

Admission of a coconspirator's testimony may constitute a technical violation of the accused's right to confront and cross-examine the witnesses against him, but such admission does not require a reversal of conviction if it constituted error harmless beyond a reasonable doubt. Admission of such statements was harmless beyond a reasonable doubt where the properly admitted evidence of guilt was overwhelming, and the prejudicial effect of the codefendants' statements was insignificant by comparison. State v. Rondeau, 1976-NMSC-044, 89 N.M. 408, 553 P.2d 688.

Cross-examination of defendant by codefendant. — Where one accused informed against or indicted jointly with another testifies in his own behalf and clearly incriminates the other, the latter may subject him to cross-examination. State v. Martin, 1949-NMSC-050, 53 N.M. 413, 209 P.2d 525.

Refusal of codefendant to answer questions. — While the extent to which cross-examination may be allowed is largely within the discretion of the trial court, the right to cross-examine cannot be so restricted as to wholly deprive a party of the opportunity to test the credibility of a witness. Where testimony of a codefendant was virtually immune from the test of credibility, due to his refusal to answer defense counsel's questions on fifth amendment grounds so that the defendant was effectively denied the opportunity to show that the codefendant might be lying or a reason why he might want to lie in order to protect his brother, alleged by defendant to have been involved in the crime rather than he, codefendant was the only witness to place the defendant in the building and committing the burglary, the restriction and deprivation of cross-examination was prejudicial and defendant's motion for a mistrial should have been granted. State v. Curtis, 1974-NMCA-140, 87 N.M. 128, 529 P.2d 1249.

Refusal of witness to answer questions concerning his direct testimony. — Defendant had a right to cross-examine witness under his constitutional right of confrontation and as the questions that witness refused to answer did not concern collateral issues, the questions went to the truth of his direct testimony; therefore, because of witness's refusal to answer concerning the truth of his direct testimony, the opportunity for probing and testing his statement has failed. The effect is a loss of defendant's right of cross-examination. At the least, witness's statement was subject to a motion to strike. State v. Rogers, 1969-NMCA-034, 80 N.M. 230, 453 P.2d 593.

Right of confrontation not denied where defendant declined to cross-examine. — Where two witnesses were present at trial and available for a full range of cross-examination as to the circumstances surrounding an identification process, but the defendant chose not to cross-examine them, he was not denied his right to confront the witnesses against him. State v. Duran, 1978-NMSC-052, 91 N.M. 756, 581 P.2d 19.

VIII. SPEEDY TRIAL.

A. IN GENERAL.

Delay in enforcing sentence. — The right to a speedy trial does not include delays after a defendant has been sentenced. State v. Calabaza, 2011-NMCA-053, 149 N.M. 612, 252 P.3d 836.

Time during appeal of dismissal of charges is excluded from the speedy trail analysis. — Where the charges against a defendant have been dismissed, the time during which no charges are pending against the defendant and the defendant’s liberty is unrestrained while the case is on appeal should be excluded from the speedy trial analysis. State v. Parrish, 2011-NMCA-033, 149 N.M. 506, 252 P.3d 730, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.

Purpose of right to speedy trial. — The constitutional guarantee preventing undue delay between the time of the charge and trial has a three-fold purpose. It protects the accused, if held in jail to await trial, against prolonged imprisonment; it relieves him of long periods of time when there may be public suspicion because of an untried accusation; and it prevents him from being exposed to the hazard of a trial after so great a lapse of time that the means of proving his innocence may not be within his reach, as, for example, by loss of witnesses or the dulling of memory. Raburn v. Nash, 1967-NMSC-194, 78 N.M. 385, 431 P.2d 874, appeal dismissed, 389 U.S. 999, 88 S. Ct. 582, 19 L. Ed. 2d 613 (1967).

The guarantee of a speedy trial is to prevent undue and oppressive incarceration prior to the trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibility that long delay will impair the ability of the accused to defend himself. State v. Crump, 1971-NMSC-051, 82 N.M. 487, 484 P.2d 329.

Orderly expedition of case requires deliberate pace. — Because of the many procedural safeguards provided an accused, criminal prosecutions are necessarily designed to move at a deliberate pace and a requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. Whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon the circumstances. The delay must not be purposeful or oppressive. The essential ingredient is orderly expedition and not mere speed. Raburn v. Nash, 1967-NMSC-194, 78 N.M. 385, 431 P.2d 874, appeal dismissed, 389 U.S. 999, 88 S. Ct. 582, 19 L. Ed. 2d 613 (1967).

The right to a speedy trial is a relative right consistent with delays. The essential ingredient of this right is orderly expedition of the criminal process. State v. Mascarenas, 1972-NMCA-106, 84 N.M. 153, 500 P.2d 438.

Right to speedy trial becomes applicable only upon the initiation of formal prosecution proceedings. — Pre-arrest, or pre-formal prosecution, delays may constitute a denial of due process. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, cert. denied, 82 N.M. 377, 482 P.2d 241, cert. denied, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662 (1972).

Constitutional right to a speedy trial arises, or becomes applicable, only upon the initiation of formal prosecution proceedings. State v. Crump, 1971-NMSC-051, 82 N.M. 487, 484 P.2d 329.

The right of a speedy trial arises, or comes into application, only upon the initiation of the formal prosecution proceedings, and where defendant complains only of the delay in initiating the prosecution, the constitutional guarantee of a speedy trial has no application. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, cert. denied, 82 N.M. 377, 482 P.2d 241, cert. denied, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662 (1972).

The filing of a complaint in magistrate court is insufficient to trigger a defendant's speedy trial right for felony charges. State v. Ross, 1999-NMCA-134, 128 N.M. 222, 991 P.2d 507, cert. quashed, 129 N.M. 208, 4 P.3d 36 (2000).

The New Mexico rule stated in 1971 was that the period prior to filing the indictment is not to be considered in determining whether there has been a violation of defendant's right to a speedy trial. But the United States supreme court has held that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the U.S. Const., amend. VI. State v. Tafoya, 1977-NMCA-115, 91 N.M. 121, 570 P.2d 1148, modified, Kilpatrick v. State, 1985-NMSC-064, 103 N.M. 52, 702 P.2d 997.

Period prior to filing of indictment is not to be considered in determining whether there was a violation of defendant's constitutional right to a speedy trial. State v. Crump, 1971-NMSC-051, 82 N.M. 487, 484 P.2d 329.

Speedy trial provisions inapplicable to probation revocation proceedings. — The time constraints of a speedy trial rule and the constitutional right, under the state and federal constitutions, to a speedy trial are inapplicable to probation revocation proceedings; however, a delay in the institution and prosecution of probation revocation proceedings, along with a showing of prejudice to the probationer, may constitute a denial of due process, thereby requiring the state to waive any right to revoke the probation. State v. Chavez, 1985-NMCA-003, 102 N.M. 279, 694 P.2d 927.

Consenting to or acquiescing in delay. — Regardless of the fact that a delay in a particular case might have been construed to be a deprivation of the right to a speedy trial, the defendant cannot be heard to complain if he consented to or acquiesced in the delay. State v. McCroskey, 1968-NMCA-074, 79 N.M. 502, 445 P.2d 105.

Where defendant consents to the delay, he may not complain of a denial of the right to speedy trial. State v. Mascarenas, 1972-NMCA-106, 84 N.M. 153, 500 P.2d 438.

To be denied a speedy trial, the delay must partake of the purposeful and oppressive, or even smack of deliberate, obstruction on the part of the government. Miller v. Rodriguez, 373 F.2d 26 (10th Cir. 1967).

Constitutional analysis not required even though six month rule violated. — If a violation of the six month rule of Rule 8-506 NMRA is found, the court is not required to automatically make a constitutional speedy trial analysis. County of Los Alamos v. Beckman, 1995-NMCA-111, 120 N.M. 596, 904 P.2d 45.

Determination of delay on case to case basis. — Every defendant charged with crime has the right to a speedy trial. Whether or not a delay amounts to an unconstitutional deprivation of this right depends on the circumstances of the particular case. State v. McCroskey, 1968-NMCA-074, 79 N.M. 502, 445 P.2d 105.

Period of time where defendant was not an accused does not count for speedy trial purposes. — Where defendant pleaded guilty to multiple counts of sexual exploitation of a child (both possession and manufacturing) in 2013, and where, nearly seven years later, defendant was permitted to withdraw his plea, and where, prior to trial on the remaining charges, defendant filed a motion to dismiss on speedy trial grounds, claiming that he had experienced an excessive eight-year delay between 2012, when he was indicted, and 2020, when he was permitted to withdraw his plea, the district court did not err in denying defendant's motion to dismiss, because the speedy trial analysis does not include the period after defendant pleaded guilty because he was no longer accused of a crime but was convicted of a crime and serving a sentence, and although defendant suffered some prejudice during the period he stood accused, none of the Barker factors weighed strongly in his favor. State v. Castillo, 2023-NMCA-063.

Delay caused by judicial review initiated by defendant. — Delay caused by judicial review initiated by the defendant would not be considered under a speedy-trial claim unless the defendant showed an unreasonable delay caused by the prosecution in that review, or a wholly unjustifiable delay by the reviewing court. State v. Wittgenstein, 1995-NMCA-010, 119 N.M. 565, 893 P.2d 461, cert. denied, 119 N.M. 389, 890 P.2d 1321.

Extradition procedures must be used to avoid delay. — Where administrative machinery exists to secure extradition of person against whom charges are pending, the prosecutor has a constitutional duty to attempt to use it to avoid infringement upon defendant's right to speedy trial. The fact that a less cumbersome method of vindicating a prisoner's rights is not available does not excuse the failure to use available means. State v. Harvey, 1973-NMCA-080, 85 N.M. 214, 510 P.2d 1085.

Claim of lack of speedy trial raised too late. — A claimed lack of a speedy trial does not provide a basis for post-conviction relief where the claim was not raised prior to trial. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93.

Waiver of claim of undue delay. — Assuming there was undue delay, that delay did not deprive the magistrate of jurisdiction to bind defendant over to district court, and when defendant was arraigned in district court, his guilty plea waived the claim of undue delay in the absence of a showing of prejudice. State v. Elledge, 1967-NMSC-143, 78 N.M. 157, 429 P.2d 355.

The entry of a voluntary plea of guilty constitutes a waiver of whatever right a defendant may have had to a speedy trial. State v. McCroskey, 1968-NMCA-074, 79 N.M. 502, 445 P.2d 105.

Where there is no showing of any prejudice to defendant by whatever delay may have occurred between his arrest and preliminary hearing and his position at trial could not have been prejudiced, because he was convicted and sentenced upon his voluntary plea of guilty, the entry of his plea operated as a waiver of any claim of undue delay. State v. Gonzales, 1969-NMCA-028, 80 N.M. 168, 452 P.2d 696.

The entry of voluntary plea of guilty constituted a waiver of whatever right defendant may have had to a speedy trial. State v. Gonzales, 1969-NMCA-028, 80 N.M. 168, 452 P.2d 696.

B. FACTORS CONSIDERED IN ANALYSIS.

The presumption of prejudice based on length of delay is abolished. — The presumption that a defendant’s right to a speedy trial has been violated based solely on the threshold determination that the length of delay is presumptively prejudicial is abolished. A presumptively prejudicial length of delay is simply a triggering mechanism, requiring further inquiry into the Baker factors, which includes the length of delay as one factor, for evaluating a claimed speedy trial violation. State v. Garza, 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387.

Guidelines concerning presumptively prejudicial delay. — The guidelines for determining when the length of delay may be considered presumptively prejudicial and trigger a speedy trial inquiry are twelve months for simple cases, fifteen months for cases of intermediate complexity, and eighteen months for complex cases. These guidelines apply only to speedy trial motions to dismiss initiated on or after August 13, 2007. State v. Garza, 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387.

Showing of particularized prejudice. — Generally, a defendant must show particularized prejudice of the kind against which the speedy trial right is intended to protect. However, if the length of delay and the reasons for the delay weigh heavily in the defendant’s favor and the defendant has asserted the defendant’s right and not acquiesced to the delay, then the defendant need not show prejudice for a court to conclude that the defendant’s right has been violated. State v. Garza, 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387.

Length of delay. — The mere circumstance of a significantly lengthy delay is insufficient in itself to establish a speedy trial violation and is to be balanced against other factors. State v. O’Neal, 2009-NMCA-020, 145 N.M. 604, 203 P.3d 135.

The Barker length of delay factor does not take into consideration the fault of the parties. — In evaluating the first Barker factor, the greater the delay, the more heavily it will potentially weigh against the state. The parties’ fault in causing the delay is irrelevant to the analysis of the first Barker factor. The length of delay is an objective determination that is capable of measurement with some precision, and once established, it colors the rest of the speedy trial analysis. A delay that crosses the threshold for presumptive prejudice necessarily weighs in favor of the accused. A delay that crosses the bare minimum to trigger judicial examination of the claim does not weigh heavily in defendant’s favor. Conversely, an extraordinary delay weighs heavily in favor of defendant’s speedy trial claim. State v. Serros, 2016-NMSC-008, rev’g No. 31,565, mem. op (N.M. Ct. App. Mar. 10, 2014) (non-precedential).

Extraordinary delay. — When the delay is extraordinary and the defendant is detained while awaiting trial, it may be appropriate to shift the focus to the state’s efforts to bring the case to trial, at least when the record demonstrates that the defendant did not affirmatively cause or consent to the delay. Ordinarily, the actions of defense counsel are attributable to the defendant, but when the evidence indicates that defense counsel is acting contrary to the defendant’s wishes, defense counsel’s actions will not weigh against the defendant. An appellate court, therefore, must consider whether the defendant is to blame for the delays by personally causing or acquiescing to the delay in his case. If not, then a court must consider whether the state has met its obligation to bring the defendant’s case to trial. State v. Serros, 2016-NMSC-008, rev’g No. 31,565, mem. op (N.M. Ct. App. Mar. 10, 2014) (non-precedential).

Where defendant was charged with criminal sexual penetration of a minor and where the length of delay in bringing him to trial was four years and three months, during which time defendant was detained in custodial segregation where he was alone in a cell for more than 23 hours a day, the delay was extraordinary and resulted in extreme prejudice, and where defendant’s counsel caused most of the delay, but where there was no indication that defendant either personally caused or acquiesced to the delays, the state’s actions, in repeatedly requesting to continue defendant’s trial on behalf of defense counsel, amounted to negligent delay, which given the extraordinary length of the delay, weighed heavily against the state. The state negligently failed in its duty to bring defendant to trial and therefore violated defendant’s constitutional right to a speedy trial. State v. Serros, 2016-NMSC-008, rev’g No. 31,565, mem. op (N.M. Ct. App. Mar. 10, 2014) (non-precedential).

Delay caused by state’s interlocutory appeal may be weighed in calculating length of delay. — Delays in bringing a case to trial caused by the government’s interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy trial. State v. Suskiewich, 2016-NMCA-004, cert. denied, 2015-NMCERT-011.

Stipulated delay does not waive defendant’s constitutional right to a speedy trial. — Where trial setting is vacated following defendant’s motion for a continuance, and where parties stipulated that the delay resulting from the continuance would not count against the state in speedy trial determinations, the stipulation did not permanently waive the defendant’s constitutional right to a speedy trial. State v. Taylor, 2015-NMCA-012.

Where defendant was charged with criminal sexual penetration and misdemeanor battery and where jury trial setting was vacated on defendant’s motion which also stipulated that any delay resulting from the continuance would not count against the state in speedy trial determinations, and where state never requested a new trial setting, the stipulation did not permanently waive defendant’s constitutional right to a speedy trial, and the entire period of delay was attributable to the state and was weighed heavily against the state in the Barker v. Wingo analysis. State v. Taylor, 2015-NMCA-012.

Affirmative request for speedy trial. — Where the criminal prosecution was moving at a designedly deliberate pace consistent with the procedural safeguards afforded the defendant, defendant could not be heard to complain (at arraignment of denial of right to speedy trial) unless he had affirmatively made known his desire for a speedy trial previously. State v. Adams, 1969-NMCA-059, 80 N.M. 426, 457 P.2d 223.

Defendant failed in his contention that he was denied a speedy trial because he did not ask for a speedy trial and he raised no question concerning the same before trial. State v. Rodriguez, 1971-NMSC-098, 83 N.M. 180, 489 P.2d 1178.

Demands for a speedy trial weigh heavily in favor of defendant in determining whether delays were justified or not. State v. Harvey, 1973-NMCA-080, 85 N.M. 214, 510 P.2d 1085.

The "demand" of trial necessary to avoid a waiver of right to speedy trial is not applicable in "extreme circumstances." State v. Mascarenas, 1972-NMCA-106, 84 N.M. 153, 500 P.2d 438.

Absent extreme circumstances, petitioner may not complain of the lack of a speedy trial unless he has affirmatively made known his desire for a speedy trial. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93.

A defendant may not be heard to complain of absence of speedy trial unless he has affirmatively made known his desire for such a trial. The accused must go on record in the attitude of demanding a trial or resisting delay or be deemed to have waived the privilege. Raburn v. Nash, 1967-NMSC-194, 78 N.M. 385, 431 P.2d 874, appeal dismissed, 389 U.S. 999, 88 S. Ct. 582, 19 L. Ed. 2d 613 (1967).

Defendant's claim of lack of a speedy trial is not a ground for reversal unless defendant affirmatively made known his desire for a speedy trial. State v. Ford, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535.

Where defendant timely asserted his right to a speedy trial three times, this factor weighs against the state. State v. Urban, 2004-NMSC-007, 135 N.M. 279, 87 P.3d 1061.

Factors considered in judging reasonable delay. — Whether right to speedy trial has been denied depends on the reasonableness of the particular delay. In judging reasonableness, the court of appeals has looked to four factors to be considered: length of the delay; the reason for it; prejudice to the defendant; and waiver by the accused of the right. State v. Mascarenas, 1972-NMCA-106, 84 N.M. 153, 500 P.2d 438; State v. Barefield, 1979-NMCA-060, 92 N.M. 768, 595 P.2d 406.

Where there was no indication that delay was brought about by concerted acts of state officials, defendant was free on bond during the whole period of the continuances, and no undue and oppressive incarceration was involved, there was no denial of the right to a speedy trial. State v. Borunda, 1972-NMCA-018, 83 N.M. 563, 494 P.2d 976, cert. denied, 83 N.M. 562, 494 P.2d 975.

In determining whether a defendant's right to a speedy trial has been abridged, trial court should weigh four factors: length of delay, reason for delay, defendant's assertion of his right and prejudice to defendant. Fact that defendant was not prejudiced by the delay is not of itself sufficient to deny a claim on this ground. State v. Harvey, 1973-NMCA-080, 85 N.M. 214, 510 P.2d 1085.

There are at least four factors to be considered in determining whether a defendant has been denied a right to a speedy trial - length of the delay, reason for the delay, defendant's assertion of the right and prejudice to the defendant. They are related factors and must be considered together with such other circumstances as may be relevant. These factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. State v. Tafoya, 1977-NMCA-115, 91 N.M. 121, 570 P.2d 1148, modified, Kilpatrick v. State, 1985-NMSC-064, 103 N.M. 52, 702 P.2d 997.

When an accused asserts that his right to a speedy trial has been violated because of a delay in bringing him to trial, the appellate court will analyze his claim under the four-factor balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). These factors are the length of the delay, the reason for the delay, the assertion of the right to a speedy trial, and the prejudice to the defendant as a result of the delay. State v. Tartaglia, 1989-NMCA-016, 108 N.M. 411, 773 P.2d 356, overruled by Zurla v. State, 1990-NMSC-011, 109 N.M. 640, 789 P.2d 588.

Whenever there is a delay of more than six months between the time of arraignment and the date of the trial, four factors are to be considered in determining whether a defendant has been denied the right to a speedy trial. These are length of delay, reason for delay, defendant's assertion of his right, and ensuing prejudice to the defendant. State v. Mendoza, 1989-NMSC-032, 108 N.M. 446, 774 P.2d 440.

Initially, the court determines whether the delay is presumptively prejudicial; if so, the length of delay is balanced against the reason for delay, the defendant's assertion of the right, and actual prejudice to the defendant. State v. Laney, 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Determination of whether delay is presumptively prejudicial requires consideration of the length of time between arrest and indictment and prosecution, the complexity of the charges, and the nature of the evidence against the accused. State v. Laney, 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Minimum delay required to trigger further inquiry. — A minimum of nine months delay is necessary to trigger further inquiry into the claim of a violation of the right to a speedy trial in simple cases, twelve months in cases of intermediate complexity, and fifteen months in complex cases. State v. Laney, 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Minimum length of delay required to be considered presumptively prejudicial. — Where defendant was tried for possession of controlled substances ten months after his arrest, the ten-month delay between his arrest and trial did not meet the minimum length of delay to be considered presumptively prejudicial, and defendant did not alert the district court to the possibility of prejudice to his defense and the need for increased speed in bringing his case to trial, and therefore defendant’s constitutional right to a speedy trial was not violated. State v. Tidey, 2018-NMCA-014, cert. denied.

Delay without prejudice does not violate right. — Where defendant claims a denial of a speedy trial solely because of the elapsed time between the offenses and his trial, but he does not claim any prejudice resulting from this elapsed time, defendant's claim is an insufficient basis for a holding that his constitutional right to a speedy trial has been denied. State v. Baca, 1970-NMCA-121, 82 N.M. 144, 477 P.2d 320.

That defendant was not taken before a magistrate for two and one-half days after his arrest provided no legal basis for relief where there is no showing or claim that the delay deprived defendant of a fair trial or that he was prejudiced in any way. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005.

To obtain a dismissal for preindictment delay, defendant must show that he has been substantially prejudiced. Where the contentions of prejudice in the trial court were (1) that a nine-month delay, between arrest and indictment, was a showing of prejudice and (2) that because defendant was intoxicated at the time of the offense he had a memory problem which had been compounded by the nine-month delay, neither claim was a showing of substantial prejudice, and the delay was not a violation of due process. State v. Tafoya, 1977-NMCA-115, 91 N.M. 121, 570 P.2d 1148, modified, Kilpatric v. State, 1985-NMSC-064, 103 N.M. 52, 702 P.2d 997.

Without a showing of prejudice, delay in bringing the defendant before a magistrate provides no basis for reversal of the conviction. State v. Ford, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535.

Where the procedural defect is the delay in filing the information, absent a showing of prejudice from this delay, a prosecution under the information is proper. State v. Keener, 1981-NMCA-139, 97 N.M. 295, 639 P.2d 582, cert. denied, 98 N.M. 50, 644 P.2d 1039.

The defendant’s constitutional right to speedy sentencing was not violated where, despite a presumptively prejudicial delay in re-sentencing, the defendant did not show any actual prejudice because he did not show that he suffered undue anxiety or concern rising to the level of a constitutional violation, he failed to state what defense was impaired by the delay, and the record confirmed that the sentence initially imposed by the trial court would not have been reduced had the re-sentencing occurred earlier. State v. Brown, 2003-NMCA-110, 134 N.M. 356, 76 P.3d 1113.

The speedy trial right is not violated where there is no showing of prejudice. — Where there was a fourteen month delay between defendant’s arrest for DWI and his trial, but where the record did not support a finding of prejudice to defendant, defendant’s constitutional right to speedy trial was not violated. State v. Dorais, 2016-NMCA-049, cert. denied.

A showing of particularized prejudice is not necessary in cases in which the other Barker factors weigh heavily against the State. — A particularized showing of prejudice is not necessary in cases in which the other Barker factors weigh heavily in the defendant’s favor and the defendant has not acquiesced in the delay. State v. Taylor, 2015-NMCA-012.

Where defendant was charged with criminal sexual penetration and misdemeanor battery and where the length of delay in bringing defendant to trial was excessively long for a simple case, the majority of the delay resulted from the State’s inexcusable neglect, and defendant asserted his right to a speedy trial and did not acquiesce to the delay, defendant’s failure to show particularized prejudice was not fatal to his speedy trial claim because the other Barker factors weighed heavily in defendant’s favor. State v. Taylor, 2015-NMCA-012.

Showing of substantial prejudice prerequisite to dismissal for preindictment delay. — A showing of substantial prejudice is required before one can obtain a dismissal for preindictment delay. Elapsed time in itself does not determine whether prejudice has resulted from the delay, nor does every delay-caused detriment amount to substantial prejudice; where the defendant shows actual prejudice, it must be balanced against the reasons for the delay in determining whether he has been substantially prejudiced. State v. Duran, 1978-NMSC-052, 91 N.M. 756, 581 P.2d 19, rejected in part, Gonzales v. State, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630.

Substantial prejudice means actual prejudice to the defendant together with unreasonable delay of the prosecution in obtaining an indictment. State v. Duran, 1978-NMSC-052, 91 N.M. 756, 581 P.2d 19, rejected in part, Gonzales v. State, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630.

To make showing of actual prejudice defendant must establish in what respect his defense might have been more successful if the delay between his arrest and his indictment had been shorter. State v. Duran, 1978-NMSC-052, 91 N.M. 756, 581 P.2d 19, rejected in part, Gonzales v. State, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630.

A 23-month delay in the bringing of a defendant to trial is presumptively prejudicial. State v. Barefield, 1979-NMCA-060, 92 N.M. 768, 595 P.2d 406.

Mere possibility that deceased witness might have helped defendant's case is insufficient to establish actual prejudice in a delay between arrest and indictment. State v. Duran, 1978-NMSC-052, 91 N.M. 756, 581 P.2d 19, rejected in part, Gonzales v. State, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630.

The lengthy unexplained delay in the prosecution violated defendant's right to a speedy trial. State v. Kilpatrick, 1986-NMCA-060, 104 N.M. 441, 722 P.2d 692, cert. denied, 104 N.M. 378, 721 P.2d 1309.

Certain delays presumptively prejudicial. — In relation to the policy disclosed in former Rule 95, N.M.R. Civ. P. (superseded by Rule 5-604 NMRA), concerning right to speedy trial, delays of 15 months between arrest and trial and of 10 months between filing of information and trial were presumptively prejudicial. State v. Mascarenas, 1972-NMCA-106, 84 N.M. 153, 500 P.2d 438.

A nine-month delay between arrest and indictment was presumptively prejudicial whether or not there was an explanation for the delay. The delay and the lack of explanation of the reason for the delay were two factors to be considered. However, the failure of defendant to show any prejudice was also to be considered. Where the trial court failed to consider the factors required to be considered and failed to apply the balancing test required, the order dismissing the indictment will be reversed and the cause is remanded with instructions to reinstate the indictment. State v. Tafoya, 1977-NMCA-115, 91 N.M. 121, 570 P.2d 1148, modified, Kilpatric v. State, 1985-NMSC-064, 103 N.M. 52, 702 P.2d 997.

A twenty-seven month delay from the date of the indictment to the date defendant pleaded no contest is presumptively prejudicial. State v. Urban, 2004-NMSC-007, 135 N.M. 279, 87 P.3d 1061.

Burden is on state to show absence of prejudice. — Where delay is presumptively prejudicial, the state has the burden of demonstrating an absence of prejudice to the defendant. State v. Mascarenas, 1972-NMCA-106, 84 N.M. 153, 500 P.2d 438.

Eleven and one-half month delay between date of arraignment and date available for trial was presumptively prejudicial and triggered inquiry into the four factors which must be balanced in deciding speedy trial issue: length of delay, reason for delay, defendant's assertion of right, and prejudice to defendant. State v. Romero, 1984-NMCA-087, 101 N.M. 661, 687 P.2d 96.

Delay caused in part by defendant. — Defendant's motion for dismissal of the indictment because of a delay of 15 months from indictment to trial was properly denied when such delay was caused in part by the defendant because of vacating an early setting, and because of hearing on his own motions. State v. Montoya, 1974-NMCA-017, 86 N.M. 119, 520 P.2d 275.

Delay of about 19 months between arrest and trial did not warrant dismissal of charges where the defendant was responsible for some of the delay, he invoked his speedy trial rights just prior to trial, and he could not demonstrate any prejudice from his pretrial incarceration. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, cert. denied, 128 N.M. 149, 990 P.2d 823.

Where a defendant causes or contributes to the delay he may not complain of a denial of the right to speedy trial. State v. Mascarenas, 1972-NMCA-106, 84 N.M. 153, 500 P.2d 438.

Where petitioner's plea of insanity was instrumental in delaying the disposition of his trial, and where, in addition, the petitioner had not asserted that the passage of time had impaired his ability to defend himself, thereby rendering the delay prejudicial or oppressive, his constitutional right to a speedy trial was not violated. Raburn v. Nash, 1967-NMSC-194, 78 N.M. 385, 431 P.2d 874, appeal dismissed, 389 U.S. 999, 88 S. Ct. 582, 19 L. Ed. 2d 613 (1967).

One test in determining whether defendant was denied a speedy trial under this section is whether the delay was caused wholly by act of the state or whether some act of the defendant caused or contributed to the delay. Raburn v. Nash, 1967-NMSC-194, 78 N.M. 385, 431 P.2d 874, appeal dismissed, 389 U.S. 999, 88 S. Ct. 582, 19 L. Ed. 2d 613 (1967).

A delay in conducting an appeal de novo in district court following the conviction in municipal court did not establish a deprivation of the defendant's constitutional rights since the defendant had a responsibility to try to keep the case from slipping through the cracks. Town of Bernalillo v. Garcia, 1994-NMCA-111, 118 N.M. 610, 884 P.2d 501, cert. denied, 118 N.M. 585, 883 P.2d 1282.

Twenty-one month delay in bringing defendant's case to trial was presumptively prejudicial, but none of the delays were attributable to the state; thus, defendant was not denied the right to a speedy trial. State v. Plouse, 2003-NMCA-048, 133 N.M. 495, 64 P.3d 522, cert. denied, 133 N.M. 539, 65 P.3d 1094.

Although a delay of 62 days over the minimum nine-month period was presumptively prejudicial in a "high end" simple case, the delay did not violate the defendant's constitutional right to a speedy trial where both parties were equally culpable in causing the delay, the defendant waited "until the eleventh hour" to specifically and meaningfully assert the right, and the defendant was primarily responsible for any prejudice to his case. State v. Laney, 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Interval of 52 days between arrest and trial, without more, is insufficient for a determination that a speedy trial has been denied. State v. Ford, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535.

Delay of 144 days from arrest to trial. — The time interval between arrest on March 3rd and trial on July 25th, without more, is insufficient for a determination that the right to a speedy trial has been denied. State v. Adams, 1969-NMCA-059, 80 N.M. 426, 457 P.2d 223.

A 15-month delay between arrest and trial was contrary to the purpose of the right to speedy trial because one of the purposes of that right is to prevent undue incarceration prior to trial. State v. Mascarenas, 1972-NMCA-106, 84 N.M. 153, 500 P.2d 438.

A six-year delay in imposing a correct sentence was not a denial of appellant's constitutional right to a speedy trial as guaranteed by U.S. Const., amend. VI, or this section. Miller v. Rodriguez, 373 F.2d 26 (10th Cir. 1967).

Delay caused by ongoing narcotics undercover operation. — A showing of reasonable delay in a defendant's prosecution, by reason of an ongoing narcotics undercover operation, is a permissible basis for preindictment delay. State v. Lewis, 1988-NMCA-015, 107 N.M. 182, 754 P.2d 853, cert. denied, 107 N.M. 151, 754 P.2d 528.

Thirteen-month delay in a prosecution for aggravated assault on a police officer was presumptively prejudicial, in light of the simple nature of the charge and the readily available evidence. State v. Lujan, 1991-NMCA-067, 112 N.M. 346, 815 P.2d 642, cert. denied, 112 N.M. 279, 814 P.2d 457.

C. SPECIFIC CASES.

Speedy trial denied. — Where defendant’s trial was delayed for approximately twenty-two months; defendant’s case was a complex case; defendant was incarcerated the entire time pending trial; the delay was attributable to the fact that although defendant diligently attempted to interview the state’s witnesses, the state repeatedly failed to schedule interviews or scheduled interviews and then cancelled the interviews; the state obtained numerous continuances and six-month rule extensions; defendant stipulated to several continuances and extensions because of the state’s failure to provide witness interviews; and defendant asserted the right to a speedy trial a month after defendant’s arraignment and two and one-half months before the last scheduled trial date, defendant’s right to a speedy trial was violated. State v. Moreno, 2010-NMCA-044, 148 N.M. 253, 233 P.3d 782, cert. denied, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1048.

Right to speedy trial violated. — Where defendant was charged with multiple counts of criminal sexual penetration of a minor and related felonies, a twenty-seven month delay in a case of intermediate complexity where the state was entirely responsible for the delay and where defendant asserted his right to a speedy trial several times and suffered particularized prejudice in the form of depression, anxiety and broken relationships with his children, and where the prejudice was exacerbated by the excessive pre-trial delay, all the Barker v. Wingo factors weighed against the state, the district court appropriately dismissed defendant’s charges on speedy trial grounds. State v. Montoya, 2015-NMCA-056.

Where defendant was convicted of forgery, embezzlement and tax evasion, the delay of forty-six months in bringing him to trial violated his constitutional right to a speedy trial where over twenty-seven months of the delay weighed heavily against the state, where defendant asserted his right to a speedy trial four times, and where defendant was prejudiced by the delay when he lost his ability to work in his field or obtain other employment, exhausted his financial resources and lost his home, was ostracized by family members, and considered suicide as a remedy to his situation. State v. Moore, 2016-NMCA-067.

Where defendant was arrested and charged with numerous crimes, including murder, the delay of forty-two months in bringing defendant to trial violated defendant’s constitutional right to a speedy trial where the length of delay weighed heavily in defendant’s favor, the reasons for delay weighed slightly in defendant’s favor, where defendant clearly and repeatedly asserted his right to a speedy trial, and where defendant was substantially prejudiced by the delay based on two and one-half years of pretrial incarceration, where he lost two jobs during his incarceration, was unable to maintain family connections due to financial and travel constraints, and was able to establish undue anxiety suffered during the thirty-three months of pretrial incarceration. State v. Brown, 2017-NMCA-046, cert. denied.

Four year delay. — Where defendant was indicted almost a year after defendant shot and killed the victim; defendant’s trial occurred four years after defendant was indicted; defendant stipulated that the delay was not the fault of the state; the only time defendant asserted a right to a speedy trial was in a standard demand filed when defense counsel entered an appearance; the court had granted defendant four continuances; and defendant raised the right to a speedy trial for the first time on appeal, the delay in defendant’s trial did not amount to fundamental error. State v. Largo, 2012-NMSC-015, 278 P.3d 532.

Right to speedy trial not violated. — Where there was a delay of 370 days between the date of defendant’s arrest and the scheduled date of defendant’s trial; defendant’s case was a simple case; the state negligently delayed, for two months, filing charges in district court after the state had dismissed the charges in magistrate court; during the remainder of the delay, the case progressed with customary promptness; defendant did not assert the right to a speedy trial until the morning of the trial; defendant was on bond subject to restrictions on travel, possessing firearms and dangerous weapons, and possessing and consuming alcohol and entering liquor establishments; and defendant failed to substantiate defendant’s alleged memory loss or any impairment to defendant’s defense, defendant’s right to a speedy trial was not violated. State v. Parrish, 2011-NMCA-033, 149 N.M. 506, 252 P.3d 730, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.

Where defendant was charged with the sexual abuse of defendant’s step-child over a period of twelve years; fifty-five months elapsed between defendant’s arrest and defendant’s second trial; the state was responsible for approximately ten months of the delay waiting for DNA results; for approximately twelve months, the parties were working on discovery and obtaining a possible sex offender evaluation of defendant; the majority of the delay was caused by defendant’s repeated change of counsel; defendant claimed that each of the eight attorneys who represented defendant were ineffective; the changes of counsel necessitated repeated continuances and extensions to allow substitute counsel to prepare a defense and because the court refused to allow defendant to appear pro se or to decide important motions when defendant was without counsel in an effort to ensure that defendant received adequate representation; defendant filed numerous demands for a speedy trial while defendant was simultaneously objecting to defense counsel’s representation, requesting substitute counsel, and claiming that defense counsel needed additional time to prepare; during the delay, defendant was incarcerated in segregation because defendant could not post bond and for defendant’s safety; and one defense witness whose testimony was wholly speculative died, defendant’s right to a speedy trial was not violated. State v. Fierro, 2012-NMCA-054, 278 P.3d 541, cert. denied, 2012-NMCERT-004.

Where defendant’s trial for forgery was delayed for approximately 30 months, the majority of which was caused by defendant, where defendant’s invocations of his right to a speedy trial lacked substantial basis because they coincided with procedural maneuvers which had the result of delaying the trial, and where defendant failed to demonstrate particularized prejudice arising from the delays, the district court did not err in concluding that defendant’s right to a speedy trial was not violated. State v. Estrada, 2016-NMCA-066, cert. denied.

Delay did not violate defendant's speedy trial rights. — Where defendant established that the delay in bringing him to trial exceeded the guideline for intermediate complexity cases by approximately four months, but where the majority of the delay was attributable to defendant, where defendant's assertions of his right to a speedy trial lacked force because his demands for a speedy trial coincided with multiple defense motions for continuances and requests to set motions hearings once the state had represented that it was ready for trial, and where defendant failed to establish undue prejudice cognizable under the speedy trial right, defendant was not deprived of his constitutional right to a speedy trial. State v. Salazar, 2018-NMCA-030, cert. denied.

Eighteen month delay did not violate defendant's right to speedy trial. — Where defendant was charged with identity theft for using another person's personal identifying information on documents he submitted to his employer during the hiring process, and where the state delayed in bringing defendant to trial for eighteen months, defendant's right to speedy trial was not violated where the evidence showed that defendant and the state agreed that his trial could be delayed until an older criminal case against defendant was resolved, that defendant did not assert his speedy trial right until nearly one year after being arrested, and that defendant suffered little, if any, prejudice. State v. Prieto-Lozoya, 2021-NMCA-019, cert. denied.

Sixteen month delay, much of which was caused by the COVID-19 pandemic, did not result in a speedy trial violation. — Defendant's constitutional right to a speedy trial was not violated because although there was a sixteen month delay from arrest to trial, much of which was caused by the suspension of jury trials due to the COVID-19 pandemic, and the reasons for the delay weighed slightly in defendant's favor, balancing all four speedy trial factors, there was no undue prejudice under the circumstances resulting from defendant's pretrial incarceration, and the remaining factors did not weigh heavily in defendant's favor. State v. Pate, 2023-NMCA-088, cert. denied.

Delays attributable to ascertaining a defendant's competence to stand trial are chargeable to the defendant and must be excluded from any speedy trial analysis. — Where defendant was charged with murder and tampering with evidence for allegedly killing his girlfriend by repeatedly stabbing her and, while awaiting trial, defendant remained in custody for a period of approximately sixty-nine months as competency questions were resolved, and where, two weeks prior to trial, defendant filed a motion to dismiss based on violation of his speedy trial right, the district court did not err in denying defendant's motion, because although the sixty-nine month delay weighed heavily against the state, the delay was principally attributable to defendant's competency determination and the numerous stipulated continuances that served to assure defendant's competence to stand trial, and although defendant asserted his right to a speedy trial, these assertions were made as a matter of course rather than a strong assertion of the right, and defendant failed to show particularized prejudice because any prejudice he suffered during his time in pretrial incarceration was the result of his own behavior. State v. Gurule, 2025-NMSC-010, rev'g A-1-CA-35724, mem. op. (N.M. Ct. App. July 31, 2019) (nonprecedential).

Delay caused by defendant’s dilatory actions. — Where defendant was charged with offenses involving the sexual abuse of defendant’s minor child; defendant was responsible for thirty-four months of the forty-three month delay in defendant’s trial due to defendant’s actions, which included filing pro se motions to dismiss three court-appointed defense counsel and entering defendant’s appearance pro se, suing court-appointed counsel and the public defender's office, filing a motion to delay trial while defendant had back surgery, failing to conduct pretrial interviews of state witnesses and defense witnesses, failing to inform the district court that the psychologist employed by defendant to examine the victim and the victim’s parent and siblings had advised defendant that the psychologist was not qualified to perform the interviews; and failing to inform the district court that defendant knew that defendant was incapable of preparing for trial without court-appointed counsel; defendant’s motions to dismiss for a speedy trial violation were filed simultaneously with defendant’s delay-causing actions, which included filing motions to withdraw court-appointed counsel and entry of an appearance pro se or a motion to dismiss on other grounds; and defendant’s assertion that defendant suffered anxiety, stress and physical ailments due to the delay was not supported by medical evidence, defendant’s right to a speedy trial was not violated. State v. Steinmetz, 2014-NMCA-070, cert. denied, 2014-NMCERT-006.

Delay caused by change of venue. — Where defendant was arrested on June 24, 2004 and indicted in Bernalillo county on July 8, 2004 for criminal sexual penetration, which resulted in the victim’s pregnancy; defendant filed a motion to dismiss for improper venue on June 7, 2007 alleging that the crime occurred in Sandoval county; the district court dismissed the Bernalillo county charge without prejudice; defendant was indicted on December 4, 2008 in Sandoval county for the same offense; defendant’s trial commenced on November 30, 2010; the state did not act in bad faith or to gain a tactical advantage; defendant filed numerous pro se motions in the Sandoval county case that were repetitive and confusing and caused significant delays in the case; defendant timely asserted defendant’s right to a speedy trial; although defendant was incarcerated in Bernalillo county for related sexual acts against the victim, the incarceration did not derive from the Sandoval county case; because the Bernalillo county case and the Sandoval county case were separate cases, the delay was measured from the date defendant was indicted in Sandoval county; defendant failed to show that defendant suffered an unusual degree of anxiety and concern as a result of the pending charges; and defendant failed to make a particularized showing of prejudice, defendant’s right to a speedy trial was not violated. State v. Fierro, 2014-NMCA-004, cert. denied, 2013-NMCERT-012.

Right not forfeited because of incarceration. — A prisoner does not forfeit his right to a speedy trial solely because he is confined in the penitentiary under sentence for another offense. This is particularly true when the state that holds him in prison is the same state that presents the indictments. Raburn v. Nash, 1967-NMSC-194, 78 N.M. 385, 431 P.2d 874, appeal dismissed, 389 U.S. 999, 88 S. Ct. 582, 19 L. Ed. 2d 613 (1967).

Defendant was responsible for the delay. — Where forty-one months elapsed between defendant’s arrest and trial for first degree murder; in the first twelve months, defendant went through two of defendant’s appointed defense attorneys and hampered pretrial preparation and discovery; in the next five months, newly appointed counsel had be become familiar with the extensive discovery, a failed plea agreement, and the defense’s request for a determination of defendant’s competency to stand trial; during the next fifteen months, defendant’s competency examinations had to be scheduled three times because of defendant’s obstructionist behavior, defendant refused to cooperate with a third appointed attorney and defendant’s appointed attorney withdrew because defendant filed a federal lawsuit against the attorney; defendant filed a motion to proceed pro se and then changed defendant’s mind; when the trial court denied a fourth attorney’s effort to withdraw after defendant sued the attorney in federal court, the case was brought to trial; and defendant failed to show any particularized prejudice due to the delay, defendant’s right to a speedy trial was not violated. State v. Samora, 2013-NMSC-038.

Right to speedy trial not violated. — Where defendant was charged with kidnapping and second-degree criminal sexual penetration; the trial was delayed for over 21 months; the case was of intermediate complexity; defendant spent three months in jail and was released a year and a half before trial; one of defendant’s alibi witnesses died before trial; defendant did not notify defense counsel about the existence of the witness until the week before trial; defendant was able to call another alibi witness; most of the delay was caused by a backlog at the laboratory that was conducting DNA testing, and the remainder of the delay was caused by the district court’s schedule; defendant objected to only one of the state’s two motions for continuance; and defendant did not assert the right to a speedy trial until the day before trial, defendant’s right to a speedy trial was not violated. State v. Montoya, 2011-NMCA-074, 150 N.M. 415, 259 P.3d 820.

Where there was a twenty-one-month delay between defendant’s indictment for aggravated burglary and the setting of defendant’s case for trial; six months of the delay was attributable to defendant’s requests for continuances to permit defendant to recover the stolen property; one month elapsed between the time of defendant’s arrest and defendant’s indictment; two and one-half months elapsed between the indictment and the pretrial conference; one month elapsed between the pretrial conference and the docket call; the prosecution was granted a twenty-one day continuance, because it had not received information needed to determine whether to suggest a plea; three and one-half months elapsed while the trial judge considered defendant’s request that the judge enter a voluntary recusal; three and one-half months elapsed between the recusal and the assignment of a new trial judge; five months elapsed between the time the new trial judge was appointed and the date set for trial; there was no evidence that the state intentionally delayed the trial; defendant demanded a speedy trial when defendant filed an entry of appearance in magistrate court and one and a half months before the trial date; defendant spent one month incarcerated, wore an ankle monitor for three months and was prohibited from traveling out-of-state; and defendant did not show that the delay was prejudicial, defendant’s right to a speedy trial was not violated. State v. Valencia, 2010-NMCA-005, 147 N.M. 432, 224 P.3d 659, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.2d 90.

Where defendant’s trial was delayed five months beyond the presumptively prejudicial period; during the delay, the parties were involved in plea negotiations on three charges, two of which related to other crimes for which defendant had been separately indicted; defendant’s case and the case against defendant’s co-defendant were joined; five months of the delay was caused by the co-defendant’s requests for continuances; defendant did not move for a severance of defendant’s case and the co-defendant’s case; defendant filed a motion for speedy trial seven days after defendant’s arraignment and a motion to dismiss three weeks before the trial setting; defendant made no particularized showing that defendant suffered prejudice from pretrial incarceration or undue anxiety; defendant did not show that defendant’s defense was impaired by the delay; and there was no evidence of deliberate delay by the state, defendant’s right to a speedy trial was not violated. State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

Where the defendant’s trial was delayed for thirty-seven months; the delay began with the defendant’s late-filed motion to suppress that caused the first trial date to be vacated; the defendant filed a motion to continue the suppression hearing which stated that the defendant did not object and agreed to waive any time limitation period or extension from the supreme court; the defendant filed a motion to continue the second trial based on the defendant’s change of counsel; the third trial date was vacated because of inclement weather; the fourth trial date was vacated when the trial court declared a mistrial based in part on contact between the defendant and a juror; from the first trial through the continuance of the fourth trial, supreme court extensions of the six-month rule deadlines were obtained based on the defendant’s waiver and with no objection by the defendant; the defendant did not assert his right to a speedy trial for thirty-four months after charges were filed in district court; the defendant presented no evidence that the delay caused any significant pretrial incarceration, anxiety and concern, or impairment of the defendant’s defense; and the defendant did not waiver any right to a speedy trial, the defendant’s right to a speedy trial was not violated. State v. O’Neal, 2009-NMCA-020, 145 N.M. 604, 203 P.3d 135.

Twenty-one month delay did not violate defendant’s speedy trial rights. — Where defendant established that the delay in bringing him to trial exceeded the guideline for intermediate complexity cases by approximately six months, but where the length of, and reasons for, delay did not weigh heavily in defendant’s favor, where defendant’s assertions of his right to a speedy trial lacked force, and where defendant failed to establish undue prejudice cognizable under the speedy trial right, defendant was not deprived of his constitutional right to a speedy trial. State v. Barela, 2019-NMCA-005, cert. granted.

Defendant not prejudiced by delay. — Where defendant was charged with possession of a controlled substance and other offenses; the case against defendant was simple, involving two police officers and a chemist; defendant’s trial was delayed for 14 months; during the delay, one judge retired, another judge was designated and then excused by defendant; the state did not request that a judge pro tempore be assigned; the state was unable to go to trial for six months because it did not have its drug analysis evidence; the state did not attempt to hasten the laboratory analysis; defendant objected to the state’s motion for an extension of the trial deadline and filed a motion to dismiss for violation of defendant’s right to a speedy trial at a pretrial hearing after the second judge had been appointed; and defendant was not incarcerated while waiting trial and the delay did not negatively impact defendant’s preparation for trial, defendant’s right to a speedy trial was not violated. State v. Gallegos, 2010-NMCA-032, 148 N.M. 182, 231 P.3d 1124.

No prejudice where defendant’s case is strengthened by the delay. — Where defendant’s trial was delayed for three years, approximately half of which was attributable to neutral causes or to defendant for the benefit of the defense, and where defendant’s case was strengthened by the delay when new methods of DNA statistical analyses were implemented that increased the statistical probability that the DNA match to defendant was mistaken, the delay was not unconstitutionally prejudicial to defendant. State v. Smith, 2016-NMSC-007.

No prejudice where defendant benefitted from delay. — Where defendant was convicted of one count of possession of child pornography, the delay of thirty months in bringing him to trial did not violate his constitutional right to a speedy trial where the length of delay, reasons for the delay, and assertion of right factors weighed slightly against the state, but where defendant failed to present any evidence of particularized prejudice, and in fact benefitted from a change in the law that occurred during the pendency of his trial that greatly reduced his potential term of incarceration. State v. Deans, 2019-NMCA-015, cert. denied.

Minimal delay was not prejudicial. — Where defendant was arrested on May 8, 2006; a criminal complaint was filed in magistrate court on May 10, 2006; the complaint in magistrate court was dismissed and a criminal information was filed in district court on September 15, 2006; defendant was tried and convicted on June 28, 2007; the delay was only minimally over the presumptively prejudicial period of nine months; the delay was caused by the failure of the department of corrections to transport defendant for defendant’s arraignment or preliminary hearing, the illness of the trial judge, and a late-discovered conflict regarding defendant’s representation by the public defender department; and defendant failed to establish that defendant suffered prejudice by the delay, defendant’s right to a speedy trial was not violated. State v. Lopez, 2009-NMCA-127, 147 N.M. 364, 223 P.3d 361, cert. denied, 2009-NMCERT-10, 147 N.M. 452, 224 P.3d 1257.

Nine year delay. — Where there was a nine year delay in bringing defendant to trial; defendant fled New Mexico after the indictment was filed against defendant in New Mexico; during the nine year delay, defendant was twice incarcerated in Texas, and the state of Texas notified New Mexico that defendant was available for prosecution when defendant was released from each incarceration in Texas; New Mexico failed to obtain custody of defendant upon defendant’s release from incarceration in Texas; neither defendant nor the state invoked the Interstate Agreement on Detainers Act; and defendant’s first assertion of the right to a speedy trial was at defendant’s arraignment in New Mexico nine years after the indictment was filed, the defendant’s right to a speedy trial was violated. State v. Palacio, 2009-NMCA-074, 146 N.M. 594, 212 P.3d 1148.

Five-year delay did not result in a speedy trial violation. — Where there was a five year delay between defendant’s arrest and trial for criminal sexual penetration perpetrated in the commission of a felony, but where the record established that the reasons for the delay weighed only slightly against the state, that defendant did not meaningfully assert his speedy trial right, and that defendant did not articulate any particularized prejudice, defendant’s constitutional right to a speedy trial was not violated. State v. Samora, 2016-NMSC-031.

Delay of ten months and six days. — Where there was a delay of ten months and six days between the defendant’s arrest and the defendant’s trial for aggravated DWI; the delay was not extraordinary; the state delayed four months before dismissing the magistrate court case and refiling the charges in district court; the remainder of the delay was attributable to multiple reassignments of judges in the district court; the defendant made only one demand for a speedy trial as part of the defendant’s waiver of arraignment and plea of not guilty in district court; the defendant spent two hours in jail and was released with normal bond restrictions; and the defendant failed to show particularized prejudice as a consequence of the delay, the defendant’s right to a speedy trial was not violated. State v. Garza, 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387.

Eight month delay did not violate right to speedy trial. — Where defendant was charged in magistrate court with aggravated driving under the influence of intoxicating liquor, and where the state dismissed the magistrate court case and refiled the charge in district court, the district court erred in concluding that defendant's right to a speedy trial was violated, because although the reasons for delay and assertion of the right factors weighed slightly in defendant's favor, the length of delay and prejudice factors weighed against him, and where a defendant has failed to establish particularized prejudice, there is no speedy trial violation. State v. Radler, 2019-NMCA-052.

Delay without prejudice does not violate right. — Where the defendant’s trial was delayed for more that nine months because of the district court’s crowded docket and unavailability of courtroom space; the defendant asserted his right to a speedy trial; the defendant was held in custody only for a brief period of time; the defendant did not experience a greater degree of oppression and anxiety while the charges against the defendant were pending than any other person who had been charged with the same offense would have experienced; and the state filed supplemental disclosures of witnesses when the defendant was incarcerated in another case, defendant was not prejudiced by the delay and his right to a speedy trial was not violated. State v. Hayes, 2009-NMCA-008, 145 N.M. 446, 200 P.3d 99, cert. denied, 2008-NMCERT-012, 145 N.M. 571, 203 P.3d 102.

Defendant failed to demonstrate particularized prejudice. — Where defendant was charged with resisting, evading or obstructing an officer, failure to yield right-of-way while entering a highway, possession of a controlled substance, possession of drug paraphernalia, and two counts of nonresidential burglary, and where defendant's trial was delayed for twenty-nine months, and where defendant claimed that the delay caused the unavailability of a witness who would have been able to corroborate defendant's reasons for being at the scene of the burglary and would have been able to testify that defendant was not involved in the burglary, defendant's speedy trial rights were not violated, because although three of the Barker factors weighed against the state, defendant failed to make a particularized showing of prejudice because he was actually acquitted of the two burglary charges to which the witness would have testified. State v. Wood, 2022-NMCA-009.

Failure to demonstrate particularized prejudice. — Where the defendant’s murder trial was delayed for twenty-six months, and where the defendant was held in custody the entire time, three of the Barker factors weighed slightly against the state due to administrative delay and the fact that defendant waited two years prior to asserting his right to a speedy trial; defendant’s right to a speedy trial, however, was not denied because defendant failed to show that he suffered any undue anxiety, that he was unable to assist in his own defense in any way, that any witnesses were unable to remember any information needed for his defense, or that he was impaired in his defense in any other demonstrable manner as a result of the time that elapsed before he was brought to trial. Defendant’s speedy trial right was not violated where the other factors do not weigh heavily in defendant’s favor and because defendant has failed to demonstrate any particularized prejudice. State v. Thomas, 2016-NMSC-024.

Failure to show actual prejudice. — Where defendant’s first trial on two counts of criminal sexual penetration resulted in a mistrial, and where thirty-two months elapsed between defendant’s first trial and his second trial, which resulted in a conviction of criminal sexual penetration, defendant’s constitutional right to a speedy trial was not violated, because to find a speedy trial violation where a defendant has failed to show actual prejudice, the three other Barker factors must weigh heavily against the state, and in this case, although the reasons for delay weighed slightly against the state, defendant failed to assert his right to a speedy trial prior to conviction and failed to show any actual prejudice. State v. Castro, 2017-NMSC-027, rev’g 2016-NMCA-085, 381 P.3d 694.

Failure to show particularized prejudice precludes a determination of a speedy trial violation when the other factors do not weigh heavily against the state. — Where the defendant’s trial was delayed for twenty-four months, three of the Barker factors weighed slightly against the state due to its failure to provide discovery, which fell under the "negligent or administrative" category of delay, and where defendant asserted his right to a speedy trial by filing a motion to dismiss based on speedy trial grounds; defendant’s right to a speedy trial, however, was not denied because defendant failed to show that he suffered any undue anxiety and failed to show particularized prejudice of the kind against which the speedy trial right is intended to protect. State v. Suskiewich, 2016-NMCA-004, cert. denied, 2015-NMCERT-011.

Right to speedy trial violated. — Where defendant’s trial was delayed for nearly three and one-half years because defense counsel failed to pursue the issue of defendant’s competency and the state failed to ascertain what was happening in the case or to move it forward, defendant was incarcerated during the delay, defendant’s diminished intellectual capacity prevented him from asserting the right to a speedy trial and defense counsel was not in a position to make a speedy trial claim on defendant’s behalf because of defense counsel’s unmanageable caseload, and five years had passed since the crime was committed and the state offered no evidence to rebut defendant’s allegation that the child victim’s memory and therapy during the five-year period would make it difficult to determine what really happened in the case, defendant’s right to a speedy trial was violated. State v. Stock, 2006-NMCA-140, 140 N.M. 676, 147 P.3d 885, cert. quashed, 2007-NMCERT-001, 141 N.M. 165, 152 P.3d 152.

Delay caused by administrative failures. — Where defendant was indicted for offenses relating to the use of federal election funds during defendant’s tenure as secretary of state; defendant’s trial was delayed for thirty-six months; the district court delayed eighteen months to rule on defendant’s motion to disqualify the attorney general from prosecuting the case, delayed twenty-one months to rule on defendant’s motion to sever defendant’s case from the cases of defendant’s co-defendants, and failed to hear dozens of motions filed by defendant and defendant’s co-defendants; defendant filed three commence trial motions; defendant suffered extreme hypertension, insomnia and joint pain due to stress caused by the delay, which was supported by medical evidence; defendant lost defendant’s job and was unable to find new employment; defendant suffered extreme public humiliation; and defendant’s defense was impaired when a witness, who was involved in the formation and administration of the federal contract that was the basis for claims at issue in the case, died, defendant’s right to a speedy trial was violated. State v. Vigil-Giron, 2014-NMCA-069, cert. denied, 2014-NMCERT-006.

Presumption of prejudice did not tip the scale in favor of defendant’s speedy trial claim. — Where defendant was tried twenty-four months after he was arrested and charged with a number of offenses related to criminal sexual contact of a minor, and where there was a presumption that defendant was prejudiced due to his two-year pretrial incarceration, defendant was not deprived of his right to a speedy trial because defendant failed to show particularized prejudice and the remaining Barker factors did not weigh strongly in defendant’s favor. State v. Ochoa, 2017-NMSC-031, rev’g 2014-NMCA-065, 327 P.3d 1102.

Delay caused by negligence and administrative actions. — Where defendant was charged with two counts of criminal sexual contact of a minor and one count of interference with communications; defendant’s trial was delayed twenty-four months; ten months of the delay were due to negligence and administrative reasons; defendant’s trial was set and reset eight times before defendant was tried; several trial settings were vacated because the trial was set for a three-day period when three days were not available; the first trial was reset because one day fell on a holiday; a trial was reset because the trial was erroneously set for only one day; another trial was reset because one day fell on a mandatory furlough for state employees, which the district court was aware of and which left defense counsel without staff; and another trial was vacated because of a pending defense motion that had not been heard; defendant filed four motions throughout the period of delay to dismiss for violation of defendant’s right to a speedy trial; defendant objected to the state’s motions for extensions to commence trial; and defendant was incarcerated during the entire period of delay, defendant’s right to a speedy trial was violated. State v. Ochoa, 2014-NMCA-065, cert. granted, 2014-NMCERT-006.

Negligent and administrative delay without a showing of prejudice. — Thirty-two months of negligent and administrative delay between defendant’s arrest and trial for shoplifting and possession of drug paraphernalia, without a showing of particularized prejudice, did not violate defendant’s constitutional right to a speedy trial. State v. Gallegos, 2016-NMCA-076, cert. denied.

Extraordinary delay attributed to the state’s negligence and administrative burdens violated defendant’s right to a speedy trial. — Where defendant was charged with reckless child abuse resulting in death and tampering with evidence, defendant’s right to a speedy trial was violated where the state’s negligence and administrative burdens were responsible for most of the sixty-two month delay in bringing defendant to trial, where defendant asserted his right to a speedy trial four times during the extraordinary delay, and where undue prejudice was presumed because the first three Barker factors weighed heavily in defendant’s favor. State v. Flores, 2015-NMCA-081, cert. denied, 2015-NMCERT-008.

Delay weighs against state. — Where defendant’s trial commenced twenty-seven months after his indictment, and the state failed to arraign defendant on the charges until fourteen months after the indictment, and over half of the total delay was caused by the state’s unjustified negligence in not knowing that defendant was in its custody, the delay weighs heavily against the state. State v. Urban, 2004-NMSC-007, 135 N.M. 279, 87 P.3d 1061.

Dismissal is proper where delay weighs "extremely heavily" against the state. — Where defendant’s trial is delayed based on the state’s own dilatory and deceptive conduct in prosecuting a case, the district court justly may dismiss the charges even though the remaining factors of the speedy trial analysis factor the accused only slightly. State v. Spearman, 2012-NMSC-023, 283 P.3d 272.

Delay weighed "extremely heavily" against the state. – Where defendant was charged with practicing architecture without a license, fraud and forgery; the district court dismissed the charges after a delay of sixteen months without going to trial; the state was responsible for all of the delay; the state requested four trial continuances, one continuance of a motion hearing and two extensions of the six-month time limit; the motions for continuance were based on the unavailability of prosecution witnesses, the need for time to respond to defense motions, and the assignment of a new prosecutor; defendant did not ask for any continuances and opposed one of the requests for a continuance; after the first trial continuance, the state amended its witness and exhibit lists and unduly complicated the case by providing defense counsel with multitudinous documents through discovery which the trial court subsequently struck from the record as being irrelevant; and the district court found a pattern of delay on the part the state, the cause of the delay weighed extremely heavily against the state based on the state’s own dilatory and deceptive conduct in prosecuting the case. State v. Spearman, 2012-NMSC-023, 283 P.3d 272.

Fourteen-month delay. — The state violated defendant’s right to a speedy trial where there was an unexplained and unjustifiable 14-month gap between defendant’s indictment and his arraignment. State v. Urban, 2004-NMSC-007, 135 N.M. 279, 87 P.3d 1061.

Facts showing purposeful delay by state. — Where case was brought by information after grand jury failed to indict defendant on felony charges, where there was an unexplained delay of some ten and one-half months between the time of filing the information and the time defendant submitted to arrest upon learning that officers were looking for him, and where the uncontradicted showing was that defendant was available to the state at any time the state wished to proceed, this showed a purposeful delay by the state amounting to a denial of the right to a speedy trial. State v. Lucero, 1977-NMCA-108, 91 N.M. 26, 569 P.2d 952.

Deliberate delay by state resulting in substantial and undue prejudice to defendant violated the right to speedy trial. — Where defendant was charged with criminal sexual contact of a minor, the district court dismissed the simple case after a nineteen-month delay during which the state dismissed charges and refiled the same charges following the denial of the state’s motion for continuance; the state’s deliberate delay in dismissing charges on the eve of trial, and refiling the same charges eight days later resulting in twelve months of additional delay in rescheduling the trial, weighed heavily against the state, caused defendant to suffer personal hardship and anxiety for an unnecessarily prolonged period of time, and violated defendant’s constitutional right to a speedy trial. State v. Lujan, 2015-NMCA-032.

Showing of delay not enough. — Trial court did not err in denying defendant's motion to dismiss for lack of speedy trial based on eleven and one-half months delay attributable to the state where defendant asserted his right to speedy trial only one month prior to available trial date and where his only assertion of possible prejudice was absence of psychiatrist who examined him. State v. Romero, 1984-NMCA-087, 101 N.M. 661, 687 P.2d 96.

Eighteen-month delay between arraignment and trial did not violate defendant's right to a speedy trial, where he acquiesced to a stay in the proceedings during determination of his competency and did not assert his right to a speedy trial until the day the trial began, six months after the trial court lifted the stay. State v. Mendoza, 1989-NMSC-032, 108 N.M. 446, 774 P.2d 440.

Where trial was delayed for 26 months due to defendant's incarceration in another state, no adequate reason was given for delay, and defendant repeatedly insisted that he be tried, defendant was denied his right to a speedy trial, despite an equivocal showing on the question of prejudice. State v. Harvey, 1973-NMCA-080, 85 N.M. 214, 510 P.2d 1085.

Charge under new information after previous dismissal. — Where charge against defendant was filed and then dismissed under writ of habeas corpus, prosecution and conviction three years later under information containing same charge did not violate defendant's constitutional right to a speedy public trial under this section. State v. Rhodes, 1967-NMSC-052, 77 N.M. 536, 425 P.2d 47.

IX. IMPARTIAL JURY.

A. IN GENERAL.

Defendant’s right to an impartial jury was not denied. — Where defendant was charged with shooting into a motor vehicle and killing the victim; defendant’s ex-spouse testified that the ex-spouse knew one of the jurors, that the juror had told a mutual friend that defendant looked "scary" and had made negative comments about defendant to a potential juror who had not been selected for defendant’s jury; the trial court questioned the potential juror, determined that the potential juror had no information that anyone else had heard the juror’s negative comments, and excused the juror from defendant’s jury; and the trial court questioned the remaining jurors to make sure that they had not been involved in any discussions of the case with anyone and reminded them not to discuss the case, the trial court did not abuse its discretion or impair defendant’s right to a fair and unbiased jury. State v. Montoya, 2013-NMSC-020, 306 P.3d 426.

Admission of testimony as to child’s truthfulness was not plain error. — Where defendant was charged with criminal sexual penetration of a child under thirteen; witnesses were allowed to testify as to the truthfulness of the child; defendant cross-examined the witnesses and advanced the theory that the child’s testimony was not credible, the error in admitting the testimony that the child was truthful was not plain error. State v. Dylan J., 2009-NMCA-027, 145 N.M. 719, 204 P.3d 44.

Juror view of the defendant in shackles. — Where the defendant alleged that one of the potential jurors saw the defendant in shackles; one of the jurors did see the defendant begin to enter the courtroom escorted by police officers; the defendant was shackled at the time; and there was no showing that any of the potential jurors saw the defendant’s shackles, the defendant was not prejudiced by the trial court’s denial of the defendant’s motion for a mistrial. State v. Casillas, 2009-NMCA-034, 145 N.M. 783, 205 P.3d 830, cert. denied, 2009-NMCERT-003, 146 N.M. 603, 213 P.3d 507.

Jury view of the defendant in a police car. — Where defendant, who was charged with murder, moved for a mistrial on the ground that four jurors had seen defendant arrive at the courthouse in a police car; there was no evidence that any jurors actually saw defendant in the police car and, if they did see defendant, there was no indication that the exposure was not inadvertent; and jurors would not be surprised to see someone accused of murder in custody, defendant was not prejudiced to the extent necessary to warrant a mistrial. State v. Parvilus, 2013-NMCA-025, 297 P.3d 1228, cert. granted, 2013-NMCERT-002.

Mid-trial publicity. — When the trial court is alerted to mid-trial publicity, the court should first determine whether the publicity is inherently prejudicial. To determine whether the publicity is inherently prejudicial, the court should consider whether the publicity goes beyond the record or contains information that would be inadmissible at trial, how closely related the material is to matters at issue in the case, the timing of the publication during trial, and whether the material speculates on the guilt or innocence of the accused. The court should also consider the likelihood of juror exposure by looking at the prominence of the publicity, including the frequency of coverage, the conspicuousness of the story in the newspaper, and the profile of the media source in the local community; and the nature and likely effectiveness of the trial judge’s previous instructions on the matter, including the frequency of instruction to avoid outside material, and how much time has elapsed between the trial court’s last instruction and the publication of the prejudicial material. If the publicity is inherently prejudicial, the court should, either on its own motion or on the motion of either party, canvass the jury as a whole to assess whether any of the jurors were actually exposed to the publicity. If any of the jurors were actually exposed to the publicity, the court must conduct an individual voir dire of the juror to ensure that the fairness of the trial has not been compromised. State v. Holly, 2009-NMSC-004, 145 N.M. 513, 201 P.3d 844, 55 A.L.R. 6th 687.

Failure to canvass jury about mid-trial publicity was harmless error. — Where, on the second day of the defendant's trial for first degree murder, a small-town newspaper published an article that featured a banner headline that stated the defendant had plead guilty to racketeering and tampering with evidence charges arising from the same series of events as those involved in the defendant’s murder trial, included information about the shooting and the victims the defendant was alleged to have shot, and contained statements from the prosecuting attorney implicating the defendant; the trial court frequently cautioned the jury to avoid news accounts of the trial, including a caution on the day before the article appeared; the trial court was not consulted about the article by defense counsel until two days after the article appeared; the trial court rejected defense counsel’s request to voir dire the jury about their exposure to the article; defense counsel did not request that the jury be polled after the verdict to determine whether any juror was actually exposed to the article; most of the information in the article was placed before the jury during the trial; and the evidence of the defendant’s guilt was overwhelming, any error that the trial court committed by rejecting the defendant’s request to voir dire the jury was harmless. State v. Holly, 2009-NMSC-004, 145 N.M. 513, 201 P.3d 844.

Where defendant was charged with neglect of defendant’s developmentally disabled adult child; during defendant’s trial, a local newspaper published a story with an inflammatory headline containing implications of certain guilt; at the beginning of the trial, the court instructed the jury to avoid media coverage of the case and thereafter consistently reminded to jury to avoid coverage of any kind; on the day the newspaper article appeared, the court instructed the jury to altogether avoid the newspaper in which the article was published; and evidence of the statements made in the article was presented at trial and defendant refuted one of the statements, the court did not err by not conducting a mid-trial voir dire of the jury concerning the newspaper article. State v. Greenwood, 2012-NMCA-017, 271 P.3d 753, cert. denied, 2012-NMCERT-001.

Judge’s comment not fundamental error. — The district court’s statement to the jury pool, while looking at defendant, that Americans must have some way "to take action against somebody who violates your rights" did not constitute fundamental error. State v. Ross, 2007-NMCA-126, 142 N.M. 597, 168 P.3d 169, cert. granted, 2007-NMCERT-009, 142 N.M. 716, 169 P.3d 409.

Sentence enhancement. — The enhancement of the defendant’s basic sentence by the court pursuant to 31-18-15.1 NMSA 1978 violated the defendant’s right to an impartial jury because the enhancement should have been based on findings by a jury using the reasonable doubt standard. State v. Bounds, 2007-NMCA-062, 141 N.M. 651, 159 P.3d 1136, cert. quashed, 2008-NMCERT-001, 143 N.M. 399, 176 P.3d 1131.

Communication between court and jury. — Where the jury, through the foreperson or a note, in the presence of the defendant and all counsel, but not in the presence of the jury, informs the court of its numerical split, with a minority favoring a not guilty verdict, and the court’s instruction to the jury in regard to further deliberations is not made in open court, is oral, and is carried out through the foreperson who returns to the jury room and orally relays the court’s instruction to the jury, the communication constitutes fundamental error. State v. Cortez, 2007-NMCA-054, 141 N.M. 623, 159 P.3d 1108, cert. quashed, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674.

Inquiry as to the numerical breakdown of juror votes and direction to continue deliberations was not error. — Where, during the jury’s deliberations, the jury foreperson asked the district court what the jury should do if it could not reach a unanimous decision; the district court asked the foreperson to provide a numeric breakdown of juror votes, excluding information regarding whether the votes favored conviction or acquittal, and whether further deliberations would be helpful; the foreperson responded that further time for deliberations would be of assistance and informed the court that ten of the jurors were in agreement; the district court then ordered the jury to deliberate another hour; and within an hour, the jury returned with a unanimous guilty verdict, the district court’s communication with the jury was neither coercive nor expressing any preference that the holdout jurors should abandon their honest convictions and did not constitute fundamental error. State v. Jim, 2014-NMCA-089, cert. denied, 2014-NMCERT-006.

Impartial jury means a jury where each and every one of the 12 members constituting the jury is totally free from any partiality whatsoever. State v. McFall, 1960-NMSC-084, 67 N.M. 260, 354 P.2d 547; Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667, rev'g 1971-NMCA-085, 82 N.M. 682, 486 P.2d 618.

Trial by impartial jury means a jury that does not favor one side more than another, treats all alike, is unbiased, equitable, fair and just. If the members of the jury do not have these qualifications, defendant is denied an impartial jury. State v. Verdugo, 1968-NMCA-005, 78 N.M. 762, 438 P.2d 172.

By "impartial jury" is meant a jury where each and every one of the 12 members constituting the jury is totally free from any partiality whatsoever. "Impartial" is defined in Webster's New International Dictionary (2nd Ed.), as "not partial; not favoring one more than another; treating all alike; unbiased; equitable; fair; just." Accordingly, the impartial jury which is guaranteed is one that does not favor one side more than another, treats all alike, is unbiased, equitable, fair and just. If any juror does not have these qualities, the jury upon which he serves is thereby deprived of its quality of impartiality. State v. Pace, 1969-NMSC-055, 80 N.M. 364, 456 P.2d 197.

The difference in the purposes of this section and N.M. Const., art. II, § 12 is that § 12 guarantees a trial by jury while this section provides, among other things, that the trial shall be by an "impartial" jury. State v. Sweat, 1967-NMCA-021, 78 N.M. 512, 433 P.2d 229.

Burden of establishing partiality by juror is upon party making such a claim. State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360, overruled on other grounds by State v. Martinez, 2021-NMSC-002.

Trial court must exercise discretion in process of obtaining fair trial. — The trial court has the duty of seeing that there is a fair and impartial jury. In doing so, it must exercise discretion. The trial court's decision will not be disturbed unless there is manifest error or a clear abuse of discretion. State v. Ford, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535; State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, 81 N.M. 588, 470 P.2d 309; State v. Verdugo, 1968-NMCA-005, 78 N.M. 762, 438 P.2d 172.

Court's decision as to juror not disturbed absent manifest error or abused discretion. — Where there is nothing to indicate either manifest error or abuse of discretion by the trial court in permitting a person to serve as a juror, then the trial court's decision will not be disturbed on appeal. State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360, overruled on other grounds by State v. Martinez, 2021-NMSC-002.

Right applies to state as well as to defendant. — The right to trial by an impartial jury is a right extending to the public, represented by the state, as well as the criminally accused. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666.

Juror's acquaintance with counsel. — The defendant did not show that the trial court abused its discretion in excusing a potential juror who was acquainted with defense counsel, even though at the time of voir dire she had no knowledge regarding the case. State v. Jim, 1988-NMCA-092, 107 N.M. 779, 765 P.2d 195, cert. denied, 107 N.M. 720, 764 P.2d 491.

Any unauthorized contact with a juror is presumptively prejudicial to a criminal defendant. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667, rev'g 1971-NMCA-085, 82 N.M. 682, 486 P.2d 618.

Refusal to take witness stand does not impair right to trial by impartial jury. — An accused may hesitate to take the witness stand if his past criminal record is such that his credibility will probably be completely destroyed in the eyes of the jury if this record is made known to the jury. However, this in no way impairs his right against self-incrimination, his right not to be deprived of his life, liberty or property without due process of law, nor his right to a public trial by an impartial jury. State v. Duran, 1972-NMCA-059, 83 N.M. 700, 496 P.2d 1096, cert. denied, 83 N.M. 699, 496 P.2d 1095.

B. JURY SELECTION.

Denial of challenges for cause during jury selection. — Where defendant was charged with murder; during jury selection, one juror stated that the juror’s cousin had been murdered; another juror stated that the juror’s friend had been murdered; both jurors stated that although the defendant’s trial would cause them to think about the murders of their loved ones, they would be fair and follow the instructions of the judge; and the trial court did not strike the jurors for cause, defendant’s right to an impartial jury was not violated. State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523.

Jury selection process. — Where defendant was charged with aggravated assault against a household member and criminal damage to property; defendant was tried for unrelated drug charges in January 2007; defendant was tried for the current charges in February 2007; the jury pool for the February trial consisted of 47 potential jurors; eight members of the jury pool for the February trial were on defendant’s jury in the January trial; 22 members of the jury pool for the February trial sat through voir dire for the January trial; and 16 members of the jury pool for the February trial had no previous contact with either case, the jury selection process violated defendant’s rights to due process and an impartial jury. State v. Quintana, 2009-NMCA-115, 147 N.M. 169, 218 P.3d 87.

Court's refusal to allow additional questions. — If the questions allowed are sufficient to probe juror bias on a specific issue, the court's refusal to allow additional fact-specific questions does not amount to an abuse of discretion. State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017.

No right to jury prejudiced in defendants' favor. — It is no error to excuse a prospective juror who indicates that he might be favorably prejudiced by the fact that defendants are members of the American Indian movement. Defendants are entitled to an impartial jury. They are not entitled to a juror prejudiced in their favor. State v. Cutnose, 1975-NMCA-021, 87 N.M. 300, 532 P.2d 889, overruled by State v. McCormack, 1984-NMSC-006, 100 N.M. 657, 674 P.2d 1117.

Defendant's argument that he could not obtain a fair and impartial trial jury from a panel which did not include a member or members who might be partial to him was without merit. State v. Sluder, 1971-NMCA-095, 82 N.M. 755, 487 P.2d 183.

Right to challenge jurors. — The right to an impartial jury carries with it the concomitant right to take reasonable steps to insure that the jury is impartial. One of the most important methods of securing this right is the right to challenge. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850.

Right to challenge jurors has little meaning if it is unaccompanied by the right to ask relevant questions on voir dire upon which the challenge for cause can be predicated. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850.

Full knowledge essential to exercise of right to challenge juror. — Full knowledge of all relevant and material matters that might bear on possible disqualification of a juror is essential to a fair and intelligent exercise of the right of counsel to challenge either for cause or peremptorily. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667, rev'g, 1971-NMCA-085, 82 N.M. 682, 486 P.2d 618.

Challenge jury selection before jury sworn. — Generally, a challenge to jury selection must be made before the jury is sworn. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, cert. quashed, 119 N.M. 311, 889 P.2d 1233 (1995).

Excusing juror is matter of trial court's discretion. — The trial court has the duty of seeing that there is a fair and impartial jury and, in doing so, it must exercise discretion. The trial court's decision not to excuse a juror will not be disturbed unless there is a manifest error or a clear abuse of discretion. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

The trial court may properly exclude a juror for cause if the juror's views would substantially impair the performance of the juror's duties in accordance with the instructions and oath. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793.

Trial court did not abuse discretion in refusing to disqualify prospective juror who was the wife of a railroad employee holding a commission as a special deputy sheriff for which he received no remuneration. State v. McFall, 1960-NMSC-084, 67 N.M. 260, 354 P.2d 547.

Peremptory challenges by multiple defendants. — In a prosecution for first degree murder, the defendant was not denied due process of law because the trial court failed to permit him to exercise 12 peremptory challenges for himself, but instead allowed the defendant and codefendant a total of 14 challenges. Multiple defendants have no constitutional right to more peremptory challenges than given them by rule, provided they are given a fair trial by an impartial jury. State v. Sutphin, 1988-NMSC-031, 107 N.M. 126, 753 P.2d 1314.

Voir dire on prejudice as to use of alcohol. — Trial court did not infringe defendant's right to impartial jury trial by restricting voir dire of prospective jurors on the question of prejudice as to the use of alcohol and denying a challenge to those jurors for cause, where jurors stated that, in spite of possible prejudice in this area, they would be able to listen to the evidence and the court's instructions and follow the law, and thereby reach a fair and impartial verdict. State v. Fransua, 1973-NMCA-071, 85 N.M. 173, 510 P.2d 106, 58 A.L.R.3d 656.

Trial court abused its discretion in denying defendant's motion to strike for cause potential juror who expressed actual bias. — Where defendant was charged with two counts of aggravated battery, leaving the scene of an accident, and tampering with evidence after she, while under the influence of methamphetamine and heroin, drove across a parking lot at a high rate of speed, struck two individuals in her path, and fled the scene, and where, during voir dire before defendant's trial, defendant's drug use became a primary topic of inquiry with the potential jurors, several of whom expressed concern that their possible bias against persons engaged in drug use might affect their impartiality regarding defendant's actions on the night in question, and where the district judge denied defendant's motions to strike these potential jurors for cause, the judge abused its discretion in denying defendant's motions to strike for cause, because excusable partiality on the part of a member of the venire is established by showing actual or implicit bias, and in this case, one potential juror showed actual bias when he repeatedly and unequivocally indicated that he could not separate his bias regarding drug use from the facts of the case, and although the potential juror was removed from the jury via peremptory strike, requiring defendant to take such an action despite the juror's clear indication of bias is an abuse of discretion and violates defendant's right to an impartial jury. State v. Holtsoi, 2024-NMCA-042, cert. denied.

Jurors' statements did not amount to express or inferred bias. — Where defendant was convicted of child abuse by endangerment, and where defendant claimed that the district court deprived him of his sixth amendment right to an impartial jury when it denied his motions to disqualify three potential jurors for cause and then denied his motion for a mistrial, the district court did not err in disqualifying the potential jurors or in denying defendant's motion for a mistrial, because the record did not establish express or inferred bias with respect to the three potential jurors. Because the district court's judgments that these jurors were willing and able to serve neutrally were not obviously erroneous, arbitrary, or unwarranted, the district court did not stray beyond the wide boundaries of its discretion. State v. Fulton, 2026-NMCA-025, cert. denied.

The district court did not abuse its discretion in refusing to strike for cause a potential juror who had experienced a sexual assault. — Where defendant was charged with criminal sexual penetration, aggravated battery on a household member, and false imprisonment, and where, during voir dire at defendant's trial, the district court denied defendant's request to strike for a cause a juror who disclosed that she and her daughter were both victims of sexual assault, the district court did not abuse its discretion in denying defendant's request, because the potential juror's answers to questions during voir dire revealed an ability and a willingness to listen to the evidence and make a decision based on that evidence despite past experiences. Where a juror expresses potential bias but does not unequivocally state that they cannot be fair and impartial, the defendant must establish with facts developed in voir dire that the bias would actually affect the juror's vote. State v. Medema, 2025-NMCA-011.

The district court did not abuse its discretion in granting the state's motion to strike for cause a potential juror who expressed concerns about convicting a defendant based on an alleged victim's testimony alone. — Where defendant was convicted of committing numerous sexual offenses against a minor, and where, during jury selection, the district court granted the state's motion to strike for cause a juror who stated that she could be fair and impartial, but that she had concerns about convicting a defendant based on an alleged victim's testimony alone, the district court did not err in granting the state's motion, because the state's questioning was reasonably directed at identifying jurors who would have difficulty rendering a guilty verdict based on a victim's testimony alone, which is contrary to established law, and it is a foundational principle of voir dire that district courts and litigants may question prospective jurors about their beliefs that may potentially interfere with their ability to follow the law. State v. Sandoval, 2025-NMCA-002, cert. denied.

Trial court did not abuse its discretion in denying defendant’s motion to strike jurors for cause for statements regarding use of drugs. — Where defendant was charged with driving under the influence of drugs, and where during voir dire, in response to a question from defense counsel, three prospective jurors stated that because marijuana is illegal, a person with any amount of drugs in his or her system could not drive safely, the trial court did not err in denying defendant’s motion to strike the prospective jurors for cause, because the three panel members in question simply expressed their layperson views about the physiological effects of marijuana and/or the law governing driving under the influence of drugs, but did not indicate that they could not follow the trial court’s instruction on the law and decide the case on the basis of the testimony and exhibits that were introduced into evidence. State v. Storey, 2018-NMCA-009, cert. denied.

Peremptory challenges used on persons who should be excused for cause. — Prejudice is presumed where a party is compelled to use peremptory challenges on persons who should be excused for cause and that party exercises all of his or her peremptory challenges before the court completes the venire. Fuson v. State, 1987-NMSC-034, 105 N.M. 632, 735 P.2d 1138.

Bias alleged in driving under the influence case. — In a prosecution for driving under the influence, the defendant's right to an impartial jury was not denied by the court's refusal to strike a juror who stated that she believed alcohol was the cause of many problems and that she was a member of mothers against drunk drivers. The juror never stated that she would find against the defendant or that she believed that someone accused of a crime probably committed that crime if they had been using alcohol. State v. Wiberg, 1988-NMCA-022, 107 N.M. 152, 754 P.2d 529, cert. denied, 107 N.M. 106, 753 P.2d 352.

Defendant failed to show actual juror bias. — Where defendant was convicted of second degree murder and tampering with evidence relating to the shooting death of his son's friend, and where, during voir dire at trial, one of the empaneled jurors revealed that he knew the investigator in the case, but defendant did not inquire into the juror's potential bias during jury selection, did not challenge the juror for cause, did not use an available peremptory challenge on the juror, and did not otherwise object to the juror during jury selection, and where, on appeal, defendant claimed that actual bias by the empaneled juror resulted in a violation of his sixth amendment right to a trial by an impartial jury, defendant failed to show a violation of his sixth amendment right to an impartial jury, because the juror's statement that he knew the investigator did not establish bias, and nothing that the juror said expressed prejudgment of defendant's guilt or a failure to obey the district court's instruction to arrive at a verdict according to the evidence and the law. State v. Romero, 2023-NMSC-014, aff'g A-1-CA-38757, mem. op. (N.M. Ct. App. Oct. 15, 2021) (nonprecedential).

Defendant failed to preserve claim of actual juror bias. — Where defendant was convicted of second degree murder and tampering with evidence relating to the shooting death of his son's friend, and where, during voir dire at trial, one of the empaneled jurors revealed that he knew the investigator in the case, but defendant did not inquire into the juror's potential bias during jury selection, did not challenge the juror for cause, did not use an available peremptory challenge on the juror, and did not otherwise object to the juror during jury selection, and where, on appeal, defendant claimed that actual bias by the empaneled juror resulted in a violation of his sixth amendment right to a trial by an impartial jury, defendant failed to preserve the issue because he failed to object and therefore precluded a district court decision for review. State v. Romero, 2023-NMSC-014, aff'g A-1-CA-38757, mem. op. (N.M. Ct. App. Oct. 15, 2021) (nonprecedential).

Defendant waived claim of actual juror bias. — Where defendant was convicted of second degree murder and tampering with evidence relating to the shooting death of his son's friend, and where, during voir dire at trial, one of the empaneled jurors revealed that he knew the investigator in the case, but defendant did not inquire into the juror's potential bias during jury selection, did not challenge the juror for cause, did not use an available peremptory challenge on the juror, and did not otherwise object to the juror during jury selection, and where, on appeal, defendant claimed that actual bias by the empaneled juror resulted in a violation of his sixth amendment right to a trial by an impartial jury, defendant waived any objection to the empaneled juror's service on his jury when he learned of the potential bias but did not inquire further into the potential bias, failed to object to the juror's service, chose not to strike the juror for cause, and affirmatively accepted the juror, leaving his three peremptory strikes on the table. A defendant, knowledgeable of a possible claim of juror bias, waives the claim if he elects not to raise it promptly. State v. Romero, 2023-NMSC-014, aff'g A-1-CA-38757, mem. op. (N.M. Ct. App. Oct. 15, 2021) (nonprecedential).

The district court did not abuse its discretion in not dismissing the entire jury panel. — Where, during voir dire, one jury panel member stated in open court that he could not be fair and impartial and that he believed that any defendant brought to trial by the criminal justice system for a violent crime must be guilty, the district court did not abuse its discretion in not sua sponte dismissing the entire jury panel where defendant failed to point to any evidence of actual bias based on the juror's comments. Moreover, the fact that the juror's comments were made in open court, that they did not concern defendant or the events at issue in this case, but instead concerned similar events based on the juror's past experience, the district court appropriately responded by excusing the juror from the courtroom, excusing him for cause, and inquiring of the remaining panel members whether the juror's comments had any impact on their beliefs as to defendant's guilt. State v. Lucero, Jr., 2024-NMCA-050, cert. denied.

Voir dire on death penalty. — It is not improper to voir dire potential jurors on the death penalty merely because they do not have any discretion in imposing it. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850.

The trial court did not abuse its discretion in excluding prospective jurors who indicated that they would automatically vote against the death penalty. The basis for excluding these individuals was their inability to apply the law, rather than their religious views. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000); State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, overruled on other grounds by State v. Martinez, 2021-NMSC-002.

The trial court did not abuse its discretion in complying with UJI 14-121 NMRA by not allowing defense counsel to refer prospective jurors specifically to "the case we are dealing with now" and, at the same time, allowing counsel for both sides considerable latitude in asking generalized, hypothetical questions. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000).

Questions regarding jurors' ability to vote for death penalty. — It is not error to allow the prosecutor to question jurors to ascertain whether they could impose the death penalty if they find that the aggravating circumstances outweigh the mitigating circumstances. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793.

Selection of jury from panel which heard possibly damaging statements. — Where five prospective jurors made statements in the presence of other members of the jury panel that the name of defendant in a marijuana case had come up in another marijuana trial and were thus excused from jury duty, it was neither error nor abuse of discretion by trial court to select a jury from persons who heard these statements of excused members where nothing in the record indicated that the jurors selected were influenced by the statements or were other than impartial in reaching their verdict. State v. Verdugo, 1968-NMCA-005, 78 N.M. 762, 438 P.2d 172.

Excusing jurors with religious objections. — Where a potential juror's inability to perform his or her duty is based upon religious objection and belief, his or her removal does not violate the religious protections of this section, because exclusion from the jury is not based upon religious affiliation. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793.

Relationship between juror and brother as retired police officer not, in itself, prejudicial. — The relationship between a juror and his brother as a retired police officer, or a misapprehension or misstatement on this matter made on a juror questionnaire or at voir dire by the juror, does not of itself constitute sufficient bias or partiality resulting in prejudice to the defendant's case. State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360, overruled on other grounds by State v. Martinez, 2021-NMSC-002.

C. REPRESENTATIVE JURY.

Representative cross-section of the community. — Where the defendant moved to strike the jury pool on the grounds that because the court clerk was too lenient in excusing potential jurors and jury summonses were not in Spanish, there was a negative impact on the number of Hispanics reporting for jury duty with the result that Hispanics were systematically excluded from the jury venire and to show that the number of Hispanics were underrepresented, the defendant compared the percentage of Hispanics in the population at large with the number of individuals on the jury venire who had Hispanic surnames, the defendant failed to establish a prima facie case of systematic exclusion of Hispanics from the jury pool because Hispanic surnames do not accurately indicate the number of potential jurors who are in fact Hispanic; the court clerk excused jurors without regard to ethnicity; and the defendant offered no proof that those individuals in the community who spoke a language other than English necessarily spoke Spanish or that those individuals who spoke another language spoke only a language other than English. State v. Casillas, 2009-NMCA-034, 145 N.M. 783, 205 P.3d 830, cert. denied, 2009-NMCERT-003, 146 N.M. 603, 213 P.3d 507.

Test for determining violation of fair cross-section requirement. — To raise and resolve allegations of violation of the fair cross-section requirement, the defendant must demonstrate that the group alleged to be excluded is a distinctive group in the community, the group’s representation in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and this under-representation results from the systematic exclusion of the group in the jury-selection process, and the government must be provided the opportunity to defend its practices by demonstrating that a significant state interest is advanced by the process that results in the exclusion of a distinctive group. State v. Flores, 2015-NMCA-002, cert. granted, 2014-NMCERT-012.

Manipulation of jury venire. — Where the court clerk’s systematic policy of placing all Spanish-only speaking prospective jurors in one panel, and effectively excluding these prospective jurors from all other panels, potentially violates both the prospective jurors’ right to serve on a jury and the defendant’s right to a fair and impartial jury. State v. Flores, 2015-NMCA-002, cert. granted, 2014-NMCERT-012.

Intentional discrimination. — New Mexico Const., art. II, §§ 14 and 18 preclude the state from using its peremptory challenges to strike jurors because of gender in a criminal case. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominquez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

The mere showing that the state has used its challenges to exclude members of a cognizable group will not, by itself, establish a prima facie showing. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominquez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

It is not essential that all of the members of a cognizable group be removed from the jury in order to establish a prima facie case of purposeful discrimination. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominquez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

Although a showing that the state's challenges have caused the jury to contain no members of a cognizable group may help raise an inference of discrimination, this is not dispositive of the issue. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominquez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

Burden of proof in intentional discrimination cases. — Once a defendant makes a prima facie showing of purposeful discrimination against members of a cognizable group, the burden shifts to the state to articulate a neutral explanation for the challenge that is related to the particular case and gives a clear, concise, reasonably specific, legitimate explanation for excusing the jurors. The determination of whether a defendant has made a prima facie showing and the determination of whether the defendant has carried his burden of persuasion on the issue are both factual determinations and are reviewed by this court under the substantial evidence standard. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominquez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

To raise and resolve allegations of intentional discrimination on the basis of gender, a defendant must make a prima facie showing that the prosecution has used its peremptory challenges to purposefully discriminate against an excluded group. This prima facie showing may be made by showing 1) that the state has exercised its peremptory challenges to remove members of a cognizable group from the jury panel, and 2) that these facts and any other relevant circumstances raise an inference that the state used its challenges to exclude members of the panel solely on account of their membership in the excluded group. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominquez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

The rights of an accused in respect to the panel and final jury are (1) that there be no systematic, intentional exclusion of any section of the community and (2) that there be left as fitted for service no biased or prejudiced person. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850.

Panel, not actual jury, must reflect community population. — There is no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850.

Excusing jurors opposed to capital punishment. — Allowing the prosecutor in a first-degree murder trial to voir dire prospective jurors on their feelings regarding capital punishment and excusing for cause those jurors who were opposed to capital punishment did not deprive defendant of his right to trial by a cross-section of the community. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850.

The trial court did not err in denying the defendant's objection to the state's use of peremptory challenges to remove potential jurors who were reluctant to impose capital punishment. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793.

Striking black prospective jurors for trial of Hispanic defendant. — Prosecutor's use of peremptory challenges to strike the only two blacks who had a chance to serve on the jury unconstitutionally deprived Hispanic defendant of a jury reflecting a representative cross section of the community. State v. Aragon, 1989-NMSC-077, 109 N.M. 197, 784 P.2d 16.

Juror's unassertiveness. — The prosecution's peremptory challenge to remove the only black juror who could have served on the jury panel based on the prospective juror's failure to make eye contact and lack of assertiveness was not shown to be purposeful discrimination or to be unsupported by substantial evidence. State v. Jones, 1996-NMCA-020, 121 N.M. 383, 911 P.2d 891, aff'd, 1997-NMSC-016, 123 N.M. 73, 934 P.2d 267.

No absolute right to jury of certain county. — The framers of the New Mexico constitution sought to guarantee the right to trial by an impartial jury, rather than an absolute right to trial by a jury of the county wherein the crime is alleged to have occurred. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

No right to have certain number of persons from particular precinct on jury. State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62.

Unintentional exclusion of political party members from jury wheel permissible. — Defendants' contention that the method of selecting names for the jury wheel precludes selection of a fair and impartial jury, where that jury wheel does not include the names of any members of their political group, is without merit where there is no showing that there was an intentional exclusion of party members as a group. State v. Lopez, 1981-NMCA-066, 96 N.M. 456, 631 P.2d 1324.

As is exclusion of nonvoting registered voters. — Where there is no proof that registered voters who do not vote are a "distinctive" or "cognizable" group which has been systematically excluded or substantially underrepresented, the exclusion is not unconstitutional. State v. Lopez, 1981-NMCA-066, 96 N.M. 456, 631 P.2d 1324.

D. JUROR CONDUCT.

Juror interruption during opening statement. — Where, during the trial of the defendant for a brutal murder, the trial judge stopped the proceedings during opening statements because a juror signaled for the judge’s attention; the judge conducted an individual voir dire of the juror in chambers where the juror stated that the juror was physically affected by the opening statements and was unable to continue sitting through the trial; the judge excused the juror for cause; and the remaining jurors were not distracted by the interruption, the trial court did not err by denying the defendant’s motion for a mistrial. State v. Gallegos, 2009-NMSC-017, 146 N.M. 88, 206 P.3d 993.

Juror questions about a plea bargain. — Where, during the trial of the defendant for a brutal murder, two jurors asked the bailiff if there was any chance that the case would be resolved by a plea bargain; after voir dire of the jurors, none of the jurors indicated that they had made up their minds about the trial; and the trial judge reminded the jurors not to discuss the case with anyone else, including the court staff, the trial court’s failure to declare a mistrial was not fundamental error. State v. Gallegos, 2009-NMSC-017, 146 N.M. 88, 206 P.3d 993.

It is the duty of a juror to make full and truthful answers to such questions as are asked, neither falsely stating any fact nor concealing any material matter. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667, rev’g 1971-NMCA-085, 82 N.M. 682, 486 P.2d 618.

New trial awarded for false answers by juror. — If a juror falsely represents his interest or situation or conceals a material fact relevant to the controversy, and such matters, if truthfully answered, might establish prejudice or work a disqualification of the juror, the party misled or deceived thereby, upon discovering the fact of the juror's incompetency or disqualification after trial, may assert that fact as ground for and obtain a new trial, upon a proper showing of such facts, even though the bias or prejudice is not shown to have caused an unjust verdict, it being sufficient that a party, through no fault of his own, has been deprived of his constitutional guarantee of a trial of his case before a fair and impartial jury. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667, rev’g 1971-NMCA-085, 82 N.M. 682, 486 P.2d 618.

Concealing bias destroys integrity of jury. — The integrity of a jury is destroyed if one of the jurors serves while concealing bias. State v. Chavez, 1967-NMSC-228, 78 N.M. 446, 432 P.2d 411.

Conversing with juror in absence of defendants. — Where, after the jury was selected but before it was sworn, one juror wanted to tell the trial court that she feared the other jurors were not intelligent enough to decide the case, in the presence of all counsel and defendants, and before anyone knew what the juror wanted, the participants decided that only the trial court and counsel would talk with the juror, and both counsel, by their remarks after the conversation, expressed satisfaction with the jury and with this particular juror, error, if any, in conversing with the juror in the absence of defendants was both harmless and invited. State v. Ramming, 1987-NMCA-067, 106 N.M. 42, 738 P.2d 914, cert. denied, 106 N.M. 7, 738 P.2d 125, cert. denied, 484 U.S. 986, 108 S. Ct. 503, 98 L. Ed. 2d 501 (1987).

Misconduct involving information learned at trial. — A juror who first fabricated a story as to the defendant's alibi and told it to the jury, and then perjured herself under oath regarding that story during the initial hearing on a motion for a new trial, was not disqualified. Her fellow jurors were unaffected by her comments and her misconduct was motivated only by her appraisal of the evidence heard at trial and her desire for peer recognition, and was not clearly the product of personal experience or the gathering of extraneous information that would have disqualified her from serving and deliberating as one of the 12-person jury. State v. Sacoman, 1988-NMSC-077, 107 N.M. 588, 762 P.2d 250.

Juror's lack of knowledge of English. — It would be a violation of this section and N.M. Const., art. II, § 12 to allow one unqualified juror to serve in a criminal cause for the reason that any verdict rendered in such a situation would be less than unanimous; and a juror who did not possess a working knowledge of English would be unable to serve, in the absence of an interpreter, because he could not possibly understand the issues or evaluate the evidence to arrive at an independent judgment as to the guilt or innocence of the accused. When the court learned in the midst of the jury's deliberations that one juror did not understand English very well, it should have conducted a summary hearing to determine for itself the ability of the juror in question to understand English. State v. Gallegos, 1975-NMCA-125, 88 N.M. 487, 542 P.2d 832, cert. denied, 89 N.M. 6, 546 P.2d 71.

X. VENUE.

The word "trial" in criminal procedure means the proceedings in open court after the pleadings are finished and the prosecution is otherwise ready, down to and including the rendition of the verdict; and the term "trial" does not extend to such preliminary steps as the arraignment and giving of the pleas, nor does it comprehend a hearing in error. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36.

Word "district" does not mean "judicial district," but simply means territory over which court may have jurisdiction. State v. Balles, 1918-NMSC-054, 24 N.M. 16, 172 P. 196.

No absolute common-law right to jury of county where offense committed. — The right of a trial by jury as that right was known at the time of the adoption of the constitution did not include an absolute right to a trial by a jury of the county where the offense was committed, but that the right was conditioned upon the possibility of a fair and impartial trial being had in that county. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

Proper venue when elements of offense committed in different counties. — In the event elements of a crime were committed in different counties, the trial may be had in any county in which a material element of the crime was committed. Interfering with or depriving a custodial parent of their right to custody is an essential element of the crime of custodial interference as are the methods for accomplishing the interference or deprivation. Because deprivation is an element, where the person was deprived of the right of custody establishes a proper venue for the trial of the offense of custodial interference. State v. Lefthand, 2015-NMCA-117, cert. denied, 2015-NMCERT-011.

Where defendant violated an order of custody, issued by a Taos county district court, by depriving the father of the child of his right to custody, the father’s right to custody exists with him in his county of residence, the county in which he was given custody, and the county in which he was deprived of the custody of his son. Under the custodial interference statute, 30-4-4 NMSA 1978, a person may be charged in the place where the harm sought to be prevented by the statute results, and therefore venue may lie in Taos county district court. State v. Lefthand, 2015-NMCA-117, cert. denied, 2015-NMCERT-011.

Prosecution for violation of municipal ordinance must be laid in municipality where the violation presumably occurred. City of Roswell v. Gallegos, 1966-NMSC-246, 77 N.M. 170, 420 P.2d 438.

Venue improper where offenses completed before reaching county. — Where the first six criminal sexual penetration offenses were completed before reaching Bernalillo county, trial in Bernalillo county as to those offenses was improper. State v. Ramirez, 1978-NMCA-102, 92 N.M. 206, 585 P.2d 651.

Removal is a common-law right belonging to the New Mexico courts, and as such can be exercised by them in all cases, when not modified or controlled by state constitutional or statutory enactments. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

By the common law an accused had the right to be tried in the county in which the offense was alleged to have been committed, where the witnesses were supposed to have been accessible, and where he might have the benefit of his good character if he had established one there, but, if an impartial trial could not be had in such county, it was the practice to change the venue upon application of the people to some other county where such trial could be obtained. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

Court may change venue sua sponte. — There is nothing in the constitution or statutes limiting the inherent power of the court to order a change of venue sua sponte when an impartial trial cannot be had in a particular district. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

Motion for venue change by prosecution. — Trial court did not abuse its discretion in holding, following two highly publicized trials in Taos county, both of which ended in hung juries, that the prosecution was unable to obtain a fair trial in that county and the trial could be relocated. State v. House, 1999-NMSC-014, 127 N.M. 151, 978 P.2d 967, cert. denied, 528 U.S. 894, 120 S. Ct. 222, 145 L. Ed. 2d 186 (1999).

Change of venue over defendant's objection. — Change of venue will lie in favor of state where impartial jury cannot be had in county where crime was allegedly committed. State v. Holloway, 1914-NMSC-086, 19 N.M. 528, 146 P. 1066, 1915F L.R.A. 922 (1914), but see, State v. Tijerina, 1972-NMCA-169, 84 N.M. 432, 504 P.2d 642.

Venue of criminal case may be changed on application of state, even over objection of defendant, when public excitement and local prejudice would prevent fair trial. State v. Archer, 1927-NMSC-002, 32 N.M. 319, 255 P. 396, but see, State v. Tijerina, 1972-NMCA-169, 84 N.M. 432, 504 P.2d 642.

Any statute which authorizes a change of venue in a criminal case, on motion of the state, from one county to another, or from one judicial district to another against the objection of the defendant, is void because it is in conflict with this section. State v. Tijerina, 1972-NMCA-169, 84 N.M. 432, 504 P.2d 642, cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674 (1974).

Unnecessary to allege venue in indictment. — Rule of trial court that it is unnecessary to allege venue in indictment or information does not conflict with this section, and objection not made until after plea of guilty and conviction is waived. State v. Joyce, 1936-NMSC-061, 41 N.M. 4, 62 P.2d 1150; State v. Wallace, 1936-NMSC-059, 41 N.M. 3, 62 P.2d 1150; State v. Bogart, 1936-NMSC-058, 41 N.M. 1, 62 P.2d 1149.

Objection that venue not alleged in indictment is waived if not made until after plea of guilty and conviction. State v. Joyce, 1936-NMSC-061, 41 N.M. 4, 62 P.2d 1150; State v. Wallace, 1936-NMSC-059, 41 N.M. 3, 62 P.2d 1150; State v. Bogart, 1936-NMSC-058, 41 N.M. 1, 62 P.2d 1149.

Waiver of constitutional vicinage. — Once defendant has successfully moved for a change of venue, he cannot subsequently claim a constitutional right to the original venue, as he has waived his right to trial in the county of constitutional vicinage. State v. House, 1999-NMSC-014, 127 N.M. 151, 978 P.2d 967, cert. denied, 528 U.S. 894, 120 S. Ct. 222, 145 L. Ed. 2d 186 (1999).

Waiver of right of venue. — If defendant had any right to object to trial for murder in the federal courthouse, she waived it by remaining silent until after her conviction. Smith v. State, 1968-NMSC-144, 79 N.M. 450, 444 P.2d 961.

Right to trial in the county or district in which the offense is alleged to have been committed is waived by failure to make timely objection. City of Roswell v. Gallegos, 1966-NMSC-246, 77 N.M. 170, 420 P.2d 438.

Defendant's appearance and participation in preliminary examination, making bond to appear before district court and, after disqualifying presiding judge, waiving right to jury trial, signing stipulation for another judge to try case and requesting a continuance, resulted in waiver of his right to object to venue. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444.

The right to be tried in the county or district is a right or privilege to a particular venue which may be waived by an accused person in a number of ways, and when defendant goes to trial in another judicial district, without objection on his part, he has waived the privilege, and cannot be heard to say that the court trying him was without jurisdiction. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

This provision of the constitution confers a personal privilege of venue upon an accused, and that this privilege may be waived. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

To the extent that the language in State v. Glasscock, 1966-NMSC-105, 76 N.M. 367, 415 P.2d 56 may suggest or be construed as holding that venue may not be waived, the opinion in that case is overruled. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

Record need not show waiver. — The record need not affirmatively show that the trial court fully informed defendant of his right of venue and of his privilege to waive this right, or at least was advised that defendant had been so fully informed; that defendant then affirmatively waived this right; and that the trial court then announced its satisfaction as to the genuineness of this waiver. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

Purpose of removal of causes. — All laws for removal of causes from one vicinage to another were passed for the purpose of promoting the ends of justice by getting rid of the influence of some local prejudice which might be supposed to operate detrimentally to the interests and rights of one or the other of the parties to the suit. State v. Valdez, 1972-NMCA-014,83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

Racial makeup of county. — Although defendant argued he was prejudiced by prosecution's transfer of venue to a county with few Native Americans, he failed to present evidence of actual discrimination in the selection of the petit jury, and thus there was no constitutional violation. State v. House, 1999-NMSC-014, 127 N.M. 151, 978 P.2d 967.

Right not denied by trial in federal courthouse. — Where the trial was before a jury of the county where crime was committed, and was presided over by the judge of the district in which the county is located, appellant was denied none of the rights guaranteed her by this section or N.M. Const., art. II, § 12, notwithstanding the trial was in a federal courthouse. Smith v. State, 1968-NMSC-144, 79 N.M. 450, 444 P.2d 961.

Continuing crime. — Where police officer chased defendant, who was speeding, from Santa Fe county into Rio Arriba county where defendant was placed under arrest for an outstanding warrant, and where officer discovered drugs and drug paraphernalia during an inventory search of defendant's car, Santa Fe county venue was proper because trafficking by possession with intent to distribute is a continuing offense which occurred in each county through which defendant traveled while in possession of the drugs. State v. Roybal, 2006-NMCA-043, 139 N.M. 341, 132 P.3d 598, cert. denied, 2006-NMCERT-003, 139 N.M. 353, 132 P.3d 1039.

XI. PROSECUTOR CONDUCT.

Prosecutor pointed out indicators of victim’s truthfulness. — Where, in closing arguments, after the prosecutor stated that it was the jury’s duty to determine the credibility of witnesses, the prosecutor stated that the prosecutor would point out indicators that would help the jury decide that the victim was not lying and that the victim was telling the truth; the prosecutor emphasized the victim’s emotions while on the stand, the consistency of the victim’s statements, and the absence of motive for the victim to be untruthful in the victim’s account of the events, there was no prosecutorial misconduct because the prosecutor’s statements regarding the victim’s veracity were not personal opinions of the prosecutor as to the victim’s credibility and were not intended to incite the passion of the jury, but were focused on specific indicators presented to the jury throughout the trial as evidence of the truthfulness of the victim’s account. State v. Dominguez, 2014-NMCA-064, cert. denied, 2014-NMCERT-005.

Evaluation of prosecutorial statements. — In determining whether prosecutorial statements constitute reversible error, the court considers whether the statements invade some distinct constitutional protection; whether the statements are isolated and brief, or repeated and pervasive; and whether the statements are invited by the defense. In applying these factors, the statements must be evaluated objectively in the context of the prosecutor’s broader argument and the trial as a whole. State v. Sosa, 2009-NMSC-056, 147 N.M. 351, 223 P.3d 348, rev'g 2008-NMCA-134, 145 N.M. 68, 193 P.3d 955.

Prosecutorial statements. — Where defendant was convicted of sexual assault based on the victim’s alleged inability to consent due to alcohol and perhaps drug-related intoxication; the trial court did not allow the victim to testify that the victim believed defendant had drugged the victim, but did allow the victim to testify that the victim felt drugged and allowed expert testimony regarding the nature and effects of date-rape drugs generally; in the state’s initial closing argument, the prosecutor conceded the absence of any direct evidence of drugging, but reminded the jury of the circumstantial evidence of drugging; in response, defense counsel claimed there was no proof of drugs; and in rebuttal, the prosecutor stated that "Defense counsel says, no evidence of date rape drug. That is wrong. The judge wouldn’t allow things – wouldn’t allow you to hear things that you are not allowed to consider in evidence. That wouldn’t come in," and then referred to the circumstantial evidence that supported a drugging theory; defense counsel did not object to the prosecutor’s statements; the trial court did not intervene and admonish the prosecutor with regard to the prosecutor’s statements; defense counsel did not mention the prosecutor’s statements in defendant’s motion for a new trial; the state’s overwhelming evidence showed that defendant admitted to certain sexual acts with the victim and that the victim’s extreme intoxication by alcohol impaired the victim’s ability to consent; and defendant claimed that the prosecutors statement implied that drugging evidence did exist, but had been withheld from the jury by the court, the prosecutor’s statements did not constitute fundamental error. State v. Sosa, 2009-NMSC-056, 147 N.M. 351, 223 P.3d 348, rev'g 2008-NMCA-134, 145 N.M. 68, 193 P.3d 955.

Where the defendant’s defense to DWI was his allegation that he left the scene of the accident and encountered a group of men drinking vodka and that he drank a large quantity of vodka with them for about thirty minutes, the prosecutor’s statement in closing argument that the defendant did not tell the police officers anything about drinking vodka with others related to the defendant’s pre-arrest silence and did not violate the defendant’s fifth amendment rights. State v. Bullcoming, 2008-NMCA-097, 144 N.M. 546, 189 P.3d 679, aff'd on other grounds, 2010 NMSC-007, 147 N.M. 487, 226 P.3d 1.

In a prosecution for criminal sexual contact of a minor and criminal sexual penetration, prosecutor’s assertions that nothing the jury could do would diminish the mental anguish of the victims, but that the jury could "make it a lot worse"; inviting the jurors to imagine whether they would have screamed, "at least in your head", if they had been similarly assaulted as young children; and, asking the jurors to give the case the same consideration as if their relatives were the victims, although improper, were not sufficiently egregious, pervasive or prejudicial to deprive defendant of a fair trial. State v. Paiz, 2006-NMCA-144, 140 N.M. 815, 149 P.3d 579, cert. denied, 2006-NMCERT-011, 140 N.M. 846, 149 P.3d 943.

Where, in closing arguments, the prosecutor stated that the victim’s rights in Article II, Section 24 of the New Mexico constitution take precedence over the trial rights of criminal defendants, the statements were improper, but did not deprive the defendant of a fair trial. State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673.

Where, during defendant’s trial for impersonating a peace officer by pretending to be a border patrol agent, witnesses testified that defendant had stated that defendant had been enrolled in the border patrol academy and had left due to the death of defendant’s father; and during closing argument, the prosecutor discussed defendant’s credibility and claims that defendant left the academy because of the death of defendant’s father and stated that "he had to kill his father", there was not a substantial likelihood that the statement prejudiced the jury so as to deny defendant a fair trial. State v. Ramos-Arenas, 2012-NMCA-117, 290 P.3d 733, cert. denied, 2012-NMCERT-010, 297 P.3d 332.

Prosecutor's comments on defendant's courtroom demeanor was improper. — Where defendant was tried before a jury on charges of criminal sexual penetration in the first degree, kidnapping in the first degree, armed robbery, aggravated burglary and criminal sexual contact, and where during closing argument the prosecutor commented on defendant's courtroom demeanor while the victim was testifying, claiming that defendant's failure to look at the victim was evidence of defendant's guilt, the district court erred in overruling defense counsel's objection and in denying defense counsel's motion for a mistrial because the closing argument had no purpose other than to invite the jury to draw an adverse conclusion from defendant's failure to testify and explain why he would not look at the victim as she testified. Moreover, the argument was not brief and isolated because the prosecutor repeated the improper comment after the district judge overruled defense counsel's objection, and the state failed to meet its burden in demonstrating that there was no reasonable probability that the comment on defendant's right to silence affected the jury's verdict. State v. Sena, 2020-NMSC-011, rev'g in part 2018-NMCA-037, 419 P.3d 1240.

Characterizing police officer’s testimony as "wrong". — Where the prosecuting attorney asked the defendant if a police officer’s testimony was "wrong", the question was improper and the trial court should have sustained defense counsel’s objection to the question. State v. Soto, 2007-NMCA-077, 142 N.M. 32, 162 P.3d 187, cert. denied, 2007-NMCERT-006, 142 N.M. 15, 162 P.3d 170.

Prosecutor’s improper questions were harmful error. — Where the prosecuting attorney improperly asked the defendant if a police officer’s testimony was "wrong"; the bulk of the state’s evidence rested on the officer’s testimony; and the improper question reflected on the credibility of the officer’s testimony, the prosecutor’s question in regard to the veracity and credibility of the officer’s testimony was not harmless beyond a reasonable doubt. State v. Soto, 2007-NMCA-077, 142 N.M. 32, 162 P.3d 187, cert. denied, 2007-NMCERT-006, 142 N.M. 15, 162 P.3d 170.

Injection of facts and argument not supported by evidence constituted prosecutorial misconduct. — Where, during closing arguments of defendant’s trial for driving while under the influence of intoxicating liquor, the prosecutor made multiple comments that the amount of alcohol defendant testified to drinking could not have resulted in the tested blood alcohol content (BAC) readings of .12 and .13 forty minutes after consumption, notwithstanding the fact that the state was barred from soliciting a response by the arresting officer regarding the relationship between defendant’s BAC and the number of drinks defendant consumed prior to testing, defendant was deprived of a fair trial due to prosecutorial misconduct deprived, because the prosecutor attempted to inject scientific facts that were not in evidence regarding a subject matter that would have required qualified expert opinion testimony. State v. Montgomery, 2017-NMCA-065.

The prosecutor's prejudicial statements not supported by evidence amounted to fundamental error. — In defendant's trial for criminal sexual contact, aggravated battery on a household member and false imprisonment, where, in closing argument, the prosecutor summarized the victim's testimony regarding the aggravated battery by stating that the defendant pressed hard on the victim's neck, that the victim could not breathe and that "it only takes four pounds of pressure to cut off someone's blood supply to make them lose consciousness," when there was no testimony in the record about the amount of pressure that will result in loss of consciousness or the amount of pressure defendant applied and, it was undisputed that the victim in this case did not lose consciousness, the prosecutor's remarks constituted misconduct that amounted to fundamental error, because it is misconduct for a prosecutor to make prejudicial statements not supported by evidence and there was a reasonable probability that the error was a significant factor in the jury's deliberations in relation to the rest of the evidence before them. State v. Medema, 2025-NMCA-011.

Curative instruction was sufficient to correct impermissible closing argument. — Where defendant was charged with battery on a peace officer following an altercation between defendant and a corrections officer, during which defendant head-butted the officer in the mouth, causing a chipped tooth and a lacerated lip, and where, at trial, the prosecutor, in closing argument, impermissibly characterized certain evidence as “relevant”, the district court did not abuse its discretion in denying defendant’s motion for mistrial, because the district court took immediate action to correct the error by issuing a curative instruction and juries are presumed to follow such instructions. State v. Salas, 2017-NMCA-057, cert. denied.

Prosecutor’s comment questioning the credibility of defendant’s testimony was not improper. — Where defendant was charged with battery on a peace officer following an altercation between defendant and a corrections officer, during which defendant head-butted the officer in the mouth, causing a chipped tooth and a lacerated lip, and where, at trial, the prosecutor, in closing argument, stated that defendant’s “story was made out of whole cloth”, defendant was not entitled to a mistrial or curative instruction, because where a case essentially revolves around which of two conflicting stories is true, a party may reasonably infer and argue that the other side is lying, and the prosecutor in this case merely questioned the credibility of defendant’s testimony in light of other evidence. State v. Salas, 2017-NMCA-057, cert. denied.

Prosecutorial misconduct reviewed by writ of certiorari. — The supreme court had jurisdiction by writ of certiorari to review defendant's claim he was denied a fair trial because of prosecutorial misconduct. State v. Ashley, 1997-NMSC-049, 124 N.M. 1, 946 P.2d 205.

Prosecutorial misconduct. — Where defendant, who was initially stopped for not wearing a seatbelt during a routine seatbelt enforcement operation, was charged with DWI; during defense counsel’s closing argument, defense counsel noted that the state had presented no evidence regarding the underlying seatbelt violation; in rebuttal, the prosecutor told the jury that defense counsel had lied when commenting on the absence of a seatbelt citation, while simultaneously waiving a copy of the seatbelt violation citation, which had not been introduced into evidence, in front of the jury; the trial court instructed the jury to disregard the prosecutor’s statement accusing defense counsel of lying, because the prosecutor’s actions were limited in scope and duration and because the seatbelt violation issue was peripheral to the evidence presented and the elements of DWI, the trial court’s curative instruction was a sufficient response, the prosecutor’s actions did not deprive defendant of a fair trial, and the trial court properly denied defendant’s motion for mistrial. State v. Torres, 2012-NMSC-016, 279 P.3d 740.

Where, in closing arguments, the prosecutor referred to the defendant as "vile", a "sexual deviant" and a "sick" person, the statements were improper, but did not deprive the defendant of a fair trial. State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673.

Where the defendant’s theory of the case was that when the defendant fired the gun at the victim, the defendant did not intend to kill the victim but rather to shoot the victim in the leg, and in closing argument the prosecutor said to the jury "don’t point a gun to something you don’t want to shoot, and don’t shoot at something you don’t intend to kill", the prosecutor used the fact that the defendant pointed a gun and shot the victim in order to argue that the jury should infer an intent to kill and the trial court did not abuse its discretion by refusing to declare a mistrial and by failing to offer a curative instruction. State v. Perry, 2009-NMCA-052, 146 N.M. 208, 207 P.3d 1185.

Where defendant was convicted of first degree criminal sexual penetration and third degree criminal sexual contact of a minor; defendant alleged that the prosecutor improperly commented on defendant’s right to counsel, because on cross-examination of defendant’s mother, in an attempt to establish that defendant’s mother was biased in defendant’s favor, the prosecutor asked whether defendant’s parents were paying defendant’s attorney’s fees and whether defendant’s mother would be willing to help defendant in time of need; defendant alleged that the prosecutor attacked the integrity of defense counsel when the prosecutor implied that defense counsel was concealing evidence by prefacing a question to defendant’s expert with the statement "isn’t it true you told me before when I had a chance to interview you in the hall a couple of days ago"; defendant alleged that the prosecutor shifted the burden of proof by making a statement when defendant moved the admission of records into evidence that "the jury can decide for themselves if they’re competent or not"; defendant alleged that the prosecutor appealed to the passions of the jury when the prosecutor said in response to a statement made by the victim’s father on cross-examination that "I’m just trying to defend your daughter"; and defendant alleged that the prosecutor appealed to the passions of the jury when the prosecutor asked defendant "assuming for a minute you did sexually abuse" the victim, the prosecutor’s improper conduct did not deprive defendant of a fair trial. State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d 92, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

Questioning defendant's rights improper. — The prosecutor's questioning of the defendant concerning his right to sit at the counsel table and hear everybody testify before he told his story was improper. State v. Carrasco, 1996-NMCA-114, 122 N.M. 554, 928 P.2d 939, rev'd in part, aff'd in part, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075.

Isolated comment made during closing argument is not sufficient to warrant reversal. — In defendant’s trial for contributing to the delinquency of a minor, the prosecutor’s comment in closing argument that defendant was a "two-time felon" did not deprive defendant of a fair trial, because the prosecutor’s statements regarding defendant’s criminal history referenced properly admitted evidence and did not constitute improper propensity evidence, the prosecutor’s mention of defendant’s history was not the primary focus of the state’s closing argument, and it did not clearly impact the jury's verdict; the general rule is that an isolated comment made during closing argument is not sufficient to warrant reversal. State v. Lozoya, 2017-NMCA-052, cert. denied.

Prosecutor conduct during closing argument did not deprive defendant of his right to a fair trial. — Where defendant was convicted of attempted first-degree murder based on evidence that defendant fired multiple gunshot at officers following a prolonged high-speed chase, and where defendant argued that prosecutorial misconduct during closing arguments deprived him of his right to a fair trial, defendant was not deprived of a fair trial because at no point did the state urge the jury to ignore the jury instructions as written, nor did the state claim that the jury instructions were incorrect, the state’s use of evidence to support its theory that deliberate intent began to form during the pursuit was not error, and nowhere did defendant prove that the state made any misstatements of the law. State v. Crawford, 2026-NMCA-046, cert. denied.

Improper statements by prosecutor during opening argument did not rise to the level of fundamental error. — Where defendant was convicted of attempted first-degree murder based on evidence that defendant fired multiple gunshots at officers following a prolonged high-speed chase, and where defendant argued that certain statements made by the state in its opening statement and closing arguments improperly invited the jury to convict based on an emotional appeal rather than the elements of the offense, fundamental error did not occur as a result of the state’s visualization exercise, where the prosecutor asked the jurors to put themselves in the position of the victims, because although improper, the prosecutor’s statements did not materially alter the trial or confuse the jury. State v. Crawford, 2026-NMCA-046, cert. denied.

Commenting on the demeanor of a non-testifying defendant. — Where defendant was charged with criminal sexual penetration, kidnapping, armed robbery, aggravated burglary, and criminal sexual contact, and where, during the state's closing argument at defendant's trial, the prosecutor commented on defendant’s demeanor during the victim’s testimony, it was improper for the prosecutor to comment on the demeanor of a non-testifying defendant, because it is neither probative of innocence or guilt, nor is it evidence that an appellate court can properly review. The error, however, did not warrant reversal because the prosecutor's brief comments were confined to closing argument, the court advised the jury that its consideration of defendant's courtroom demeanor should be limited to its own observations, and, in the context of the entire trial, the state presented significant evidence of defendant's guilt. State v. Sena, 2018-NMCA-037, rev'd in part by 2020-NMSC-011.

Imposing costs against state. — The rule in criminal cases is the same as that which is expressed for civil cases, in that a defendant's costs may be imposed against the state, its officers or agencies, only to the extent permitted by law. 1954 Op. Att'y Gen. No. 54-6035.

The state is entitled to a preliminary examination notwithstanding a waiver of the same by the accused. 1965 Op. Att'y Gen. No. 65-149.

Specific areas of inquiry established by statute. — In New Mexico, a grand jury may not lawfully inquire into any matter whatsoever. Specific areas of inquiry by a grand jury are established by statute. 1982 Op. Att'y Gen. No. 82-14.

Imprisonment contingent on assistance. — The sixth amendment to the United States constitution and this section guarantee the assistance of counsel to an accused. Courts have interpreted these provisions as requiring that no indigent criminal, whether accused of a felony or misdemeanor, may be sentenced to a term of imprisonment unless the state has afforded the accused the right to assistance of appointed counsel. 1987 Op. Att'y Gen. No. 87-43.

No indigent criminal defendant may be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel in his defense. 1981 Op. Att'y Gen. No. 81-04.

Indigent defendant has the right to have subpoenas served upon his witnesses by a sheriff without paying to that sheriff a fee for such service, or mileage expenses. 1954 Op. Att'y Gen. No. 54-6035.

Right of venue distinguished from magistrate's territorial jurisdiction. — The defendant's personal right of venue is a legal concept, separate and distinct from the territorial jurisdiction of the magistrate, and a statute affecting one does not necessarily affect the other. 1979 Op. Att'y Gen. No. 79-12.

Procedure regarding telephone testimony. — Any permissible use of telephone testimony in court proceedings would depend on the specific facts and circumstances involved. Assuming that such testimony is appropriate in some circumstances, the conclusion that a deposition witness must take an oath and testify in the presence of an authorized officer also would apply to any testimony that a witness gives to the court over the telephone. 1988 Op. Att'y Gen. No. 88-81.

Law reviews. — For article, "Approaching Statutory Interpretation in New Mexico," see 8 Nat. Resources J. 689 (1968).

For comment, "McGuinness v. State: Limiting the Use of Depositions at Trial," see 10 N.M. L. Rev. 207 (1979-1980).

For comment, "The Use of an Information Following the Return of a Grand Jury No Bill: State v. Joe Nestor Chavez," see 10 N.M. L. Rev. 217 (1979-1980).

For note, "Criminal Procedure - Grand Jury - Inadmissible Evidence, Due Process," see 11 N.M. L. Rev. 451 (1981).

For note, "Custodial Interrogation in New Mexico: State v. Trujillo," see 12 N.M. L. Rev. 577 (1982).

For comment, "Procedural and Substantive Rights to the Media Govern Requests to Restrict News Coverage of Criminal Cases: State ex rel. New Mexico Press Ass'n v. Kaufman," see 14 N.M. L. Rev. 401 (1984).

For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M. L. Rev. 407 (1985).

For note, "Striking the Right Balance in New Mexico's Rape Shield Law - State v. Johnson," see 28 N.M. L. Rev. 611 (1998).

For note, "Curbing Prosecutorial Power-Right to Waive Preliminary Hearing Remains Within Discretion of Defendant - State ex rel. Whitehead v. Vescovi-Dial," see 29 N.M. L. Rev. 445 (1999).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21A Am. Jur. 2d Criminal Law §§ 632 to 1021; 38 Am. Jur. 2d Grand Jury §§ 3, 4, 16; 41 Am. Jur. 2d Indictments and Informations § 4 et seq.; 47 Am. Jur. 2d Jury § 6 et seq.; 75 Am. Jur. 2d Trial §§ 180, 182, 192, 196, 200, 205, 206, 228; 81 Am. Jur. 2d Witnesses §§ 1 to 3, 7, 802, 803, 812, 860.

Exclusion of public during criminal trial, 48 A.L.R.2d 1436.

Suppression before indictment or trial of confession unlawfully obtained, 1 A.L.R.2d 1012.

Waiver of privilege against self-incrimination in exchange for immunity from prosecution, as barring reassertion of privilege on account of prosecution in another jurisdiction, 2 A.L.R.2d 631.

Duty to advise accused as to right to assistance of counsel, 3 A.L.R.2d 1003.

Bill of particulars, right to, 5 A.L.R.2d 444.

Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 A.L.R.2d 1404.

Exclusion of women from grand or trial jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction, 9 A.L.R.2d 661.

Power of prosecuting attorney to extend immunity from prosecution to witness claiming privilege against self-incrimination, 13 A.L.R.2d 1439, 4 A.L.R.4th 617, 4 A.L.R.4th 1221.

Pretrial requirement that suspect or accused wear or try on particular apparel as violating constitutional rights, 18 A.L.R.2d 796.

Right of witness to refuse to answer, on the ground of self-incrimination, as to membership in or connection with party, society or similar organization or group, 19 A.L.R.2d 388.

Absence of accused at return of verdict in felony case, 23 A.L.R.2d 456.

Fingerprints, palm prints or bare footprints as evidence, 28 A.L.R.2d 1115, 45 A.L.R.4th 1178.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

Cross-examination of witness in criminal case as to whether, and with whom, he has talked about or discussed the facts of the case, 35 A.L.R.2d 1045.

Blood grouping tests, 46 A.L.R.2d 1000, 43 A.L.R.4th 579.

Sufficiency of witness's claim of privilege, 51 A.L.R.2d 1178.

Right of indigent defendant in criminal case to aid of state as regards new trial or appeal, 55 A.L.R.2d 1072.

Waiver: right to waive indictment, information or other formal accusation, 56 A.L.R.2d 837.

Speedy trial, waiver or loss of accused's right to, 57 A.L.R.2d 302.

Cross-examination of prosecution's witness as to his motive for testifying, preventing or limiting, 62 A.L.R.2d 610.

Counsel's right in criminal prosecution to argue law or to read lawbooks to the jury, 67 A.L.R.2d 245.

Privilege of party, witness or attorney while going to, attending or returning from court as extending to privilege from arrest for crime, 74 A.L.R.2d 592.

Incompetency of counsel chosen by accused as affecting validity of conviction, 74 A.L.R.2d 1390, 34 A.L.R.3d 470, 2 A.L.R.4th 27, 2 A.L.R.4th 807, 13 A.L.R.4th 533, 15 A.L.R.4th 582, 18 A.L.R.4th 360, 26 A.L.R. Fed. 218, 53 A.L.R. Fed. 140.

Jurisdiction or power of grand jury after expiration of term of court for which organized, 75 A.L.R.2d 544.

Right not to testify, duty of court to inform accused who is not represented by counsel, 79 A.L.R.2d 643.

Deaf, mute or blind person, criminal trial of, as satisfying right to confront witnesses, 80 A.L.R.2d 1084.

Propriety of criminal trial of one under influence of drugs or intoxicants at time of trial, 83 A.L.R.2d 1067.

Speedy trial, delay between filing of complaint or other charge and arrest of accused as violation of right to, 85 A.L.R.2d 980.

Calling accused's counsel as a prosecution witness as improper deprivation of right to counsel, 88 A.L.R.2d 796.

Constitutionally protected right of accused indigent to appointment of counsel in state court prosecution, 93 A.L.R.2d 747.

Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269.

Scope and extent, and remedy or sanctions for infringement, of accused's right to communicate with his attorney, 5 A.L.R.3d 1360.

Right of accused in state courts to inspection or disclosure of evidence in possession of prosecution, 7 A.L.R.3d 8.

Right of defendant in criminal case to inspection of statement of prosecution's witness for purposes of cross-examination or impeachment, 7 A.L.R.3d 181.

Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question, 9 A.L.R.3d 990.

Accused's right to interview witness held in public custody, 14 A.L.R.3d 652.

Power of court to make or permit amendment of indictment, 17 A.L.R.3d 1181.

Accused's right to inspection of minutes of state grand jury, 20 A.L.R.3d 7.

Propriety and prejudicial effect of counsel's representing defendant in criminal case notwithstanding counsel's representation or former representation of prosecution witness, 27 A.L.R.3d 1431.

Validity of grand jury indictment where grand jury heard an incompetent witness, 39 A.L.R.3d 1064.

Propriety of requiring accused to give handwriting example, 43 A.L.R.3d 653.

Right of indigent defendant to assistance of counsel in proceedings to revoke probation, 44 A.L.R.3d 306.

Determination of indigency of accused entitling him to appointment of counsel, 51 A.L.R.3d 1108.

Necessity of alleging in indictment or information the limitation of actions - tolling the facts, 52 A.L.R.3d 922.

Right to counsel in contempt proceedings, 52 A.L.R.3d 1002.

Power of court to control evidence or witnesses going before grand jury, 52 A.L.R.3d 1316.

Right in child custody proceedings to cross-examine investigatory officer whose report is used by the court in its decision, 59 A.L.R.3d 1337.

Contempt: refusal to answer questions before state grand jury as direct contempt of court, 69 A.L.R.3d 501.

Construction and application of state equal rights amendments forbidding determination of rights based on sex, 90 A.L.R.3d 150.

Use of abbreviation in indictment or information, 92 A.L.R.3d 494.

Accused's right to represent himself in state criminal proceeding - modern state cases, 98 A.L.R.3d 13.

Right to cross-examine prosecuting witness as to his pending or contemplated civil action against accused for damages arising out of same transaction, 98 A.L.R.3d 1060.

Excusing, on account of public, charitable, or educational employment, one qualified and not specifically exempted as juror in state criminal case as ground of complaint by accused, 99 A.L.R.3d 1261.

Venue in rape cases where crime is committed partly in one place and partly in another, 100 A.L.R.3d 1174.

Modern status of rules and standards in state courts as to adequacy of defense counsel's representation of criminal client, 2 A.L.R.4th 27.

Waiver or estoppel in incompetent legal representation cases, 2 A.L.R.4th 807.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374.

Adequacy of defense counsel's representation of criminal client regarding right to and incidents of jury trial, 3 A.L.R.4th 601.

Right of accused in criminal prosecution to presence of counsel at court-appointed or -approved psychiatric examination, 3 A.L.R.4th 910.

Power of court to change counsel appointed for indigent, against objections of accused and original counsel, 3 A.L.R.4th 1227.

Adequacy of defense counsel's representation of criminal client regarding speedy trial and related matters, 6 A.L.R.4th 1208.

Adequacy of defense counsel's representation of criminal client regarding confessions and related matters, 7 A.L.R.4th 180.

Adequacy of defense counsel's representation of criminal client regarding venue and recusation matters, 7 A.L.R.4th 942.

Adequacy of defense counsel's representation of criminal client regarding hypnosis and truth tests, 9 A.L.R.4th 354.

Adequacy of defense counsel's representation of criminal client regarding guilty pleas, 10 A.L.R.4th 8.

Right of accused in state courts to inspection or disclosure of tape recording of his own statements, 10 A.L.R.4th 1092.

Validity, propriety, and effect of allowing or prohibiting media's broadcasting, recording, or photographing court proceedings, 14 A.L.R.4th 121.

Adequacy of defense counsel's representation of criminal client regarding prior convictions, 14 A.L.R.4th 227.

Court's witnesses (other than expert) in state criminal prosecution, 16 A.L.R.4th 352.

Continuances at instances of state public defender or appointed counsel over defendant's objections as excuse for denial of speedy trial, 16 A.L.R.4th 1283.

Propriety and prejudicial effect of witness testifying while in prison attire, 16 A.L.R.4th 1356.

Circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel - state cases, 18 A.L.R.4th 360.

Denial of, or interference with, accused's right to have attorney initially contact accused, 18 A.L.R.4th 669.

Denial of accused's request for initial contact with attorney - drunk-driving cases, 18 A.L.R.4th 705.

Denial of accused's request for initial contact with attorney - cases involving offenses other than drunk driving, 18 A.L.R.4th 743.

Conditions interfering with accused's view of witness as violation of right of confrontation, 19 A.L.R.4th 1286.

Waiver of right to counsel by insistence upon speedy trial in state criminal case, 19 A.L.R.4th 1299.

Right of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions, 23 A.L.R.4th 955.

Individual's right to present complaint or evidence of criminal offense to grand jury, 24 A.L.R.4th 316.

Existence and extent of right of litigant in civil case, or of criminal defendant, to represent himself before state appellate courts, 24 A.L.R.4th 430.

Propriety of requiring suspect or accused to alter, or to refrain from altering, physical or bodily appearance, 24 A.L.R.4th 592.

Validity and efficacy of minor's waiver of right to counsel - modern cases, 25 A.L.R.4th 1072.

Necessity and content of instructions to jury respecting reasons for or inferences from accused's absence from state criminal trial, 31 A.L.R.4th 676.

Bail: effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial, 32 A.L.R.4th 600.

Validity of jury selection as affected by accused's absence from conducting of procedures for selection and impaneling of final jury panel for specific case, 33 A.L.R.4th 429.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information, 39 A.L.R.4th 899.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.

Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or by information, 44 A.L.R.4th 401.

Propriety of governmental eaves-dropping on communications between accused and his attorney, 44 A.L.R.4th 841.

Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony, 46 A.L.R.4th 1047.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.

Exclusion of public from state criminal trial in order to preserve confidentiality of undercover witness, 54 A.L.R.4th 1156.

Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant, 55 A.L.R.4th 1170.

Exclusion of public from state criminal trial in order to avoid intimidation of witness, 55 A.L.R.4th 1196.

Closed-circuit television witness examination, 61 A.L.R.4th 1155.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Ineffective assistance of counsel: misrepresentation, or failure to advise of immigration consequences of guilty plea - state cases, 65 A.L.R.4th 719.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time, 70 A.L.R.4th 632.

Standing of media representatives or organizations to seek review of, or to intervene to oppose, order closing criminal proceedings to public, 74 A.L.R.4th 476.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of foreign language speaking defendant, 79 A.L.R.4th 1102.

What constitutes assertion of rights to counsel following Miranda warnings - state cases, 83 A.L.R.4th 443.

Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist, 85 A.L.R.4th 19.

When does delay in imposing sentence violate speedy trial provision, 86 A.L.R.4th 340.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant, 86 A.L.R.4th 698.

Necessity that waiver of accused's right to testify in own behalf be on the record, 90 A.L.R.4th 586.

Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense, 8 A.L.R.5th 713.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Disqualification or recusal of prosecuting attorney because of relationship with alleged victim or victim's family, 12 A.L.R.5th 909.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case, 16 A.L.R.5th 152.

Criminal defendant's representation by person not licensed to practice law as violation of right to counsel, 19 A.L.R.5th 351.

Determination of indigency entitling accused in state criminal case to appointment of counsel on appeal, 26 A.L.R.5th 765.

What persons or entities may assert or waive corporation's attorney-client privilege - modern cases, 28 A.L.R.5th 1.

Right of accused to have evidence or court proceedings interpreted, because accused or other participant in proceedings is not proficient in the language used, 32 A.L.R.5th 149.

Use of preemptory challenges to exclude caucasian persons, as a racial group, from criminal jury-post-batson state cases, 47 A.L.R.5th 259.

Duty of prosecutor to present exculpatory evidence to state grand jury, 49 A.L.R.5th 639.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 59 A.L.R.5th 1.

Observation through binoculars as constituting unreasonable search, 59 A.L.R.5th 615.

Search and seizure: reasonable expectation of privacy in driveways, 60 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - issues of mental matters concerning persons, other than counsel's client, who are involved in criminal case, 80 A.L.R.5th 55.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality, 80 A.L.R.5th 469.

Denial of accused's request for initial contact with attorney in cases involving offenses other than drunk driving - cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence, 90 A.L.R.5th 225.

Adequacy of defense counsel's representation of criminal client-conduct at trial regarding issues of insanity, 95 A.L.R.5th 125.

Denial of, or interference with, accused's right to have attorney initially contact accused, 96 A.L.R.5th 327.

Validity and efficacy of minor's waiver of right to counsel - cases decided since application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), 101 A.L.R.5th 351.

Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - federal cases, 41 A.L.R. Fed. 10.

Effect on federal criminal proceeding of unavailability to defendant of alien witness through deportation or other government action, 56 A.L.R. Fed. 698.

Waiver of right to trial by jury as affecting right to trial by jury on subsequent trial of same case in federal court, 66 A.L.R. Fed. 859.

Effect upon accused's sixth amendment right to impartial jury of jurors having served on jury hearing matter arising out of same transaction or series of transactions, 68 A.L.R. Fed. 919.

Appointment of counsel, in civil rights action, under forma pauperis provisions (28 USC § 1915(d)), 69 A.L.R. Fed. 666.

Necessity that Miranda warnings include express reference to right to have attorney present during interrogation, 77 A.L.R. Fed. 123.

What constitutes assertion of right to counsel following Miranda warnings - federal cases, 80 A.L.R. Fed. 622.

Constitutional right to counsel as ground for quashing or modifying federal grand jury subpoena directed to attorney, 83 A.L.R. Fed. 504.

Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of waiver of jury trial, 103 A.L.R. Fed. 867.

Construction and application of provision of Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 USCS § 3501(c)), that defendant's confession shall not be inadmissible in evidence in federal criminal prosecution solely because of delay in presentment before magistrate, 124 A.L.R. Fed. 263.

Duty of court, in federal criminal prosecution, to conduct inquiry into voluntariness of accused's statement - modern cases, 132 A.L.R. Fed. 415.

16C C.J.S. Constitutional Law §§ 1013, 1014, 1016 to 1021, 1045 to 1052, 1067 to 1073; 22 C.J.S. Criminal Law §§ 277 to 320, 340 to 351; 22A C.J.S. Criminal Law §§ 446, 469 to 485, 578 to 590; 23 C.J.S. Criminal Law §§ 1115 to 1141; 23A C.J.S. Criminal Law § 1152; 24 C.J.S. Criminal Law §§ 1161 to 1167; 38A C.J.S. Grand Juries §§ 6, 7, 11, 20 et seq., 53; 42 C.J.S. Indictments and Informations § 6; 50 C.J.S. Juries §§ 10, 126; 97 C.J.S. Witnesses § 6.