October 19, 2009 • Volume 48, No. 42 · 2017-05-31 · 6 Ba r Bu l l e t i n - October 19, 2009 - Volume 48, No. 42 no T i C e s Judicial Records Retention and Disposition Schedules

Bar Bulletin - October 19, 2009 - Volume 48, No. 42 1

Inside This Issue

www.nmbar.org

October 19, 2009 • Volume 48, No. 42

Table of Contents ...........................................................5

Nomination Petition, 2009 Section Election ..................9

Proclamations for New Mexico Pro Bono Week Governor Bill Richardson ........................................10 New Mexico Supreme Court ...................................11

Rules/Orders

No. 09-8300-034: In the Matter of the Amendments of Rule 17A-003 NMRA of the Client Protection Fund Rules .........................20

No. 09-8300-035: In The Matter of the Amendments of Rule 3-202 NMRA of the Rules of Civil Procedure for Metropolitan Courts .............20

No. 09-8300-036: In The Matter of the Amendments of Form 4-221 and Adoption of New Forms 4-104B, 4-221A, and 4-225 NMRA of the Rules of Civil Procedure for District Courts ..22

No. 09-8300-037: In the Matter of the Amendments of Forms 9-102B and 9-221 and Adoption of New Forms 9-103B, 9-103C, 9-221A, 9-222, 9-612, 9-613, 9-614, 9-615, 9-616, 9-617, 9-618, 9-619, and 9-620 NMRA of the Rules of Criminal Procedure for the District Courts .........24

From the New Mexico Supreme Court

2009-NMSC-043, No. 31,106: State v. Anaya ...........................................................30

From the New Mexico Court of Appeals

2009-NMCA-105, No. 27,864: Crespin v. Albuquerque Baseball Club LLC .............33

2009-NMCA-106, Nos. 28,472/28,678: Gutierrez v. Intel Corporation ..................................40

2009-NMCA-107, No. 27,939: State v. Garcia ..........................................................43

2009-NMCA-108, No. 27,528: State v. Maez ............................................................46

Mustang Momma by Jack Atkins (see page 5) Weems Art Gallery, Albuquerque

http://www.nmbar.org

2 Bar Bulletin - October 19, 2009 - Volume 48, No. 42

CelebrateNEW MEXICO

PRO BONO WEEKOctober 25 – 31

Local pro bono committees representing New Mexico’s thirteen judicial districts will hold

recognition/celebratory/education events around the state in celebration of

250,000 Pro Bono Hours in 2008

A weeklong statewide community legal education extravaganza includes legal clinics and public seminars addressing topics of interest to the public.

Special continuing legal education sessions are planned for attorneys.

Sponsored by the Access to Justice Commission


Please contact: Marcia Ulibarri505.797.6058 | [email protected]

Currently taking space reservations for our newest publication

• Quarterly 12-page supplement to the Bar Bulletin

New Mexico Lawyer 1

www.nmbar.orgLawyerN e w M e x i c o

February 9, 2009 Volume 4, No. 1

A Step Beyond Discipline:

Enhancing Our Self-Regulated Profession

New Mexico Lawyer 1


October 6, 2008 Volume 3, No. 4

Inte

llectual ProPerty

New Mexico Lawyer 1


May 11, 2009 Volume 4, No. 2

Bankruptcy Law Section, State Bar of New Mexico



mailto:[email protected]



TWO WAYS TO REGISTERINTERNET: www.nmbarcle.org FAX: (505) 797-6071, Open 24 hours

Please Note: For all WEBCASTS, you must register online at www.nmbarcle.org

Name ___________________________________________________________________ NM Bar # _________________________________Street ____________________________________________________________________________________________________________ City/State/Zip _____________________________________________________________________________________________________ Phone ____________________________________________________ Fax ____________________________________________________ E-mail ____________________________________________________________________________________________________________r Purchase Order (Must be attached to be registered) r Check enclosed $ ____________ Make check payable to: CLE Credit Card # ________________________________________________________________ Exp. Date ________________ CVV# ________________Authorized Signature _______________________________________________________________________________________________

Center for LegaL eduCationNew Mexico State Bar FouNdatioN

FORENSIC ACCOUNTING 101Wednesday, November 4, 2009 • State Bar Center, Albuquerque

3.0 General CLE Creditsr Standard Fee $109 r Government, Legal Services Attorney, Paralegal $95

Presenters from REDW LLC The Rogoff FirmEd Street, CPA/ABV/CFF, CVA, Principal

Steve Cogan, CPA, PrincipalTina MacGregor, Director of Technologies, CGEIT, CISA, GSEC, MCSE, CCNA

Tim Kelly, CPA/ABV/CFF, ASA, CMEA, Senior ManagerSusan Hansen, CFE, Senior Manager

Carl Alongi, CPA/ABV/CFF, AM, Senior Consultant

8:30 a.m. Registration9:00 a.m. Part I Introduction and Background Fraud Schemes, Analysis and

Detection Techniques Computer Forensics 10:30 a.m. Break

10:45 a.m. Part II Fraud and Error Detection by CPAs Forensic Analysis Regarding – Business Valuation, Due Diligence and Economic

Damage Engagements Divorce Engagements12:15 p.m. Adjourn and Lunch

(provided at the State Bar Center)

also available viaLIVE WEBCAST

2009 ANNUALBANkRUPTCy PICNIC AND CLE

October 31, 2009 • Location: Home of Gerald Velarde in Albuquerque1.0 Ethics CLE Credit

Co-Sponsor: Bankruptcy Sectionr Standard Fee $49

11:00 a.m. Ethics of Choosing which Chapter/Ethics in Mortgage Stay Litigation Gerald Velarde, Esq., Law Offices of Law Office of Gerald R. Velarde PC Karen H. Bradley, Esq., Susan C. Little & Associates PANoon Lunch 2:00 p.m. Adjourn

For further details or to register for this event, please call Sylvia Aguirre at 797- 6061, or e-mail CLE at [email protected].


http://www.nmbarcle.org



Table of ConTenTs

MeetingsOctober19 Attorney Support Group, 7:30 a.m., First United Methodist Church

20 Solo and Small Firm BOD, 11:30 a.m., noon, Section Meeting, State Bar Center

21 Health Law Section Board of Directors, noon, State Bar Center

State Bar WorkshopsOctober28 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

November18 Estate Planning/Probate Workshop 6 p.m., State Bar Center, Albuquerque

Notices ................................................................................................................................................................6Nomination Petition, 2009 Section Elections .........................................................................................9Proclamations for New Mexico Pro Bono Week Governor Bill Richardson ...................................................................................................................... 10 New Mexico Supreme Court ............................................................................................................... 11Legal Education Calendar ......................................................................................................................... 12Writs of Certiorari ......................................................................................................................................... 14List of Court of Appeals’ Opinions ........................................................................................................... 16Recent Rule-Making Activity ..................................................................................................................... 17Rules/Orders

No. 09-8300-034: In the Matter of the Amendments of Rule 17A-003 NMRA of the Client Protection Fund Rules .............................................................................................. 20

No. 09-8300-035: In The Matter of the Amendments of Rule 3-202 NMRA of the Rules of Civil Procedure for Metropolitan Courts ........................................................ 20

No. 09-8300-036: In The Matter of the Amendments of Form 4-221 and Adoption of New Forms 4-104B, 4-221A, and 4-225 NMRA of the Rules of Civil Procedure for District Courts ................................................................................................................................. 22

No. 09-8300-037: In the Matter of the Amendments of Forms 9-102B and 9-221 and Adoption of New Forms 9-103B, 9-103C, 9-221A, 9-222, 9-612, 9-613, 9-614, 9-615, 9-616, 9-617, 9-618, 9-619, and 9-620 NMRA of the Rules of Criminal Procedure for the District Courts ................................................................................................... 24

Opinions From the New Mexico Supreme Court

2009-NMSC-043, No. 31,106: State v. Anaya .............................................................................. 30


2009-NMCA-105, No. 27,864: Crespin v. Albuquerque Baseball Club LLC ...................... 33

2009-NMCA-106, Nos. 28,472/28,678: Gutierrez v. Intel Corporation .............................. 40

2009-NMCA-107, No. 27,939: State v. Garcia ............................................................................. 43

2009-NMCA-108, No. 27,528: State v. Maez ............................................................................... 46

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

With respect to the courts and other tribunals:

I will refrain from filing frivolous motions.

Professionalism Tip

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

Board of Editors Mark A. Glenn, Chair Joan Marsan Janet Blair Kathryn Joy Morrow Paul A. Bleicher Steven K. Sanders Joel McElroy Carson Stacey E. Scherer Danny W. Jarrett Elizabeth Staley

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

©2009, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quota-tions. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.

The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

(505)797-6000•(800)876-6227•Fax:(505)828-3765 E-mail:[email protected].•www.nmbar.org

October 19, 2009, Vol. 48, No. 42

Cover Artist: Jack Atkins (www.jackatkins.com) paints the Southwest’s intense desert light, its spectacular vistas, and the people and things that create its sense of place. This fourth-generation New Mexican uses vivid colors and dramatic compositions to tell the story of this area’s underlying sense of drama and history. Atkins’ paintings are in a contemporary realist style. To see the cover art in its original color, visit www.nmbar.org and click on Attorneys/Members/Bar Bulletin.







http://www.jackatkins.com



noTiCes

Judicial Records Retention and Disposition Schedules Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court. Court Exhibits For Years May be Retrieved Through lst Judicial District Court Exhibits in Criminal, Civil, Domestic 1974–1993 October 30 (505) 827-4687 Relations, Children’s Court, and Probate Cases

N.M. SupreMe Court NotiCe of CoMMittee/Board VaCaNCieS

Attorneys interested in volunteering their time on any of the committees/boards listed below may send a letter of interest and/or resume to Kathleen Jo Gibson, Chief Clerk, PO Box 848, Santa Fe, NM 87504-0848. The deadline for letters/resumes is Oct. 23. Interested at-torneys should describe why they believe they are qualified and shall prioritize no more than three committees of interest.

Commission on Access to Justice.......2Courts of Limited Jurisdiction ..........2Rules of Civil Procedure

for District Court .........................3Children’s Court Rules ......................1Appellate Court Rules .......................1Rules of Evidence ..............................1Uniform Jury Instructions-Civil ........1Uniform Jury Instructions-Criminal .1Rules of Criminal Procedure

for District Court .........................1Board of Bar Examiners ....................2Disciplinary Board ............................1Code of Professional Conduct ...........1Domestic Relations Task Force ..........1MCLE ..............................................1Board of Legal Specialization.............2Board Governing the Recording

of Judicial Proceedings ..................1 (1 Ct. Reporter member)Code of Judicial Conduct .................2

CourT newsN.M. Supreme CourtProposed Revisions to the Rules of Criminal Procedure for the District Courts and Criminal Forms The Rules of Criminal Procedure for the District Courts Committee has recom-mended proposed amendments to the Rules of Criminal Procedure for the District Courts and Criminal Forms for the Supreme Court’s consideration. To comment on the proposed amendments before they are submitted to the Court for final consideration, either submit a comment electronically through the Supreme Court’s Web site at http://nmsupremecourt.nmcourts.gov/ or send written comments to:

Kathleen J. Gibson, ClerkNew Mexico Supreme CourtPO Box 848Santa Fe, NM 87504-0848

Comments must be received on or before Nov. 2 to be considered by the Court. Note that comments may be posted on the Su-preme Court’s Web site for public viewing. For reference, See the Oct. 12 (Vol. 48, No. 41) Bar Bulletin.

Second Judicial District CourtAdoption Day The 2nd Judicial District Court, Children’s Court Division, will celebrate National Adoption Day Nov. 21. At-torneys having an adoption pending in Bernalillo District Court with clients interested in participating in National Adoption Day should contact Nancy Sandstrom in Judge M. Monica Zamora’s office, (505) 841-7392.

Investiture Ceremony Judge Jacqueline Flores will be formally sworn in as a judge in the 2nd Judicial Dis-trict Court, Division XX, at 4:30 p.m., Nov. 2, at the Bernalillo County Courthouse, Frank H. Allen Jr. Ceremonial Courtroom #338, 400 Lomas Boulevard NW, in Albu-querque. A reception will follow at the Slate Street Cafe, 515 Slate Avenue NW.

Judicial Appointment and Judicial Transfer Governor Bill Richardson has announced his appointment of Judge Jacqueline Flores to fill the vacancy in Division XX at the 2nd Judicial District Court. Effective Oct. 19, Judge Flores will be assigned Criminal Court cases previously assigned to Judge Carl J. Butkus. Effective Oct. 19, Judge Carl J. Butkus will be transferring from Criminal Court to the Civil Court and will be assigned cases previously assigned to Judge William F. Lang. Parties who have not previously exercised their right to challenge or excuse will have 10 days from Nov. 9 to challenge or excuse the judges pursuant to Supreme Court Rule 1-088.1.

Thirteenth Judicial District CourtE-Filing Free Training Sessions In the near future the 13th Judicial District will be transitioning to an electronic filing (e-filing) system for all court docu-ments. While new to the state courts, this e-filing system has been employed in the federal courts for over a decade. The district will be installing the system first in Grants, with the Bernalillo and Los Lunas courts following shortly thereafter. The first phase of the installation will involve civil cases only and will initially be voluntary with no cost.

After the court and counsel are comfortable with the system, it is anticipated that filing civil documents will become mandatory and include transaction/convenience fees on July 1, 2010, as approved by the New Mexico Supreme Court. Training on us-ing the system to file, retrieve, or access documents will be provided at no cost to individual attorneys at the courts or on-site

http://nmsupremecourt


www.nmbar.org

Law Practice ManageMent coMMittee

The Law Practice Management Committee offers information on:

• ClientRelations •Forms• EmploymentIssues •Malpractice• Marketing •Technology• Productsand •Insurance ServicesDirectory •Taxes

• RiskManagement •Accounting• LawOfficeBusiness •AndMore...

E-mail questions or comments to [email protected].

http://www.nmbar.org/Attorneys/LPM/LPM.html

at law firms. Further, a new local rule for the district shall be published in the near future detailing e-filing procedures. The first free training session for attorneys will be held 11 a.m., Oct. 27, at 515 W. High Street, Grants. To register, call Crystal Hyer, (505) 771-7170. For further information, call Gregory Ireland, (505) 865-2404.

U.S. District Court, District of New MexicoCM/ECF Redaction Notice Upon the implementation of CM/ECF Version 3.2.3 later this fall, a redaction disclaimer and acknowledgment will be added to the CM/ECF login screen. The notice will remind filers of their redaction responsibilities under the federal rules and will contain a check-off box with hyperlinks to the rules. All users must check the box to affirm that they have read the notice. Users will also see a reminder prompt (“Have you redacted?”) added to the final submission screen. For more information, visit www.nmcourt.fed.us.

Proposed Revisions to the Local Rules of Civil Procedure and Local Rules of Criminal Procedure Proposed revisions to the Local Rules of Civil and Criminal Procedure of the U.S. District Court for the District of New Mexico are being considered. The proposed revisions incorporate changes to timing deadlines to maintain consistency with the national federal rules (Civil Rule 6 and Criminal Rule 45) as approved by the Supreme Court of the United States. A “redline” version (with proposed additions underlined and proposed deletions stricken out) and a clean version are posted on the Court’s Web site at www.nmcourt.fed.us. Members of the bar may submit comments by e-mail to [email protected] or by mail to U.S. District Court, Clerk’s Office, Pete V. Domenici U.S. Courthouse, 333 Lomas Blvd. NW, Suite 270, Albuquerque, NM 87102, Attn: Local Rules. All comments must be received no later than Nov. 12.

sTaTe bar newsAttorney Support Group • Afternoon groups meet regularly on

the first Monday of the month: Nov. 2, 5:30 p.m. • Morning groups meet regularly on

the third Monday of the month: Nov. 16, 7:30 a.m.

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

Board of EditorsBoard Position Vacancies Three attorney positions and one non-attorney position will exist on the Board of Editors at the end of 2009. All position are two-year terms from Jan. 1, 2010 to Dec. 31, 2011. The Board of Editors reviews and approves articles and letters submitted for publication in the Bar Bulletin and the New Mexico Lawyer. Applicants should have previous publishing/editing experience, be available to review articles regularly via e-mail, provide quick response, and attend quarterly board meetings in person or by teleconference. E-mail resumes by Nov. 16 to Editor Dorma Seago, [email protected]. Board members are appointed by the State Bar president.

Children’s Law SectionAnnual Art Contest The Children’s Law Section would like to thank those who have made the Seventh Annual Art and Writing Contest possible. The contest, supported by generous contri-butions from the legal community, provides children who are involved in the juvenile justice system with a positive opportunity to express their struggles, look toward the future, and celebrate artistic effort. Members of the legal community are invited to a reception and display of the artwork from 5 to 8 p.m., Oct. 28, at Scalo Northern Italian Grill, Albuquerque. Justice Petra Jimenez Maes will be the honored guest.

Committee on Women and the Legal ProfessionJustice Pamela B. Minzner Outstanding Advocacy for Women Award Nominations are now being accepted for the 2009 Justice Pamela B. Minzner Outstanding Advocacy for Women Award. The award recognizes attorneys who have distinguished themselves during the prior year by providing legal assistance to under-represented or underserved women or by advocating for causes that will ultimately benefit and/or further the rights of women. The committee will review the nominations

and select a recipient. Send nomination let-ters summarizing the work and efforts of the nominee to Jocelyn Castillo, PO Box 27047, Albuquerque, NM 87125-7047; fax to (505) 247-3213; or e-mail [email protected]. The nomination deadline is Nov. 6.

Employment and Labor Law SectionBoard Meeting The Employment and Labor Law Sec-tion board of directors welcomes section members to attend its meetings on the first Wednesday of each month. The next meeting will be held at noon, Nov. 4, at the State Bar Center. Lunch is provided to those who R.S.V.P. to [email protected]. For information about the section, visit the State Bar Web site, www.nmbar.org, or call Danny Jarrett, section chair, (505) 878-0515 or [email protected].

Indian Law SectionAnnual Meeting and CLE The Indian Law Section will hold a board meeting and annual section meeting following The Indian Child Welfare Act: Over 30 Years of Protecting Indian Families in New Mexico, Nov. 5, at the State Bar Center. Native American cuisine will be provided for lunch. Agenda items should be sent to



http://www.nmbar.org/Attorneys

http://www.nmcourt.fed.us









www.nmbar.org

Chair Helen Padilla, [email protected]. See the CLE At-a-Glance insert in the Oct. 12 (Vol. 48, No. 41) Bar Bulletin for more information.

Senior Lawyers DivisionBoard of Directors Election The Senior Lawyers Division Nominating Committee has nominated the members listed below. Additional nominations may be made by Oct. 31 in the form of a petition signed by at least 10 members of the division. Visit www.nmbar.org/About Us/Divisions/Senior Lawyers/Election for more informa-tion and to download a petition. Position # 1 Term: 2010–2012

Nominee: Hannah Best Position #2 Term: 2010–2012

Nominee: Jay R. Hone Position #3 Term: 2010–2012

Nominee: Brigitte Lotze Position #4 Term: 2010–2012

Nominee: Mark Meiering Position #5 Term: 2010–2012

Nominee: Thomas Sandenaw Position #6 Term: 2010–2012

Nominee: James Widland Six appointed board positions with terms of 2009–2011 are included in the election. SLD members may use the same petition process to challenge the following appointed positions: Position #7 James F. Beckley Position #8 R. Thomas Dawe Position #9 Michael Terrence Revo Position #10 Robert S. Simon Position #11 Ronald T. Taylor Position #12 Anthony J. Williams

Solo and Small Firm SectionLuncheon Presentation The Solo and Small Firm Section will meet at noon, Oct. 20, at the State Bar Center. Jack Brant, member of the Lawyers Professional Liability and Insurance Com-mittee, will speak on “How to Buy a Good Malpractice Policy.” The timely presentation comes before an amendment to Rule 16-104 NMRA requiring disclosure to clients if a

lawyer does not have malpractice insurance. The amendment goes into effect Nov. 2. Lunch will be provided to section members who R.S.V.P. by Oct. 19 to Tony Horvat, [email protected] or (505) 797-6033. Non-section members may pay $7.50 to attend the luncheon or $15 to join the sec-tion. Payment for section membership will be through the end of 2010.

oTher barsAlbuquerque Bar AssociationMember Luncheon The Albuquerque Bar Association’s Member Luncheon will be held at noon, Nov. 3, at the Embassy Suites Hotel, 1000 Woodward Pl. NE, Albuquerque. The luncheon speaker is Dean Kevin Washburn of the UNM School of Law. The CLE (2.0 general CLE credits) will immediately follow the luncheon from 1:15 to 3:15 p.m. Diane Webb will pres-ent Recent Changes to the Bankruptcy Code Affecting Non-Bankruptcy Practitioners and Tips on Recognizing when a Client Should Seek Bankruptcy Advice. Lunch only: $25 members/$35 non-members with reservation; lunch and CLE: $85 members/$115 non-members with reservation; CLE only: $60 members/$80 non-members. Register for lunch by noon, Oct. 30. To register: 1. log onto www.abqbar.com; 2. e-mail [email protected];

3. call (505) 842-1151 or (505) 243-2615;

4. fax (505) 842-0287; or 5. mail to PO Box 40, Albuquerque, NM

87103.

N.M. Criminal Defense Lawyers Association The New Mexico Criminal Defense Lawyers Association invites lawyers across New Mexico whose practice includes DWI Defense to attend DWI Defense 2009: A Halloween CLE, Oct. 30 in Albuquerque. Topics include MVD hearings and implied consent, case review, creative motions and more. Optional lunch breakout sessions cover “Solo Practice Office Management” and “Bring Your DWI Case File” with David Chacon and Ousama Rasheed. For schedule, registration and membership information, call (505) 992-0050 or visit www.nmcdla.org.

Taos County Bar AssociationPro Bono Week and Professionalism CLE In recognition of Celebrate Pro Bono Week, the Taos County Bar Association will host a bar luncheon at noon, Oct. 29, at the Ranchos Plaza Grill in Ranchos De Taos. The meeting will be attended by New Mexico Supreme Court Chief Justice Edward L. Chavez. In addition, Sarah Singleton will present a one-hour CLE on professionalism for $1.

2009 Section Elections Nominating Committee Reports Finalized The reports of section nominating committees, consisting of the names and biographies of the candidates nominated, is published on the State Bar Web site at www.nmbar.org/About Us/Sections.2009 Section Election. In addition to those candidates, nominations may also be made in the form of a petition signed by at least 10 attorneys who have been members of the section for 30 days or more. A nomination petition form is on page 9 of this issue of the Bar Bulletin and is also available on the Web site above. The petition must identify the position and term sought and state that the member has agreed to the nomination. Petitions must be received at the State Bar office no later than 5 p.m., Oct. 31. If additional nominations are made, a notice of the contested election will be published in the Bar Bulletin and on the section’s Web page; ballots will be mailed to all members of the section no later than Nov. 9. If no additional nominations are made, the nominees identified by the nominating committee are elected by acclamation and take office on Jan. 1, 2010.

Submit announcements for publication

in the Bar Bulletin to [email protected] by 5 p.m. Monday

the week prior to publication.



http://www.nmbar.org/About


http://www.abqbar.com


http://www.nmcdla.org

http://www.nmbar.org/About



NomiNatioN PetitioN

State Bar of New mexico, 2009 SectioN electioNSSection Name:: ____________________________________________________________________________________Position Number: ____________________________________________________________________________________We, the undersigned members of the above-named section, nominate ______________________________________________of __________________________________________New Mexico for the position specified above.

Petition Deadline: October 31, 2009 Date Submitted_____________________________

1. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City2. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City3. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City4. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City5. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City6. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City7. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City8. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City9. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City10. ___________________________________________________ __________________________________________ Signature Address ___________________________________________________ __________________________________________ (Print or type name) City



WHEREAS, access to justice is a fundamental and essential right in a democratic society; and

WHEREAS, many people cannot afford the high cost of legal representation and cannot proceed on their own without an attorney; and

WHEREAS, legal services agencies, the State Bar of New Mexico, and local bar associations throughout New Mexico have enlisted the services of volunteer attorneys to provide valuable legal services to those in need; and

WHEREAS, in New Mexico, volunteer attorneys donate thousands of hours of pro bono time each year; and

WHEREAS, the innumerable contributions of volunteer attorneys from the public and private sectors enable many people to obtain legal assistance they could not otherwise obtain; and

WHEREAS, all members of the State Bar of New Mexico are encouraged to participate in pro bono activities consistent with their obligations under the Rules of Professional Conduct; and

WHEREAS, during October 25–31, 2009, businesses, government agencies and community organizations will be celebrating “New Mexico Pro Bono Week”; and

NOW, THEREFORE, the Chief Justice and Associate Justices of the New Mexico Supreme Court, do hereby proclaim October 25–31, 2009 as

New Mexico Pro Bono Week. DONE in Santa Fe, New Mexico, this 14th day of September 2009.

Chief Justice Edward L. Chávez

Justice Patricio M. Serna

Justice Petra Jimenez Maes

Justice Richard C. Bosson

Justice Charles W. Daniels

ProclamationIn the Supreme Court of the State of New Mexico


legal education

G = General E = Ethics

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

octoBer

19 Attorney’s Guide to Good Lawyering for People With Disabilities

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

19 Medicare Set Asides in Personal Injury Cases

VR, Las Cruces Center for Legal Education of NMSBF 2.7 G (505) 797-6020 www.nmbarcle.org

19 Subordinate Lawyers: Sit, Stay, Roll Over No More Telephone Seminar TRT, Inc. 1.0 E, 1.0 P 1-800-672-6271 www.trtcle.com

20 Attorney’s Guide to Good Lawyering for People With Disabilities

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

20 Climate Change in New Mexico VR, State Bar Center Center for Legal Education of NMSBF 5.0 G (505) 797-6020 www.nmbarcle.org

20 Directed Trusts Teleconference Cannon Financial Institute 1.5 G (706) 353-3346

20 Fiduciary Litigation Update Teleseminar Cannon Financial Institute 1.0 G (706) 353-3346

20 Legal Ethics of Representing Unpopular Causes and Clients

Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com

20 Multicultural Challenges in New Mexico

VR, Las Cruces Center for Legal Education of NMSBF 4.5 G (505) 797-6020 www.nmbarcle.org

20 Trust Accounting: It’s Not an Oxymoron

VR, State Bar Center Center for Legal Education of NMSBF 1.5 E, 1.0 P (505) 797-6020 www.nmbarcle.org

21 Medical Malpractice Pretrial Success

Albuquerque NBI, Inc. 5.5 G, 1.0 E 1-800-930-6182 www.nbi-sems.com

23 Immigrant Rights in New Mexico: Civil Liberties, Detention and Collateral Consequences of Crimes

State Bar Center Center for Legal Education of NMSBF 5.5 G, 1.0 E (505) 797-6020 www.nmbarcle.org

23 Professionalism Presentation in Honor of Pro Bono Week

Farmington Access to Justice 1.0 P (505) 797-6077


Santa Fe Access to Justice 1.0 P (505) 797-6077

26 Should Corporate Counsel Be Corporate Conscience?


27 1031/Like Kind Exchange Update Teleseminar Cannon Financial Institute 1.0 G (706) 353-3346

27 2008 Administrative Law Institute VR, State Bar Center Center for Legal Education of NMSBF 5.6 G, 1.0 E (505) 797-6020 www.nmbarcle.org

27 AIA Contracts Albuquerque Lorman Education 6.6 G 1-866-352-9539 www.lorman.com

27 I Was From Venus and My Lawyers Were From Mars

VR, State Bar Center Center for Legal Education of NMSBF 2.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org

27 Legal Ethics of Representing Unpopular Causes and Clients



Grants and Gallup Access to Justice 1.0 P (505) 797-6077

27 What’s Next? How to Refresh, Refocus, and Recharge Your Legal Career

VR, State Bar Center Center for Legal Education of NMSBF 3.0 G (505) 797-6020 www.nmbarcle.org



http://www.trtcle.com






http://www.nbi-sems.com




http://www.lorman.com





legal education www.nmbar.org

28 Digital Media in the Courtroom State Bar Center Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

28 Need to Tame or Train the Billable Beast?



Las Vegas, NM Access to Justice 1.0 P (505) 797-6077

28 Top Six Trial Skills You Need to Know

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

29 An Attorney’s Guide to Dealing With Stress in Tough Economic Times

State Bar Center Center for Legal Education of NMSBF 2.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org

29 Ethics Workout: Mental Aerobics for Solving Ethics Problems



Taos Access to Justice 1.0 P (505) 797-6077

30 DWI Defense 2009: A Halloween CLE

Albuquerque New Mexico Criminal Defense

Lawyers Association 6.75 G (505) 992-0050 www.nmcdla.org,


Las Cruces Access to Justice 1.0 P (505) 797-6077

31 Lawyer Substance Abuse Addictions and Consequences

Telephone Seminar TRT, Inc. 1.0 E, 1.0 P 1-800-672-6253

www.trtcle.com

novemBer

2 When a Prosecutor Withholds Exculpatory Evidence


3 6th Annual Elder Law Seminar VR, State Bar Center Center for Legal Education of NMSBF 2.9 G, 1.0 P (505) 797-6020 www.nmbarcle.org

3 An Attorney’s Guide to Good Lawyering for People With Disabilities

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

3 Improving the HR/Attorney Relationship


3 Lawyer Exposure in Public Offerings


3 Malpractice in an Uncertain Economy


3 Plaintiff’s Personal Injury From Start to Finish

Albuquerque NBI, Inc. 5.6 G, 1.0 E

1-800-930-6182 www.nbi-sems.com

3 Tax and Non-Tax Aspects of LLC Liquidation

Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

4 Forensic Accounting 101 State Bar Center Center for Legal Education of NMSBF 3.0 G (505) 797-6020 www.nmbarcle.org







http://www.nmcdla.org












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

effeCTive oCTober 19, 2009

Writs of certiorari

as updated By the clerk of the neW mexico supreme court

petitions for Writ of certiorari filed and pending:Date Petition Filed

NO. 31,998 Urioste v. Janecka (12-501) 10/8/09NO. 31,995 Herrera v. Eberline (COA 28,577) 10/7/09NO. 31,993 Bishop v. Perry (COA 28,499) 10/7/09NO. 31,992 State v. Solis (COA 29,407 10/6/09NO. 31,991 State v. Bedaw (COA 29,584) 10/6/09NO. 31,996 State v. Kavanaugh (12-501) 10/5/09NO. 31,990 State v. Moesch (COA 28,362) 10/5/09NO. 31,988 State v. Turrietta (COA 29,508) 10/2/09NO. 31,987 Branch v. Chamisa

Development Corp. (COA 28,367) 10/2/09NO. 31,985 State v. Garrett (COA 29,355) 9/30/09NO. 31,983 State v. Rivera (COA 27,168) 9/30/09NO. 31,982 Pinales v. State (12-501) 9/30/09NO. 31,981 Valdez v. Wainwright (COA 29,347) 9/28/09NO. 31,980 Northwest Villages, L.L.C.

v. Martinez (COA 29,743) 9/28/09NO. 31,979 State v. Benally (COA 29,293) 9/28/09NO. 31,978 State v. Camacho (12-501) 9/28/09NO. 31,977 Ryan v. Heredia (12-501) 9/24/09NO. 31,976 State v. Manning (COA 27,756) 9/24/09NO. 31,975 State v. Vasquez (COA 27,763) 9/24/09NO. 31,974 Kavanaugh v. State (12-501) 9/24/09NO. 31,972 State v. Boston (COA 28,707) 9/24/09NO. 31,971 State v. Rueda (COA 29,145) 9/23/09NO. 31,970 State v. Wiseheart (COA 29,472) 9/23/09NO. 31,969 State v. Osby (COA 29,571) 9/23/09NO. 31,966 State v. Duran (COA 29,146) 9/18/09NO. 31,962 Manzanares v. McDonald (12-501) 9/16/09 Response due 10/19/09NO. 31,950 Progressive Casualty Ins. Co.

v. Vigil (COA 28,023/28,393) 9/8/09NO. 31,947 State v. Bent (COA 29,227) 9/4/09 Response due 10/19/09NO. 31,924 Dominguez v. Hatch (12-501) 8/25/09NO. 31,903 West v. Washington Tru

Solutions, L.L.C. (COA 28,443) 8/18/09NO. 31,746 State v. Kirby (COA 28,828) 7/15/09

certiorari granted But not yet suBmitted to the court:

(Parties preparing briefs) Date Writ IssuedNO. 31,191 State v. Schwartz (COA 28,349) 7/21/08NO. 31,218 State v. Henley (COA 27,925) 7/25/08NO. 31,315 D’Antonio v. Garcia (COA 27,681) 10/1/08NO. 31,287 Waterhouse v. Heredia (12-501) 1/6/09NO. 31,491 Ideal v. Burlington

Resources Oil & Gas (COA 29,025) 2/3/09NO. 31,526 State v. Phillips (COA 27,019) 2/23/09NO. 31,433 Romero v.

Philip Morris, Inc. (COA 26,993) 2/27/09NO. 31,100 Allen v. LeMaster (12-501) 3/13/09NO. 31,567 State v. Guthrie (COA 27,022) 3/24/09NO. 31,603 Guest v. Allstate Ins. Co. (COA 27,253) 4/2/09NO. 31,602 Allstate Ins. Co. v. Guest (COA 27,253) 4/2/09NO. 31,612 Ortiz v. Overland Express (COA 28,135) 4/20/09NO. 31,656 State v. Rivera (COA 25,798) 5/5/09NO. 31,686 McNeill v.

Rice Engineering (COA 29,207) 5/20/09NO. 31,717 State v. Johnson (COA 27,867) 6/17/09NO. 31,719 State v. Lara (COA 27,166) 6/17/09NO. 31,738 State v. Marlene C. (COA 28,352) 6/17/09NO. 31,723 State v. Mendez (COA 28,261) 6/23/09NO. 31,733 State v. Delgado (COA 27,192) 6/23/09NO. 31,724 Albuquerque Commons v.

City/Albuquerque (COA 24,026/24,027/24,042/24,425) 7/1/09NO. 31,732 State v. Smile (COA 27,338) 7/1/09NO. 31,739 State v. Marquez (COA 27,971) 7/1/09NO. 31,740 State v. McCorkle (COA 29,124) 7/1/09NO. 31,743 State v. Marquez (COA 28,938) 7/1/09NO. 31,741 State v. Gardner (COA 27,234) 7/1/09NO. 31,775 State v. Warren (COA 29,147) 7/15/09NO. 31,703 State v. Nez (COA 26,811) 7/23/09NO. 31,745 State v. Jackson (COA 28,107) 7/23/09NO. 31,813 State v. Soliz (COA 28,018) 7/29/09NO. 31,750 Kilgore v. Fuji (COA 27,470) 7/30/09NO. 31,840 State v. Garcia (COA 28,465) 8/11/09NO. 31,791 State v. Atcitty (COA 27,189/27,940/27,333) 8/12/09NO. 31,854 State v. Albarez (COA 29,468) 8/18/09NO. 31,812 State v. Sena (COA 24,156) 8/20/09NO. 31,891 State v. Gonzales (COA 29,297) 9/15/09NO. 31,907 Edward C. v.

City of Albuquerque (COA 27,864) 9/15/09NO. 31,909 State v. Rudy B. (COA 27,589) 9/15/09NO. 31,917 Edward C. v.

Albq. Baseball Club (COA 27,864) 9/15/09NO. 31,922 State v. Terrazas (COA 27,613) 9/28/09NO. 31,927 State v. Sanchez (COA 28,090) 9/28/09NO. 31,928 State v. Bryant (COA 29,444) 9/28/09NO. 31,958 Keith v. Manorcare (COA 28,008) 10/8/09


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

certiorari granted and suBmitted to the court:

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

NO. 30,787 Cable v. Wells Fargo Bank (On reconsideration) (COA 26,357) 12/15/08

NO. 31,329 Kirby v. Guardian Life (COA 27,624) 2/9/09NO. 30,956 Davis v. Devon (COA 28,147/28,154) 2/9/09NO. 30,957 Ideal v.

BP America (COA 28,148/28,153) 2/9/09NO. 30,958 Smith v.

Conocophillips (COA 28,151/28,152) 2/9/09NO. 31,192 Reule Sun Corporation

v. Valles (On rehearing) (COA 27,254) 3/9/09NO. 31,258 Marchstadt v. Lockheed (COA 27,222) 3/11/09NO. 31,153 State v. Wyman (COA 28,237) 3/25/09NO. 31,279 Lions Gate v. D’Antonio (COA 28,668) 4/13/09NO. 31,244 State v. Slayton (COA 27,892) 4/29/09NO. 31,374 Schultz v. Pojoaque

Tribal Police Dept. (COA 28,508) 5/11/09NO. 31,365 State v. Lucero (COA 27,364) 5/13/09NO. 30,766 State v. Jones (COA 27,342) 5/27/09NO. 31,325 Kersey v. Hatch (12-501) 8/10/09NO. 31,288 State v. Savedra

(COA 27,288/27,289/27,290) 8/11/09NO. 31,294 State v. Marquez (COA 27,735) 8/31/09NO. 31,416 Carlsbad Hotel Associates

v. Patterson (COA 27,922) 9/14/09NO. 31,539 McGary v. AMS Staff

Leasing (COA 28,867) 9/14/09

NO. 31,308 State v. Sosa (COA 26,863) 9/15/09NO. 31,637 Akins v. United Steel (COA 27,132) 10/13/09NO. 31,549 City of Santa Fe v.

Travelers Casualty (COA 28,944) 10/13/09NO. 31,186 State v. Bullcoming (COA 26,413) 10/14/09NO. 31,187 State v. Aragon (COA 26,185) 10/14/09NO. 31,480 City of Aztec v. Gurule (COA 28,705) 11/9/09NO. 31,224 State v. Harrison (COA 27,224) 11/9/09NO. 30,827 State v. Sims (COA 26,590) 11/10/09NO. 31,092 State v. Mailman (COA 27,966) 11/10/09NO. 31,117 State v. Moore (COA 28,243) 11/10/09NO. 31,430 State v. Ochoa (COA 28,175) 11/18/09NO. 31,546 Gomez v. Chavarria

(COA 28,072/28,073) 11/30/09NO. 31,328 Garcia v. State (On rehearing) (12-501) 11/30/09NO. 31,101 State v. Montano (COA 28,002) 11/30/09NO. 31,360 State v. Morales (COA 26,969) 12/15/09NO. 31,510 State v. Smith (COA 27,704) 12/16/09

petition for Writ of certiorari denied:

NO. 31,948 State v. Tanner (COA 27,606) 10/5/09NO. 31,949 State v. Robert F. (COA 28,511) 10/5/09NO. 31,951 State v. Lopez (COA 27.891) 10/5/09NO. 31,953 Rodeo v. Columbia

(COA 28,384/28,445) 10/5/09NO. 31,954 State v. Muriel (COA 28,405) 10/5/09NO. 31,957 Gonzales v. Livingston (COA 27,896) 10/5/09NO. 31,963 Gutierrez v. Fourth Judicial (12-501) 10/5/09

http://nmsupremecourt.nmcourts.gov


puBlished opinions

Date Opinion FiledNo. 27893 3rd Jud Dist dona Ana DM-07-470, L VESCIO v S WOLF (affirm in part, reverse in part) 10/7/2009No. 29269 2nd Jud Dist Bernalillo CV-06-4695, T JONES v HARRIS NEWS (other) 10/8/2009

unpuBlished opinions

No. 27758 3rd Jud Dist Dona Ana CR-07-283, STATE v L MELENDEZ (affirm) 10/5/2009No. 29509 3rd Jud Dist Dona Ana CR-08-1357, STATE v D PULITI (affirm) 10/5/2009No. 29582 1st Jud Dist Santa Fe CV-08-172, N LEWIS v HSD (affirm) 10/5/2009No. 29328 3rd Jud Dist Dona Ana CR-08-1663, STATE v P EPISCOPO (affirm) 10/6/2009No. 29478 9th Jud Dist Curry CR-06-867, STATE v A MORGAN (affirm) 10/6/2009No. 29483 2nd Jud Dist Bernalillo CR-08-187, STATE v J JIM (affirm) 10/6/2009No. 29022 2nd Jud Dist Bernalillo JQ-06-105, CYFD v DANIEL R (affirm) 10/7/2009No. 29030 2nd Jud Dist Bernalillo JQ-06-105, CYFD v ROSALIE V (affirm) 10/7/2009No. 29206 5th Jud Dist Chaves JR-08-169, STATE v A LOYA (reverse) 10/7/2009No. 29182 7th Jud Dist Sierra PQ-08-01, GUARDIANSHIP OF D MARIETTA (reverse) 10/8/2009No. 29601 2nd Jud Dist Bernalillo JQ-07-148, CYFD v ARMANDO A (affirm) 10/8/2009

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

effeCTive oCTober 9, 2009

opinions

as updated By the clerk of the neW mexico court of appeals

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

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


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

recent rule-making activityas updated By the clerk of the neW mexico supreme court

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

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

effeCTive oCT. 5, 2009

Pending ProPosed rule Changes

Comment Deadline5-302A Grand jury proceedings

(Rules of Criminal Procedure for the District Courts) 11/02/09

9-218 Target notice (Criminal forms) 11/02/099-219 Grand jury evidence alert letter

(Criminal forms) 11/02/091-096 Challenge of nominating petition

(Rules of Civil Procedure for the District Courts) 09/08/09

4-102 Certificate of excusal or recusal (Civil forms) 07/27/09

4-103 Notice of excusal (Civil forms) 07/27/094-104 Notice of recusal (Civil forms) 07/27/094-102A Certificate of excusal or recusal

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

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

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

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

for the Municipal Courts) 07/27/092-105 Assignment and designation of judges

(Rules of Civil Procedure for the Magistrate Courts) 07/27/09

6-105 Assignment and designation of judges (Rules of Criminal Procedure for the Magistrate Courts) 07/27/09

10-313.1 Representation of multiple siblings (Children’s Court) 07/20/09

10-343 Adjudicatory hearing; time limits; continuances (Children’s Court Rules) 04/17/09

reCently aPProved rule Changes sinCe release of 2009 nMra

Effective Date

rules of civil procedure for the district courts

1-016 Pretrial conferences; scheduling; management. 05/15/09

1-026 General provisions governing discovery. 05/15/09 1-033 Interrogatories to parties. 05/15/09

1-034 Production of documents and things and entry upon land for inspection and other purposes. 05/15/09

1-037 Failure to make discovery; sanctions. 05/15/091-038 Jury trial in civil actions. 12/15/081-045 Subpoena. 05/15/091-045 Subpoena. 08/07/091-045.1 Interstate subpoenas. 08/07/091-071.1 Statutory stream system adjudication

suits; service and joinder of water rights claimants; responses. 04/08/09

1-071.2 Statutory stream adjudication suits; stream system issues and expedited inter se proceedings. 04/08/09

1-071.3 Statutory stream adjudication suits; annual joint working session. 04/08/09

1-071.4 Statutory stream adjudication suits; ex parte contacts;general problems of administration. 04/08/09

1-071.5 Statutory stream adjudication suits; excusal or recusal of a water judge. 04/08/09

1-074 Administrative appeals; statutory review by district court of administrative decisions or orders. 12/15/08

1-075 Constitutional review by district court of administrative decisions and orders. 12/15/08

1-088 Designation by judge. 04/08/091-096.1 Review of election recall petitions. 09/04/091-125 Domestic Relations Mediation Act

programs. 05/18/09

rules of civil procedure for the magistrate courts

2-802 Garnishment. 12/31/08

rules of civil procedure for the metropolitan courts

3-202 Summons. 11/16/09

civil forms

4-104B Notice of assignment. 11/16/094-221 Certificate of service. 11/16/094-221A Party’s certificate of service. 11/16/094-225 Court’s certificate of service. 11/16/094-505A Subpoena for production or inspection. 10/12/09 4-805 Application for writ of garnishment. 09/04/094-805B Application for writ of garnishment. 09/04/094-803 Claim of exemptions on execution. 05/06/094-805B Application for writ of garnishment. 12/31/08


http://www.nmcompcomm.us


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

4-808A Notice of right to claim exemptions from execution. 10/12/09

rules of criminal procedure for the district courts

5-104 Time. 05/06/095-121 Orders; preparation and entry. 05/06/095-207 Withdrawn. 04/06/09 5-604 Time of commencement of trial. 11/24/085-604 Time of commencement of trial. 09/01/095-614 Motion for new trial. 05/06/095-704 Death penalty; sentencing. 05/06/095-801 Modification of sentence. 05/06/095-802 Habeas corpus. 05/06/09

rules of criminal procedure for the magistrate courts

6-108 Non-attorney prosecutions. 12/31/086-110A Audio and audio-visual appearances

of defendant. 12/31/086-113 Victim’s rights. 12/31/086-201 Commencement of action. 12/31/086-401 Bail. 12/31/086-403 Revocation of release. 12/31/086-502 Plea and plea agreements. 12/31/086-506 Time of commencement of trial. 01/15/096-703 Appeal. 01/15/09

rules of criminal procedure for the metropolitan courts

7-106 Excusal; recusal; disability. 01/15/097-110A Audio and audio-visual appearance

of defendant. 09/10/097-401 Bail. 02/02/097-502 Pleas and plea agreements. 09/10/097-506 Time of commencement of trial. 01/15/097-602 Jury trial. 01/15/097-703 Appeal. 01/15/09

rules of procedure for the municipal courts

8-103 Rules; forms; fees. 12/31/088-109A Audio and audio-visual appearances

of defendant. 12/31/088-111 Non-attorney prosecutions. 12/31/088-201 Commencement of action. 12/31/088-401 Bail. 12/31/088-403 Revocation of Release. 12/31/088-501 Arraignment; first appearance. 12/31/088-502 Pleas. 12/31/088-506 Time of commencement of trial. 01/15/098-703 Appeal. 01/15/09

criminal forms

9-102 Certificate of excusal or recusal. 09/10/099-102A Certificate of excusal or recusal. 09/10/099-102B Certificate of recusal. 11/16/099-103B Notice of recusal. 11/16/099-103C Notice of assignment. 11/16/099-221 Certificate of service. 11/16/099-221A Party’s certificate of service 11/16/099-222 Court’s certificate of service. 11/16/099-406A Guilty plea or no contest plea proceeding. 12/31/08 9-408A Plea and disposition agreement. 12/31/08 9-604 Judgment and Sentence. 05/06/099-612 Order on direct criminal contempt. 11/16/099-613 Judgment and sentence on indirect

criminal contempt. 11/16/099-614 Order on direct civil contempt. 11/16/099-615 Order on indirect civil contempt. 11/16/099-616 Conditional discharge order. 11/16/099-617 Final order of discharge. 11/16/099-618 Order finding no violation of probation. 11/16/099-619 Order finding probation violation and

continuing sentence. 11/16/099-620 Probation violation, judgment, and

sentence. 11/16/099-701 Petition for writ of habeas corpus. 05/06/09

rules of appellate procedure

12-202 Appeals as of right; how taken. 09/04/0912-302 Appearance, withdrawal or substitution

of attorneys. 05/06/09 12-305 Form of papers prepared by parties. 05/25/0912-308 Computation of time. 09/04/0912-404 Rehearings. 05/06/0912-501 Certiorari to the district court from denial

of habeas corpus. 05/06/0912-502 Certiorari to the Court of Appeals. 08/24/0912-505 Certiorari to the district court; decisions

on review of administrative agency decisions. 09/04/09

12-603 Appeals in actions challenging candidates or nominating petitions; primary or general elections; school board recalls and recalls of elected county officials. 09/04/09

12-607 Certification from other courts. 04/08/09

uJi civil

13-110A Instruction to jury. 12/31/0813-110B Oath to interpreter. 12/31/0813-1406 Strict products liability; care not an issue. 05/15/0913-1430 Breach of implied warranty

of merchantability. 02/02/0913-1636 Malicious abuse of process defined;

general statement of elements. 10/19/0913-1637 Malicious abuse of process;

“judicial proceeding” defined. 10/19/0913-1638 Malicious abuse of process;

“active participation” defined. 10/19/09



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

13-1639 Misuse of process; lack of probable cause. 10/19/0913-1639A Misuse of process; procedural impropriety,

defined. 10/19/09 13-1640 Malicious abuse of process; illegitimate

motive. 10/19/0913-1640A Malicious abuse of process; bifurcated trial;

instructions prior to bifurcated claim of malicious abuse of process. 10/19/09

13-305 Causation (proximate cause). 02/02/0913-306 Independent intervening cause. 02/02/0913-820 Third-party beneficiary; enforcement

of contract. 12/31/08

uJi criminal

14-111 Supplemental jury questionnaire. 02/02/0914-120 Voir dire of jurors by court. 02/02/0914-203 Act greatly dangerous to life;

essential elements. 02/02/0914-2212 Aggravated battery on a peace officer

with a deadly weapon; essential elements. 02/02/09 14-2217 Aggravated fleeing a law enforcement

officer. 02/02/09 14-5120 Ignorance or mistake of fact. 09/16/0914-5181 Self defense; nondeadly force by defendant. 09/16/0914-5183 Self defense; deadly force by defendant. 09/16/0914-5185 Self defense against excessive force

by a peace officer; nondeadly force by defendant. 09/16/09

14-5186 Self defense against excessive force by a peace officer; deadly force by defendant. 09/16/09

14-6018 Special verdict; kidnapping. 09/16/09

rules governing admission to the Bar

15-301.2 Legal services provider limited law license for emeritus and non-admitted attorneys. 01/14/09

rules of professional conduct

16-104 Communication. 11/02/09

rules governing discipline

17-204 Required records. 01/01/10

rules for minimum continuing legal education

18-203 Accreditation; course approval; provider reporting. 12/31/08

code of Judicial conduct

21-300 A judge shall perform the duties of office impartially and diligently. 03/23/09

21-400 Disqualification. 09/04/09

rules governing the recording of Judicial proceedings

22-202 Licensing of firms engaged in court reporting or tape monitoring. 09/10/09

22-201 Licensing of court reporters and monitors; power to administer oaths. 12/31/08

rules governing revieW of Judicial standards commission

27-104 Filing and service. 09/04/09

local rules for the second Judicial district court

LR2-123 Opposed motions and other opposed matters; filings; hearings. 06/01/09

LR2-504 Court clinic mediation program and other services for child-related disputes. 05/18/09

LR2-Form T Court clinic referral order. 05/18/09



rules/ordersFrom the New Mexico Supreme Court

http://www.nmcompcomm.us/

No. 09-8300-034

IN the Matter of the aMeNdMeNts of rule 17a-003 NMra of the ClIeNt ProteCtIoN fuNd rules

order

WHEREAS, this matter came on for consideration by the Court upon recommendation of the Client Protection Fund Commission to amend Rule 17A-003 NMRA of the Client Protection Fund Rules, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring; NOW, THEREFORE, IT IS ORDERED that the amendments of Rule 17A-003 NMRA of the Client Protection Fund Rules hereby are APPROVED; IT IS FURTHER ORDERED that the amendments of Rule 17A-003 NMRA of the Client Protection Fund Rules shall be effective September 29, 2009; and IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of the above-referenced rule by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission’s web site www.nmcompcomm.us/nmrules. IT IS SO ORDERED. WITNESS, Honorable Chief Justice Edward L.

Chávez of the Supreme Court of the State of New Mexico, and the seal of said Court this 29th day of September, 2009.

_________________________________________ Kathleen Jo Gibson, Chief Clerk of the Supreme

Court of the State of New Mexico____________________________17A-003. Attorney assessment. A. Duty of Court. The Court shall provide for continuous funding for the fund in amounts adequate for the proper payment of claims and the costs of administering the fund with funds available for transfer under the provisions of Subparagraph (1) of Paragraph C of Rule 18-102 NMRA and pursuant to Paragraph B of this rule. B. Assessment of attorneys. Every lawyer admitted and licensed to practice law in New Mexico shall, prior to January of each year, pay to the commission an annual client protection fund fee in the amount of fifteen dollars ($15.00). The annual fee assessment shall be mailed to the state bar at the time the registration statement required under Rule 17-202 NMRA is submitted. Annual fee assessments collected by the state bar shall be deposited in an account in a financial institution in the name of the commission. C. Suspension. A lawyer’s failure to pay any fee assessed shall be a cause for suspension from practice until payment has been made.[Approved by Supreme Court Order 05-8300-25, effective December 13, 2005; as amended by Supreme Court Order No. 09-8300-034, effective September 29, 2009.]

No. 09-8300-035

IN the Matter of the aMeNdMeNts of rule 3-202 NMra of the rules of CIvIl ProCedure for MetroPolItaN Courts

order

WHEREAS, this matter came on for consideration by the Court upon recommendation of the Metropolitan Courts Rules Commit-tee to amend Rule 3-202 NMRA of the Rules of Civil Procedure for Metropolitan Courts, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna, Justice Petra Jime-nez Maes, Justice Richard C. Bosson, Justice Charles W. Daniels concurring; NOW, THEREFORE, IT IS ORDERED that the amendments of Rule 3-202 NMRA of the Rules of Civil Procedure for Metro-politan Courts hereby are APPROVED; IT IS FURTHER ORDERED that the amendments of Rule 3-202 NMRA of the Rules of Civil Procedure for Metropolitan Courts shall be effective November 16, 2009; and IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of Rule 3-202 NMRA by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission web site www.nmcompcomm.us/nmrules. IT IS SO ORDERED. WITNESS, Honorable Chief Justice Edward L.



Court of the State of New Mexico______________________________3-202. Summons. A. Summons; issuance. Upon receipt of a complaint and pay-ment of the docket fee, the clerk shall docket the action, issue a summons and deliver it to the plaintiff or the plaintiff’s attorney, who shall be responsible for prompt service of the summons and a copy of the complaint. Upon the request of the plaintiff, separate, additional or amended summons shall issue against any defendant. A defendant waives the service of summons by filing an answer in the proceedings. B. Summons; execution; form. The summons shall be signed by the clerk, be directed to the defendant, be substantially in the form approved by the Supreme Court and must contain: (1) the name of the court in which the action is brought, the name of the county in which the complaint is filed, the docket number of the case, the name of the first party on each side, with an appropriate indication of the other parties, and the name of each party to whom the summons is directed; (2) a direction that the defendant serve a responsive pleading or motion within twenty (20) days after service of the summons, and file the same, all as provided by law, and a notice


http://www.nmcompcomm.us/nmrules



that unless the defendant so serves and files a responsive plead-ing or motion, the plaintiff will apply to the court for the relief demanded in the complaint; (3) the name and address of the plaintiff’s attorney, which, if any, shall be shown on every summons, otherwise the plaintiff’s address; and (4) a notice that the defendant may request prior to any proceeding that the proceeding be recorded. The notice shall ad-vise the defendant if a tape recording is not made of the proceed-ings, it may effectively preclude the defendant from appealing to the district court. C. Summons; service of copy. A copy of the summons with copy of complaint attached and a copy of the form for answer shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. D. Summons; by whom served. In civil actions any process may be served by the sheriff of the county where the defendant may be found or by any other person who is over the age of eighteen (18) years and not a party to the action, except for writs of attachment and writs of replevin, which shall be served by the sheriff or by any person not a party to the action over the age of eighteen (18) years who may be designated by the court to perform such service or by the sheriff of the county where the property or person may be found. E. Summons; service by mail. A summons and complaint may be served upon a defendant of any class referred to in Subparagraph (1) or (2) of Paragraph F of this rule by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two (2) copies of a notice and acknowledgment conforming with the form approved by the Supreme Court and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within twenty (20) days after the date of mailing plus three (3) days as provided by Rule 3-104 NMRA, service of such summons and complaint shall be made by a person authorized by Paragraph D of this rule, in the manner prescribed by Paragraph F of this rule. Service of a summons by mail is only effective if an acknowledgment of service signed by the person being served is filed with the court. The court shall order the payment of the costs of personal service by the person served if such person does not complete and return to the sender within twenty-three (23) days after mailing the notice and acknowledgment of receipt of summons, unless good cause is shown for not signing, filing and serving a signed acknowledgment of service in the time required by this paragraph. The form of the notice and acknowledgment of receipt of sum-mons and complaint shall be substantially in the form approved by the Supreme Court. F. Summons; how served. Personal service may be made as provided by law as follows: (1) upon an individual other than a minor or an inca-pacitated person by delivering a copy of the summons and of the complaint to him personally; or if the defendant refuses to receive such, by leaving same at the location where he has been found; and if the defendant refuses to receive such copies or permit them to be left, such action shall constitute valid service. If the defendant is absent, service may be made by delivering a copy of the process or other papers to be served to some person residing at the usual place of abode of the defendant who is over the age of fifteen (15) years; and if there is no such person available or willing to accept delivery, then service may be made by posting

such copies in the most public part of the defendant’s premises, and by mailing to the defendant at his last known mailing address copies of the process. Service may also be made by mail or com-mercial courier service provided that the envelope is addressed to the named defendant and further provided that the defendant or a person authorized by appointment, by law or by this rule to accept service of process upon the defendant signs a receipt for the envelope or package containing the summons and complaint, writ or other process. Service by mail or commercial courier service shall be complete on the date the receipt is signed as provided by this subparagraph. For purposes of this rule, “signs” includes the electronic representation of a signature; (2) upon a domestic or foreign corporation by delivering a copy of the summons and of the complaint to an officer, a manag-ing or a general agent, or to any other agent authorized by appoint-ment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant; upon a partnership by delivering a copy of the summons and of the complaint to any general partner; and upon other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by law to receive service and the statute so requires, by also mailing a copy to the unincorporated association. If the person refuses to receive such copies, such action shall constitute valid service. If none of the persons mentioned is available, service may be made by delivering a copy of the process or other papers to be served at the principal office or place of business during regular business hours to the person in charge thereof; (3) upon the State of New Mexico: (a) in garnishment actions, service of writs of gar-nishment shall be made on the department of finance and admin-istration, on the attorney general and on the head of the branch, agency, bureau, department, commission or institution; (b) service of process on the governor, attorney general, agency, bureau, department, commission or institution or head thereof may be made either by delivering a copy of the summons and of the complaint to the head or to his receptionist. Where an executive secretary is employed, he shall be considered as the head; (4) upon any county by delivering a copy of the summons and of the complaint to the county clerk, who shall forthwith notify the district attorney of the judicial district in which the county sued is situated; (5) upon a municipal corporation by delivering a copy of the summons and of the complaint to the city clerk, town clerk or village clerk, who in turn shall forthwith notify the head of the commission or other form of governing body; (6) upon the board of trustees of any land grant referred to in Sections 49-1-1 through 49-10-6 NMSA 1978, process shall be served upon the president or in his absence upon the secretary of such board; (7) upon a minor, whenever there shall be a conservator of the estate or guardian of the person of such minor, by delivering a copy of the summons and of the complaint to the conservator or guardian. Service of process so made shall be considered as service upon the minor. In all other cases process shall be served by delivering a copy of the summons and of the complaint to the minor, and if the minor is living with an adult a copy of the summons and of the complaint shall also be delivered to the adult


residing in the same household. In all cases where a guardian ad litem has been appointed, a copy of the summons and of the complaint shall be delivered to such representative, in addition to serving the minor as herein provided; (8) upon an incapacitated person, whenever there shall be a conservator of the estate or guardian of the person of such incapacitated person, by delivering a copy of the summons and of the complaint to the conservator or guardian. Service of process so made shall be considered as service upon the ward. In all other cases process shall be served upon the ward in the same manner as upon competent persons; or (9) upon a personal representative, guardian, conserva-tor, trustee or other fiduciary in the same manner as provided in Subparagraph (1) or (2) of Paragraph F of this rule as may be appropriate. Service shall be made with reasonable diligence, and the original summons with proof of service shall be returned to the clerk of the court from which it was issued. G. Return. If service is made by mail pursuant to Paragraph E of this rule, return shall be made by the sender’s filing with the court the acknowledgment received pursuant to such paragraph. Where service within the state includes mailing, the return shall state the date and place of mailing. If service is made by mail pursuant to Paragraph F of this rule, proof of service by mail or commercial courier service shall be established by filing with the court a certificate of service which shall include the date of delivery by the post office or commercial courier service and a copy of the defendant’s signature receipt. If service is by personal service pursuant to Paragraph F of this rule, the person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. When service is made by the sheriff (or deputy), proof thereof shall be by certificate; and when made by a person other than a sheriff (or deputy), proof thereof shall be made by affidavit. Where service within the state includes mail-ing, the return shall state the date and place of mailing. Failure to make proof of service shall not affect the validity of service. H. Service by publication. Service by publication may not be made, except as provided by law in cases of attachment and replevin. I. Alias process. When any process has not been returned, or has been returned without service, or has been improperly served, it shall be the duty of the clerk, upon the application of any party to the suit, to issue other process as the party applying may direct. J. Service; applicable statute. Where no provision is made in these rules for service of process, process shall be served as provided for by any applicable statute. K. Construction of terms. Wherever the terms “summons,” “process,” “service of process” or similar terms are used, such shall include the summons, complaint and any other papers re-quired to be served. [As amended, effective January 1, 1990; July 1, 1990; January 1, 1993; May 1, 1994; October 15, 2002; by Supreme Court Order No. 09-8300-035, effective November 16, 2009.]

No. 09-8300-036

IN the Matter of the aMeNdMeNts of forM 4-221 aNd adoPtIoN of New forMs 4-104B, 4-221a, aNd 4-225 NMra of the rules of CIvIl ProCedure for dIstrICt Courts

order

WHEREAS, this matter came on for consideration by the Court upon recommendation from the Rules of Civil Procedure Com-mittee to amend Form 4-221 and to adopt new Forms 4-104B, 4-221A, and 4-225 NMRA of the Rules of Civil Procedure, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring; NOW, THEREFORE, IT IS ORDERED that the amendments to Form 4-221 NMRA of the Rules of Civil Procedure for District Courts hereby are APPROVED; IT IS FURTHER ORDERED that new Forms 4-104B, 4-221A, and 4-225 NMRA of the Rules of Civil Procedure hereby are ADOPTED; IT IS FURTHER ORDERED that the amendments to Form 4-221 and adoption of new Forms 4-104B, 4-221A, and 4-225 NMRA of the Rules of Civil Procedure shall be effective Novem-ber 16, 2009; and IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of Form 4-221 and adoption of new Forms 4-104B, 4-221A, and 4-225 NMRA of the Rules of Civil Procedure by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission web site www.nmcomp-comm.us/nmrules. IT IS SO ORDERED. WITNESS, Honorable Chief Justice Edward L.



Court of the State of New Mexico___________________________4-221. Certificate of service. [For use with Metropolitan Court Rules 3-203, 3-204, and 3-205 NMRA]

CERTIFICATE OF SERVICE I hereby certify that on this __________ day of ______________, __________ this________________________ (insert paper served, such as “answer” or “notice”) was [mailed by United States first class mail, postage prepaid, and addressed to] Name: ________________________________Address: ________________________________City, State ________________________________and zip code: ________________________________Telephone: ________________________________[faxed by ________________________ (name of person who faxed document) to _____________________ (name of recipient) at _________________ (telephone number). The transmission was reported as complete. The time and date of the transmission was ________ [a.m.] [p.m.] on ___________________ (date).]

http://www.nmcomp-comm.us/nmrules




[e-mailed to ______________________ (name of party or attorney) at _________________ (electronic mail address of recipient) upon agreement of the party to accept electronic service. The transmission was reported as complete. The time and date of the transmission was ________ [a.m.] [p.m.] on _____________________ (date).] [delivered to __________________________ (Specify how service by delivery was made. See Use Note for the methods service may be made using this alternative.) __________________________.] ____________________________________ Signature of person sending paper ____________________________________ Date of signature

USE NOTE This form may be used in the metropolitan court to prepare a certificate or affidavit of service. Only the applicable parts should be used. See Rule 3-303 NMRA for service of papers after the complaint. [As amended by Supreme Court Order 05-8300-05, effective March 21, 2005; by Supreme Court Order No. 09-8300-036, ef-fective November 16, 2009.] ________________________________4-104B. Notice of assignment. [For use with Magistrate Court Rules 2-105 and 2-106 NMRA] STATE OF NEW MEXICO COUNTY OF _____________________

IN THE MAGISTRATE COURT___________________________, Plaintiff, v. No. __________ ___________________________, Defendant.

NOTICE OF ASSIGNMENT The Honorable ________________________ has been as-signed to preside over the above-captioned case. Dated this __________ day of ____________, __________. _____________________________ Clerk [As adopted by Supreme Court Order No. 09-8300-036, effective November 16, 2009.]__________________________________

4-221A. Party’s certificate of service. [For use by parties in the Magistrate Courts]

CERTIFICATE OF SERVICE I hereby certify that on this __________ day of ______________, __________ this ___________________________ (insert paper served, such as “answer” or “notice”) was [mailed by United States first class mail and addressed to] Name: ________________________________ Address: ________________________________ City, State ________________________________ and zip code: ________________________________ Telephone: ________________________________ [faxed by ________________________ (name of person who faxed document) to _____________________ (name of recipient) at ________________ (telephone number). The transmission was reported as complete. The time and date of the transmission was ________ [a.m.] [p.m.] on _____________________ (date).] [e-mailed to ______________________ (name of party or attorney) at _________________ (electronic mail address of recipient) upon agreement of the party to accept electronic ser-vice. The transmission was successful. The time and date of the transmission was ________ [a.m.] [p.m.] on ___________ (date).] [delivered to __________________________ (Specify how ser-vice by delivery was made. See Use Note for the methods service may be made using this alternative.) ______________________________.] ____________________________________ Signature of person sending paper ____________________________________ Date of signature

USE NOTE This form may be used in the magistrate courts to prepare a certificate or affidavit of service. Only the applicable parts should be used. See Rule 2-203 NMRA for service of papers after the complaint. [As adopted by Supreme Court Order No. 09-8300-036, effective November 16, 2009.] ________________________________4-225. Court’s certificate of service. [For use by Magistrate Court staff]

CERTIFICATE OF SERVICE I hereby certify that on this ____________ day of ______________, __________ notice was served on all parties and counsel. _____________________________ Signature _____________________________ Title[As adopted by Supreme Court Order No. 09-8300-036, effective November 16, 2009.]


No. 09-8300-037

IN the Matter of the aMeNdMeNts of forMs 9-102B aNd 9-221 aNd adoPtIoN of New forMs 9-103B, 9-103C, 9-221a, 9-222, 9-612, 9-613, 9-614, 9-615, 9-616, 9-617, 9-618, 9-619, aNd 9-620 NMra of the rules of CrIMINal ProCedure for the dIstrICt Courts

order

WHEREAS, this matter came on for consideration upon recommendation of the Rules of Criminal Procedure for District Courts to amend Forms 9-102B and 9-221 and to adopt new Forms 9-103B, 9-103C, 9-221A, 9-222, 9-612, 9-613, 9-614, 9-615, 9-616, 9-617, 9-618, 9-619, and 9-620 NMRA of the Rules of Criminal Procedure for the District Courts, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna, Jus-tice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring; NOW, THEREFORE, IT IS ORDERED that the amendments of Forms 9-102B and 9-221 NMRA of the Rules of Criminal Procedure for the District Courts hereby are APPROVED; IT IS FURTHER ORDERED that new Forms 9-103B, 9-103C, 9-221A, 9-222, 9-612, 9-613, 9-614, 9-615, 9-616, 9-617, 9-618, 9-619, and 9-620 NMRA of the Rules of Criminal Procedure for the District Courts hereby are ADOPTED; IT IS FURTHER ORDERED that the amendments of Forms 9-102B and 9-221 and adoption of new Forms 9-103B, 9-103C, 9-221A, 9-222, 9-612, 9-613, 9-614, 9-615, 9-616, 9-617, 9-618, 9-619, and 9-620 NMRA of the Rules of Criminal Procedure for the District Courts shall be effective November 16, 2009; and IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of Forms 9-102B and 9-221 and adoption of new Forms 9-103B, 9-103C, 9-221A, 9-222, 9-612, 9-613, 9-614, 9-615, 9-616, 9-617, 9-618, 9-619, and 9-620 NMRA of the Rules of Criminal Procedure for the District Courts by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission web site <www.nmcompcomm.us/nmrules>.IT IS SO ORDERED. WITNESS, Honorable Chief Justice Edward L.



Court of the State of New Mexico

9-102B. Certificate of recusal. [For use with Municipal Court Rule 8-106 NMRA] STATE OF NEW MEXICO CITY OF _______________________ ________________________ COURT[STATE OF NEW MEXICO] [CITY OF _______________________] v. No. __________ _______________________, Defendant.

CERTIFICATE OF RECUSAL I hereby certify that I have recused myself from presiding in the above case. I request that another judge be designated according to law. _______________________ _____________________Date Judge

USE NOTE 1. Each party must be served with a copy of this notice. See Rule 8-208 NMRA. See Criminal Form 9-221 NMRA for the certificate of service and affidavit of service. 2. This form is to be used when there is no alternate judge to whom the case may be reassigned or when the alternate [judge] [judges] [is] [are] unable to hear the case.[Approved by Supreme Court Order 07-8300-34, effective January 22, 2008; as amended by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]____________________________9-221. Certificate of service. [For use with Metropolitan Court Rules 7-209, 7-210, and 7-211 NMRA]

CERTIFICATE OF SERVICE I hereby certify that on this __________ day of ______________, __________ this notice was [mailed by United States first class mail, postage prepaid, and addressed to] Name: _____________________________________Address: _____________________________________City, State _____________________________________and zip code: __________________________________[faxed by ________________________ (name of person who faxed document) to ________________________ (name of recipi-ent). The transmission was reported as complete and without error. The time and date of the transmission was ____________ [a.m.] [p.m.] on ______________ (date).] [e-mailed to ______________________________________ (name of party or attorney) at ________________________ (electronic mail address of recipient) which is on file with the clerk of the Su-preme Court for service by electronic mail. The transmission was successful. The time and date of the transmission was ____________ [a.m.] [p.m.] on ______________ (date).] [delivered to ________________________. (Specify how service by delivery was made. See Use Note for the methods service may be made using this alternative.) __________________________.] _______________________________ Signature of attorney ________________________________ Date of signatureIf this notice was served by a person other than an attorney, the following must also be completed and filed with the court:

AFFIDAVIT OF SERVICE I declare under penalty of perjury that a copy of this paper was served by [mail] [fax] [electronic transmission] as described above on this __________ day of ______________, __________. __________________________________ Signature of person who made serviceSubscribed and sworn to before me this __________ day of ______________, __________. ______________________________ Judge, notary or other officer authorized to administer oaths ______________________________ Official title




USE NOTE This form may be used in the metropolitan court to prepare a certificate or affidavit of service. Only the applicable parts should be used. If a paper is served by an attorney, a certificate of service is attached to the paper filed with the court. If a paper is served by any other party, an affidavit of service must be attached to the paper. See Rule 7-209 NMRA for service of papers after the citation or complaint. [Approved, effective May 1, 2002; as amended by Supreme Court Order No. 09-8300-037, effective November 16, 2009.] _____________________________9-103B. Notice of recusal. [For use with Magistrate Court Rule 6-106 NMRA and Municipal Court Rule 8-106 NMRA] STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________] __________________ COURT

[STATE OF NEW MEXICO] [COUNTY OF ___________________][CITY OF _______________________] v. No. __________ _______________________, Defendant.

NOTICE OF RECUSAL The Honorable ________________________ has recused [him-self][herself] from presiding over the above-captioned case. [ ] You will be notified when another judge is designated ac-

cording to law. [ ] Judge __________________ has been assigned to the case. Dated ______________________, __________. _____________________________ Clerk [As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]_____________________________9-103C. Notice of assignment. [For use with Magistrate Court Rules 6-105 and 6-106 NMRA, and Municipal Court Rules 8-105 and 8-106 NMRA] STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________] __________________ COURT

[STATE OF NEW MEXICO] [COUNTY OF ___________________][CITY OF _______________________] v. No. __________ _______________________, Defendant.

NOTICE OF ASSIGNMENT The Honorable ________________________ has been assigned to preside over the above-captioned case. Dated this _______ day of ______________, __________. _____________________________ Clerk [As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]

9-221A. Party’s certificate of service.[For use by parties in the Magistrate and Municipal Courts]

CERTIFICATE OF SERVICE I hereby certify that on this __________ day of ______________, __________ this notice was [mailed by United States first class mail and addressed to] Name: ___________________________________Address: ___________________________________City, Stateand zip code: ___________________________________ [faxed by ___________________________________ (name of person who faxed document) to ________________________ (name of recipient). The transmission was reported as complete and without error. The time and date of the transmission was ____________ [a.m.] [p.m.] on __________________ (date).] [e-mailed to __________________________ (name of party or attor-ney) who has agreed to receive e-mail at ________________________ (electronic mail address of recipient) which is on file with the clerk of the Supreme Court for service by electronic mail. The transmis-sion was successful. The time and date of the transmission was ____________ [a.m.] [p.m.] on ______________ (date).] [delivered to ________________________. (Specify how service by delivery was made. See Use Note for the methods service may be made using this alternative.) __________________________.] _____________________________ Signature of attorney _____________________________ ` Date of signature If this notice was served by a person other than an attorney, the following must also be completed and filed with the court:

AFFIDAVIT OF SERVICE I declare under penalty of perjury that a copy of this paper was served by [mail] [fax] [electronic transmission] as described above on this __________ day of ______________, __________. ___________________________________ Signature of person who made service Subscribed and sworn to before me this __________ day of ______________, __________. ______________________________ Judge, notary or other officer authorized to administer oaths ______________________________ Official title

USE NOTE This form may be used in the magistrate and municipal courts to prepare a certificate or affidavit of service. Only the applicable parts should be used. If a paper is served by an attorney, a certificate of service is attached to the paper filed with the court. If a paper is served by any other party, an affidavit of service must be attached to the paper. See Rules 6-209 and 8-208 NMRA for service of papers after the citation or complaint. [As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.] _________________________________


9-222. Court’s certificate of service. [For use by Magistrate Court and Municipal Court staff]

CERTIFICATE OF SERVICE I hereby certify that on this ____________ day of ______________, __________ that notice was served on all parties and counsel. _____________________________ Signature _____________________________ Title[As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]_____________________________________9-612. Order on direct criminal contempt.[For use with Magistrate Court Rules 6-201 and 6-111 NMRAand Municipal Court Rules 8-201 and 8-110 NMRA] STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________] _____________________ COURT___________________________v. No. __________ ___________________________&In the Matter of the Direct Criminal Contempt of _____________________________, Contemnor.

ORDER ON DIRECT CRIMINAL CONTEMPT1

This matter came before the Court on ______________________ (month/day/year)__________________ was represented by __________________________ (name and title). _____________________________________ was present [pro se] [represented by _________________________, Esq.] (name of attorney). THE COURT FINDS that the contemnor, in the presence of this Court _____________________________________________________________________________(State the action which consti-tutes direct criminal contempt.)2 The Court finds that the contemnor committed direct criminal contempt of this Court. THE COURT HEREBY ORDERS the contemnor is sentenced to _____ days in the _________________________ (name of deten-tion center). _____ days are suspended. The contemnor is placed on _____ days [supervised] [unsupervised] probation to begin on _____________ (month/day/year), with the following conditions: 1) ________________________________________________2) ________________________________________________ 3) ________________________________________________ The contemnor shall report to the _________________________ (name of detention center) on _________________________ (month/day/year). This sentence shall run [consecutive] [concurrent] with _________________________ (Cause No.). THE COURT HEREBY ORDERS the contemnor shall pay the following fines and court costs: ______________________. Fines in the amounts following are hereby suspended:_______________________________ _____________________Date Judge

USE NOTE 1. See NMSA 1978, § 35-3-9 (1991) on contempt. See City of Bernalillo v. Aragon, 100 N.M. 547, 673 P.2d 831 (Ct. App. 1983) regarding direct contempt. See State v. Diamond, 94 N.M. 118, 607 P.2d 656 (Ct. App. 1980) regarding indirect contempt. See Rule 5-902 NMRA for a discussion of contempt.

2. Include a full statement of the facts, including any warnings given to contemnor. [As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]___________________________9-613. Judgment and sentence on indirect criminal contempt.[For use with Magistrate Court Rules 6-201 and 6-111 NMRAand Municipal Court Rules 8-201 and 8-110 NMRA] STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________] _____________________ COURT___________________________ v. No. __________ ___________________________&In the Matter of the Indirect Criminal Contempt of ___________________________, Contemnor.

JUDGMENT AND SENTENCE ON INDIRECT CRIMINAL CONTEMPT1

This matter came before the Court on _______________________ (month/day/year). __________________________________was represented by________________________(name and title). ____________________was present [pro se] [represented by ________________________, Esq.] (name of attorney). A trial having been held, THE COURT FINDS that the contemnor is guilty of indirect criminal contempt of this Court. THE COURT HEREBY ORDERS the contemnor is sentenced to _____ days in the _________________________ (name of detention center). _____ days are suspended. The contemnor is placed on [supervised] [unsupervised] probation to begin on ____________________ (month/day/year) for _____ days, with probation conditions as follows: 1)_________________________________________________2)_________________________________________________3)_________________________________________________ The contemnor shall report to the _________________________ (name of detention center) on _________________________ (month/day/year) at _____ (time). This sentence shall run [consecu-tive] [concurrent] with _______________________ (Cause No.). THE COURT HEREBY ORDERS the contemnor shall pay the following fines and court costs: ______________________Fines in the amounts following are hereby suspended:_______________________________ _____________________Date Judge

USE NOTE See NMSA 1978, § 35-3-9 (1991) on contempt. See State v. Diamond, 94 N.M. 118, 607 P.2d 656 (Ct. App. 1980) regarding indirect contempt. See City of Bernalillo v. Aragon, 100 N.M. 547, 673 P.2d 831 (Ct. App. 1983) regarding direct contempt. See Rule 5-902 NMRA for a discussion of contempt.[As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]________________________________


9-614. Order on direct civil contempt.[For use with Magistrate Court Rule 2-110 NMRA] STATE OF NEW MEXICO COUNTY OF _______________ IN THE MAGISTRATE COURT___________________________ v. No. __________ ___________________________&In the Matter of the Direct Civil Contempt of ___________________________, Contemnor.

ORDER ON DIRECT CIVIL CONTEMPT1

This matter came before the Court on ______________________ (month/day/year).__________________was represented by __________________________ (name and title). _____________________________________was present [pro se] [represented by _________________________, Esq.] (name of attorney). THE COURT FINDS that the contemnor, in the presence of this Court _____________________________________________________________________________(State the action which con-stitutes direct civil contempt.)2 The Court finds that the contemnor committed direct civil contempt of this Court. Furthermore, this order shall be in effect until such time as the following condition(s) have been met: THE COURT HEREBY ORDERS: ___________________________________________(Specify remedial action required.) THE COURT HEREBY ORDERS the contemnor shall pay the following fines and court costs: ____________________________________________ _____________________Date Judge

USE NOTE 1. See NMSA 1978, § 35-3-9 (1991) on contempt. See City of Bernalillo v. Aragon, 100 N.M. 547, 673 P.2d 831 (Ct. App. 1983) regarding direct contempt. See State v. Diamond, 94 N.M. 118, 607 P.2d 656 (Ct. App. 1980) regarding indirect contempt. See Rule 5-902 NMRA for a discussion of contempt. 2. Include a full statement of the facts, including any warnings given to contemnor.[As approved by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]___________________________________9-615. Order on indirect civil contempt.[For use with Magistrate Court Rule 2-110 NMRA]STATE OF NEW MEXICO COUNTY OF _______________ IN THE MAGISTRATE COURT___________________________ v. No. __________ ___________________________&In the Matter of the Indirect Civil Contempt of ___________________________, Contemnor.

ORDER ON INDIRECT CIVIL CONTEMPT1

This matter came before the Court on _____________________ (month/day/year). __________________ was represented by __________________________ (name and title). ________________ was present [pro se] [represented by _________________________, Esq.] (name of attorney).

A hearing was held and sufficient evidence offered so as to satisfy the conscience of the Court that the contemnor committed indirect contempt by _____________________________________________________________________________(State the action which constitutes indirect civil contempt.)2 THE COURT FINDS that the contemnor is guilty of indirect civil contempt of this Court. Further-more, this order shall be in effect until such time as the following condition(s) have been met: THE COURT HEREBY ORDERS: ____________________________________________(Specify remedial action required.) THE COURT HEREBY ORDERS the contemnor shall pay the following fines and court costs: _____________________.____________________ _____________________Date Judge

USE NOTE 1. See NMSA 1978, § 35-3-9 (1991) on contempt. See State v. Diamond, 94 N.M. 118, 607 P.2d 656 (Ct. App. 1980) regarding indirect contempt. See City of Bernalillo v. Aragon, 100 N.M. 547, 673 P.2d 831 (Ct. App. 1983) regarding direct contempt. See Rule 5-902 NMRA for a discussion of contempt. 2. Include a full statement of the facts, including any warnings given to contemnor.[As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]________________________________9-616. Conditional discharge order.[For use with Magistrate Court Rule 6-701 NMRAand Municipal Court Rule 8-701 NMRA] STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________]__________________ COURT

[STATE OF NEW MEXICO] [COUNTY OF ___________________] [CITY OF _______________________]v. No. __________ ___________________________, Defendant.

CONDITIONAL DISCHARGE ORDER This matter came before the court [ ] upon the court’s acceptance of defendant’s plea1 of

[ ] guilty or [ ] no contest, OR [ ] pursuant to a finding of guilt by a [ ] judge or [ ] jury2,to the

following charges:______________________________ It appearing that good cause exists for the entry of a conditional discharge, the court hereby orders a conditional discharge without entering an adjudication of guilt as to the above charges. The court further orders that defendant shall be placed on ____________ months [ ] supervised [ ] unsupervised probation pursuant to [ ] Sections 31-20-13 and 31-20-5 NMSA 1978 or [ ] Section 30-31-28 NMSA 1978.3

(OPTIONAL) Probation costs of ____________ per day shall be assessed. In addition, pursuant to Section 31-20-6 NMSA 1978, the defendant shall make a ____________ contribution of not less than ten dollars ($10.00) and not more than one hundred dollars ($100.00), to be paid in monthly installments of not less than five dollars ($5.00), to a local crime stopper program, a local domestic violence prevention


or treatment program or a local drug abuse resistance education program that operates in the territorial jurisdiction of the court no later than ______________________ (month/day/year) and shall provide proof to this court. Conditions of probation are as follows:_________________. If the defendant successfully completes probation, the defendant shall be discharged and the charges shall be dismissed. ____________________________ Judge

USE NOTE 1. No plea shall be accepted unless the court has complied with the requirements of Rules 6-502 and 8-502 NMRA, and Form 9-406A NMRA. 2. Municipal court jurisdiction to grant conditional discharges is governed by municipal ordinance. Municipal courts do not have jurisdiction to hold jury trials. 3. The court shall designate whether the conditional discharge is pursuant to Sections 31-20-13 and 31-20-5 NMSA 1978, or Section 30-31-28 NMSA 1978. 4. No conditional discharge may be given for the offense of DWI, in any court. See Subsection C of Section 31-20-13 NMSA 1978. 5. A defendant may only use a conditional discharge once in his or her lifetime.See Subsection A of Section 31-20-13 NMSA 1978. 6. Court costs shall not be collected on conditional discharges. See Subsection D of Section 35-6-1 NMSA 1978.[As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]______________________________9-617. Final order of discharge.[For use with Magistrate Court Rule 6-701 NMRA andMunicipal Court Rule 8-701 NMRA]

STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________]__________________ COURT

[STATE OF NEW MEXICO][COUNTY OF ___________________] [CITY OF _______________________]v. No. __________ ___________________________, Defendant.

FINAL ORDER OF DISCHARGE Without entering an adjudication of guilt, the court entered a conditional discharge order in this case. THE COURT FINDS that defendant has successfully met all obligations imposed by the court’s order entered ____________________, ____________. IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendant is discharged from any further obligations pursuant to this matter and the charges in the case are hereby dismissed. _____________________________ Judge [As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]_______________________________

9-618. Order finding no violation of probation.[For use with Magistrate Court Rule 6-802 NMRAand Municipal Court Rule 8-802 NMRA]STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________] __________________ COURT

[STATE OF NEW MEXICO] [COUNTY OF ___________________][CITY OF _______________________] v. No. __________ ___________________________, Defendant.

ORDER FINDING NO VIOLATION OF PROBATION This matter came before the court on _____________________ (date), on an allegation that Defendant violated probation. Defendant appeared in person and with counsel, __________ (name of counsel). The prosecution was represented by __________ (name and title). The Court having heard the evidence, FINDS that Defendant did not violate probation. It is hereby ORDERED, ADJUDGED AND DECREED that all provisions of the original Judgment and Sentence remain in effect. Defendant shall be continued on probation with probation conditions as originally imposed. _____________________________ Judge[As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]__________________________________9-619. Order finding probation violation and continuing sen-tence.[For use with Magistrate Court Rule 6-802 NMRAand Municipal Court Rule 8-802 NMRA] STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________] __________________ COURT


ORDER FINDING PROBATION VIOLATION AND CONTINUING SENTENCE

This matter came before the court on _____________________ (date), on an allegation that Defendant violated probation. Defendant appeared in person and with counsel, _________________________ (name of counsel). The prosecution was represented by _________________ (name and title). [ ] Defendant having denied the probation violation and a hearing

having been held, [ ] Defendant having admitted the probation violation, the Court

FINDS that Defendant violated probation. It is hereby ORDERED, ADJUDGED AND DECREED that all provisions of the original Judgment and Sentence remain in effect. Defendant shall be continued on probation with probation conditions as originally imposed. ____________________________ Judge


[As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]___________________________________9-620. Probation violation, judgment, and sentence.[For use with Magistrate Court Rule 6-802 NMRAand Municipal Court Rule 8-802 NMRA] STATE OF NEW MEXICO [COUNTY OF ___________________] [CITY OF _______________________] __________________ COURT


PROBATION VIOLATION, JUDGMENT, AND SENTENCE

This matter came before the court on ___________________ (date), on an allegation that Defendant violated probation. Defendant appeared in person and with counsel, _________________________ (name of counsel). The prosecution was represented by _________________ (name and title). [ ] Defendant having denied the probation violation and a hearing

having been held, [ ] Defendant having admitted the probation violation,the Court

FINDS that Defendant violated probation. It is hereby ORDERED, ADJUDGED AND DECREED that Defendant’s probation is revoked and the following sentence is imposed:Count 1: __________ (name of count) _____ days in ______________ detention center, _____ days suspended. _____ days to serve in the ______________ County Detention Center. Credit for _____ days served in jail and _____ days served on probation. _____ days re-maining to serve in the _______________ County Detention Center to begin on _____________(date). Defendant to pay_____in fines. _____amount suspended. _____ days [supervised] [unsupervised] probation to begin on _______________ (date).Such sentence is to run [ ] consecutively [ ] concurrently.Count 2: ____________ (name of count) _____ days in _______________ detention center, _____ days suspended. _____ days to serve in the _______________ County Detention Center. Credit for _____ days served in jail and _____ days served on proba-tion. _____ days remaining to serve in the _______________ County Detention Center to begin on ___________ (date). Defendant to pay_____ in fines. _____amount suspended. _____ days [supervised] [unsupervised] probation to begin on _______________ (date).Such sentence is to run [ ] consecutively [ ] concurrently.Count 3: ____________ (name of count) _____ days in _______________ detention center, _____ days suspended. _____ days to serve in the _______________ County Detention Center. Credit for _____ days served in jail and _____ days served on probation. _____ days remaining to serve in the _______________ County Detention Center to begin on ______________________ (date). Defendant to pay_____ in fines. _____amount suspended. _____ days [supervised] [unsupervised] probation to begin on _______________ (date).Such sentence is to run [ ] consecutively [ ] concurrently.

It is hereby ORDERED, ADJUDGED AND DECREED that[ ] Defendant is to report to the _______________________ DE-

TENTION CENTER at ____________, __________ (location), no later than __________________ (date), to serve _____ days.[ ] Work release is authorized.

[ ] This sentence shall be served on weekends.[ ] Defendant is to pay a one-hundred dollar ($100.00) bench war-

rant fee. Defendant is now ordered to pay ____in fines and_ ___in fees. Defendant shall receive credit for ___already paid.

All provisions of the original judgment and sentence not specifi-cally modified herein remain in effect. Defendant is placed on _____ days [supervised] [unsuper-vised] probation to begin on _________ (date), with conditions as specified in the attached Standard Order of Probation Conditions in effect in the __________ court, which is spe-cifically incorporated herein, and special conditions as fol-lows:_____________________________________________[ ] IT IS FURTHER ORDERED THAT Defendant’s cash bond is

to be [ ] returned to Defendant. [ ] applied to the payment of court costs, court fees, and fines.[ ] Defendant IS HEREBY ORDERED to report to probation ser-

vices as follows: [ ] _________ DWI Compliance Program, _______________

address), ____________ (city), New Mexico, ____________ (telephone number) with proof of enrollment to the Court no later than _______________________ (date).

[ ] Adult probation service no later than __________ (date). [ ] ______________ county misdemeanor compliance service

no later than _______________________ (date). IT IS ORDERED that a copy of this judgment and commitment be delivered to the ______________________ Detention Center, and that this copy be the order of commitment of Defendant.

FAILURE TO COMPLY FAILURE TO REPORT, COMPLY WITH CONDITIONS OF PROBATION, OR PAY COSTS OR FINES WILL RESULT IN A BENCH WARRANT FOR DEFENDANT’S ARREST.

APPEAL Defendant is hereby advised that this Order and Amended Sen-tence may be appealed to the district court by filing a notice of appeal in the district court within fifteen (15) days from the date of entry of this Judgment and Sentence. In accordance with Supreme Court Rule 6-802 NMRA, “the only issue the district court will address on appeal will be the propriety of the revocation of probation. The district court shall not modify the sentence of the magistrate court.” Defendant is further advised that if Defendant appeals, Defendant must obtain a hearing date before the district court within six (6) months of the date of the filing of the notice of appeal. If Defen-dant’s case is not heard by the district court within six (6) months, Defendant’s appeal will be dismissed and this conviction will be affirmed.

OTHER CONDITIONS OF RELEASE If Defendant files a notice of appeal, the following additional conditions of release are hereby approved pending appeal to the District Court:___________________________________________________________________________________________Appeal bond is set at $ ___________ ____________________________ Judge[As adopted by Supreme Court Order No. 09-8300-037, effective November 16, 2009.]


advance opinions http://www.nmcompcomm.us/from the neW mexico supreme court and court of appeals

opinion

petra Jimenez maes, Justice

{1} Nicole Anaya (Defendant) filed a mo-tion to suppress evidence arising from an investigatory stop initiated after she made a lawful U-turn within sight of a DWI checkpoint. The district court denied De-fendant’s motion, concluding that the stop was supported by reasonable suspicion. Defendant pleaded guilty to driving under the influence of intoxicating liquor (DWI), contrary to NMSA 1978, Section 66-8-102 (2005, prior to amendments through 2008), but reserved the right to appeal the reasonableness of the stop. The Court of Appeals reversed the district court, holding that, because evading a checkpoint is not an illegal act, the stop was unsupported by reasonable suspicion. State v. Anaya, 2008-NMCA-077, ¶ 19, 144 N.M. 246, 185 P.3d 1096. The Court of Appeals further held that the DWI checkpoint was constitu-tionally unreasonable under the guidelines set forth in Las Cruces v. Betancourt, 105 N.M. 655, 658-59, 735 P.2d 1161, 1164-65

From the New Mexico Supreme Court

Opinion Number: 2009-NMSC-043

Topic Index:Constitutional Law: Fourth AmendmentCriminal Law: Driving While Intoxicated

Criminal Procedure: Reasonable Suspicion; and Roadblocks

STATE OF NEW MEXICO,Plaintiff-Petitioner,

versusNICOLE ANAYA,

Defendant-Respondent.No. 31,106 (filed: August 25, 2009)

ORIGINAL PROCEEDING ON CERTIORARIWILLIAM C. BIRDSALL, District Judge

GARY K. KINGAttorney GeneralANITA CARLSON

Assistant Attorney GeneralSanta Fe, New Mexico

for Petitioner

HUGH W. DANGLERChief Public Defender

VICKI W. ZELLEAssistant Appellant Defender

Albuquerque, New Mexicofor Respondent

(Ct. App. 1987), and therefore, could not substitute for the absence of reasonable suspicion. Anaya, 2008-NMCA-077, ¶ 14. We conclude, however, that Defendant’s actions and the surrounding circumstances evinced an attempt to evade the checkpoint, which gave rise to a reasonable suspicion that she was driving while intoxicated. Accordingly, we reverse the Court of Ap-peals and affirm Defendant’s conviction and sentence.FACTS{2} The district court could have found the following facts. The San Juan County Sheriff’s Department set up a DWI check-point, which operated between the hours of ten in the evening on Saturday, November 19, 2005, and three in the morning on Sunday, November 20, 2005. Officers placed the checkpoint at the top of a hill on NM516 between Farmington and Aztec, New Mexico. Cones, droplights, and flash-ing emergency lights were visible to the surrounding area, indicating police activ-ity to approaching motorists. The officers also placed signs that alerted motorists to the upcoming checkpoint. In particular,

one sign was placed in the median visible to motorists traveling from Farmington toward the west side of the checkpoint. The arresting officer testified that he had traveled toward and away from the west side of the checkpoint several times that night and that the sign was illuminated by headlights and was visible to approaching vehicles.{3} The arresting officer testified that he was given a briefing packet, which directed him to stop any vehicles that displayed a clear intention of avoiding the checkpoint. Pursuant to that directive, the officer was stationed in his patrol car, in the median, a short distance behind the sign indicating the checkpoint, and he was to “watch[] for vehicles turning around, . . . trying to avoid the roadblock.”{4} The arresting officer testified that at approximately two in the morning he saw Defendant’s vehicle approaching the west side of the checkpoint, traveling away from Farmington. Then, as the vehicle approached, it made a U-turn and began traveling in the opposite direction. Accord-ing to the officer’s testimony and a diagram of the area entered into evidence, the sign indicating the upcoming DWI checkpoint was situated at the intersection where De-fendant made a legal U-turn. The officer testified that he believed the vehicle was trying to avoid the checkpoint. The officer immediately followed Defendant’s vehicle, engaged his emergency lights, and stopped the vehicle for a suspected DWI. Defen-dant failed all the field sobriety tests and was ultimately arrested for DWI. Results of a breath test indicated that Defendant had a blood-alcohol content of .11 and .10.{5} Defendant was originally tried in mag-istrate court, where she filed a motion to suppress the evidence obtained as a result of the stop, arguing that the officer did not have reasonable suspicion to believe that Defendant had committed or was going to commit a crime. The magistrate court de-nied the motion to suppress, and Defendant entered a plea of nolo contendere to DWI, reserving the right to challenge the stop in the district court.{6} The motion filed in district court con-cerned whether the officer had reasonable suspicion to stop Defendant’s vehicle. The court held a hearing and conducted a thor-ough review of the relevant case law. The district court noted that, as to the validity



of the checkpoint plan, “no attack as to its propriety was mounted by Defendant.” Nonetheless, the court stated that because the plan “removes the officer’s discretion that is problematic with sobriety check-points . . . the stop can be justified as part of the checkpoint plan.” However, because the validity of the checkpoint plan was not argued, the district court’s analysis focused on the reasonableness of the stop based on the totality of the circumstances. The court found that “[t]he defendant, [was] driving at around 2 A.M. in the morning, [and] ma[de] a U-turn on the highway at an intersection right in front of a visible sign announcing the checkpoint just after cresting a hill where the checkpoint lights would have been visible.” The court stated that it “sid[ed] with [State v. Foreman],” which held that “[a]lthough a legal turn, by itself, is not sufficient to establish a reason-able, articulable suspicion, a legal turn in conjunction with other circumstances, such as the time, place and manner in which it is made, may constitute a reasonable, ar-ticulable suspicion which could justify an investigatory stop.” 527 S.E.2d 921, 923 (N.C. 2000). Accordingly, based on the facts available to the officer, the court found that the officer had reasonable suspicion to stop Defendant’s vehicle and denied Defendant’s motion to suppress.{7} Following the district court’s denial of her motion, Defendant entered a con-ditional guilty plea to DWI. In her plea, Defendant reserved the right to appeal “the reasonableness of the stop to a higher court.”{8} Defendant appealed to the Court of Appeals, which reversed the denial of Defendant’s motion to suppress. Anaya, 2008-NMCA-077, ¶ 20. The Court of Appeals questioned the constitutionality of the officer’s directive to stop vehicles attempting to avoid the checkpoint under the guidelines set forth in Betancourt. Anaya, 2008-NMCA-077, ¶ 10. Rely-ing on the officer’s testimony, the Court construed the officer’s directive under the checkpoint plan as follows: “[I]f an officer evaluates a driver’s behavior and concludes that the driver had an intention to evade the checkpoint, that officer is deemed to have reasonable suspicion.” Id. ¶ 14. The Court held that the directive did not sufficiently restrict the officer’s discretion, as required under Betancourt, and therefore, the check-point plan was a constitutionally inadequate substitute for reasonable suspicion. Anaya, 2008-NMCA-077, ¶ 10.{9} The Court then addressed whether

the officer had an independent reasonable suspicion to stop Defendant. The Court summarized the relevant facts, stating that “it was two in the morning, Defendant crested a hill from which the lights of the checkpoint were visible, and Defendant made a U-turn in front of a visible sign that announced the checkpoint.” Id. ¶ 19. The Court held that, because these facts involved only legal acts, they did not create a reasonable suspicion that Defendant was committing a crime:

There is no statute that prohibits a driver from evading a check-point. The facts upon which the district court relied are thus legal acts. We conclude . . . that [t]hese circumstances amount to nothing more than a general-ized suspicion that there was a possibility that [Defendant] might have been breaking the law.

Id. ¶ 19 (second alteration in original) (internal quotation marks and citation omitted). The Court of Appeals reversed the district court and granted Defendant’s motion to suppress.{10} We granted the State’s petition for writ of certiorari pursuant to NMSA 1978, Section 34-5-14(B) (1966, as amended through 1972) and Rule 12-502 NMRA to determine: (1) whether the Court of Appeals erroneously held that the officer did not have reasonable suspicion to stop Defendant; (2) “[w]hether the Court of Ap-peals lacked jurisdiction to address the va-lidity of the DWI checkpoint plan, because Defendant did not reserve that issue in her conditional guilty plea”; and (3) “[w]hether the Court of Appeals erroneously held that Defendant was not stopped in accordance with a valid DWI checkpoint plan.” State v. Anaya, 2008-NMCERT-005, 144 N.M. 332, 187 P.3d 678.DISCUSSION{11} Stopping motor vehicles for the purpose of investigating suspected drunk driving constitutes a seizure under the Fourth Amendment, and therefore, to be justified at its inception the stop must be supported by reasonable suspicion. State v. Ochoa, 2008-NMSC-023, ¶ 19, 143 N.M. 749, 182 P.3d 130. “Questions of reason-able suspicion are reviewed de novo by looking at the totality of the circumstances to determine whether the detention was jus-tified.” State v. Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted). However, we review the district court’s fac-tual findings under a substantial evidence

standard. Ochoa, 2008-NMSC-023, ¶ 16.{12} “Reasonable suspicion arises if the officer can point to specific articulable facts . . . that, when judged objectively, would lead a reasonable person to believe criminal activity occurred or was occurring.” Id. ¶ 19 (alteration in original) (internal quota-tion marks and citations omitted). How-ever, reasonable suspicion does not require the officer to observe illegal activity. Cf. State v. Williamson, 2009-NMSC-039, ¶ 34, __ N.M. __, __ P.3d __ (“[A]lthough De-fendant’s conduct was lawful, . . . the facts and circumstances alleged in the affidavit, when viewed together, made it reasonable to infer that, more likely than not, the pack-age contained illegal narcotics.”).{13} There is no state law prohibiting evading a DWI checkpoint, and the U-turn Defendant made within sight of the check-point was legal. Therefore, the question in the present case is whether the totality of the circumstances allowed the officer reasonably to conclude that Defendant was committing the crime of driving while intoxicated.{14} To answer this question, we must consider the perimeters of the checkpoint as part of the circumstances of the offi-cer’s observations. As the Foreman court stated, “it is clear that the perimeters of the checkpoint or ‘the area in which checks are conducted’ would include the area within which drivers may become aware of its presence by observation of any sign mark-ing or giving notice of the checkpoint.” 527 S.E.2d at 924. That court concluded:

[W]e hold that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the check-point, and it necessarily follows that an officer, in light of and pursuant to the totality of the circumstances or the checkpoint plan, may pursue and stop a ve-hicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to deter-mine why the vehicle turned away.

Id.{15} Evading a marked DWI checkpoint is a specific and articulable fact that is sufficient to predicate reasonable suspi-cion for an investigatory stop. See, e.g., Foreman, 527 S.E.2d at 923 (concluding that where “the officer observed a ‘quick left turn’ away from the checkpoint at the precise point where the driver of the vehicle would have first become aware of


its presence,” the officer observed “suf-ficient activity to raise a ‘reasonable and articulable suspicion of criminal activity’” (citation omitted)). To conclude otherwise would permit drivers to flagrantly avoid DWI checkpoints without consequence, thereby undermining the efficacy of such checkpoints in deterring DWI. Steinbeck v. Commonwealth, 862 S.W.2d 912, 914 (Ky. Ct. App. 1993); see Snyder v. State, 538 N.E.2d 961, 966 (Ind. Ct. App. 1989) (“The alternative is to tell police officers that in spite of their experience, they may not infer from a driver’s attempt to avoid a roadblock that the driver is very likely en-gaged in the commission of a crime. Such a rule would seem to tell police officers to ‘ignore reality.’”); Foreman, 527 S.E.2d at 924 (“Certainly, the purpose of any checkpoint and the above statute would be defeated if drivers had the option to ‘legally avoid,’ ignore or circumvent the checkpoint by either electing to drive through without stopping or by turning away upon entering the checkpoint’s perimeters.”).{16} We agree with the Court of Appeals that “‘a legal turn, by itself, is not sufficient to establish a reasonable, articulable suspi-cion, [but] a legal turn in conjunction with other circumstances . . . may constitute a reasonable, articulable suspicion which could justify an investigatory stop.’” Anaya, 2008-NMCA-077, ¶ 17 (quoting Foreman, 527 S.E.2d at 923). We disagree, however, with the Court’s statement that, because Defendant’s acts were legal, “[t]hese circumstances amount to nothing more than a generalized suspicion that there was a possibility that [a d]efendant might have been breaking the law.” See

id. ¶ 19 (alteration in original) (internal quotation marks and citation omitted). If a driver is on notice that the checkpoint is ahead, then, where the driver turns away from the checkpoint and the circumstances lead the officer reasonably to believe that the driver is attempting to evade the check-point, the officer may form a reasonable suspicion that the driver is driving while intoxicated.{17} We emphasize that whether a stop is supported by reasonable suspicion should be determined on a case-by-case basis. See State v. Duran, 2005-NMSC-034, ¶ 34, 138 N.M. 414, 120 P.3d 836. The conclu-sion that a driver is attempting to avoid a checkpoint may be unreasonable in light of the circumstances of the stop—the time of day, the proximity of the turn to the checkpoint, or whether the driver’s actions were typical considering the layout of the area and the normal flow of traffic. See Steinbeck, 862 S.W.2d at 914 (“We believe that appellant’s turn away from the sobriety checkpoint, coupled with the deputy sher-iff’s experience in similar instances, the time of day, and the nature of the roadway onto which the appellant turned, constitute specific, reasonable, and articulable facts which allowed the police officer to draw an inference sufficient to form a reasonable suspicion that the driver might have been engaging in criminal activity.”).{18} Approaching the checkpoint, De-fendant was in a position to observe police emergency lights and other lights illumi-nating the checkpoint. Additionally, the district court found that Defendant made a U-turn “at an intersection right in front of a visible sign announcing the checkpoint,”

such that Defendant was on notice of the approaching checkpoint. Defendant then proceeded in the opposite direction of travel, which was inconsistent with typi-cal driving patterns given the location of the highway. In light of these facts, the officer reasonably could have believed that Defendant was attempting to evade the checkpoint. Accordingly, we conclude that the officer had reasonable suspicion to initiate the stop.{19} Because we conclude that the officer had reasonable suspicion to stop Defendant, we need not determine whether Defendant properly reserved a challenge to the validity of the DWI checkpoint in her conditional guilty plea or whether the Court of Appeals erroneously held that Defendant was not stopped in accordance with a valid DWI checkpoint plan. See State v. Duarte, 2007-NMCA-012, ¶ 33, 140 N.M. 930, 149 P.3d 1027 (“[T]he reasonableness of a road-block provides a constitutionally adequate substitute for the reasonable suspicion that would otherwise be required to justify the detention of vehicles and the questioning of their occupants.” (Internal quotation marks and citation omitted.)).CONCLUSION{20} For these reasons, we reverse the Court of Appeals and affirm Defendant’s conviction and sentence.{21} IT IS SO ORDERED. PETRA JIMENEZ MAES, Justice

WE CONCUR:EDWARD L. CHÁVEZ, Chief JusticePATRICIO M. SERNA, JusticeRICHARD C. BOSSON, JusticeCHARLES W. DANIELS, Justice


Certiorari Granted, No. 31,907, September 15, 2009Certiorari Granted, No. 31,917, September 15, 2009


Opinion Number: 2009-NMCA-105

Topic Index:Negligence: Assumption of Risk; Breach of Duty;

Comparative Negligence; Foreseeability; and Personal InjuryTorts: Foreseeability; Negligence; and Spectator Injury

EDWARD CRESPIN and JANIS CRESPIN,Individually and as parents of

EMILIO CRESPIN, RACHEL CRESPIN, and CASSANDRA GARCIA, all minors,Plaintiffs-Appellants,

versusALBUQUERQUE BASEBALL CLUB, LLC,

d/b/a ALBUQUERQUE ISOTOPES, CITY OF ALBUQUERQUE, HOUSTON MCLANE COMPANY d/b/a HOUSTON ASTROS,

and DAVE MATRANGA,Defendants-Appellees.

No. 27,864 (filed: July 31, 2009)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYRICHARD J. KNOWLES, District Judge

opinion

cynthia a. fry, chief Judge

{1} Plaintiffs sued Defendants Albuquer-que Baseball Club, LLC, d/b/a Albu-querque Isotopes (Isotopes), the City of Albuquerque (the City), Houston McLane Co. d/b/a Houston Astros (Astros), and Dave Matranga for injuries sustained by their son when Plaintiffs were attending a pre-game picnic at the Isotopes baseball team’s stadium in Albuquerque, New Mexico. Matranga, a player for the visit-ing Astros team, was engaged in pre-game batting practice when he batted a ball that struck Plaintiffs’ four-year-old son, Emilio. The district court granted all Defendants summary judgment, and Plaintiffs appeal. Although we acknowledge that there are certain risks to spectators inherent in the game of baseball, we reverse summary judgment in favor of the Isotopes and the City on the ground that, under the particular circumstances alleged, there are issues of material fact precluding summary judg-ment. We affirm summary judgment in favor of the Astros and Matranga, and we affirm the district court’s order denying Plaintiffs’ motion to amend their com-plaint.BACKGROUND{2} Plaintiffs’ complaint against De-fendants alleged that on July 21, 2003, Emilio and his parents and sisters were seated at picnic tables located in the left outfield stands at the stadium owned by the City and operated by the Isotopes. Without warning or notice, “[p]re-game began,” and Matranga hit a ball “directly into the left field picnic tables.” The ball struck Emilio in the head and fractured his skull. Plaintiffs alleged that the City and the Isotopes owed Plaintiffs “the duty to use ordinary care to keep the premises safe for use by visitors” and breached that duty and that Matranga, an employee of the Astros, “ignored his duty to exercise ordinary care as he directed the ball into the occupied picnic area.” Plaintiffs fur-ther alleged that Matranga’s conduct “was wanton and showed an utter indifference to or conscious disregard for the safety of” Plaintiffs and other visitors at the stadium. Plaintiffs’ theories of negligence against the City and the Isotopes included failure to adequately protect spectators from fly balls, failure to warn, and failure to keep the premises safe for visitors. Against the Astros, Plaintiffs alleged negligent training and supervision of Matranga and vicarious liability for Matranga’s conduct.

JACOB G. VIGILVIGIL LAW FIRM, P.A.

Albuquerque, New MexicoL. HELEN BENNETT

Albuquerque, New Mexicofor Appellants

SEAN E. GARRETTS. CAROLYN RAMOS

EMILY A. FRANKEBUTT THORNTON & BAEHR, P.C.

Albuquerque, New Mexicofor Appellee

Albuquerque Baseball Club, L.L.C.d/b/a Albuquerque Isotopes

ROBERT M. WHITECity Attorney

MICHAEL I. GARCIAAssistant City Attorney


City of Albuquerque

MAX J. MADRIDEMIL J. KIEHNE

MODRALL, SPERLING, ROEHL, HARRIS & SISK, P.A.

Albuquerque, New Mexico

JEFFREY S. DAVISGARDERE WYNNE SEWELL, L.L.P.

Houston, Texasfor Appellees

Houston McLane Co. d/b/a Houston Astros and Dave Matranga


{3} All Defendants filed motions for sum-mary judgment. The City and the Isotopes, relying on cases in other jurisdictions, argued that an owner/occupier of a base-ball stadium has only a limited duty to screen spectators with protective netting in the most dangerous part of the stadium, which is behind home plate, and to provide enough seating in the screened area to ac-commodate reasonable demand. Because the City and the Isotopes provided such netting, they maintained that as a matter of law they had satisfied any duty owed to Plaintiffs. The Astros and Matranga, also relying on out-of-state case law, argued that a baseball player owes no duty to a specta-tor but that even if such a duty is owed, the Astros and Matranga did not breach the duty as a matter of law.{4} The Isotopes and the City submitted affidavits in support of their motions. In one affidavit, Sandy Eeds attested that he had been involved in the design of the sta-dium in question and that the design and construction included a protective netting behind home plate that was consistent with netting provided at other, similar ballparks. The netting “accommodate[s] the reason-able needs of Isotopes Park and the offered seating is consistent with such seating of-fered at other ballparks with a similar size and seating capacity.” Eeds further attested that the picnic area in which Plaintiffs were seated is “behind the left field wall [and] is designed as an area where fans can watch the game while sitting at a picnic style table.”{5} The Astros and Matranga submitted some of the official rules of baseball in support of their motion, including the rule stating that a batter becomes a runner when, among other scenarios, “[a] fair ball passes over a fence or into the stands at a distance from home base of 250 feet or more[,] . . . [which] entitles the batter to a home run.” This is apparently what happened when Matranga hit the ball into the picnic area; in other words, Matranga hit a home run during pre-game batting practice, and the ball struck Emilio.{6} In response to Defendants’ motions, Plaintiffs filed responses and submitted their own evidence. Plaintiffs tendered their answers to interrogatories, in which they attested that the family members had just sat down with their food in the stadium’s picnic area for a pre-game little league party and had begun to eat when, without warning, a baseball struck Emilio in the head. Plaintiffs also submitted the affidavit of Chad Kuhn, who played five

seasons of professional baseball and who claimed to be “familiar with and [to] have personal and professional knowledge of standard stadium safety practices.” Kuhn opined that the picnic area at Isotopes stadium “failed to utilize proper safety standards” by arranging the picnic tables so that the patrons were not facing the field, by failing to screen the area with protective netting, and by failing to warn patrons that balls might enter the area.{7} Following a hearing, the district court granted Defendants’ motions for summary judgment. Plaintiffs appeal.DISCUSSION{8} We review summary judgment de novo. “A party is entitled to summary judgment if the party can demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Martin v. Franklin Capital Corp., 2008-NMCA-152, ¶ 6, 145 N.M. 179, 195 P.3d 24 (internal quotation marks and citation omitted). “An issue of fact is material if the existence (or non-existence) of the fact is of consequence under the substantive rules of law gov-erning the parties’ dispute.” Id. (internal quotation marks omitted). {9} This case presents the first opportu-nity for a New Mexico appellate court to consider whether to carve out an exception to the usual tort doctrines for the sport of baseball. As Defendants aptly observe, the game of baseball subjects spectators to the inherent risk of being struck by a ball, but many spectators welcome the risk in order to experience the game more intimately or perhaps to catch a foul ball or a home run ball. See Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 222 (Mich. Ct. App. 2001) (noting that “baseball patrons generally want to be involved with the game in an intimate way and are even hoping that they will come in contact with some projectile from the field (in the form of a souvenir baseball)”). In addressing the issue before us, we first review established New Mexico tort law and then consider case law from other jurisdictions.New Mexico Tort Law{10} Our Supreme Court considered the risks inherent in a spectator sport in McFatridge v. Harlem Globe Trotters, 69 N.M. 271, 365 P.2d 918 (1961), in which the plaintiff had been hit by a basketball thrown by a member of the Harlem Globe Trotters at a game. Id. at 272-73, 365 P.2d at 919. On appeal from a judgment in favor of the plaintiff, the defendant argued that the district court should have instructed

the jury on assumption of the risk and re-lied on an ALR annotation regarding that doctrine in the context of baseball. Id. at 274, 365 P.2d at 920. The Court observed in dictum: “That there is danger from be-ing injured by being struck by balls hit foul or otherwise striking spectators in certain locations at baseball games which would be known to fans of the game is clear and from this fact arises the custom to protect the areas of greatest danger.” Id. at 277, 365 P.2d at 922. Because there was no similar degree of danger in basketball, the Court concluded that there was no need to instruct specifically on the doctrine of as-sumption of the risk because the jury had been instructed on contributory negligence. Id.{11} The dictum in McFatridge suggests that the law should somehow acknowledge the risks inherent in baseball. This sug-gestion was diluted to some extent twenty years later when our Supreme Court ad-opted comparative negligence in Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), superseded by statute as stated in Reich-ert v. Atler, 117 N.M. 628, 875 P.2d 834 (1992). In Rizzo, the Court stated that “[a]ssumption of risk as a form of negligence and other liability concepts based on or related to negligence of either plaintiff, defendant, or both, are subject to the com-parative negligence rule.” Id. at 687, 634 P.2d at 1239 (internal citation omitted). From this statement we can conclude that a spectator’s knowledge of baseball’s inher-ent risks should not automatically preclude the spectator from recovering if he or she is injured as a result of one of those risks. Rather, the spectator’s assumption of the risks inherent in the game may inform the fact finder’s assessment of the parties’ relative fault. We therefore turn to New Mexico law on the basic tort precepts.{12} In making their arguments, the Isotopes, the Astros, and Matranga employ the tort concepts of duty and breach of duty, and sometimes they muddy the difference between the two. It is well established in New Mexico that “[i]f it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant.” Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983). In addition, “[e]very person has a duty to exercise ordinary care for the safety of the person and the property of others.” Bober v. N.M. State Fair, 111 N.M. 644, 648, 808 P.2d 614, 618 (1991) (internal quotation marks and citation omitted). “Whether [a defendant]


breached that duty—i.e., whether it was negligent—is a question as to whether it exercised ordinary care for the safety of persons in [the plaintiff’s] situation. That is a question for the jury to decide[.]” Id.{13} Given this black letter law, we disagree with the dissent and conclude that the question before us concerns the concept of breach of duty. See Dissent ¶ 44. Defendants do not argue that Emilio and his injury were unforeseeable. Con-sequently, all Defendants owed Emilio a duty to exercise ordinary care for his safety. UJI 13-1604 NMRA (stating that “[e]very person has a duty to exercise ordinary care for the safety of the person and the property of others”).{14} The question of whether a defen-dant breached a duty owed to a plaintiff is generally a question of fact. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 30, 134 N.M. 43, 73 P.3d 181 (explaining that whether the defendant took appropriate pre-cautions was “a question concerning breach of a duty of ordinary care for the finder of fact”); Bober, 111 N.M. at 648, 808 P.2d at 618 (stating that whether the defendant breached the duty owed to the plaintiff “is a question for the jury to decide”). There-fore, Defendants were entitled to summary judgment only if they established that they fulfilled their duty to Emilio as a matter of law.{15} At this point it is logical to separate the claims against the Isotopes and the City from those made against the Astros and Matranga. The Isotopes and the City rest their arguments on a rule applied in other jurisdictions to the owners or oc-cupiers of baseball stadiums. The Astros and Matranga are not in this category, and the rule being advocated does not apply to them. We therefore begin by considering the arguments made by the Isotopes and the City.The Isotopes and the City In Effect Urge Adoption of a Rule of Immunity{16} The Isotopes and the City maintain that we should follow the same path taken by courts in other jurisdictions and con-clude as a matter of policy that screening a baseball stadium behind home plate con-stitutes satisfaction of the duty of ordinary care. We therefore turn to an examination of these cases.{17} The Isotopes and the City urge us to adopt what we will call “the baseball rule.”1 This rule is that “in the exercise

of reasonable care, the proprietor of a ball park [(1)] need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest” and that “[(2)] such screen-ing must be of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game.” Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 331 (N.Y. 1981). {18} Many courts have adopted some form of this rule. See generally id.; James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979). In Akins, for example, the plaintiff at-tended a high school baseball game and, although a backstop shielded spectators behind home plate, the plaintiff was in an unscreened area watching the game when a foul ball struck her in the eye. Akins, 53 N.Y.2d at 327-28. The plaintiff alleged that the school district negligently failed to screen along the field’s base lines, and a jury found in her favor. Id. The appellate division affirmed, but the court of appeals adopted the baseball rule and reversed. Id. at 328-31. The court noted that the plaintiff had presented no evidence suggesting that the existing screening was inadequate or that there were insufficient protected seats and, therefore, “the school district fulfilled its duty of reasonable care to plaintiff as a matter of law.” Id. at 332-33; see Tucker v. ADG, Inc., 2004 OK 71, ¶ 15, 102 P.3d 660, 666 (reaffirming holding in a prior case that “determin[ed] as a matter of law: the absence of a duty on the part of the owner or occupant of the premises to reconstruct or alter the premises so as to obviate known and obvious dangers, and the absence of [the] defendants’ liability for a spectator’s injury resulting from an obvious danger or one that should have been observed in the spectator’s exercise of ordinary care”); Benejam, 635 N.W.2d at 220, 221-25 (adopting the baseball rule in a case where the plaintiff was seated behind the screening but was hit by a fragment that broke off a bat and curved around the net because “there is an inherent risk of objects leaving the playing field that people know about when they attend baseball games”); McNiel v. Fort Worth Baseball Club, 268 S.W.2d 244, 246 (Tex. Civ. App. 1954) (explaining that a baseball club “is held

to have discharged its full duty when it has provided adequately screened seats in stands in which the patron may sit if he so desires” and the patron is struck by a ball while occupying an unprotected seat cho-sen by the patron “with full knowledge of the risks and dangers to be encountered”); Gunther v. Charlotte Baseball, Inc., 854 F. Supp. 424, 426, 428-30 (D.S.C. 1994) (con-cluding that the South Carolina supreme court would determine that the plaintiff, who was struck by a foul ball when she was sitting in an unscreened seat, “volun-tarily assumed the risk of her injuries” as a matter of law). These cases support the proposition that adequate screening of the most dangerous seats immunizes stadium owners from liability regardless of how the injury occurs. The Isotopes and the City advocate our adoption of this immunity rule.{19} Some courts have declined to adopt the baseball rule as a per se delineation of reasonable care in baseball cases, or they have adopted the rule with limitations. In Coronel v. Chicago White Sox, Ltd., 595 N.E.2d 45 (Ill. App. Ct. 1992), the plaintiff was seated three seats away from the edge of the protective screen when she looked down into her lap and was stuck by a foul ball. Id. at 46. The appellate court reversed summary judgment in favor of the defendant occupiers of the stadium, stating that a defendant owner or occupier of land “owes a duty of reasonable care to business invitees located on his premises. We find no exception in favor of sports facilities from this requirement.” Id. at 46-47, 50 (citation omitted). The court concluded that the adequacy of the screening itself was a question of fact for the jury, not a question to be determined by the defendant. Id. at 48. And in Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 881 A.2d 700 (N.J. 2005), the New Jersey Supreme Court adopted the baseball rule but limited its applicability to the stands themselves. Id. at 707. Thus, “multi-purpose areas, such as concourses and playground areas, are outside the scope of the rule.” Id.{20} Other courts take this approach and exclude the rule’s applicability from situations in which fans may not have their full attention on what is happening. For example, in Maytnier v. Rush, 225 N.E.2d 83, 86, 88-89 (Ill. App. Ct. 1967), the Il-linois appellate court affirmed a verdict in favor of a plaintiff who was hit by a

1Defendants and some cases refer to this rule as the “limited duty rule.” However, to avoid giving the impression that the rule relates to a defendant’s duty rather than to breach of duty, we prefer our nomenclature.


baseball thrown by a pitcher warming up in the bull pen, stating that the plaintiff’s evidence that he was paying attention to the game rather than to the bull pen “clearly raise[d] triable issues of fact of sufficient credibility and probative value to warrant the court’s refusal of a directed verdict in favor of [the] defendant.” And in Jones v. Three Rivers Management Corp., 394 A.2d 546, 547-48 (Pa. 1978), the Pennsylvania Supreme Court affirmed a jury verdict in favor of a plaintiff who was struck by a ball hit during batting practice when she looked through an opening in the stadium’s interior concourse. The court noted that although baseball facilities will not ordinarily be li-able for inherent risks, the openings were not an inherent feature of baseball, and the issue of the defendant’s liability was prop-erly for the jury to decide. Id. at 549-51; see Lowe v. Cal. League of Prof’l Baseball, 65 Cal. Rptr. 2d 105, 114-15, 123 (Ct. App. 1997) (reversing summary judgment in favor of the defendant where the plaintiff submitted evidence that at the time he was hit by a foul ball, he was distracted from the game by the team’s dinosaur mascot, whose tail bumped the plaintiff’s shoulder, stating that “the antics of the mascot are not an essential or integral part of the playing of a baseball game”).{21} Commentators have criticized the baseball rule as a throw-back to the days when assumption of the risk was a sub-category of contributory negligence and as a rule that has failed to respond to baseball’s evolution over the years. For example, in David Horton, Comment, Rethinking As-sumption of Risk and Sports Spectators, 51 UCLA L. Rev. 339, 365 (2003) [here-inafter Horton], the author notes that the rule “mirrors the caveat emptor ideology of tort law in the early twentieth century” and that since then, “[t]ort rules gradually have begun to embody the insight that in many situations, it is both more equitable and efficient to ask defendants to assume responsibility for injuries arising from their activities.” See Gil Fried and Robin Ammon, Baseball Spectators’ Assumption of Risk: Is It ‘Fair’ or ‘Foul’?, 13 Marq. Sports L.J. 39, 54-59 (2002) (emphasizing the changes in viewing patterns and mar-keting strategies that increase the level of spectators’ distraction from the game and the likelihood that screened seats behind home plate are sold at premium prices and are therefore unavailable to the casual game attendee). {22} Indeed, the Restatement (Third) of Torts: Apportionment of Liability § 3

(2000) appears to advocate a rejection of per se rules like the baseball rule in favor of the application of modern tort law principles. That section states that “[a p]laintiff’s negligence is defined by the appli-cable standard for a defendant’s negligence. Special ameliorative doctrines for defining [a] plaintiff’s negligence are abolished.” Id. Among the “ameliorative doctrines” abolished is implied assumption of the risk, which was set out in Restatement (Second) of Torts §§ 496A, 496C-496G (1965). See Restatement (Third) of Torts: Apportion-ment of Liability § 3 cmt. c, at 32. The Restatement (Third) of Torts provides the following relevant example:

A attends a baseball game at B’s ballpark. A sits in a portion of the stands beyond the point where the screen prevents balls from entering the seats. A is aware that balls occasionally are hit into the stands. The fact that A knew balls are occasionally hit into the stands does not constitute assumption of risk. The fact that A knew balls occasionally are hit into the stands is relevant in evaluating whether A acted reasonably by engaging in particular types of conduct while sitting in the stands (sitting in the stands would not itself constitute unreasonable conduct). If the [fact finder] concludes that A did not act reasonably under the cir-cumstances, A’s knowledge of the risk is relevant to the percentage of responsibility the [fact finder] assigns to A. . . . If B could rea-sonably assume that A and other fans are aware that balls are oc-casionally hit into the stands, this fact is also relevant to whether B acted reasonably in relying on A to watch out for balls instead of constructing a screen or providing warnings.

Restatement (Third) of Torts: Apportion-ment of Liability § 3 cmt. c, illus. 6, at 32. Thus, according to this view of baseball, the fact finder assesses all of the circum-stances to determine whether, for example, the plaintiff’s failure to pay attention to the playing field was negligent and whether the defendant stadium owner was negligent in failing to warn that batting practice was about to begin.We Decline to Adopt the Baseball Rule{23} Considering the authorities re-viewed above, we appreciate the rationale underlying the baseball rule as well as the

reasons counseling against its adoption. However, we are persuaded by the com-mentators and by the Restatement (Third) of Torts: Apportionment of Liability that there is no compelling reason to immunize the owners/occupiers of baseball stadiums. Comparative negligence principles allow the fact finder to take into account the risks that spectators voluntarily accept when they attend baseball games as well as the ability of stadium owners to guard against unreasonable risks that are not essential to the game itself. By contrast, the approach embodied by the baseball rule “excludes an entire class of plaintiffs[,] bestows a subsidy on sophisticated business enter-prises[, and] represents the central tenets of a bygone era.” Horton, supra, at 376.{24} In addition, our rejection of the baseball rule is consistent with New Mexico law. As this Court noted in Yount v. Johnson, the law has recently “moved forcefully towards a public policy that defines duty under a universal standard of ordinary care, a standard which holds all citizens accountable for the reasonableness of their actions.” 1996-NMCA-046, ¶ 4, 121 N.M. 585, 915 P.2d 341. “The move-ment has been away from judicially de-clared immunity or protectionism, whether of a special class, group or activity.” Id. (emphasis added). While the baseball rule may have made sense during the era of the all-or-nothing contributory negligence doc-trine, it no longer does. Under our present tort system, we discern no public policy reason to justify bestowing immunity on the business of baseball.There Are Issues of Fact Precluding Summary Judgment{25} Even though we decline to adopt the baseball rule, there remains the ques-tion of whether it can be said that Plaintiffs were precluded from recovery as a matter of law. The question of whether a defen-dant has breached the duty of ordinary care is generally a question of fact, but if no reasonable fact finder can conclude that the defendant was negligent, summary judgment is appropriate. Gourdi v. Berkelo, 1996-NMSC-076, ¶ 11, 122 N.M. 675, 930 P.2d 812.{26} Plaintiffs alleged that the Isotopes and the City breached their duty of reason-able care under the circumstances by failing to keep Plaintiffs safe or by failing to warn Plaintiffs. In their motions for summary judgment, the Isotopes and the City relied exclusively on the baseball rule and the affidavit of Eeds, which states that the Isotopes and the City had complied with


the rule. Because we decline to adopt the rule, this argument fails. The Isotopes and the City have not presented evidence that, in the absence of the baseball rule, screening the stands behind home plate satisfied their duty to exercise reasonable care for Emilio and other spectators in the picnic area. See Paragon Found., Inc. v. N.M. Livestock Bd., 2006-NMCA-004, ¶ 11, 138 N.M. 761, 126 P.3d 577 (filed 2005) (explaining that movant must make a prima facie showing of entitlement to summary judgment).{27} Plaintiffs argue that by provid-ing picnic-style seating, which arguably invites spectators to turn their attention away from the field, the Isotopes and the City reasonably could have been expected to screen that area in addition to the area behind home plate. In addition, Plaintiffs note that the injury occurred during bat-ting practice before the game began, a time during which spectators were not necessarily aware that balls might fly into the picnic area. Plaintiffs argue that such circumstances may warrant some kind of warning. For example, perhaps the Iso-topes could announce over the loudspeaker that batting practice was about to begin and that spectators should be alert for foul or home run balls.{28} In summary, Plaintiffs’ allegations raise issues of fact regarding the actions the Isotopes and/or the City might reason-ably be expected to take in order to protect spectators in the picnic area. The Isotopes and the City did not meet their burden by introducing evidence that they took any ac-tion to protect spectators beyond screening the stands behind home plate.{29} We are not persuaded that our refusing to adopt the baseball rule will de-stroy the game of baseball, as Defendants seem to suggest. Even without the base-ball rule, “[m]any spectators’ claims [will] be barred under traditional negligence principles if the jury determine[s] that the stadium owner had pursued reason-able means of providing a safe stadium.” Horton, supra, at 369. In addition, we do not believe it is necessary to immunize the Isotopes and the City against all risks in order to preserve the game of baseball. See Loughran v. The Phillies, 888 A.2d 872, 881 (Bender, J., dissenting) (stating that “it is not necessary for the preservation of the activity to immunize the operator against the risk in question”). Nor is there reason to fear that jurors are somehow unable to comprehend and assess the complexities of inherent risk and the duty of ordinary

care. As we observed in Berlangieri v. Running Elk Corp., 2002-NMCA-060, ¶ 20, 132 N.M. 332, 48 P.3d 70, aff’d on other grounds in 2003-NMSC-024, 134 N.M. 341, 76 P.3d 1098, “We remain confident that jurors are capable of dis-tinguishing between risks of injury that cannot be eliminated without depriving a sport or recreational activity of its essential character and unnecessary risks that arise as the result of the proprietor’s failure to exercise due care for its patrons.” See Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849, 898 (1998) (conclud-ing that “[o]n the issue of negligence, there is no evidence to support the claim that juries decide cases less competently than judges and some reason to suspect that the combined judgments of jurors, enhanced through the deliberation process, may be as good or better than those that would be rendered by a randomly selected judge”).Summary Judgment in Favor of the Astros and Matranga Was Proper{30} The analysis regarding summary judgment in favor of the Astros and Ma-tranga differs somewhat from the analysis above. The Isotopes and the City owned the stadium and are therefore in a position to take some steps to protect spectators from the inherent dangers associated with baseball. Even those cases adopting a pure form of the baseball rule acknowledge that, at minimum, a stadium owner must screen the most dangerous seats behind home plate. The Astros and Matranga, on the other hand, are simply the personification of the game in this case. They established in their motion for summary judgment that the rules of baseball anticipate and expect that players like Matranga should attempt to and will hit balls into areas where there are spectators. {31} The Astros and Matranga submit-ted selected official rules of baseball, which state that “[t]he objective of each team is to win by scoring more runs than the opponent” and that “[t]he batter be-comes a runner when[, among other things, a] fair ball passes over a fence or into the stands at a distance from home base of 250 feet or more.” Therefore, when Matranga was practicing and hit the home run ball that struck Emilio, Matranga was simply playing baseball according to the rules and doing what his employer, the Astros, wanted him to do. Common sense tells us that Matranga could not be expected to try to avoid hitting the ball into areas

where spectators were located because if he did, he would diminish his chances of becoming a runner and thus inhibit his team’s chances of winning a game.{32} Of course, if Plaintiffs established that Matranga hit the ball with the inten-tion of hitting Emilio or someone else, the analysis would be different. But Plaintiffs did not allege or introduce evidence of this, as we discuss in more detail below.{33} The Astros and Matranga made a prima facie case that their actions satisfied their duty to exercise reasonable care un-der the circumstances. The circumstances here involved a baseball player engaged in batting practice and attempting to perform as the official rules and his team expected him to perform. Those rules and the team expected him to do exactly what he did—hit a home run over the fence during batting practice.{34} In the face of this prima facie showing, Plaintiffs then had to “demon-strate the existence of specific evidentiary facts which would require trial on the mer-its.” Paragon Found., Inc., 2006-NMCA-004, ¶ 11 (internal quotation marks and citation omitted). Plaintiffs failed to make this showing.{35} Plaintiffs characterize Matranga’s batting as the “wanton engagement in batting practice with utter indifference to the consequences.” Plaintiffs thus seem to recognize that something more than mere negligence is necessary if they seek to impose liability on a baseball player. However, Plaintiffs have presented no evidence suggesting that Matranga’s men-tal state would support an intentional tort. The only evidence Plaintiffs submitted regarding Matranga’s mental state was the statement in Chad Kuhn’s affidavit stating, “It is my belief that the Houston Astros and Dave Matranga were also negligent during their batting practice by intentionally hit-ting balls into a populated area of the park which was unprotected.” This statement does not comport with the requirements for affidavits submitted in opposition to a motion for summary judgment, which “shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence.” Rule 1-056(E) NMRA. “Belief or opinion testimony alone, no matter how sincere it may be, is not equivalent to personal knowledge.” Martinez v. Metzgar, 97 N.M. 173, 175, 637 P.2d 1228, 1230 (1981). Plaintiffs did not present any other evidence suggesting that Matranga and/or the Astros did any-thing that might be considered negligent


under the circumstances. Consequently, summary judgment in favor of the Astros and Matranga was proper.The District Court Properly Denied Plaintiffs’ Motion to Amend{36} After the hearings on Defen-dants’ motions for summary judgment, Plaintiffs filed a motion seeking leave to file a second amended complaint, which added allegations that “Matranga, with the assistance of the [p]itching [c]oach, intentionally tried to target high velocity baseballs” into the area where Emilio and his family were sitting, that even after Emilio was struck, Matranga continued to target the area with balls in an attempt to clear the area of spectators, and that Ma-tranga and/or his pitching coach intended to and did touch or apply force to Plaintiffs and others in an “insolent manner.” The district court scheduled a hearing on the motion, but before the hearing, it granted Defendants’ motions for summary judg-ment. We construe this as a denial of the motion to amend. See Stinson v. Berry, 1997-NMCA-076, ¶ 8, 123 N.M. 482, 943 P.2d 129 (deeming implicitly denied a motion to amend the complaint filed af-ter argument of the defendants’ summary judgment motions where, without ruling on the motion to amend, the district court entered summary judgment inconsistent with the granting of the amendment).{37} We review the denial of a motion to amend for abuse of discretion. Hedicke v. Gunville, 2003-NMCA-032, ¶ 20, 133 N.M. 335, 62 P.3d 1217 (filed 2002). Al-though leave to amend should be freely given when justice so requires, “[w]here a motion to amend comes late in the pro-ceedings and seeks to materially change [the p]laintiff’s theories of recovery, the court may deny such motion.” Id. (internal quotation marks and citation omitted).{38} In the present case, Plaintiffs filed their motion to amend nearly two years af-ter they initiated the litigation and nearly a month after the hearings on the motions for summary judgment. The Astros and Ma-tranga argued that the district court should deny the motion because (1) Plaintiffs un-duly delayed the filing of their motion, (2) the addition of the intentional tort claims would be futile, and (3) Plaintiffs’ motion exhibited a bad motive. See Krieger v. Wilson Corp., 2006-NMCA-034, ¶ 24, 139 N.M. 274, 131 P.3d 661 (filed 2005) (stat-ing that “amendment should be allowed in the absence of a showing of dilatory faith, undue delay, bad motive on the part of the movant, repeated failure to cure

deficiencies by previous amendments, undue prejudice to opposing party, or futility of the amendment”). The Astros and Matranga also argued that they would be prejudiced by the proposed amendment because it would substantially change the theory of liability against them and require “significant new preparation.”{39} We agree that allowing the amend-ment would have prejudiced the Astros and Matranga. Plaintiffs’ first amended complaint did not allege any intentional torts against the Astros and Matranga. Instead, the first amended complaint al-leged that “a ball was hit directly into the left field picnic tables at Emilio Crespin by Dave Matranga,” that “Matranga and other players continued hitting balls into the picnic area[,] scattering the visitors for cover,” and that Emilio suffered injuries “[a]s a proximate result of the negligence.” The first amended complaint further al-leged that “Matranga ignored his duty to exercise ordinary care as he directed the ball into the occupied picnic area” and that the Astros “authorized, participated in or ratified [Matranga’s] negligent conduct.” These allegations are couched in terms of negligence rather than intentional acts. The first amended complaint repeatedly referenced the “negligence” of Defen-dants. Thus, the proposed amendment would have added entirely new intentional tort claims against the Astros and Matran-ga after the parties had briefed and argued the summary judgment motions addressed to Plaintiffs’ original negligence theory.{40} Plaintiffs claim that the Astros and Matranga had notice from the first amended complaint that Plaintiffs were attempting to allege intentional tort claims because the first amended com-plaint alleged that “Matranga was wanton and showed an utter indifference to or conscious disregard for the safety of [ ] Plaintiffs.” We are not persuaded. The quoted language is associated with claims for punitive damages. See UJI 13-1827 NMRA (explaining that punitive damages may be awarded for “wanton” conduct and that “[w]anton conduct is the doing of an act with utter indifference to or conscious disregard for a person’s . . . safety”). We know of no intentional tort that has elements employing similar characteriza-tions. Consequently, we conclude that the Astros and Matranga would have been prejudiced by the proposed amendment and therefore, that the district court did not abuse its discretion in denying Plaintiffs’ motion to amend.

CONCLUSION{41} For the foregoing reasons, we reverse summary judgment in favor of the Isotopes and the City, we affirm summary judgment in favor of the Astros and Ma-tranga, and we affirm the district court’s denial of Plaintiffs’ motion to amend their complaint.{42} IT IS SO ORDERED. CYNTHIA A. FRY, Chief Judge

I CONCUR:MICHAEL E. VIGIL, JudgeRODERICK T. KENNEDY, Judge (concurring in part, dissenting in part).

KENNEDY, Judge (concurring in part, dissenting in part).{43} My colleagues reject nearly one hundred years of American jurisprudence today. By refusing to adopt the baseball rule, they isolate our state from others having already considered the matter and ignore the clear sign post provided by our Supreme Court in McFatridge, 69 N.M. at 271, 365 P.2d at 918. I believe that the baseball rule adequately establishes a reasonable standard of care that may be followed as a matter of law. The majority slides from a legal standard to one that promotes fact-based uncertainty where such uncertainty does not belong. {44} The majority opinion stakes much of its argument on the idea that New Mexico juries are capable of determining for themselves whether, in a given factual scenario, a stadium operator reasonably protects its patrons from harm. I agree, insofar as juries determine whether the facts of any given case violate a particular duty of care. But the issue of whether a party owes a duty of care to another is a matter of law, not fact, and such conclusions are clearly left in the hands of New Mexico’s courts. Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990) (holding that “[t]he existence of a duty is a question of policy to be determined with reference to legal precedent, statutes, and other princi-ples comprising the law”); Schear v. Bd. of County Comm’rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984) (holding that “[w]het-her a duty exists is a question of law for the courts to decide”). Thus, as the court held in Turner v. Mandalay Sports Entertain-ment, LLC, 180 P.3d 1172, 1175-76 (Nev. 2008), the baseball rule “does not elimi-nate the stadium owner’s duty to exercise reasonable care under the circumstances . . . rather, it defines that duty in detail.” Id.


(footnote omitted). The majority, by put-ting the legal question to the jury, reverse the batting order. The existence of a duty is the standard a jury applies to the facts, not an ad hoc judgment as invited by the majority.{45} A specific duty founded upon what constitutes reasonable care has been well-established for this exact purpose—the conduct of baseball games. The majority’s rejection of the baseball rule places New Mexico in isolation from most other states that have considered it. American juris-dictions overwhelmingly embrace some form of the rule, holding that a stadium owner’s duty to spectators is limited to screening the dangerous area behind home plate. Sciarrotta v. Global Spectrum, 944 A.2d 630, 632 (N.J. 2008); Turner, 180 P.3d at 1175-76; Lawson ex rel. Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1015 (Utah 1995); Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989); Powless v. Milwaukee County, 94 N.W.2d 187, 189 (Wis. 1959); Morris v. Cleveland Hockey Club, 105 N.E.2d 419, 426 (Ohio 1952); Erickson v. Lexington Baseball Club, 65 S.E.2d 140, 141 (N.C. 1951); Quinn v. Recreation Park Ass’n, 46 P.2d 144, 146 (Cal. 1935) (in bank); Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932); Kavafian v. Seattle Baseball Club Ass’n, 181 P. 679, 679 (Wash. 1919) (en banc) (per curiam); Pakett v. The Phillies L.P., 871 A.2d 304, 307-08 (Pa. Commw. Ct. 2005); Benejam, 635 N.W.2d at 223; Maytnier, 225 N.E.2d at 84; Hunt v. Thomasville Baseball Co., 56 S.E.2d 828, 829 (Ga. Ct. App. 1949); Lorino v. New Orleans Baseball & Amuse-ment Co., 133 So. 408, 409 (La. Ct. App. 1931); Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076, 1077 (Mo. Ct. App. 1913). As the court stated in Benejam, “Our review of precedents from other jurisdictions finds overwhelming, if not universal, support for the [baseball] rule that [the] defendant advocates.”1 Benejam, 635 N.W.2d at 221 (emphasis added) (foot-note omitted).

{46} Each of the states contiguous to New Mexico have likewise adopted some form of the baseball rule. See Colorado Baseball Spectator Safety Act of 1993, Colo. Rev. Stat. Ann. § 13-21-120 (1994) (statutorily adopting the baseball rule); Bellezzo v. State, 851 P.2d 847, 852-53 (Ariz. Ct. App. 1992); McNiel, 268 S.W.2d at 246. At least three other states have gone so far as to extend the rule to ice hockey arenas. Modec v. City of Eveleth, 29 N.W.2d 453, 456 (Minn. 1947); Inger-soll v. Onondaga Hockey Club, 281 N.Y.S. 505, 508 (N.Y. App. Div. 1935); Morris v. Cleveland Hockey Club, 105 N.E.2d 419, 426 (Ohio 1952). And still others have defined reasonable duties to spectators at automobile racing events, Capital Raceway Promotions, Inc. v. Smith, 322 A.2d 238 (Md. Ct. Spec. App. 1974), and wrestling matches, Davis v. Jones, 112 S.E.2d 3 (Ga. Ct. App. 1959). But perhaps most persua-sive is the opinion of our own Supreme Court. {47} McFatridge, involved a suit filed by a spectator to a Harlem Globetrotter game in Tucumcari, New Mexico. Among other allegations, the plaintiff claimed that the defendant team owner was negligent in not protecting the plaintiff from being struck in the face with a basketball. 69 N.M. at 272-73, 365 P.2d at 919. After a jury verdict for the plaintiff, the defen-dant appealed. Id. He urged the court to recognize the baseball rule and apply it to basketball games. Id. at 276, 365 P.2d at 921. The Court refused to extend the rule, but it did so only after explaining the rule’s unique applicability to the game of baseball.

That there is danger from being . . . struck by balls . . . in certain locations at baseball games which would be known to fans of the game is clear and from this fact arises the custom to protect the areas of greatest danger, and the rule as stated by the note writer2 . . . we are not advised of any similar danger being present at basketball games[.]

Id. at 277, 365 P.2d at 922. Thus, although not a formal adoption of the baseball rule, our Supreme Court clearly noted the rule’s general acceptance as an American “custom” and considered at least some of the several reasons for its acceptance. In distinguishing the rule between baseball and basketball, the Court clearly asserted the rule’s applicability to baseball. The current writers of American Law Reports agree. They cite McFatridge with the parenthetical “(apparently recognizing rule)” immediately afterward. James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24, § 3[a] (1979). We should unequivocally adopt the rule here.{48} “Spectators who attend a sporting event often run the risk of injury from foul balls, errant pucks, clashing bodies, teeter-tottering stands, and more.” Walter T. Champion, Jr., “At the Ol’ Ball Game” and Beyond: Spectators and the Potential for Liability, 14 Am. J. Trial Advoc. 495, 496 (1991). Indeed, such risks compel many spectators to attend sporting events in the first place, and many a baseball fan attends in the hope of walking away with a home-run or foul ball. But when the majority’s opinion arrives at its logical conclusion, a specific duty of care that has remained intact for baseball falls to a general rule that does not recognize the necessary factual distinction between a general obligation of care and one developed over years for the specific application. A fair balance has already been struck as a matter of law; no duty was breached. While tragic in the extreme, the injuries suffered in this case did not result from any negligence in the conduct of the game or design of the sta-dium.{49} I would affirm the district court in all respects and concur with my colleagues only in those issues where they affirm the district court. RODERICK T. KENNEDY, Judge

1The baseball rule does not require the jurisdiction to observe assumption of the risk. Indeed, many comparative fault jurisdictions have adopted it. See Neinstein v. Los Angeles Dodgers, Inc., 229 Cal. Rptr. 612 (1986); Kavafian, 181 P. at 679.2It is generally held or recognized that where a spectator who has knowledge of the game of baseball is given a choice between seats that are protected by screens and those that are not, and elects, or by reason of the protected seats being filled, is required, to sit in the unscreened area of the stands, he thereby . . . accepts the reasonable hazards inherent in and incident to the game, and may not recover for injuries received from batted or wildly thrown balls. McFatridge, 69 N.M. at 276, 365 P.2d at 922 (internal quotation marks and citation omitted).


Certiorari Not Applied For



Topic Index:Statutes: Rules of Construction

Workers’ Compensation: Basis for Compensation; Benefits, General; and Date of Disability

VICTOR GUTIERREZ, Worker-Appellee/Cross-Appellant,

versusINTEL CORPORATION, Self-Insured,

Employer-Appellant/Cross-Appellee.Nos. 28,472/28,678 Consolidated (filed: August 10, 2009)

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATIONGREGORY D. GRIEGO, Workers’ Compensation Judge

opinion

michael e. vigil, Judge

{1} This workers’ compensation appeal is a sequel to Baca v. Complete Drywall Co., 2002-NMCA-002, 131 N.M. 413, 38 P.3d 181 (filed 2001), which requires us to determine whether the workers’ compensa-tion judge (WCJ) correctly awarded Worker benefits beyond the 500-week period set by NMSA 1978, Section 52-1-42(A)(2) (1990). In Baca, the worker had an injury to a scheduled member, as well as a non-scheduled injury, and we held that the benefits period for the scheduled member could be added to the benefits period for the non-scheduled injury. 2002-NMCA-002, ¶ 27. In the current case, Worker fell off a ladder in 1996, injuring his left foot and back. The WCJ followed Baca, added both benefits periods together, and allowed 615 weeks of benefits.{2} Both Employer and Worker appeal. Employer contends that Baca is inappli-cable, and that Worker is limited to 500 weeks of benefits, beginning on the date of the accident. Worker contends that he is entitled to 699 weeks of benefits and that benefits for his back injury should have begun on June 14, 2005, the date he had back surgery.

LEOF T. STRANDATTORNEY AT LAW, P.C.


PAUL MAESTASMAESTAS & SUGGETT, P.C.Albuquerque, New Mexico

for Appellant

{3} We affirm the compensation order in all significant respects. We hold that Baca applies and justifies more than 500 weeks in benefits. As to Worker’s cross-appeal, we reject his contention that the 500-week period for benefits for his back injury should have begun on the date of his back surgery. However, we agree with his claim that he is owed $859.08 for the time period between April 13 and May 1, 2006.BACKGROUND{4} On November 30, 1996, Worker slipped off a ladder and fell approximately five feet, landing on his left heel and injur-ing his left foot. He tore the plantar fascia in his foot and injured his plantar nerve. He landed on his left side and injured his back as well. The evidence presented at trial in 2008 detailed Worker’s consistent foot, leg, and back pain, and his progressive decline over a long period of time since the accident. {5} In January 1997, Worker began to see Dr. Laura Mitchell, who concluded Worker’s “physical findings were consis-tent with a plantar fascia tear and resultant compression of the first branch of the lateral plantar tear.” In October 1997, Dr. Mitchell stated that conservative measures had failed and Worker underwent surgery on his foot in January 1998. In June 1998, Worker began seeing Dr. Brian Delahous-

saye, who referred Worker back to Dr. Mitchell in September 1998 for possible scar exploration. In December 1998, Dr. Mitchell performed her second surgery on Worker, and in February 1999, Dr. Mitchell noted that Worker was worsening instead of improving. In April 1999, Dr. Mitchell turned Worker’s care over to Dr. Delahous-saye. Dr. Delahoussaye noted his opinion in June 1999, that “[Worker] is not going to benefit from any additional interventions.” Worker saw Dr. Mark Haas, a podiatrist, from July 20, 1999, to March 12, 2002. Dr. Haas performed surgery on Worker’s left foot on October 28, 1999, and a second surgery to the same foot on November 30, 2001. {6} In 2000, Dr. Theresa Elliott noted that Worker had “recurrent low back pain and left leg pain” since his accident in 1996 and that he was progressively getting worse. In 2001, Dr. Elliott noted that he had de-generative disc disease and other spinal problems.{7} Dr. Pamela Black first saw Worker in 2002. At that time, he was complaining of left back, foot, and hip pain. His MRI indicated spondylolisthesis at L5-S1, which she described as a disc improperly lined up, and spondylolysis, a fracture in the back part of the spine. In early 2003, she felt he was in need of chronic pain management for nerve pain. By October 2003, Worker required five to seven pain medications per day to keep his pain under control. Dr. Black also tried to treat Worker’s leg pain with a caudal epidural injection, which involves bathing the spine with medication. In November 2004, Worker still had pain radiating down his leg. By December 2004, Worker had to lie down each day at 4:00 p.m. because he was unable to do anything else and still had low back pain and left leg “nerve” pain. By March 2005, it was hard for Worker to walk by the end of the afternoon.{8} Dr. Claude Gelinas, a spine surgeon, noted that when he first saw Worker in April 2005, Worker complained of back pain radiating down his left leg ever since the accident in 1996. Worker had been through all forms of conservative treat-ment, was on narcotic pain medication daily, and reported worsening pain. Dr. Gelinas stated that Worker’s disc problem, isthmic spondylolisthesis, could cause the kind of radiating pain Worker reported. Spondylolisthesis is congenital, but it can become symptomatic from trauma. Dr. Gelinas stated that, to a reasonable medical probability, Worker’s back and leg


pain were directly attributable to the 1996 accident. Dr. Gelinas performed surgery on June 14, 2005, to repair the disc. The surgery resulted in a stable disc, and Worker reached maximum medical improvement (MMI) on May 1, 2006.{9} However, even after back surgery, Defendant continued to have problems. In 2006, Dr. Black tried other treatments to address Worker’s continuing pain. In February 2006, she tried trigger point in-jections to alleviate his back spasms. He was on Demerol at night for pain control. In March 2006, she tried a selective nerve root block in which medication is injected into the area where the nerves come out of the spine and start down the leg, but it did not help. In August 2006, Worker was still having leg pain and back spasms. Dr. Black thought that the 1996 accident could have caused Worker’s anatomical spine abnormalities to become symptomatic. She noted that Worker’s gait problems from his injuries could also have played a role and that his injuries had progressed over time.{10} After considering the evidence, the WCJ determined that, combining the foot injury and the back injury, Worker was entitled to 615 weeks of benefits, begin-ning on the date of the accident. Employer contends benefits should be limited to 500 weeks while Worker contends benefits should be for 699 weeks.DISCUSSION{11} This appeal presents both factual and legal issues. In a workers’ compensa-tion case, we apply a whole record review when assessing whether there is substantial evidence to support the WCJ’s decision. Chavarria v. Basin Moving & Storage, 1999-NMCA-032, ¶ 11, 127 N.M. 67, 976 P.2d 1019. “In applying whole record review, this Court reviews both favorable and unfavorable evidence to determine whether there is evidence that a reasonable mind could accept as adequate to support the conclusions reached by the fact finder.” Levario v. Ysidro Villareal Labor Agency, 120 N.M. 734, 737, 906 P.2d 266, 269 (Ct. App. 1995). To the extent this appeal presents legal issues and issues of statutory construction, we review those questions de novo. Baca, 2002-NMCA-002, ¶ 12.1. Application of Baca{12} The Workers’ Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2007), addresses sched-uled injuries—injuries to a specified body part—as well as non-scheduled injuries. Compare § 52-1-43, with § 52-1-42. In Baca, the worker had scheduled injuries

to the knees. Over time, the knee injuries caused shoulder problems, which are not scheduled injuries. 2002-NMCA-002, ¶¶ 3-5. The employer argued that sched-uled injuries are simply a special kind of permanent partial disability, and therefore the scheduled injury benefits should be deducted from the 500-week period that the worker would be entitled to receive benefits for his shoulder problems. Id. ¶ 14. We rejected the employer’s contention, hold-ing that scheduled injuries are separate and distinct from non-scheduled injuries. Id. ¶ 21. Accordingly, we allowed the worker to recover more than 500 weeks in benefits. Id. ¶¶ 24-25. {13} In the current case, the WCJ fol-lowed Baca, allocated 500 weeks for the back injury, and another 115 weeks for the foot injury, for a total of 615 weeks. See § 52-1-43(A)(32) (providing that the benefits period for a scheduled injury to a foot is 115 weeks). Employer argues that Baca is inapplicable. Employer contends that Baca is distinguishable because in that case the worker had a scheduled injury or injuries that later caused the shoulder problems. In contrast, in the current case, Worker’s foot and back injury occurred at the same time. Employer argues that this factual distinction means that Baca is inapplicable. Employer argues that where, as here, the scheduled injury and the non-scheduled injury all occur at the same time, then the 500-week limitation in Section 52-1-42 applies.{14} We disagree. We see no compel-ling reason to depart from Baca’s rationale that scheduled injuries and non-scheduled injuries are separate and distinct concepts. 2002-NMCA-002, ¶ 21. If a worker whose scheduled injury leads to a progressive deterioration resulting in a later injury to a non-scheduled member is entitled to a lon-ger benefits period, we see no reason why a worker should be subjected to a different rule because he or she has the misfortune to suffer the scheduled and non-scheduled injuries at the same time. Moreover, in Baca, we reached our result after engag-ing in statutory construction. Employer has not pointed to any language in the Act that would result in a different statutory construction when scheduled and non-scheduled injuries occur at the same time. Consequently, we follow Baca here. {15} The point of the Act is to compen-sate workers for injuries caused by their employment while being fair to the em-ployer. See Smith v. Ariz. Pub. Serv. Co., 2003-NMCA-097, ¶ 17, 134 N.M. 202, 75

P.3d 418. The Act represents a quid pro quo in which the employee gives up his or her common law rights in exchange for com-pensation, and the employer has limited potential liability in exchange for providing compensation. See Hall v. Carlsbad Super-market/IGA, 2008-NMCA-026, ¶ 20, 143 N.M. 479, 177 P.3d 530 (filed 2007). We do not favor constructions of the Act that limit a worker’s ability to recover for the full extent of his or her injuries. Id. (stating that the purpose of the Act is not advanced by adopting technical or overly restric-tive constructions that impede an injured worker’s ability to obtain compensation). {16} These polices support our conclu-sion that a worker should be fairly com-pensated for the full extent of his or her injuries. Here, Employer does not dispute that all of Worker’s injuries were caused by his accident in falling off the ladder, or that Worker’s progressive deterioration is a direct result of that accident. Employer’s only argument is that Worker’s benefits period should be limited to 500 weeks. The foundational policies of the Act do not warrant such a restrictive reading of the Act. On this record, there is no serious dispute that Worker has not been the same since the accident and never will be the same. We see no reason to narrowly limit Baca, or to interpret the Act, in a way that will limit Worker’s benefits to 500 weeks. We conclude that the WCJ’s application of Baca, and award of 615 weeks of benefits, is correct.{17} Employer relies on Baca’s language that allowing Worker to combine scheduled injury benefits and non-scheduled injury benefits “will, in effect, restart the period during which benefits are to be paid every time a condition is aggravated,” and our comment “that this is not the intended effect of our ruling.” 2002-NMCA-002, ¶ 26. Employer argues that if we allow Worker to obtain more than 500 weeks of benefits for all of his injuries, we will be inappropriately expanding the Act and will be allowing exactly what we said in Baca we would not allow. We disagree. Under the facts in this case, by allowing scheduled injury benefits and non-scheduled injury benefits to be added, we are not “restart-ing” the period based on the aggravation of a condition. We are simply following Baca’s core principle that two kinds of benefits may be added together. 2. Worker’s Cross-Appeal{18} Worker’s cross-appeal argues that the compensation order’s 615-week ben-efits period is too short. He contends that he


is entitled to 699 weeks of benefits. He ar-gues that the 500-week period for his back injury should begin as of June 14, 2005, the date of his back surgery. He claims that this is because no doctor gave him an impairment rating for his back before this date. {19} The date of disability is a factual question. See Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 30, 137 N.M. 497, 113 P.3d 320. The WCJ determined that, for all purposes, the date of disability was November 30, 1996, the date of the accident. Reviewing the whole record, this determination is adequately supported. The evidence is undisputed that Worker complained of low back pain consistently from the date of the accident to the date of trial. In 2002, Dr. Elliott noted that Worker’s low back pain was related to the accident. The evidence, which we have already discussed, establishes that Worker was highly symptomatic from his low back, down into his left foot, over a long period of time, beginning at the time of the accident. Worker himself testified that his foot and back pain had been consistent since the ac-cident, that his back pain never went away, and that the pain had affected his ability to engage in physical activity and to work. He testified that, from the date of the accident until his back surgery, his back got worse. {20} As we stated in Baca, it is the disability caused by the accident, not the accident itself, that triggers the liability for benefits. “[W]hen there is a delay between the accident and the resulting disability, as occurred with [the w]orker’s right knee and the bilateral shoulder condition, entitle-

ment to compensation begins on the date of the disability rather than the date of the accident.” 2002-NMCA-002, ¶ 15. In Baca, the worker’s shoulder problem did not develop on the date of the accident, but instead developed later. Accordingly, in that case it was appropriate to begin the benefits period when the shoulder problem manifested itself. {21} This case, however, is factually distinguishable. Unlike the situation in Baca, Worker’s back was injured in the accident and continued to be consistently symptomatic from the time of the accident until back surgery and even after surgery. Therefore, the whole record supports the WCJ’s decision to use the date of the ac-cident as the trigger for the benefits for Worker’s back. The back surgery, per-formed approximately eight years after the accident, is not like the development of shoulder problems experienced by the worker in Baca.{22} Therefore, we disagree with Work-er’s contention that his back surgery started the 500-week benefit period. The surgery was performed to address a progressive deterioration and did not recommence the benefit period. Worker’s argument presents the scenario we addressed, and rejected, in Baca. Were we to start the benefit period on the date of the back surgery, performed ap-proximately eight years after the accident, we would be restarting the benefits period every time a condition is aggravated, or every time surgery is performed, to address an ongoing condition. Baca expressly cautioned that this was not the intent of our ruling. Id. ¶ 26.

{23} Finally, Worker claims that he has not been paid total temporary disability benefits, totaling $859.08, for the period between April 13 and May 1, 2006, the date of MMI. Employer’s briefs do not respond to this claim, and therefore we assume Worker is correct. See Ferrell v. Allstate Ins. Co., 2007-NMCA-017, ¶ 49, 141 N.M. 72, 150 P.3d 1022 (filed 2006) (stating that where a party does not respond to an issue, we may hold in the other party’s favor without analyzing the issue), rev’d on other grounds, 2008-NMSC-042, 144 N.M. 405, 188 P.3d 1156; Delta Automatic Sys., Inc. v. Bingham, 1999-NMCA-029, ¶ 31, 126 N.M. 717, 974 P.2d 1174 (filed 1998) (noting that failure to respond to an issue constitutes concession on the matter, and stating that this Court has no duty to search the record or research the law to defend a party that fails to defend itself on an issue). Employer shall pay this amount to Worker within thirty days from the mandate in this case.{24} For these reasons, we affirm the compensation order. Worker’s cross-appeal is denied except for Worker’s claim that he is entitled to payment for the time period between April 13 and May 1, 2006. Worker’s attorney is to be awarded attor-ney fees for this appeal in an amount to be determined by the WCJ.{25} IT IS SO ORDERED. MICHAEL E. VIGIL, Judge

WE CONCUR:JONATHAN B. SUTIN, JudgeROBERT E. ROBLES, Judge


Certiorari Denied, No. 31,853, August 18, 2009



Topic Index:Appeal and Error: Remand

Constitutional Law: Double JeopardyCriminal Law: Aggravating or Mitigating Circumstances; and Battery

Criminal Procedure: Effective Assistance of Counsel; Habitual Criminal; and Substantial or Sufficient Evidence

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusMARK GARCIA,

Defendant-Appellant.No. 27,939 (filed: June 30, 2009)

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTYSTEPHEN K. QUINN, District Judge

opinion

Jonathan B. sutin, Judge

{1} Defendant Mark Garcia appeals his convictions of petty-misdemeanor battery and aggravated battery on Javier Jimenez. We hold that Defendant’s convictions violate double jeopardy. We reject the remaining claims. We affirm the aggravated battery conviction. We reverse the petty-misde-meanor battery conviction and instruct the district court to vacate that conviction and the sentence accompanying that convic-tion.BACKGROUND {2} Defendant and Jimenez were inmates in the Curry County, New Mexico, Detention Center. Jimenez testified at trial as follows. One day Defendant called Jimenez into his cell and began to question Jimenez about Jimenez’s uncle, who was implicated in an unrelated criminal matter. Defendant was an-gry and pushed Jimenez, and Jimenez pushed back. Defendant punched Jimenez and while Jimenez stepped back and swung at Defen-dant, something hit Jimenez from behind,

GARY K. KINGAttorney GeneralFARHAN KHAN


for Appellee


NINA LALEVICAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

and he fell to the floor. Jimenez stated that he did not know who hit him from behind. While Jimenez was on the floor, Defendant got on top of him and continued to punch him, and then Defendant got up and stomped on Jimenez’s leg, shattering the leg. {3} Other testimony indicated that when detention officers arrived, they saw blood on Jimenez’s hands, and Jimenez told the officers that he slipped and fell. When looking around for anyone else in the cell, the officers found Defendant in a bunk with covers pulled over his head. Defendant had a cut on his forehead and blood on his hands. Defendant told an officer that he was taking a nap, that the cut on his forehead was from bumping his head earlier, and that the blood was from a scab he had removed. An officer testified that the bunk in which Defendant was found belonged to an inmate named Ralph Flores. When Jimenez was in the hospital, he stated that it was Defendant who injured him. Detention officers testified that inmates may not like to tell what happened in these incidents until they are out of jail and the fear of retaliation has passed.{4} Defendant’s only witness was Ralph

Flores, who testified that no beating took place. He also testified that he did not see exactly what occurred, that he and Defendant had been cleaning the floor, and that while the floor was still wet, he heard a snap and saw another inmate lying on the floor. Flores stated that the bunk in which Defendant was lying was assigned to Defendant. Contrary to Flores’s testimony, an officer testified that the bunk Defendant was in belonged to Flores. {5} Defendant was first charged with ag-gravated battery in violation of NMSA 1978, Section 30-3-5(C) (1969), a third degree felony. Just before trial, he was charged by amended information, not only with aggra-vated battery, but also with battery contrary to NMSA 1978, Section 30-3-4 (1963), a petty misdemeanor. Petty-misdemeanor battery is a lesser-included offense of ag-gravated battery. State v. Pettigrew, 116 N.M. 135, 138, 860 P.2d 777, 780 (Ct. App. 1993). The difference is that simple battery does not require an intent to injure. Id.{6} At trial, Defendant moved for a directed verdict on the ground that the evidence did not support two separate battery counts and convictions; the State argued that these were separate battery counts that did not merge. The district court denied Defendant’s mo-tion, ruling that “if there had been two counts charged of battery, that might be different and they may merge, but in this instance, there is a distinct, in my mind, separation between the jumping on the leg and the ini-tial shove or push so I’ll deny the motion.” Defendant was found guilty and convicted of aggravated battery and petty-misdemeanor battery.{7} Defendant appeals the convictions on the grounds that (1) the convictions violate double jeopardy; (2) his attorney was inef-fective for not objecting when the State added the misdemeanor battery charge just four days before trial; (3) insufficient evi-dence existed to convict Defendant of the charges; (4) the court erred in classifying the aggravated battery charge as a serious, violent offense; and (5) the court erred when it enhanced, pursuant to NMSA 1978, § 31-18-17 (2003), the misdemeanor battery.DISCUSSIONDouble Jeopardy{8} We review double jeopardy claims de novo. State v. Dombos, 2008-NMCA-035, ¶ 9, 143 N.M. 668, 180 P.3d 675, cert. de-nied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673. This is a unit-of-prosecution, double jeopardy issue. See id. ¶ 10 (stating that unit-of-prosecution cases are those in which a defendant is convicted of multiple violations of the same criminal statute).


The question is whether Defendant could be convicted of two batteries, one simple and one aggravated, stemming from the circumstances in this case. The unit-of-prosecution analysis stems from Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). See State v. Bernal, 2006-NMSC-050, ¶¶ 13-18, 140 N.M. 644, 146 P.3d 289; Dombos, 2008-NMCA-035, ¶¶ 11-12. The unit-of-prosecution analysis is done in two steps. State v. Boergadine, 2005-NMCA-028, ¶ 15, 137 N.M. 92, 107 P.3d 532. First, we review the statutory language for guid-ance. See State v. Barr, 1999-NMCA-081, ¶ 13, 127 N.M. 504, 984 P.2d 185. If the statutory language is not clear, we must then determine whether the defendant’s acts are separated by sufficient indicia of distinctness to justify multiple punishments under the same statute. Id. ¶ 15.{9} Defendant contends that his double jeopardy right was violated because the Leg-islature intended only one punishment for the entire course of conduct during the altercation and not for each discrete act. The State con-tends that two distinct circumstances point to the occurrence of two separate offenses. According to the State, one circumstance was that an unknown assailant’s actions that knocked Jimenez to the ground constituted an independent intervening event. See State v. Cooper, 1997-NMSC-058, ¶¶ 6-7, 60-62, 124 N.M. 277, 949 P.2d 660 (determining that separate offenses occurred where an intervening struggle separated the defen-dant’s first having hit the victim intending to knock him out and take his car from the defendant then causing the victim’s death after the victim picked up a knife and the intervening struggle and escalated violence ensued). The second circumstance claimed by the State was the change in Defendant’s intent: Defendant’s initial intent to commit a petty-misdemeanor battery offense, which changed to his intent to commit a separate, aggravated-battery offense.{10} It is not disputed that the only aspect of the unit-of-prosecution analysis with which we are concerned in this case is that of distinctness. We must determine, under what is often referred to as a Herron analy-sis, whether the offenses were separated by sufficient indicia of distinctness, looking at (1) temporal proximity of the acts; (2) loca-tion of the victim during each act; (3) exis-tence of an intervening act; (4) sequencing of the acts; (5) the defendant’s intent as evidenced by his conduct and utterances; and (6) the number of victims. See Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991); see also Bernal, 2006-NMSC-050, ¶¶ 15-16 (“[W]e attempt to determine, based

upon the specific facts of each case, whether a defendant’s activity is better characterized as one unitary act, or multiple, distinct acts, consistent with legislative intent.”); Barr, 1999-NMCA-081, ¶¶ 15-16 (recognizing that acts separated by sufficient indicia of distinctness warrant separate punishments). We consider whether the acts of a defen-dant were “performed independently of the other acts in an entirely different manner, or whether such acts were of a different nature.” Boergadine, 2005-NMCA-028, ¶ 21 (inter-nal quotation marks and citation omitted). {11} At the beginning of trial, the amended criminal information was read to the jury. Before it deliberated, the jury was instructed that each crime in the informa-tion should be considered separately. The battery charge in the amended information stated that Defendant unlawfully touched or applied force to Jimenez in a rude, insolent, or angry manner. The jury was instructed that to find Defendant guilty of battery, the State was required to prove that “[D]efen-dant touched or applied force to . . . Jimenez by hitting and/or punching” and that “[D]efendant acted in a rude, insolent[,] or angry manner.”{12} The aggravated battery charge in the amended information stated that Defendant touched or applied force to Jimenez intend-ing to injure him and cause great bodily harm or acted in a way that would likely result in death or great bodily harm to Jimenez. The jury was instructed that to find Defendant guilty of “aggravated battery with great bodily harm,” the State had to prove that “[D]efendant touched or applied force to . . . Jimenez by jumping on his leg,” that “[D]efendant intended to injure . . . Jimenez,” and that “[D]efendant caused great bodily harm to . . . Jimenez or acted in a way that would likely result in death or great bodily harm to . . . Jimenez.” The jury was also instructed that great bodily harm meant “an injury to a person which results in serious disfigure-ment or results in loss of any member or organ of the body or results in permanent or prolonged impairment of the use of any member or organ of the body.”{13} The record on appeal in this case, although not as detailed as we would like, indicates that the acts of battery occurred close in time and sequence, in one location, with one victim. It appears that Defendant committed petty-misdemeanor battery dem-onstrated by pushing and punching while Jimenez was standing. Defendant’s force and perhaps intent to injure increased after someone caused Jimenez to fall to the floor. It is unclear, however, how the prosecution intended to charge or charged Defendant’s

acts of hitting Jimenez in the face when Jimenez was on the floor. When Jimenez was on the floor, Defendant stomped on and shattered Jimenez’s leg. {14} There was no evidence that De-fendant’s intentions to commit a battery upon Jimenez were interrupted, altered, or changed by the event that caused Jimenez to be knocked to the floor. Likewise, there is no evidence that Defendant did not in-tend to injure or cause great bodily harm to Jimenez when Defendant initiated the confrontation. Finally, there is no evidence that Jimenez’s struggle with Defendant or his being knocked to the ground had any affect upon Defendant’s state of mind during the confrontation. Defendant relies on relatively similar cases that have ruled that multiple punishments for violation of a single statute violated double jeopardy. See State v. De-mongey, 2008-NMCA-066, ¶ 15, 144 N.M. 333, 187 P.3d 679 (holding that firing three shots separated by minutes and distance trav-eled was unitary conduct, where the shots were fired during one high-speed chase in an extreme attempt to escape from a pursuing officer), cert. granted, 2008-NMCERT-005, 144 N.M. 332, 187 P.3d 678; State v. Handa, 120 N.M. 38, 44, 897 P.2d 225, 231 (Ct. App. 1995) (holding that without proof that each shot was a separate and distinct act, multiple gunshots could not support separate counts of assault because there was no proof that the acts arose as a result of a separate, indepen-dent intent); State v. Mares, 112 N.M. 193, 200, 812 P.2d 1341, 1348 (Ct. App. 1991) (holding that the defendant could be found guilty of only one count of aggravated bat-tery when he was charged with four counts involving pulling hair, beating, choking, and slapping the victim at various different loca-tions “over one violent rampage with little time between offensive contacts”). {15} We are not persuaded that the interruption that caused Jimenez to fall to the ground can be considered a significant separating event as to Defendant’s conduct. See Mares, 112 N.M. at 200, 812 P.2d at 1348 (noting the lack of detail in the record and determining that the interruption of the defendant’s course of aggravated batteries by the arrival of a vehicle causing the de-fendant to move to another location where he continued the conduct was insufficient to separate the batteries into separate offenses with separate punishments); see also Handa, 120 N.M. at 44, 897 P.2d at 231 (discussing Mares and determining that the time between shots did not constitute an intervening event where it appeared that “there was little, if any, time between the first and subsequent shots”). While Cooper, 1997-NMSC-058,


¶¶ 60-62, concludes that a struggle that in-tervened between an aggravated battery and a more violent aggravated battery with three different weapons that caused the victim’s death was enough to make the aggravated battery offenses distinct for punishment purposes, we are convinced that the Mares circumstances are more analogous to the case at hand. {16} The State’s second argument rested upon the notion that Defendant changed his intentions and that the Herron intent factor is controlling. See Herron, 111 N.M. at 361, 805 P.2d at 628. The State argues that Defen-dant’s “intent to commit petty-misdemeanor battery is demonstrated by unlawfully touch-ing Jimenez in a rude, insolent, or angry manner by pushing and hitting him after a conversation between the two[; whereas Defendant’s] intent to commit a separate aggravated-battery offense is demonstrated by his act of jumping on Jimenez’s leg while he was lying on the ground.” We are not persuaded. From all appearances, all of De-fendant’s acts were very close in time, took place in one location, to one victim, in close sequence, and in an angry manner. The acts all constituted some form of battery, starting with lesser force and increasing in force. Indications are that Defendant moved first from pushing and punching while Jimenez was standing to hitting Jimenez in the face when he was on the floor. These actions indi-cate a continuous move from lesser to greater force and culminated when Defendant got up and stomped on Jimenez’s leg. We are hard pressed to separate Defendant’s continuous course of conduct into the two fragments ad-vanced by the State. The evidence indicates Defendant was continually and sequentially progressing from lesser force to more force-ful harm over a very short period of time, all resulting without any apparent change in Defendant’s state of mind. {17} We conclude that the Herron fac-tors lead to one result in this case. We hold that separate punishments for the petty-misdemeanor battery and aggravated battery convictions violate double jeopardy. Because it carries the lesser penalty, we reverse the conviction for petty-misdemeanor battery and instruct the district court to vacate that conviction and the punishment imposed for that conviction. The petty-misdemeanor battery conviction and punishment must be vacated. See State v. Schackow, 2006-NMCA-123, ¶ 25, 140 N.M. 506, 143 P.3d 745.Ineffective Assistance{18} We review ineffective assistance of counsel claims de novo. State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719,

204 P.3d 44. At his arraignment, Defendant attacked the amended information charging petty-misdemeanor battery, asserting that it was the same charge as the aggravated battery. On appeal, Defendant asserts only that his counsel failed to object to the filing of the amended information because it was filed four days before trial. Defendant fails to present a prima facie case of ineffective assistance of counsel. His counsel objected in the district court. Even if his counsel did not specifically raise prejudice from the late filing, there exists no showing that Defendant was denied adequate notice and opportunity to defend or that he was prejudiced in any way. We therefore reject Defendant’s argu-ment of ineffective assistance of counsel.Sufficiency of the Evidence{19} The test for determining the suffi-ciency of the evidence “is whether substan-tial evidence of either a direct or circum-stantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a convic-tion. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.{20} In reviewing the sufficiency of the evidence, the appellate court resolves all disputed facts in favor of the guilty verdict, indulges all reasonable inferences in sup-port of the guilty verdict, and disregards all evidence and inferences to the contrary. Id. In viewing the evidence in this manner, the appellate court determines whether any ratio-nal jury could have found that each element of the crime charged has been established beyond a reasonable doubt. State v. Sand-ers, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994).{21} Contrary evidence does not pro-vide a basis for reversal because the jury was free to reject Defendant’s version of the facts. Rojo, 1999-NMSC-001, ¶ 19. “A reviewing court may neither reweigh the evidence nor substitute its judgment for that of the jury.” Sutphin, 107 N.M. at 131, 753 P.2d at 1319. “An appellate court does not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence.” Id. at 130-31, 753 P.2d at 1318-19. “Jury in-structions become the law of the case against which the sufficiency of the evidence is to be measured.” State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 1986).{22} We reject Defendant’s contention. Based on Jimenez’s testimony and that of the officers, there was substantial evidence of a

petty-misdemeanor battery by Defendant by the pushing and punching, and there was also substantial evidence of an aggravated battery by Defendant by jumping on Jimenez’s leg and shattering it. See Pettigrew, 116 N.M. at 139, 860 P.2d at 781 (holding that evidence of the type of beating that could result in injuries to the victim constituted substantial evidence that supported an aggravated-bat-tery conviction “when viewed, as it must be, in the light most favorable to the verdict”).District Court’s Reference{23} Relying on State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), Defendant asserts that the district court erred by referring to the crime of ag-gravated battery as a serious, violent offense. We reject this contention because Defendant does not cite to the record to show what the court stated and in what context the court stated it. We therefore will not consider the issue. See Murken v. Solv-Ex Corp., 2005-NMCA-137, ¶ 14, 138 N.M. 653, 124 P.3d 1192 (“[W]e decline to review . . . arguments to the extent that we would have to comb the record to do so.”). Even were we to consider it, Defendant does not show how he was prejudiced. See State v. Ross, 2007-NMCA-126, ¶¶ 9-10, 142 N.M. 597, 168 P.3d 169 (indicating that “[i]n determining whether a judge has exceeded the bounds of acceptable conduct, . . . [t]he critical inquiry is whether the trial judge’s behavior was so prejudicial that it denied the appellant[] a fair . . . trial”).Habitual-Offender Enhancement{24} Defendant asserts, again relying on Franklin and Boyer, that the district court erred by enhancing his petty-misdemeanor battery conviction. We reject this contention because the court did not enhance Defen-dant’s petty-misdemeanor offense. Further, even if the offense were enhanced by the dis-trict court, the issue is moot because of this Court’s reversal of the petty-misdemeanor conviction.CONCLUSION{25} Based on a violation of double jeopardy, we reverse and instruct the district court to vacate the petty-misdemeanor bat-tery conviction and sentence. We otherwise affirm the district court’s judgment and sentence.{26} IT IS SO ORDERED. JONATHAN B. SUTIN, Judge

WE CONCUR:LINDA M. VANZI, JudgeTIMOTHY L. GARCIA, Judge


Certiorari Denied, No. 31,857, August 18, 2009



Topic Index:Appeal and Error: Preservation of Issues for Appeal;

and Standard of ReviewCriminal Procedure: Motion to Suppress; Probable Cause;

Reasonable Suspicion; Search and Seizure; Search Incident to Arrest; Warrantless Arrest; and Warrantless Search

Constitutional Law: Miranda Warnings; New Mexico Constitution, General; and Suppression of Evidence

Criminal Law: Controlled Substances; and Resisting Arrest

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusPAUL MAEZ,

Defendant-Appellant.No. 27,528 (filed: July 1, 2009)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYJAMES BLACKMER, District Judge

opinion

roderick t. kennedy, Judge

{1} Defendant Paul Maez appeals the district court’s denial of his motion to suppress evidence. He contends that the ar-resting officer illegally seized him without reasonable suspicion or probable cause and asserts that Article II, Section 10 of the New Mexico State Constitution supports his claim. We disagree and affirm the district court’s denial of Defendant’s motion to suppress, holding that the arresting officer legally asserted his authority to effectuate an investigatory detention. BACKGROUND{2} Officer Ray Soto was off-duty, driving home during rush hour, and sitting in stand-still traffic near the intersection of a major arterial, Paseo del Norte and Jefferson, when he witnessed a minivan straddling the lane-divider line in westbound traffic. The minivan was “splitting” traffic and

GARY K. KINGAttorney General KATHERINE ZINN


for Appellee


VICKI W. ZELLEAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

hitting vehicles out of its way. Officer Soto testified that the minivan hit somewhere between three and five vehicles and then came to a complete stop. He indicated that the vehicles were “lurching sideways” as the minivan “split traffic.” In response to these events, Officer Soto testified he ma-neuvered his vehicle to the right, engaged his emergency lights, and “started to get on the radio” to notify other units that there had been an accident and that additional police were needed. He then exited his vehicle.{3} Officer Soto was dressed in civilian attire and driving an unmarked police car equipped with a siren and lights. As he ex-ited his cruiser, he could see that the right front tire of the minivan “was completely torn away from the vehicle and was almost detached from the vehicle.” At about the same time, the van’s driver exited the mini-van and ran south across the far left lane of westbound traffic, jumped a concrete bar-rier, and negotiated his way through three

lanes of eastbound traffic that were moving at “different intervals at higher speeds.” The driver then jumped another concrete barrier and continued across a large field. Within a few seconds of the driver’s flight, Defendant, who was a passenger in the minivan, also jumped out, but he ran in the opposite direction from the driver, towards the shoulder on the north side of the street, and over a concrete barrier.{4} Officer Soto decided to chase Defen-dant instead of the driver because the traffic situation posed fewer obstacles in the direc-tion Defendant fled. Officer Soto testified that Defendant’s flight, occurring almost simultaneously with the stalling of the minivan and through traffic at great risk to Defendant, gave him reasonable suspicion to conduct an investigation. He testified that, based on ten years of experience as a police officer, the occupants of vehicles involved in traffic accidents normally only run when “they are DWI’ing, they have a warrant, . . . [or] to hide crimes [that] have been committed.” When Officer Soto wit-nessed the minivan splitting traffic, striking other cars, and causing other vehicles to lurch sideways, he did not know if anyone had been injured. He likewise did not know if the minivan had been stolen or if the occupants were “trying to run from some-thing, [or] get away for some reason.”{5} Officer Soto also testified that once he began to catch up with Defendant, he loudly yelled, “Police, stop.” He yelled, “Police, stop” more than once, but Defen-dant refused to obey the commands. Officer Soto stated that he was never farther than forty-five or fifty feet from Defendant dur-ing the pursuit. After running about fifty yards with Officer Soto pursuing him and yelling for him to stop, Defendant stopped. Defendant was approximately thirty feet from Officer Soto at that point. Officer Soto then ordered, “Police. Get on the ground.” Defendant turned around, and Officer Soto told him to “Get on the ground. Get on the ground.” Because he was brandishing his gun and badge, yelling “Police,” Officer Soto testified that he believed it was evident to Defendant that he was a police officer. Defendant then started to walk towards Officer Soto, and Officer Soto said, “Don’t do it. Get on the ground.” Nevertheless, Defendant continued to approach, keeping his hands where Officer Soto could see them, saying nothing. Officer Soto testified that he did not see a weapon “protruding” from Defendant but that Defendant was wearing “baggy clothing” and it was un-clear whether Defendant had weapons on


him. When Defendant was within two or three feet, Officer Soto kicked him in the mid-section, and Defendant “went down.” Officer Soto then pushed Defendant the rest of the way down and handcuffed him.{6} Defendant was placed under arrest for failing to obey a police officer and leav-ing the scene of an accident. He was then searched for weapons and escorted back to Officer Soto’s police cruiser. As he es-corted Defendant, Officer Soto did not ask any questions, but he testified that he was certain Defendant was read his Miranda rights. On the way, the pair reached a con-crete barrier, and because Defendant was handcuffed, Officer Soto helped him cross over and then crossed over himself. As Officer Soto was climbing over the barrier, he saw Defendant reach into his right front pocket, take out a piece of cardboard, and toss it to the ground. The piece of cardboard was a lottery scratch-off containing a white substance which later tested positive for methamphetamine. Defendant was ulti-mately charged with possession of meth-amphetamine, tampering with evidence, and resisting or evading an officer{7} Defendant filed a motion to suppress evidence obtained as a result of an unlawful search and seizure. At the hearing on the motion, Officer Soto was the only witness who testified. Following the hearing, the suppression motion was denied. Defendant entered a plea of guilty to the possession charge, but reserved his right to appeal “the issue of suppression of evidence pursuant to illegal arrest [and] search.” Judgment was entered, and Defendant now appeals his conviction.DISCUSSION{8} “This Court will not consider and counsel should not refer to matters not of record in their briefs.” In re Aaron L., 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431. Defendant did not testify at the proceedings below. Statements in Defendant’s brief regarding his emotional and mental state, the precarious condition of the minivan after it came to a stop, his reasons for immediately leaving the area, the possibility that he ran only to report the accident, and the noise level from traffic as he ran do not reference the record. Since this Court finds nothing in the record to support these assertions, we do not consider them. {9} On appeal of a suppression ruling, we view the facts in the light most favorable to the decision below and determine whether the law was correctly applied to the facts. State v. Harbison, 2007-NMSC-016, ¶ 8,

141 N.M. 392, 156 P.3d 30. We review factual determinations for substantial evidence, and we review the application of law to the facts de novo. Id. We conduct a de novo review of decisions regarding reasonable suspicion. Id.{10} Defendant raises two main issues: First, whether under the New Mexico Constitution, he was illegally seized when Officer Soto “asserted his authority to ef-fectuate an investigative detention” without reasonable suspicion; and second, whether he was illegally subjected to a warrantless seizure not supported by reasonable suspi-cion or probable cause, in violation of the Fourth Amendment, when he was riding as a passenger in a minivan and left the area after the minivan was involved in a crash. Defendant divides his first issue into four sub-issues: (1) whether his flight, which was not an “unprovoked flight upon notic-ing police,” could be used to support a find-ing of reasonable suspicion; (2) whether his flight from the scene could be included in the totality of the circumstances to give rise to reasonable suspicion or probable cause; (3) whether his flight following a “hair-raising” ride could be used to infer “consciousness of guilt,” transforming the officer’s “hunch” into reasonable suspicion; and (4) whether his flight of only 150 feet from the scene and his subsequent non-threatening approach toward the officer created an independent basis for reasonable suspicion or probable cause. In its answer brief, the State claims that Defendant failed to properly preserve his state constitutional argument for purposes of appeal. We ad-dress the parties’ arguments below.Preservation of State Constitutional Claim{11} In his motion to suppress, Defen-dant argued that New Mexico courts have interpreted the state constitution to provide broader protections than the United States Constitution, asserting that Officer Soto’s conduct in this case was illegal under both. Defendant interprets State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1 to stand for the proposition that a defendant may preserve his claim under our state constitution by first citing a case address-ing unconstitutional searches and then by presenting supporting facts. Id. ¶¶ 2, 24-25. According to Defendant, based on the long history under our state constitution of protecting the liberty interests and privacy rights of citizens, his “mere departure” from a wrecked vehicle abandoned by the driver does not provide reasonable suspicion to justify “a brief investigative detention” and

that his warrantless seizure was illegal un-der the New Mexico Constitution because it was not based on reasonable suspicion or probable cause. Our Supreme Court decided Harbison based on the United States Constitution, stating that because the issue was not raised on appeal, it would not address whether Article II, Section 10, of our state constitution would require a different result. Harbison, 2007-NMSC-016, ¶ 16 n.3. The State points out that Defendant cites no cases argued under our state constitution in which appellate courts have decided the extent to which flight from the scene of a crime may be considered for purposes of reasonable suspicion.{12} We recently held that when a state constitutional claim is asserted and there are no New Mexico cases on point to sup-port a departure from federal authority, preservation of the claim requires a party to “cite the relevant constitutional principle and assert in the district court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differ-ently from the federal provision.” State v. Garcia, 2008-NMCA-044, ¶ 10, 143 N.M. 765, 182 P.3d 146, cert. granted, 2008-NM-CERT-003, 143 N.M. 682, 180 P.3d 1181; see Gomez, 1997-NMSC-006, ¶¶ 22-23.{13} In his suppression motion, Defen-dant made only a broad statement about our state constitution providing greater protection than the United States Consti-tution. He did not refer to any particular constitutional provision or principle, and he did not provide reasons for interpreting any provision of our constitution differently from its federal counterpart. His reference to Gomez, without more, is insufficient. The remainder of his motion cited cases and facts supporting the allegation that he was seized without reasonable suspicion or probable cause when Officer Soto kicked him in the stomach and “forced” him to the ground. Such argument does not meet the requirements of either Garcia or Gomez.{14} Both the State’s response below and the district court’s order show that neither was alerted to the argument that, under our state constitution, Defendant’s flight could not be used to support reason-able suspicion. Preservation of an argu-ment for purposes of appeal requires that Defendant specifically apprise the district court of the claimed error and invoke an intelligent ruling thereon. See, e.g., State v. Varela, 1999-NMSC-045, ¶¶ 25-26, 128 N.M. 454, 993 P.2d 1280. Both the district


court and the State must be alerted to the specific claim of error in order to allow the State a fair opportunity to respond, to show the district court why it should not rule in Defendant’s favor, and to allow the district court the opportunity to correct any mistake. See Gomez, 1997-NMSC-006, ¶ 29. This also ensures that the appellate court is provided with an adequate record for review. See State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993). {15} Defendant did not comply with the requirements established in Garcia and Gomez for preserving his claim under the state constitution. He alerted neither the district court nor the State to his argument that the New Mexico State Constitution provides more protection than the United States Constitution to the passenger of a vehicle who decides to run away after the vehicle is involved in a crash. Because Defendant did not adequately preserve this argument for appeal, we will not address it. Reasonable Suspicion for Stop and Detention Under Fourth Amendment{16} Defendant argues that Officer Soto did not have reasonable suspicion to stop or detain him. Reasonable suspicion is “‘a par-ticularized and objective basis’ for suspect-ing the person stopped of criminal activity.” State v. Funderburg, 2008-NMSC-026, ¶ 15, 144 N.M. 37, 183 P.3d 922 (citation omitted). Reasonable suspicion is analyzed at the point when an actual seizure occurs. See Harbison, 2007-NMSC-016, ¶ 10; see also Garcia, 2008-NMCA-044, ¶ 16 (dis-tinguishing between seizure by physical force and seizure by show of authority: (1) seizure by show of authority requires both that a reasonable person would believe he was not free to leave and actually submitted to the show of authority; and (2) seizure by physical force occurs where there is “grasping or application of physical force with lawful authority”) (internal quotation marks and citation omitted).{17} It is difficult to know what De-fendant perceived or believed because we have only Officer Soto’s testimony as our guide. Defendant advances inconsistent arguments as to when he was arrested or submitted to Officer Soto’s show of author-ity. He claims that when he stopped, turned around, and became aware that Officer Soto “had a gun trained on him,” he was under arrest; but he also claims that Officer Soto’s show of authority was “invalid” because it was made in the absence of reasonable suspicion. Later in his brief, Defendant suggests that when he turned to face Officer

Soto, he saw “a guy in jeans and shirt” who was “saying something,” and that it was “unclear whether [Defendant] saw that the man was holding a gun.” The facts indicate that Defendant ran some distance while Officer Soto chased him shouting “Police, stop” before stopping and turning around. It is at this moment that Defendant submitted to Officer Soto’s authority. Therefore, we determine whether reasonable suspicion existed at that point. {18} Although reasonable suspicion cannot be based merely on an officer’s intuition or hunches, it “can arise from wholly lawful conduct.” Harbison, 2007-NMSC-016, ¶ 15 (internal quotation marks and citation omitted). When reviewing a claim regarding reasonable suspicion, we “must necessarily take into account the evolving circumstances” facing the officer. Funderburg, 2008-NMSC-026, ¶ 16 (inter-nal quotation marks and citation omitted). Furthermore, “[a]n officer’s continued detention of a suspect may be reasonable if the detention represents a graduated response to the evolving circumstances of the situation.” Id. {19} Without factual support, Defendant claims that when he exited and ran from the minivan, he was not running from police. He asserts that he was “trapped” in the minivan during a “demolition derby” ex-perience, was shocked and frightened, and was running “to a less precarious location” to get out of danger. But this claim lacks support from the evidence. See In re Estate of Keeney, 121 N.M. 58, 60, 908 P.2d 751, 753 (Ct. App. 1995) (indicating that this Court will consider only matters that were considered by the district court at the time it made its decision). Therefore, because Defendant argues that he did not engage in the type of “unprovoked flight upon noticing police” discussed in Harbison, 2007-NMSC-016, ¶ 19, we look to the facts in the record—that Officer Soto had turned on his lights and siren prior to the driver and Defendant exiting the van and that Officer Soto was himself already outside his own vehicle.{20} Defendant claims his flight did not create the same quantum of reasonable suspicion present in Harbison. Harbison held that an officer cannot intentionally or unlawfully frighten or provoke a person into fleeing and then use that flight to justify a stop of the person. Id. ¶ 19. In circum-stances where the police action itself was not intended to incite flight—and officers were on the scene attempting to deal with a situation involving probable cause to

believe illegality was afoot—flight can be a circumstance that is properly evaluated to establish reasonable suspicion. Id. ¶ 20. As we stated above, after seeing the minivan driven recklessly and hitting cars, Officer Soto moved his vehicle, engaged his lights, and radioed for more units to come to the scene of the accident. Officer Soto was just beginning to get out of his car when the minivan’s driver jumped out and ran over a concrete barrier and across three lanes of moving traffic. He was followed almost immediately by Defendant, who fled in the opposite direction through standstill traffic. We hold that under the circumstances of this case, evidence of Defendant’s flight was properly included in the district court’s determination of reasonable suspicion. There is nothing to suggest that Officer Soto unlawfully provoked Defendant into fleeing. He was simply sitting in rush-hour traffic when the van attracted his atten-tion. As discussed in Harbison, the lack of provocation is critical to whether evidence of flight can be used to support reasonable suspicion. Id. ¶ 19. Here, because Defen-dant’s flight was unprovoked and occurred after Officer Soto made his presence known by activating his lights, the district court properly factored Defendant’s flight into its reasonable-suspicion analysis. Id. ¶ 20. {21} Defendant appears to claim that his flight from the scene cannot be considered under a reasonable suspicion analysis be-cause he was only a passenger and not the person guilty of reckless driving. Relying on State v. Affsprung, 2004-NMCA-038, 135 N.M. 306, 87 P.3d 1088, Defendant argues that it was only an “unfortunate coincidence” that he was a passenger in the vehicle and that this fact alone cannot create a reasonable suspicion. In Affsprung, the officer obtained identification from the defendant—a passenger in the stopped vehicle—even though the officer had only a generalized concern but had no suspicion that the defendant was involved in criminal activity and no particularized concern about his safety. Id. ¶ 19.{22} In this case, on the other hand, Officer Soto had more than just a general concern. Officer Soto testified that based on his ten years of experience, when a minivan comes through traffic, wrecking several vehicles in the process, and both occupants immediately exit and run away, there is reason to believe that the occupants committed or are committing a crime or are subject to pending warrants. Officer Soto also testified that he believed Defendant was committing a crime by leaving the


scene of an accident. See State v. Anaya, 2008-NMCA-020, ¶¶ 13-14, 143 N.M. 431, 176 P.3d 1163 (holding that police must develop reasonable suspicion based on “objective facts” available to the officer that would cause a reasonable person to believe that the subject of the officer’s focus is, or will be, engaged in criminal activ-ity). Based on his experience, Officer Soto reasonably believed the minivan might have been stolen or that the occupants were “trying to run from something, get away for some reason.” As described in Illnois v. Wardlow,

Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scien-tific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judg-ments and inferences about human behavior.

528 U.S. 119, 124-25 (2000) (citation omitted). It is clear from Officer Soto’s tes-timony that he had more than the “general concern” discussed in Affsprung. {23} Officer Soto was a witness to the events at the scene when the minivan plowed through several cars and came to a stop, was attempting to investigate what had just occurred, and was acting in his capacity as a police officer to “maintain the status quo” pending an investigation. Harbison, 2007-NMSC-016, ¶ 20. In State v. Duran, 2005-NMSC-034, ¶ 40, 138 N.M. 414, 120 P.3d 836, our Supreme Court determined that, based on the totality of the circumstances and the officer’s obser-vations, there was support for the officer’s conclusion that it was likely that criminal activity was afoot, particularly where that conclusion was based on more than “in-nocuous circumstances or facts that would seem innocent to a layperson.” Similarly, under the totality of the circumstances and Officer Soto’s observations in this case, his conclusion that Defendant was or had been engaged in criminal activity was not based on “innocuous circumstances.” Id. Evi-

dence of Defendant’s flight, the evolving circumstances witnessed by Officer Soto, the officer’s beliefs based on ten years of experience, and the fact that Defendant’s behavior would not be considered by a rea-sonable layperson to be merely innocuous or innocent provided the requisite reason-able suspicion to stop and detain Defendant for purposes of investigating the incident. See, e.g., id. Probable Cause for Arrest {24} Defendant claims that Officer Soto lacked probable cause to arrest him. In determining whether an officer had probable cause for an arrest, we look at the facts and circumstances within the of-ficer’s knowledge and determine whether they would cause a reasonable, cautious officer to believe that a criminal offense was being committed. State v. Hawkins, 1999-NMCA-126, ¶ 17, 128 N.M. 245, 991 P.2d 989. “Probable cause does not require that an officer’s belief be correct or more likely true than false.” State v. Williams, 117 N.M. 551, 557, 874 P.2d 12, 18 (1994). In this case, Officer Soto testified that he was running after Defendant while loudly yelling, “Police, stop,” approximately ten times over the course of the chase. He was never more than forty-five or fifty feet from Defendant during this time. It was a “nice day” and “still very bright” outside. Officer Soto displayed his badge around his neck and held his gun in his hand. When Defen-dant continued to run despite Officer Soto’s orders to stop, Officer Soto concluded that Defendant was committing the crime of failing to obey or comply with the orders of a police officer. See NMSA 1978, § 30-22-1(B) (1981) (defining resisting or evading an officer as “intentionally fleeing, attempting to evade or evading an officer of this state when the person committing the act of fleeing, attempting to evade or evasion has knowledge that the officer is attempting to apprehend or arrest him”). At that point, Defendant refused to obey Of-ficer Soto’s commands. See, e.g., Harbison, 2007-NMSC-016, ¶ 10. Officer Soto had the authority to apprehend Defendant, but Defendant attempted to evade apprehen-sion, which satisfies the first portion of Section 30-22-1(B). Again, to the extent Defendant has a contrary, subjective inter-pretation of the facts, such an interpretation is unsupported by the record.{25} The second portion of the statute—whether Defendant had knowledge that Officer Soto was attempting to apprehend

him—was also met in this case. Despite the fact that Defendant claims there was no evidence to support a finding that he knew the officer was attempting to apprehend him, the district court could have inferred that Defendant was aware of Officer Soto’s intentions based on: (1) evidence of De-fendant’s immediate flight from the scene of an accident involving several vehicles after Officer Soto activated his lights; (2) Officer Soto’s testimony that he was yelling loudly and identifying himself; (3) the fact that Officer Soto was never farther than forty-five or fifty feet from Defendant; and (4) that these events occurred on a clear, bright day and that there was therefore no reason Defendant would have been unable to see the officer behind him. See, e.g., State v. Gutierrez, 2007-NMSC-033, ¶ 36, 142 N.M. 1, 162 P.3d 156. Viewing the facts in the light most favorable to the district court’s decision, we agree with the district court that Defendant knew Officer Soto was attempting to apprehend him but refused to obey Officer Soto’s commands to stop. We hold that Officer Soto had both reasonable suspicion to attempt to apprehend Defen-dant and probable cause to arrest him for evading and resisting arrest.{26} Defendant seems to claim that be-cause Officer Soto did not question him as he escorted him back to the patrol car, the detention was illegal. But Defendant cites no authority in support of his contention. An appellate court will not consider an issue if no authority is cited in support of the issue. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).CONCLUSION {27} We hold that Officer Soto had reasonable suspicion to stop and detain Defendant. We further hold that once De-fendant ignored Officer Soto’s commands to stop and continued to flee, Officer Soto had probable cause to arrest him for evad-ing or resisting. We do not address issues that were not properly preserved, and we do not consider claims not made to the district court. We affirm the district court’s denial of Defendant’s motion to suppress evidence in this case.{28} IT IS SO ORDERED. RODERICK T. KENNEDY, Judge

WE CONCUR:CELIA FOY CASTILLO, JudgeMICHAEL E. VIGIL, Judge


C

OU N T

S

IN

T E G R I TY Integrity. It is at the core of who we are and what we do. Integrity

is everywhere. Consider it in your daily lives; at work, at home and with those you do business with. We do.

Using our extensive knowledge to your advantage.

{ Susan Hansen, CFEForensic & Litigation Services }

R E D W . C O M 5 0 5 . 9 9 8 . 3 2 0 0

F I N A N C I A L D A T A A N A L Y S I S , E V A L U A T I O N O F F R A U D R I S K F A C T O R S , A S S E T T R A C I N G

D A M A G E A S S E S S M E N T , E X P E R T R E P O R T P R E P A R A T I O N , E X P E R T T E S T I M O N Y

SLEUTHSUnwavering

{ Ed Street, CPA/ABV/CFF, CVA Business Valuation, Forensic & Litigation Services }

Licensed in NM & COAV Rated

970-385-9130 in Colorado 505-325-1899 in New Mexico

[email protected] ofce in Durango, CO

James G. Whitley PCAttorney at Law

G ladly accepting referrals of

civil litigation and transactional matters in San Juan County,

New Mexico and Southwest Colorado

Patent litigation. Nothing typical about it.

Infringement: patent, trademark and copyright Trade secret misappropriation Unfair practicesValidity and enforceability opinions

Albuquerque Santa Fe505.765.5900 www.rodey.com

New Mexico is home to plentyof outstanding lawyers, butlitigating a patent dispute is notyour average day in court.When you need help, contactNew Mexico’s only defenselitigation firm with threeregistered patent attorneysin-house.

(l) Gina Constant [email protected] 505.768.7374(c) Mike [email protected](r) Todd [email protected] 505.768.7332

Depth . Expert i se . Va lue .


http://www.rodey.com





Is it time for a fresh assessment of

investments and financial plans?T.C. Schwab Financial Planning LLC offers you and your clients

Experienced, ethical, unbiased, independent advice on a strictlyhourly-fee only basis

Thomas C. Schwab is a CERTIFIED FINANCIAL PLANNER™

professional, a Registered Investment Adviser (RIA) in the State of New Mexico, and a member of The Financial Planning Association (National and New Mexico Chapters). Certified Financial Planner

Board of Standards Inc. owns the certification marks CFP® and Certified Financial Planner™, whichit awards to individuals who successfully complete initial and ongoing certification requirements.

Phone:

E-mail:

or visit our website:

tcschwabfinancialplanning.com

Free from conflicts of interest: no product sales, no commissions, no percentage fee based on assets, and no custody of investment portfolio

◾

505-466-2313

◾

◾

... for you or your clients?

Comprehensive planning from a Certified Financial Planner™ Professionaltargeted to individual needs

T. C. Schwab Financial Planning, LLC

to arrange a free initial consultation

Please call or visit my website today

NEIGHBORHOOD LAW CLE CONFERENCENov. 5th & 6th, 2009 at the Santa Fe Convention Center

12 CLE credits (includes Ethics & Professionalism)

Tuition: $275Lunchtime Speakers:

Justice Richard C. Bosson and Judge Timothy L. GarciaProgram Schedule and Registration Form available at:

www.santafenlc.comContact: [email protected] or (505) 988-4575 ext.6

New Mexico Board of Legal Specialization

An Agency of the New Mexico Supreme Court

Offering certifications in the following practice areas:• Appellate Practice• Bankruptcy Practice• Employment & Labor Law• Environmental Law• Estate Planning, Trusts & Probate• Family Law• Federal Indian Law• Local Government Law• Natural Resources Law• Real Estate Law• Taxation Law• Civil Trial Practice• Criminal Trial Practice• Worker’s Compensation

(505) [email protected]

www.nmlegalspecialization.org

Three great reasons to give to the Dean’s Circle.

1. Impact - Your donations provide direct support for our students and faculty.2. Programs - Your support allows us to make strong programs even better.3. Mission - Your gift helps the larger mission of training talented and honorable lawyers.

Please make a gift to the Dean’s Circle.

(505) 277-1038 http://lawschool.unm.edu/

Mustafa D. Chudnoff Consulting, LLC

Providing Technical Support and Advice inNew Mexico Water and Water Rights, including:

Transactional Work, Litigation Support, and Hydrology

505.670.2028 • [email protected]

http://www.santafenlc.com



http://www.nmlegalspecialization.org

http://lawschool.unm.edu



Equal Access to Justice needs air miles for a first class round trip ticket from DC to Albuquerque. If you can donate your air miles,

please contact Kate at 797-6064 or [email protected].

Equal Access to Justice raises money for legal aid in New Mexico.

You can bring a special guest speaker from Washington DC to the Justice for All Ball on November 14th by donating your air miles

to EquAl ACCEss to JustICE!

question:

Answer:

What do air miles and JustICE for All BAll have in common?

E-mail: [email protected] | Phone: 505-244-0547

Kelly A. Genova, with 20 years experience in liability and workers' compensation defense announces the expansion of her practice. She will now offer mediation and consultation services in cases involving workers' compensation, workers' compensation reimbursement and other complex litigation. Board Recognized Specialist in Workers' Compensation. Multiple Civil Jury Trials.

R. LAR THOMASB.S. Animal Science/International Agriculture

J.D. with over 17 years experience

Certified Equine and Livestock Appraiser

505-450-7673Consultant/Expert Witness for equine and

livestock matters.

Dissolution, liquidation and liability cases

considered.

Caren I. Friedman

APPELLATE SPECIALIST

________________

505/466-6418

[email protected]

David StottsAttorney at Law

Business LitigationReal Estate Litigation

242-1933

No need for another associateBespoke lawyering for a new millennium

THE BEZPALKO LAW FIRM Legal Research and Writing

(505) 341-9353 www.bezpalkolawfirm.com

Criminal Appeals, Motions, Memos

A Writer for the Defense

Todd HotchkissFrechette & Associates, P.C.

Toll Free 1-877-247-8558

Service of ProcessLegal Services

505-554-2627

www.served2perfection.com

WALTER M. DREWConstruction Defects Expert

35 years experience

[email protected]




http://www.bezpalkolawfirm.com

http://www.served2perfection.com



PosiTions

Classified

NOTICE TO ATTORNEYSfrom MCLE

12/31/09 Compliance Deadline:Remember to complete all 2009 MCLE requirements by December 31, 2009. Minimum requirements are 10 general, 1 ethics and 1 professionalism credits.

Avoid Sanctions:As of January 1, 2010 late compliance sanctions are in effect and 2009 non-compliant attorneys will be required to pay a $100 late compliance fee. As of April 1, 2010 attorneys who continue to be in non-compliance and/or have failed to pay the initial $100 fee will be subject to a second late compliance fee of $250.

Check your credits earned online at www.nmmcle.org.

Locating Approved Courses• Access all approved courses on www.nmmcle.org. Choose “Search for

Courses” on the menu.• Look in the CLE Calendar of the Bar Bulletin.• Can’t find the course you want to take? Contact MCLE at (505) 821-1980

or email [email protected].

MCLE – [email protected] or www.nmmcle.org

WILLIAM LAZAR Appellate Practice

[email protected]

Litigation Associate AttorneyAlbuquerque law firm seeks Litigation Associ-ate Attorney with 0 to 5 years of experience but experience preferred. Practice areas include litigation, bankruptcy, collections, insurance, and tribal law. Must be a team player and able to make quick decisions. Please email a letter of interest, salary requirements, writing samples, and résumé to [email protected].

Trial AttorneyValencia CountyThe 13th Judicial District Attorney’s Office is accepting applications for an experienced, mid to senior level trial attorney for the Valencia County Office, located in Belen, NM. This position requires prosecution of criminal cases and performs complex felony work. Requires a minimum of 7 years experience in prosecuting major felony cases. Salary is dependant on expe-rience. Send resumes to Carmen Gonzales, Hu-man Resources Administrator, 333 Rio Rancho Blvd., Suite 201, Rio Rancho, NM 87124, or via E–Mail to: [email protected]. Deadline: Open until position is filled.

Want To Work Less? Looking For Established Personal Injury Lawyer Who Wants To Retire Or Slow DownPlaintiff’s personal injury firm is looking to combine its practice with an established per-sonal injury or work comp lawyer who wants to cut back on his or her hours. Please e-mail [email protected].

Assistant Attorney GeneralThe Border Violence Division of the Attorney General’s Office (EEO employer) has an open-ing for an “exempt” (not classified) attorney term position in the Santa Fe office. Duties will include working in jurisdictions throughout the State prosecuting crimes relating to Human Trafficking, International Extraditions and Foreign Prosecutions with Mexico. Travel is required throughout the State of New Mexico and the ability to speak and write fluently in Spanish is preferred. The ability to cultivate contacts with local, State, Federal and Mexican governmental entities is preferred. NM bar admission is required and significant felony jury trial experience is preferred. Resume, writing sample and minimum of three profes-sional references must be received by 5:00 p.m., October 30, 2009 at the Attorney General’s Office, Attn.: Dennis Martinez, P.O. Drawer 1508, Santa Fe, NM 87504-1508.

Staff AttorneyGallup OfficeNew Mexico Legal Aid (NMLA) has an opening for a Staff Attorney in its Gallup Office. One (1) or more years of legal experi-ence required. NMLA represents low-income individuals and families in a wide variety of poverty law areas including family law, hous-ing, public benefits, consumer and Native American issues. Expectation is that attorney will be active in local bar and community activities. The position offers opportunity to work with Zuni people and practice law in the Zuni Tribal Court. The candidate will handle general poverty law cases, utilizing a computerized case management system, par-ticipate in community education and outreach to those in need of housing and other benefits, and participate in recruitment of pro bono at-torneys. The position also includes work with Zuni people on cases and matters involving Federal Indian and Tribal law issues, includ-ing representation of low income individuals in the Zuni Tribal Court. A percentage of the attorney’s time will be devoted to NMLA’s Na-tive American Program issues. Requirements: Candidates must possess excellent writing and oral communication skills, ability to manage multiple tasks, skills sufficient to implement an array of advocacy strategies, ability to manage a caseload, and the ability to build collaborative relationships within the commu-nity. Proficiency in Spanish is a plus. Reliable transportation is mandatory. New Mexico bar license is preferred. Candidate will be required to become a member of the Zuni Bar upon hire. NMLA offers an excellent benefits package, including generous leave, health insurance and opportunities for training. Competitive salary based on experience, DOE. NMLA is an EEO Employer. Send Resume, two references and a writing sample to: Gloria A. Molinar, NMLA, PO Box 25486, Albuquerque, NM 87125-5486 and or email to: [email protected]; Deadline:10/30/09

Visit the State Bar of New Mexico’s web site

www.nmbar.org

http://www.nmmcle.org











www.nmbar.org

serviCes

Need A Judgment Collected?Leading NM collection attorney will co-counsel for 15% contingency fee on judgments over $10K. Call Duane at Zamzok Law Office: (505) COLLECT.

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

offiCe sPaCe

Go Have A Beer – We’ll Handle The Research & Writing Virtual Litigation Support, LLC provides the highest quality research and writing at irresistibly affordable rates (rates begin at $75/hour). Built-in quality control, all U.S. attorneys, no project too large or too small. VirtualLitigationSupport.com or call today: (877) 727-7176.

Writing, Research, AppealsExperience: federa l appellate clerk and Modrall Sperling attorney. 505-550-8573, [email protected].

Contract AttorneysQualified and quick contract attorneys avail-able to help you handle your civil litigation or family law overflow. Call 243 6288 or 243 8080.

Executive Offices For RentExecutive offices for rent in the North Valley. Two adjoining offices of 165 square feet each – can be rented separately at $700.00 per month or together for $1,200.00 per month. Also have a 550 square foot office suite with corner office, secretarial/reception area and two additional private offices with private entrance for $1,500 per month. All include reception service, access to common conference room, kitchen, copy and fax service, telephone system and internet connectivity. Contact Bob at 505-247-8860 or [email protected].

Paralegal NeededParalegal needed - this position offers a chal-lenging opportunity at the Sandenaw Law Firm, P.C. in Las Cruces and provides the qualified applicant a competitive wage with health insurance benefits/disability benefits and participation in a 401K plan for full time employees. Applicants currently working in law offices will be given priority consideration based upon experience. All inquiries will be kept strictly confidential and inquiries should be directed to Tina Testa at 575.522.7500 or fax resumes to 575.522-5544.

Full Time Paralegal PositionImmediate opening for full time paralegal po-sition for a busy general practice in Albuquer-que, 5+ years experience preferred. Experience in domestic relations, business transactions and litigations a plus. Salary negotiable based on experience. Great benefits and working envi-ronment. Please email resume to [email protected]

Legal Assistant/ParalegalExtensive prior civil litigation experience re-quired. Seeking professional, organized, and highly skilled individual with attention to detail. Excellent computer skills required. All inquiries confidential. Competitive benefits. Resumes, Atkinson, Thal & Baker, PC, 201 Third Street NW, Suite 1850, Albuquerque NM 87102.

Freelance Attorney Available to Help With ProjectsYale Law School graduate and NM-licensed attorney available for project-based contract research, writing, editing, and review. See www.celesteboyd.com for more information.

Litigation ParalegalWalsh, Anderson, Brown, Aldridge & Gallegos P.C., is seeking a Litigation Paralegal for its Albuquerque, New Mexico office. Candidates should possess 2+ years paralegal experience in a Governmental or Legal setting, be famil-iar with Word/Word Perfect, Access, Power Point and Westlaw. Strong research, database management and document management skills are essential Please note all candidates are subject to a criminal background check. Please email resume, with cover letter and sal-ary requirements, to [email protected] or mail to P. O. Box 2156, Austin, Texas 78768. No phone calls please.

Natural Resources AttorneyRodey, Dickason, Sloan, Akin & Robb, P.A. is accepting resumes for an attorney with at least five years experience in New Mexico environmental law. Firm offers excellent benefit package. Salary commensurate with experience. Please send resume, references, law school transcript and a writing sample to Ann Mackey, P.O. Box 1888, Albuquerque, NM 87103 or via e-mail to [email protected]. All inquiries kept confidential.

In-House Attorney, Albuquerque, NM, Job ID #1296New Mexico Gas Company is seeking an attorney with a minimum of 7 years of law firm or corporate experience with commercial transactions and contracting. This is a “hands on” position, and this person must be capable of handling assigned matters with minimal supervision or assistance from outside coun-sel. Assignments will include land use and franchise matters, as well as a wide variety of contracts and commercial issues. This person also may assist the General Counsel with regulatory, litigation, employment, compli-ance, and other matters. Sound analytical and writing skills are required, along with good organizational skills and the ability to work effectively in a teamwork-oriented corporate environment. To apply for this position please go to the careers page at http://www.nmgco.com and review the posting description, regis-ter, and upload a resume and letter of interest. You must apply through this online process no later than November 1, 2009 to be considered. All inquiries will be kept confidential. NMGC is an Equal Opportunity/Affirmative Action employer. Women and minorities are encour-aged to apply.

http://www.nmgco




http://www.celesteboyd.com




www.nmbar.org

Attorney Office SpacePrime Uptown LocationPrestigious Uptown location, high visibility, convenient access to I-40, Bank of America, companion restaurants, shopping, two-story atrium, extensive landscaping, ample park-ing, full-service lease. Single attorney office space (office plus secretary-paralegal and small reception area if needed) available within well-improved and appointed 2695 square foot office. Includes shared reception, secretarial areas, conference room, coffee bar, and lounge with three other small attorney firms. Rent of $1175.00 includes reception coverage. One (1) year lease required. Call Ron Nelson 883-9662- Uptown Square.

Santa Fe Downtown Law Firm Has Office Space Available Rent includes receptionist; use of conference room; library, high speed internet available; free parking for staff and clients, copy machine available, security and janitorial services. The law firm is a pleasant, relaxed, non-smoking atmosphere. Client Referrals possible Please call Loretta at 988-8979.

Office AvailableOne small office available in the downtown his-toric Hudson House. Rent includes telephone, equipment, access to fax, copier, conference rooms, parking, library and reference materials. Referrals and co-counsel opportunities. For more info., call the offices of Leonard DeLayo at 243-3300, ask for Jodi.

Uptown Office Suite1030 sq.ft. Corner of Louisiana and Can-delaria. Reception area, two offices, work room, private bathroom. 293-3776.

2009-2010Bench & Bar Directory

Mike Mahon Rose of San Felipe

• Includes member listings (both active & inactive); State Bar staff and member programs listings.

• Comprehensive listings for New Mexico courts, tribal courts, governments, law entities and programs offered to the public by the State Bar.

2009-2010 Bench & Bar Directory

Now AvAIlABle!

Purchase online at www.nmbar.org or call 505.797.6000

Law Office For RentLaw office for rent, sharing office space with two other attorneys. Located at 8010 Menaul NE. Front door parking. Hal Simmons, 299-8999.

All advertising must be submitted by e-mail by 5 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Monday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit classified ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, two weeks prior to publication.

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

or e-mail [email protected]

SUBMiSSioN DeADliNeS




He works miraclesbut even he doesnʼt have all the answers

Catastrophic brain and spinal cord injuries change lives forever – and leave families struggling

with questions about care and accountability. Guiding clients through these complex cases can

challenge even the best attorney. But we can help. At McBride, Newsome & Sandoval, we have

the experience, resources, and track record to give the right answers – and get the right results.

R E S O U R C E S . K N O W L E D G E . E X P E R I E N C E .

For help evaluating brain and spinal cord injury claims call 505.563.5888www.mnsfirm.com

http://www.mnsfirm.com

Documents

October 19, 2009 • Volume 48, No. 42 · 2017-05-31 · 6 Ba r Bu l l e t i n - October 19, 2009 - Volume 48, No. 42 no T i C e s Judicial Records Retention and Disposition Schedules