March 4, 2015 • Volume 54, No. 9
Inside This Issue
Table of Contents..................................................... 3
Tara Neda to Speak at Solo and Small Firm
Section Meeting....................................................... 4
Volunteers Needed at Veterans Legal Clinic....... 5
Janie Rowe Receives Justice Minzner Outstanding
Advocacy for Women Award,
By Evann Kleinschmidt.......................................... 6
Positive Psychology for Lawyers—
The Science of Character, by Hallie N. Love......... 7
The Board Governing the Recording of
Judicial Proceedings: Expired Court Reporter
Certifications............................................................ 9
2015–2016 Bench & Bar Directory:
Update Your Contact Information........................ 9
Clerk’s Certificates..................................................15
From the New Mexico Court of Appeals
2015-NMCA-008, No. 32,460:
State v. Talayumptewa.......................................18
2015-NMCA-009, No. 32,905:
State v. Trevor M................................................21
Something for Everyone, Santa Fe
by Barry Schwartz (see page 3)
www.flickr.com/photos/barryabq
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2
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Curtis Hayes
Bruce Herr
Maureen S. Moore
Andrew Sefzik
Mark Standridge
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • dwolohan@nmbar.org
Communications Coordinator
Evann Kleinschmidt
505-797-6087 • notices@nmbar.org
Graphic Designer Julie Schwartz
jschwartz@nmbar.org
Account Executive Marcia C. Ulibarri
505-797-6058 • mulibarri@nmbar.org
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: address@nmbar.org. • www.nmbar.org
March 4, 2015, Vol. 54, No. 9
Notices .................................................................................................................................................................4
Janie Rowe Receives Justice Minzner Outstanding Advocacy for Women Award,
by Evann Kleinschmidt................................................................................................................................... 6
Positive Psychology for Lawyers—The Science of Character, by Hallie N. Love.............................. 7
Legal Education Calendar........................................................................................................................... 10
Writs of Certiorari .......................................................................................................................................... 12
Court of Appeals Opinions List.................................................................................................................. 14
Clerk’s Certificates.......................................................................................................................................... 15
Recent Rule-Making Activity...................................................................................................................... 17
Opinions
From the New Mexico Court of Appeals
2015-NMCA-008, No. 32,460: State v. Talayumptewa.............................................................. 18
2015-NMCA-009, No. 32,905: State v. Trevor M.......................................................................... 21
Advertising....................................................................................................................................................... 25
Meetings
State Bar Workshops
March
March
4
Employment and Labor Law Section BOD,
Noon, State Bar Center
4
Divorce Options Workshop
6 p.m., State Bar Center
11
Children’s Law Section BOD,
Noon, Juvenile Justice Center
4
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
11
Taxation Section BOD,
11 a.m., via teleconference
6
Civil Legal Fair
10 a.m.–1 p.m., First Judicial District Court,
First Floor Jury Room, Santa Fe
12
Business Law Section BOD,
4 p.m., via teleconference
12
Elder Law Section BOD,
Noon, State Bar Center
12
Public Law Section BOD,
Noon, Montgomery and Andrews, Santa Fe
17
Legal Resources for the Elderly Workshop
10–11 a.m., Presentation
11:30 a.m.–3 p.m., Clinics
Ford Canyon Senior Center, Gallup
13
Animal Law Section BOD,
Noon, State Bar Center
18
Legal Resources for the Elderly Workshop
10–11 a.m., Presentation
11:30 a.m.–2:30 p.m., Clinics
Cibola Senior Citizens Center, Grants
13
Prosecutors Section BOD,
Noon, State Bar Center
25
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
17
Solo and Small Firm Section BOD, 11:30 a.m.;
Presentation, noon
28
Consumer Debt/Bankruptcy Workshop
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
Cover Artist: Barry Schwartz photographs what he sees in daily life to bring out the unusual beauty of usual things. He
especially like shooting older building and businesses, salvage yards, ghost towns and cemeteries to preserve the beauty
and ruggedness of the past. He uses angles, colors, lighting, shapes and shadows to bring out the uniqueness and beauty.
He is a member of the Albuquerque Enchanted Lens Camera Club, which has been a great help with his photography. A
summary of photography by Schwartz is available at www.flickr.com/photos/barryabq.
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
3
Notices
Professionalism Tip
Court News
First Judicial District Court
With respect to opposing parties and their counsel:
Mass Reassignment
Gov. Susana Martinez announced the
appointment of Jennifer L. Attrep to fill
the vacancy in Division V of the First
Judicial District. Effective Feb. 25, a mass
reassignment of all Division V occurred.
All cases previously assigned to Division
V, were assigned to District Judge Attrep.
Parties who have not previously exercised
their right to challenge or excuse will have
10 days from March 25 to challenge or
excuse the judge pursuant to Rule 1-088.1.
Magistrate Mediation
Program
Mediators Needed
A 10-hour advanced mediation training
and continuing professional development
is being offered to recruit mediators for the
Bernalillo, Los Lunas, and Belen Magistrate Courts. A 40-hour mediation training
in the facilitative model is a prerequisite.
The training by the ADR Bureau, State Risk
Management, qualifies. Mediation experience is preferred and facilitative mediation
will be used.
This initiative’s goal is to increase mediation in the tri-county area of Sandoval,
Bernalillo, and Valencia counties by building upon the experience and expertise of
existing Magistrate Court Programs, the
Metropolitan Court Mediation Program
and area mediators. Opportunities for
mediators will include gaining mediation
experience and on-going professional
development. The training will include
“back to basics,” advanced techniques,
court procedure, and new rules regarding
court-connected mediation and best practices. There will be other opportunities,
including a 40-hour basic training. Magistrate Mediation Programs are planned
throughout the state.
By law, Magistrate Court mediators
must be volunteers. This training does not
include MCLE credit, which will be explored for future trainings. There is no fee
for the training. In return and to complete
the training experience, the participants
will mediate cases in the Bernalillo, Los
Lunas and Belen Magistrate Courts. The
requirement is 12 mediations of approximately two hours per mediation.
Space is limited. The trainings are 8:30
a.m. to 5 p.m. on Friday, March 20, and 9
a.m. to noon on Saturday, March 21, at the
State Bar Center. To apply or for informa4
I will cooperate with opposing counsel’s requests for scheduling changes.
tion, contact David Levin, Mediation
Project Manager, Magistrate Mediation
Program, 2905 Rodeo Park Dr. East,
Building 5, Santa Fe NM 87505, aocdpl@
nmcourts.gov, phone 505-463-1354 or fax
505-827-4464.
U.S. District Court for the
District of New Mexico
Attorney Federal Bar Dues
With the concurrence of the Article III
judges of the U.S. District Court for the
District of New Mexico, the Federal Bar
dues have been set at $25 for 2015. Bar
dues may be paid online via CM/ECF. For
more information regarding paying Bar
dues, visit www.nmcourt.fed.us.
State Bar News
Attorney Support Groups
• March 9, 5:30 p.m.
UNM School of Law, 1117 Stanford
NE, Albuquerque, Room 1119 (The
group meets the second Monday of the
month.)
• March 16, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
• April 6, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Appellate Practice Section
Brown Bag Lunch with
Judge Michael D. Bustamante
The Appellate Practice Section and the
Young Lawyers Division invite members
of the legal community to a noon lunch
discussion with Appellate Court Judge
Michael D. Bustamante on March 13 at
the State Bar Center. These brown bag
lunches in an informal setting are beneficial to lawyers and judges alike. Space is
limited, so R.S.V.P. to Dolph Barnhouse
at dbarnhouse@indiancountrylaw.com
by March 12.
Judge Bustamante, a native New Mexican, graduated from the University of New
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
Mexico in 1971 with a degree in Economics and American Studies. He received
his law degree from UNM in 1974, and
has been serving the New Mexico Court
of Appeals as a judge since his election in
December 1994. Before that, he was in
private practice with Ortega and Snead,
P.A., and its predecessor from 1974 until
1990, when he went into solo practice. His
work as an attorney included a broad range
of civil matters. He has served on the Board
of Bar Examiners; the Disciplinary Board;
the Bench, Bar Relations Committee of the
Supreme Court; and the Judicial Information Systems Council.
Committee on Diversity in the
Legal Profession
Discounted CLE Rate for
Committee Members
The CLE on March 20, “The Impact
of the Legal System on People of Color”
(5.5 G, 1.0 EP), offers a special rate of $195
for Committee on Diversity members. To
register, visit nmbar.org or call or 505-7976020.
Paralegal Division
Luncheon CLE Series
The Paralegal Division invites members
of the legal community to bring a lunch
and attend “Current Issues and Events
in Immigration Law” (1.0 G) presented
by Christina Rosado. The program will
be held from noon–1 p.m., March 11, at
the State Bar Center (registration fee for
attorneys–$16, members of the Paralegal
Division–$10, non-members–$15). Registration begins at the door at 11:45 a.m.
For more information, contact Cheryl
Passalaqua, 505-247-0411, or Carolyn
Winton, 888-4357. Telecast to Santa Fe,
and Roswell. For more information, visit
www.nmbar.org > About Us > Divisions >
Paralegal Division > CLE Programs.
Solo and Small Firm Section
Tara Neda Speaking at the
State Bar Center
The Solo and Small Firm Section invites
members of the legal community to attend
presentations after the section board meet-
ing on the third Tuesday of each month at
the State Bar Center. On March 17, Senior
U.S. Attorney trial counsel Tara Neda will
be speaking about her special prosecutor
work in Cameroon and Yemen and sharing images of those countries. She will
discuss the conflicts between traditional
tribal societies and efforts to teach a more
Western criminal justice system. Neda has
previously served DOJ a special prosecutor
in Afghanistan, so her presentation, due
to recent world events, will be especially
timely. While the Section would like to
accommodate all members of the bar,
interested judges and attorneys are encouraged to make their respective reservations
as early as possible.
The section board will meet at 11:30 a.m.,
followed by Neda’s presentation at noon.
Lunch is included to those who R.S.V.P
by March 16. For more information or to
R.S.V.P., contact Evann Kleinschmidt at
ekleinschmidt@nmbar.org or 505-797-6087.
Young Lawyers Division
Volunteers Needed at Veterans
Legal Clinic
The Young Lawyers Division and the
New Mexico Veterans Affairs Health Care
System are holding clinics for the Veterans
Civil Justice Legal Initiative from 9 a.m.–
noon, the second Tuesday of each month
at the New Mexico Veterans Memorial,
1100 Louisiana Blvd. SE, Albuquerque.
Breakfast and orientation for volunteers
begin at 8:30 a.m. No special training or
certification required. Volunteers can give
advice and counsel in their preferred practice area(s). The next clinic is March 10. To
volunteer, contact Keya Koul, keyakoul@
gmail.com.
UNM
The Federalist Society
Right To Work Event
The Federalist Society and Business
Law Society, student organizations at the
UNM School of Law, present “Right to
Work Laws: Compulsory Unionism and
Collective Bargaining” featuring Mark Mix
from the National Right to Work Legal
Defense Foundation and Fred Mowrer,
an attorney with Sanchez, Mowrer &
Desiderio PC. The event will be held 11:50
a.m.–1 p.m., March 4, at the UNM School
of Law, Room 2401. For more information,
contact Curtis Vernon, vernonla@law.
unm.edu.
Law Library
Hours Through May 9
Building & Circulation
Monday–Thursday Friday
Saturday
Sunday
Reference
Monday–Friday
Librarian on call
Saturday–Sunday
8 a.m.–10 p.m.
8 a.m.–6 p.m.
8 a.m.–5 p.m.
Noon–8 p.m.
9 a.m.–6 p.m.
3–6 p.m.
Closed
Other Bars
Albuquerque Lawyers Club
March Lunch Meeting
The Albuquerque Lawyers Club invites
members of the legal community to its
monthly lunch meeting. The next meeting will be held on at noon, March 4, at
Seasons Restaurant in Albuquerque. U.S.
District Court Judge James Browning will
present “What Are those Federal Judges
Doing Anyway? Why Won’t They Rule on
My Motion for Summary Judgment? A
Look at the State of Federal Courts.” Cost:
Free to members, $30 non-members. For
more information, contact Yasmin Dennig
at ydennig@Sandia.gov or 505-844-3558.
CLE Opportunity:
Practicing Transformative Law
The Albuquerque Lawyers Club and the
Women’s Bar Association present a CLE
“Is It Just About the Money? Practicing
Transformative Law” (3.0 EP, pending
MCLE approval) from 11 a.m.–2:30 p.m.,
March 13, at Seasons Rotisserie & Grill
in Albuquerque. Speakers include Randi
McGinn, author of Changing Laws, Saving
Lives, Justice Edward L. Chávez, Yasmin
Dennig and Rochelle Lari. The cost of the
program is $125 (includes lunch). Participants may purchase the book Changing
Laws, Saving Lives at a $10 discount upon
registration. Members of either organization will receive a $25 discount. Space is
limited so registration is required. Email
Barbara Koenig at barbara@frjlaw.com to
receive a registration form and for more
information.
New Mexico Criminal Defense
Lawyers Association
Trial Skills College
Need to brush up on your trial tactics?
Several of New Mexico’s top trial lawyers
have teamed up again this year for the
continued on page 9
A service of the New Mexico State Bar
Foundation, the Center provides programming
in live, online webcast, teleseminar,
onsite video replay, online anytime video,
and DVD formats. CLE courses fulfill the
minimum requirements of
10.0 G, 2.0 EP credits per year.
Call 505-797-6020 or visit www.nmbar.org.
Address Changes
All New Mexico attorneys must notify
both the Supreme Court and the State
Bar of changes in contact information.
Supreme Court
Email:attorneyinfochange
@nmcourts.gov
Fax: 505-827-4837
Mail:PO Box 848
Santa Fe, NM 87504-0848
State Bar
Email: address@nmbar.org
Fax: 505-797-6019
Mail: PO Box 92860
Albuquerque, NM 87199
Online:www.nmbar.org
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org > for Members >
Lawyers/Judges Assistance
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
5
Justice Minzner Outstanding Advocacy for Women Award
Photos and text by Evann Kleinschmidt
Saranam Board of Directors Chair Jane “Janie” Rowe was presented with the 2014 Justice Pamela B. Minzner
Outstanding Advocacy for Women Award on Jan. 29 by the Committee on Women and the Legal Profession. Rowe was
chosen for her outstanding advocacy for women in conjunction with Saranam, an Albuquerque non-profit providing
housing and education services to families transitioning out of homelessness. Saranam is a two-year housing and
education program for homeless families. It works with families who have a desire and motivation to change their lives
and end their homelessness through personal development and life skills training.
Since 1991, the Committee on Women has addressed issues affecting women and monitored substantive issues of women
served by the legal system. Though the New Mexico legal community has fostered the growth of countless successful
female attorneys, judges and leaders, one of the best examples is Chief Justice Pamela B. Minzner. The first female chief
justice of the New Mexico Supreme Court, Chief Justice Minzner, is remembered for her integrity, strong principals and
compassion. It is in this spirit that the Committee on Women presents the award annually.
Committee on Women and the Legal Profession Co-chair Zoe Lees, Co-chair DeAnza Sapien, Patricia Galindo,
award recipient Janie Rowe, Michelle Hernandez, Laura Fashing and Liz Garcia
Zoe Lees, Saranam Executive Directory Tracy Sharp,
Janie Rowe and DeAnza Sapien
6
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
Janie, Emilee and Gordon Rowe
Positive Psychology for Lawyers—
The Science of Character
By Hallie N. Love
This article, second in an occasional positive psychology series, examines the benefits of developing and using strengths of character
in the practice of law.
P
sychologists associate
the regular application
of character strengths or
positive traits— such as
optimism, zest, gratitude
and curiosity—with the
promotion of positive emotions, which, in turn, create
overall well-being. Using
one’s character strengths
in the practice of law promotes a productive path
for attorneys to increase
their life satisfaction and
success while working in
a profession replete with
depression, anxiety, addiction, dissatisfaction and ill
health.
What is the science of character?
In the early 2000s, psychologists Martin Seligman and Christopher Peterson led a three-year project involving 55 distinguished
scientists devoted to examining character traits across cultures
and time. Out of this project, Seligman and Peterson identified
six universal virtues —wisdom, courage, humanity, justice, temperance and transcendence— in which 24 character strengths
reside. Their assemblage of virtues and character traits forms
a scientific knowledge base and classification system of what
is best about human beings and what builds fulfillment and
happiness. One of the key findings about character evident
from this project and hundreds of subsequent research studies
is that each individual possesses all 24 character strengths in
different degrees and combinations relative to context, resulting
in a unique profile.
To determine your predominant character strengths, Seligman
and Peterson developed VIA-IS, a free, 240-question survey found
online at the Values in Action website: www.viacharacter.org. The
survey helps people understand the differences between who they
are (their character) versus what they can do (their talents) and
what they like (their interests.)
Generally, our top character strengths occur easily without much
effort and resonate as being so natural one could not help but use
them. These strengths are energizing as we embody them, and
we would feel a deflation of spirit and emptiness if we could not
express them. When people use their top strengths, they report
feeling more energized and self-actualized, which allow them to
fulfill their potential to a greater degree. We also have situational
strengths that we can call
on when needed. Additionally, other strengths
can be developed to benefit our clients, the legal
profession and ourselves.
What are some ways
character strengths
can be used in the
practice of law?
Making regular use of
one’s character strengths
is a good mental health
practice as well as an effective business strategy
for attorneys. Employing
character strengths provides motivation to stay in a challenging profession and helps prevent burnout. The resultant
greater job satisfaction averts unwanted consequences such as
employee turnover or malpractice, often caused by alcoholism
and depression.
Developing a balanced use of intellectual, self-oriented “head”
character strengths and emotional and interpersonal “heart”
character strengths can also be a valuable law practice tool. For
example, an attorney who is strongest in “head-focused” character
strengths—prudence, bravery, persistence and self-control— that
are most useful for analytical aspects of lawyering, can benefit from
training that enhances “heart-focused” strengths—kindness, gratitude and social intelligence that are well-suited to the relationship
aspects of law such as management, mentoring and rainmaking.1
Attorneys can learn to modulate their strengths to reach desired
results. “Head” strengths may temper “heart” strengths such as
applying prudence to lessen a tendency to micromanage or be
overzealous, and in the area of collections, the “heart” strength of
kindness may temper the “head” strength of persistence.
Finally, it is highly desirable to be able to shift between analytical
head strengths and relational heart strengths to change communication styles. While the pessimistic or prudent way of thinking is
inherent and required in the practice of law, it may be destructive
in one’s personal life where an optimistic thinking style and practice of the heart strengths (kindness, gratitude, social intelligence
and love) lead to positive relationships that also build emotional
resilience. In other words, legal cross-examination can stay at
work and use of heart strengths can help one hone a conciliatory
communication style for use at home.
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
7
What is the correlation between strengths’ use
and attorney life satisfaction, well-being and
success?
Many of us are doing OK or “pretty good.” Still, life may feel flat
and depression rates are rising. We know from positive psychology
that a meaningful life provides greater overall life satisfaction and
well-being. Many of us spend more of our lives at work than with
family or friends so the question becomes, “What can we do to
give our time at work more meaning?”
Daily use of our top character strengths enables us to live a
meaningful life where we enjoy what we are doing and feel pride
and satisfaction in our work; it also energizes us, increases our productivity and helps us make the demands of the work worthwhile.
Some lawyers find more meaning and can bring their strengths
to fruition by making a difference, helping clients, being a trusted
advisor, bringing in business, finding satisfying intellectual stimulation, or creating good office relations and collaboration. Landing
a job in a niche in the law that capitalizes on your top strengths
provides meaning and a better way to perceive your work as a
calling rather than a job.
Additionally, as we are always in control of our perceptions, we
can change the way we think about our job or our relationships
with our co-workers. We can restructure how we approach work
by reshaping certain attitudes in order to find more ways to
embellish and access our strengths. If you have little latitude to
make decisions, perhaps you can recraft your job tasks for more
perceived control or practice character strengths in your relationships at work, over which you have high control.
in life, predicts fulfillment and success, and increases positive
emotions, well-being and resilience. 2
In the traditionally analytically based legal profession, heart
strengths need not be sacrificed to head strengths. It is possible
and advantageous to use both heart and head strengths and to
identify practice areas that profit from each to build our best law
practice and life.
1 Snyder, P. Super Women Lawyers: A Study of Character
Strengths. University of Pennsylvania Scholarly Commons, 2012.
2 Seligman, M.E.P., Authentic Happiness: Using the New Positive Psychology to Realize Your Potential for Lasting Fulfillment,
New York, NY, 2004.
Learn and Practice: Exercises for
Developing Character Strengths
You can strengthen your character strengths by focusing on
thoughts, emotions and behaviors. One exercise is to focus
on a top character strength in a new way each day for a week.
Another proven exercise to develop optimism is to regularly
recall and savor three things that went well each day. Not
only will this lift your mood, but it will also identify the good
things that are working well for you and, over time, create
benefit-finding neural pathways in your brain.
About the Author
Hallie N. Love, Esq., www.positivepsychology
forlawyers.com, is a certified Positive Psychology/Well-Being consultant and author of Yoga
for Lawyers - Mind-Body Techniques to Feel
Better All the Time (ABA 2014).
Finally, knowledge of one’s individual character strengths may
prompt certain lawyers to seek a more strengths-compatible
practice or work environment.
Conclusion
Character can be learned and practiced. Research has established
that regularly using one’s character strengths provides meaning
8
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
Hallie N. Love
continued from page 5
New Mexico Criminal Defense Lawyers
Association’s Trial Skills College on March
27–28 in Albuquerque. This is a two-day
course of lectures, small group practice
and video review aspects of a trial from
voir dire to closing statements. Whether
you’re a new lawyer, or need to brush up
on your expertise, everyone is bound to
learn something new. The CLE provides
a total of 14.5 general CLE credits. There
are only 36 seats available, so don’t wait to
register. Visit www.nmcdla.org for more
details.
Southwest Women’s Law
Center
10th Anniversary and Celebrating
Women’s Stories
The Southwest Women’s Law Center
invites members of the legal community
to attend its 10th Anniversary and Fourth
Annual Celebrating Women’s Stories featuring special guest U.S. Congresswoman
Michelle Lujan Grisham and honoring
SWLC Founding Director Jane Wishner.
The event will take place on March 28 at
the University of New Mexico Student
Union Building (Ballrooms A, B and C) in
Albuquerque. The reception will begin at 6
p.m. and dinner will be served at 7 p.m.
The event will also recognize the
outstanding achievements of Cosette
Wheeler, Ph.D., for advancing women’s
health, Claudia Medina for advocating
against domestic violence, Martha Burk for
advancing equal pay for women, Rep. Jane
Powdrell-Culbert for advancing sports
programs for middle and high school girls
under Title IX, and Curtis Boyd, M.D., for
advancing women’s reproductive rights. To
R.S.V.P. (required by March 23) or learn
more about sponsorship opportunities,
visit www.swwomenslaw.org.
Other News
Rocky Mountain Mineral Law
Foundation
Enhanced Oil Recovery Institute
The State Bar is co-sponsoring the Special Institute on Enhanced Oil Recovery:
Legal Framework for Sustainable Management of Mature Oil Fields, May 7–8 in San
Antonio, Texas, with the Rocky Mountain
Mineral Law Foundation. State Bar members may register for this program at the
discounted rate. For a detailed program
brochure, online registration and information about discounted hotel rooms at the
Westin Riverwalk Hotel, visit www.rmmlf.
org. Comprehensive course materials will
be provided to all registrants.
The Board Governing the Recording of Judicial Proceedings
A Board of the Supreme Court of New Mexico
Expired Court Reporter Certifications
The following list includes the names and certification numbers of those court
reporters whose New Mexico certifications expired as of Dec. 31, 2014.
Name
M. Elise Alvarado
Catherine Berger, retired
Cinnamon Boyle
Melinda Jeanne Briseno
Kerry Fremerman
Vance Jarvis
Dee Jones, retired
Ronald Jones, retired
CCR CCM No.
CCR #146
CCR #2
CCR #261
CCR #30
CCR #288
CCR #104
CCR #32
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Bar Bulletin - March 4, 2015 - Volume 54, No. 9
9
Legal Education
March
5
Spotting & Preventing Fraud in
Real Estate Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Reviewing and Drafting IT
Agreements
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
2015 Ethicspalooza: Civility and
Professionalism
1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
6
The 30th Annual Bankruptcy Year
in Review Seminar
6.0 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
12
Ethical Issues When Representing
the Elderly
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17-18 Fundamentals of Securities Law,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Oil and Gas: From the Basics to an
In-Depth Study (2014)
6.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
13
2015 Ethicspalooza: Ethically
Managing Your Practice
1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
20
10
13
2015 Ethicspalooza: All Those Fees
1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
23
Ethics for Transactional Lawyers
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
13
24
2014 Employment and Labor Law
Institute
4.5 G, 1.5 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
New Mexico Constitution—Current
Issues (2014)
2.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Don’t Call Saul: ‘Breaking Bad’
Ethics (2014 Annual Meeting)
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
Ethics and Professionalism: Advice
from the Bench and Bar (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
2015 Ethicspalooza: Proper Trust
Accounting
1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
13
2015 Ethicspalooza: Conflicts of
Interest
1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
13
2015 Ethicspalooza: The Ethics of
Social Media Use
1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
13
The Impact of the Legal System on
People of Color
5.5 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Internet Investigative/Legal
Research on a Budget and Legal
Tech Tips (2014)
6.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
Medical Malpractice Review Before
the New Mexico Medical Review
Commission (2014)
2.0 G, 3.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
Nonprofit Corporations
Compliance (2014)
3.5 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Legal Education
www.nmbar.org
March
24
Mock Meeting of the Ethics
Advisory Committee (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
27–28 Trial Skills College
14.5 G
Albuquerque
New Mexico Criminal Defense
Lawyers Association
505-992-0050
www.nmcdla.org
How to Become a Rock Star Lawyer,
the Ethical Way (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24-25 Sub-leasing & Assignments,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
Fire in the Hole: What’s Exploding
in New Mexico Mining Law (2014)
5.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
26
30
2015 Solo and Small Firm Institute:
Law Practice Management
3.0 G, 4.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
2014 Intellectual Property Law
Institute
5.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
27
2015’s Best Law Office Technology,
Software and Tools—Improve
Client Service, Increase Speed and
Lower Your Costs
4.8 G, 1.2 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
VAWA 2013 and Tribal Jurisdiction
Over Crimes of Domestic Violence
(2014)
3.2 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
31
Exempt v. Non-exempt: Overtime
& Employer Liability in the
Workplace
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
April
14
Skeptically Determining the Limits
of Scientific Evidence V (2014)
5.0 G, 1.5 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Construction Lien Law in New
Mexico (2014)
3.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Navigating the Privileges Minefield
(2014)
5.5 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
14
1
Innocent & Injured Spouse
Defenses to Joint Tax Liability
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Drafting Reps and Warranties in
Business Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
14
7
14
The End of Law Firms: How the
Cloud is Changing the Practice of
Law and The ABA Model Rules with
Regard to the Changing Practice of
Law (2014 Annual Meeting)
1.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
11
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective February 20, 2015
No. 34,937
Petitions for Writ of Certiorari Filed and Pending:
No. 35,134
No. 35,132
No. 35,131
No. 35,130
No. 35,129
No. 35,127
No. 35,126
No. 35,125
No. 35,124
No. 35,122
No. 35,121
No. 35,120
No. 35,115
No. 35,114
No. 35,119
No. 35,118
No. 35,113
No. 35,111
No. 35,109
No. 35,107
No. 35,106
No. 35,105
No. 35,049
No. 35,108
No. 35,101
No. 35,097
No. 35,098
No. 35,084
No. 35,088
No. 35,086
No. 35,069
No. 35,060
No. 35,050
No. 35,046
No. 35,040
No. 35,039
No. 35,037
No. 35,099
No. 35,068
No. 34,949
12
Date Petition Filed
COA 33,953 02/20/15
State v. Hall
Bank of New York v.
Singh
COA 34,041
Einer v. Rivera
COA 33,362
Progressive Ins. v. Vigil COA 32,171
State v. Ramos
COA 33,969
State v. Amy B.
COA 33,469
State v. Leslie K.
COA 33,562
State v. Castro
COA 33,886
State v. Valenzuela
COA 33,868
Lente v. State
12-501
State v. Chakerian
COA 32,872
State v. DeLao
COA 33,870
State v. Garcia
COA 33,796
State v. Duran
COA 33,862
Lester v. Lester
COA 33,926
City of Albuquerque v.
COA 33,261
Lester
State v. Padilla
COA 33,887
Lea County v.
COA 32,510
Markum Ranch
Valenzuela v. N.M. Dept. of
COA 34,231
Workforce Solutions
State v. Villanueva
COA 34,092
Salomon v. Franco
12-501
Pena-Kues v.
COA 32,790
Smith’s Food & Drug
State v. Surratt
COA 32,881
Pena-Kues v.
COA 32,790
Smith’s Food & Drug
Dalton v. Santander
COA 33,136
Marrah v. Swisstack
12-501
Torres v. Hatch
12-501
Branch v. State
12-501
Vine v. State
12-501
Moreno v. Hatch
12-501
Arencon v.
City of Albuquerque
COA 33,196
Response filed 1/23/15
Medina v. State
12-501
State v.
COA 32,110/32,109
Hernandez
Response ordered; due 2/27/15
Ramirez v. Ortiz
12-501
Montoya v. Wrigley
12-501
Ramirez v. Hatch
12-501
Graham v. Hatch
12-501
Keller v. Horton
12-501
Jessen v. Franco
12-501
State v. Chacon
COA 33,748
Response filed 10/31/14
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
02/20/15
02/20/15
02/19/15
02/17/15
02/16/15
02/16/15
02/16/15
02/16/15
02/13/15
02/13/15
02/10/15
02/10/15
02/10/15
02/09/15
02/09/15
02/09/15
02/05/15
02/05/15
02/04/15
02/04/15
02/03/15
02/02/15
01/30/15
01/28/15
01/26/15
01/23/15
01/16/15
01/15/15
01/13/15
01/08/15
12/30/14
12/22/14
12/15/14
12/15/14
12/15/14
12/15/14
12/11/14
11/25/14
10/27/14
No. 34,932
No. 34,881
No. 34,913
No. 34,907
No. 34,885
No. 34,878
No. 34,777
No. 34,790
No. 34,765
No. 34,793
No. 34,775
No. 34,776
No. 34,748
No. 34,731
No. 34,739
No. 34,706
No. 34,691
No. 34,589
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Pittman v.
12-501
N.M. Corrections Dept.
Gonzales v. Sanchez
12-501
Paz v. Horton
12-501
Finnell v. Horton
12-501
Response ordered; due 4/2/15
Cantone v. Franco
12-501
Savage v. State
12-501
O’Neill v. Bravo
12-501
State v. Dorais
COA 32,235
Response filed 7/31/14
Venie v. Velasquz
COA 33,427
Response ordered; due 8/22/14
Helfferich v. Frawner
12-501
Response ordered; due 3/15/15
Isbert v. Nance
12-501
State v. Merhege
COA 32,461
Serna v. Franco
12-501
Smith v. State
12-501
Helfferich v. Frawner
12-501
Response ordered; due 3/15/15
Holguin v. Franco
12-501
Camacho v. Sanchez
12-501
Wetson v. Nance
12-501
Response ordered; filed 7/14/14
Seager v. State
12-501
Response ordered; filed 2/18/15
Benavidez v. State
12-501
Response ordered; filed 5/28/14
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Response ordered; filed 1/22/13
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Response ordered; due 10/24/12
Utley v. State
12-501
10/20/14
10/16/14
10/08/14
09/22/14
09/11/14
09/08/14
08/26/14
07/02/14
06/27/14
06/24/14
06/23/14
06/19/14
06/13/14
06/06/14
05/29/14
05/21/14
05/13/14
05/07/14
04/23/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but No.t yet Submitted to the Court:
(Parties preparing briefs) No. 33,725 State v. Pasillas
No. 33,837 State v. Trujillo
No. 33,877 State v. Alvarez
No. 33,930 State v. Rodriguez
No. 33,994 Gonzales v. Williams
No. 33,863 Murillo v. State
No. 33,810 Gonzales v. Marcantel
No. 34,363 Pielhau v. State Farm
No. 34,274 State v. Nolen
No. 34,400 State v. Armijo
No. 34,443 Aragon v. State
Date Writ Issued
COA 31,513 09/14/12
COA 30,563 11/02/12
COA 31,987 12/06/12
COA 30,938 01/18/13
COA 32,274 08/30/13
12-501 08/30/13
12-501 08/30/13
COA 31,899 11/15/13
12-501 11/20/13
COA 32,139 12/20/13
12-501 02/14/14
Writs of Certiorari
No. 34,522
No. 34,582
No. 34,637
No. 34,694
No. 34,669
No. 34,650
No. 34,630
No. 34,789
No. 34,769
No. 34,786
No. 34,784
No. 34,805
No. 34,798
No. 34,843
No. 34,834
No. 34,772
No. 34,726
No. 34,668
No. 34,855
No. 34,728
No. 34,812
No. 34,886
No. 34,866
No. 34,854
No. 34,830
No. 34,826
No. 34,997
No. 34,993
No. 34,978
No. 34,946
No. 34,945
No. 34,940
No. 34,929
No. 35,063
No. 35,035
No. 35,029
No. 35,016
No. 35,005
No. 34,974
No. 34,995
Hobson v. Hatch
12-501
State v. Sanchez
COA 32,862
State v. Serros
COA 31,975
State v. Salazar
COA 33,232
Hart v. Otero County Prison 12-501
Scott v. Morales
COA 32,475
State v. Ochoa
COA 31,243
Tran v. Bennett
COA 32,677
State v. Baca
COA 32,553
State v. Baca
COA 32,523
Silva v. Lovelace Health
Systems, Inc.
COA 31,723
King v.
Behavioral Home Care
COA 31,682
State v. Maestas
COA 31,666
State v. Lovato
COA 32,361
SF Pacific Trust v.
City of Albuquerque
COA 30,930
City of Eunice v. N.M. Taxation and
Revenue Dept.
COA 32,955
Deutsche Bank v.
Johnston
COA 31,503
State v. Vigil
COA 32,166
Rayos v. State
COA 32,911
Martinez v. Bravo
12-501
Ruiz v. Stewart
12-501
State v. Sabeerin COA 31,412/31,895
State v. Yazzie
COA 32,476
State v. Alex S.
COA 32,836
State v. Mier
COA 33,493
State v. Trammel
COA 31,097
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
Atherton v. Gopin
COA 32,028
State v. Kuykendall
COA 32,612
State v. Kuykendall
COA 32,612
State v. Flores
COA 32,709
Freeman v. Love
COA 32,542
State v. Carroll
COA 32,909
State v. Stephenson
COA 31,273
State v. Abeyta
COA 33,485
State v. Baca
COA 33,626
State v. Archuleta
COA 32,794
Moses v. Skandera
COA 33,002
State v. Deangelo M.
COA 31,413
03/28/14
04/11/14
05/01/14
06/06/14
06/06/14
06/06/14
06/06/14
08/01/14
08/01/14
08/01/14
08/01/14
08/15/14
08/15/14
08/29/14
08/29/14
08/29/14
08/29/14
09/26/14
10/10/14
10/10/14
10/10/14
10/24/14
10/24/14
10/24/14
10/24/14
10/24/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
01/26/14
01/26/14
01/26/14
01/26/14
01/26/14
01/26/14
02/06/15
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
No. 33,548 State v. Marquez
No. 33,808 State v. Nanco
Submission Date
COA 30,565 04/15/13
COA 30,788 08/14/13
No. 33,862
No. 33,969
State v. Gerardo P.
COA 31,250
Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088
No. 33,884 Acosta v. Shell Western Exploration
and Production., Inc.
COA 29,502
COA 31,421
No. 34,013 Foy v. Austin Capital
No. 34,085 Badilla v. Walmart
COA 31,162
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244
No. 34,093 Cordova v. Cline
COA 30,546
No. 34,194/34,204
King v. Faber
COA 34,116/31,446
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297
COA 31,442
No. 34,120 State v. Baca
No. 34,122 State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136
No. 34,499 Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
No. 34,546 N.M. Dept. Workforce
Solutions v. Garduno
COA 32,026
COA 32,425
No. 34,435 State v. Strauch
No. 34,447 Loya v. Gutierrez
COA 32,405
12-501
No. 34,295 Dominguez v. State
No. 34,501 Snow v. Warren Power
COA 32,335
No. 34,607 Lucero v.
Northland Insurance
COA 32,426
No. 34,554 Miller v.
Bank of America
COA 31,463
COA 32,994
No. 34,516 State v. Sanchez
No. 34,613 Ramirez v. State
COA 31,820
COA 28,219
No. 34,548 State v. Davis
No. 34,526 State v. Paananen
COA 31,982
No. 34,549 State v. Nichols
COA 30,783
08/14/13
08/28/13
09/11/13
10/28/13
11/14/13
12/04/13
12/09/13
01/15/14
02/24/14
03/26/14
03/26/14
08/11/14
08/13/14
08/13/14
08/27/14
08/27/14
09/24/14
10/01/14
10/29/14
11/10/14
12/17/14
12/17/14
01/14/15
01/14/15
02/25/15
Opinion on Writ of Certiorari:
No. 34,286
Yedidag v.
Roswell Clinic Corp.
Date Opinion Filed
COA 31,653 02/19/15
Petition for Writ of Certiorari Denied:
No. 35,095
No. 35,094
No. 35,093
No. 35,085
No. 35,100
No. 35,092
No. 35,090
No. 35,089
State v. Romero
State v. Venegas-Diaz
State v. Lujan
Strand v. Janecka
State v. Sheehan
State v. Sandoval
State v. Upchurch
State v. Demory
Date Order Filed
COA 34,162 02/18/15
COA 33,106 02/18/15
COA 33,995 02/18/15
12-501 02/18/15
COA 33,192 02/16/15
COA 33,952 02/16/15
COA 33,240 02/16/15
COA 33,659 02/16/15
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Effective February 20, 2015
Published Opinions
No. 32934
11th Jud Dist San Juan CR-12-885, STATE v E TAPIA (reverse and remand)
2/16/2015
No. 32277 2nd Jud Dist Bernalillo CR-09-5730, STATE v A TAPIA (affirm in part, reverse in part and remand)
2/17/2015
No. 33150 7th Jud Dist Soccoro CV-11-93, FLAGSTAR BANK v J LICHA (affirm)
2/17/2015
Unublished Opinions
No. 33892 5th Jud Dist Lea CR-13-678, STATE v R CANTU (affirm)
2/16/2015
No. 33897 2nd Jud Dist Bernalillo CV-12-2306, BEHLES LAW v HUDSON ABQ (affirm)
2/16/2015
No. 34029 5th Jud Dist Lea CR-13-671, STATE v J LERKE (affirm)
2/16/2015
No. 34101 3rd Jud Dist Dona Ana LR-13-34, CITY OF LAS CRUCES v J FULLER (affirm)
2/16/2015
No. 34138 2nd Jud Dist Bernalillo LR-11-55, STATE v L ROCKYMORE (affirm)
2/16/2015
No. 33083 11th Jud Dist McKinley LR-12-13, STATE v J ALBERT (affirm)
2/17/2015
No. 33662 WCA-12-53426, M ROMERO v ARCA (affirm)
2/17/2015
No. 33828 2nd Jud Dist Bernalillo LR-12-23, STATE v C BECKWITH (affirm)
2/17/2015
No. 33841 WCA-06-57883, J HERRERA v HERITAGE (affirm)
2/17/2015
No. 33860 2nd Jud Dist Bernalillo LR-12-54, STATE v L VULJEVIC (affirm)
2/17/2015
No. 33899 13th Jud Dist Valencia JQ-11-33, CYFD v TINA P (affirm)
2/18/2015
No. 32669 5th Jud Dist Lea CR-11-431, CR-11-445, STATE v J WINTERS (affirm in part, reverse in part)
2/18/2015
No. 32689 7th Jud Dist Soccoro CR-11-120, STATE v F AVALOS (affirm)
2/19/2015
No. 33359 1st Jud Dist Santa Fe CR-12-690, STATE v F GARCIA (affirm)
2/19/2015
No. 33855 5th Jud Dist Lea CV-12-690, V BISSEY v R MORRIS (affirm)
2/19/2015
No. 33879 11th Jud Dist San Juan CR-2012-1181, STATE v D PHILLIPS (affirm)
2/19/2015
No. 33954 5th Jud Dist Lea CR-09-331, STATE v J YANEZ (affirm)
2/19/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated Feb. 2, 2015
Clerk’s Certificate
of Address and/or
Telephone Changes
Jamshid Ghazi Askar
Law Offices of the Public
Defender
2395 N. Florida Avenue
Alamogordo, NM 88310
575-551-7209
jamshid.askar@lopdnm.us
Terri Nikole Baca
AT&T
111 Third Street NW
Albuquerque, NM 87102
505-301-5009
tb0754@att.com
Kristina Lynn Cervone
Cordell & Cordell
7150 E. Camelback Road,
Suite 444
Scottsdale, AZ 85251
480-477-8016
kcervone@cordelllaw.edu
Albert Chavez
1449 Saunders Road SW
Albuquerque, NM 87105
505-453-0364
albert366@msn.com
A. Blair Dunn
Western Agriculture, Resource
and Business Advocates, LLP
1801 Rio Grande Blvd. NW,
Unit 2-C
Albuquerque, NM 87104
505-681-7801
abdunn@ablairdunn-esq.com
Anne Walker Eley
San Juan Regional Medical
Center
801 W. Maple Street
Farmington, NM 87401
505-609-2000
annie.eley@gmail.com
Noelle Graney
PO Box 4896
Albuquerque, NM 87196
505-350-1764
noellegraney@gmail.com
Allison Pool Hedgecock
N.M. State Land Office
PO Box 1148
310 Old Santa Fe Trail
(87501)
Santa Fe, NM 87504
505-827-5715
505-827-4262 (fax)
ahedgecock@slo.state.nm.us
Jade Plagata Delfin Rotonda
Walsh, Anderson, Gallegos,
Green & Treviño, PC
500 Marquette Avenue NW,
Suite 1360
Albuquerque, NM 87102
505-243-6864
505-843-9318 (fax)
jrotonda@wabsa.com
Harriet J. Hickman
Gallagher, Casados
& Mann, PC
4101 Indian School Road NE,
Suite 200N
Albuquerque, NM 87110
505-243-7848
505-764-0153 (fax)
hhickman@gcmlegal.com
Josephine Lue
Thomas J. Henry Injury
Lawyers
4715 Fredericksburg Road,
Suite 520
San Antonio, TX 78229
210-656-1000
361-985-0601 (fax)
josephine.lue@gmail.com
Romulo M. Saune
Noble & Vrapi, PA
4470 Rodeo Road
Santa Fe, NM 87507
505-466-5600
505-473-0591 (fax)
romulo@noblelawfirm.com
Kirsten L. Kranz
1740 Dietz Place NW
Los Ranchos de Albuquerque,
NM 87107
Maria Sashina
Martinez-Siemel
Smidt Law Firm
4811A Hardware Drive NE,
Suite 4
Albuquerque, NM 87109
505-830-2200
mms@siemellaw.com
James C. McKay
N.M. Dept. of Military
Affairs/Veterans’ Services
47 Bataan Blvd.
Santa Fe, NM 87508-4695
505-474-1663
james.mckay@state.nm.us
Karen J. Meyers
Karen J. Meyers, Attorney at
Law, LLC
500 Tijeras Avenue NW
Albuquerque, NM 87102
505-247-2553
meyers.karenj@gmail.com
John P. Rhinehart
Rhinehart & Associates, PC
PO Box 23234
Albuquerque, NM 87192
505-293-3771
505-797-4082 (fax)
rhinehartlaw@gmail.com
Joseph F. Arite
PO Box 7251
827 E. Santa Fe Avenue
Grants, NM 87020
505-658-5513
aritelaw@gmail.com
Charles L. Barth
PO Box 20456
Albuquerque, NM 87154
Robert W. Becker
310 Quien Sabe Street
Pagosa Springs, CO 81147
505-917-9848
rbecker@bw-legal.com
R. Thomas Dawe
Gallagher, Casados
& Mann, PC
4101 Indian School Road NE,
Suite 200N
Albuquerque, NM 87110
505-243-7848
505-764-0153 (fax)
tdawe@gcmlegal.com
John Edwin Farrow
Gallagher, Casados
& Mann, PC
4101 Indian School Road NE,
Suite 200N
Albuquerque, NM 87110
505-243-7848
505-764-0153 (fax)
jfarrow@gcmlegal.com
Nathan H. Mann
Gallagher, Casados
& Mann, PC
4101 Indian School Road NE,
Suite 200N
Albuquerque, NM 87110
505-243-7848
505-764-0153 (fax)
nmann@gcmlegal.com
Ralph M. Montez
1442 St. Francis Drive, Suite C
Santa Fe, NM 87505
505-984-3004
rmm2202@aol.com
Anne Murray
1423 Seventh Street NW
Albuquerque, NM 87102
annem@unm.edu
Matthew Wayne Rowland
368 Old Haw Creek Road
Asheville, NC 28805
rowlandmatt44@yahoo.com
Ron (Ronnie) Sanchez
503 Slate Avenue NW
Albuquerque, NM 87102
505-224-2882
505-842-6945 (fax)
rsanchez127@gmail.com
Scott D. Spencer
1418 Warner Avenue
Los Angeles, CA 90024
Georgia LaLonde Wilkens
3600 Henrietta Hartford Road
Mount Pleasant, SC 29466
glwilkens@gmail.com
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
15
Clerk’s Certificates
Aaron Garrett
Garrett Law
6739 Academy Road NE,
Suite 350
Albuquerque, NM 87109
505-242-1920
505-242-0508 (fax)
aaron.garrettlaw@gmail.com
James C. Ellis
James C. Ellis, Attorney at
Law, PC
3949 Corrales Road NW,
Suite 230
Corrales, NM 87048
505-266-0800
505-508-1872 (fax)
jamescellisatty@aol.com
Clerk’s Certificate of
Withdrawal
Effective February 20, 2015:
Alfonso Barrera Jr.
2348 Neutron Star Street
Henderson, NV 89044
Effective February 12, 2015:
David Gordon
618 Tulane Drive NE
Albuquerque, NM 87106
Effective February 14, 2015:
Sarah Martha Puckett II
5932 Broadmoor Drive
Plano, TX 75093
Patrick Griebel
Marrs Law, Ltd.
1000 Gold Avenue SW
Albuquerque, NM 87102
505-433-3926
505-639-4161 (fax)
patrick@marrslegal.com
Jose G. Puentes
Office of the Attorney General
PO Box 1508
408 Galisteo Street (87501)
Santa Fe, NM 87504
505-827-6021
505-827-6478 (fax)
jpuentes@nmag.gov
Effective February 13, 2015:
Ethan Samuel Simon
Simon Law Firm, Ltd.
PO Box 26596
Albuquerque, NM 87125-6596
Effective February 18, 2015:
Michael P. Maloney
Maloney, Molari
& Associates, LLC
7 Park Street, Suite 201
Attleboro, MA 02703
Bryan W. Thomason
Borenstein and Associates, LLC
111 Lomas Blvd. NW, Suite 502
Albuquerque, NM 87102
505-265-9630
505-265-9601 (fax)
nmatty@ibalegal.com
On February 17, 2015:
Steven Gregory DuCharme
3700 North A Street, #3302
Midland, TX 79705
575-420-6676
steven.g.ducharme@gmail.com
Clerk’s Certificate
of Reinstatement to
Inactive Status
As of February 20, 2015:
Jill Deborah
Dorancy-Williams
3506 Dexter Court
Denver, CO 80207
Clerk’s Certificate
of Admission
On February 17, 2015:
Patrick Charles Cooper
Ward & Wilson, LLC
2501 W. Zia Road, Unit 10208
Santa Fe, NM 87505
205-821-0908
205-871-5758 (fax)
patrickcharles003@yahoo.com
16
Jeffrey R. Brannen
Jeffrey R. Brannen, PA
PO Box 10166
Santa Fe, NM 87504
505-577-7590
jrb@brannenlaw.net
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
Clerk’s Certificate
of Change to Inactive
Status
Effective February 13, 2015:
Michelle Engert
American University
Battelle-Tompkins, Room 137
4400 Massachusetts
Avenue NW
Washington, DC 20016
202-885-2401
engert@american.edu
Effective February 10, 2015:
Shant Sevag Gabriel Taslakian
Office of the Tulare County
District Attorney
221 S. Mooney Blvd., Room 224
Visalia, CA 93291
2015
Staff
Directory
Joe Conte
Executive Director
Joe has overall responsibility for the day-to-day operations of the State Bar and the State Bar Foundation,
with a combined budget of more than $4 million. He is responsible to and reports to the 22-member
Board of Bar Commissioners and oversees the State Bar staff of 30 employees. Joe became the executive
director in July 2003. He was director of communications for the State Bar from 1998–2001 and then was
director of communications for the State Bar of Georgia, returning to New Mexico in 2003. He has nearly
three decades of experience in marketing, communications and non-profit management. He was deputy
director of communications for the Michigan House of Representatives and senior editor for a Californiabased publishing company. Joe attended Oakland University (bachelor’s degree) and Michigan State
University (master’s degree). He is a member and on the board of directors of the National Association of
Bar Executives, and is currently the secretary-treasurer of the Western States Bar Conference. He has been an active volunteer for the
Center for Civic Values, Dismas House, the American Lung Association of New Mexico and New Mexico Animal Friends. He is a past
board member of the Appleseed Foundation of New Mexico and a past president of the New Mexico BioPark Society. He also is a
member of the American Bar Association Day Steering Committee and the Albuquerque Citizens Independent Advisory Commission.
Executive Team
Kris Becker
Governance and Special Projects Administrator
Kris is responsible for the administration of the Board of Bar Commissioners, including coordinating
meetings, elections, judicial nominating commissions and appointments to the Supreme Court Boards,
Committees and Commissions. She works with the internal committees of the board and maintains the
State Bar Bylaws and Policies. Kris coordinates the annual service awards and is the project manager for
the State Bar’s Annual Meeting—Bench and Bar Conference. She also oversees the management of the
State Bar Center and the front desk customer service staff who handle the coordination of meetings and
events, including scheduling, room set ups, and catering.
Chris Morganti
Chief Operating Officer
Chris provides managerial oversight of the Communications and Member Services Department,
the Digital Print Center and the Center for Legal Education. Communications and Member Services
provides assistance to sections, committees and divisions; produces State Bar publications; administers
and promotes member benefits and services; and handles media relations. In addition to State Bar
publications, the Digital Print Center provides an array of printing services to the State Bar, its members
and the public. The CLE is a non-profit New Mexico accredited CLE course provider dedicated to providing
high quality, affordable educational programs to the legal community.
Stormy K. Ralstin
Director of Legal Services, State Bar Foundation
Stormy manages the community legal service programs of the State Bar and Bar Foundation, including the
Legal Resources for the Elderly Program (LREP), the State Bar General Referral Program, and the Consumer
Debt/Bankruptcy Workshop. Stormy also has managing attorney responsibilities for LREP, which include
supervising staff attorneys and case management, along with providing legal advice and brief services
through the LREP helpline, and conducting legal workshops throughout the state. Stormy is a member of
the State Bar Executive Team and is the Bar Foundation liaison to other legal services entities.
Richard B. Spinello
General Counsel
Richard oversees a professional office to protect the legal and policy interests of the State Bar. He assists
in the areas of regulatory functions; provides a professional legal resource for the State Bar leadership,
volunteers and staff; administers and manages programs assigned to the office; assists with outreach
to the judiciary; and advises in legislative, executive and judicial processes. He also oversees human
resources and benefits.
2
State Bar of New Mexico
State Bar of New Mexico
The State Bar of New Mexico was organized in 1886 and is composed of more than 9,000 members. Its purposes are to aid
the courts in administering justice and preserving the rule of law, and to foster a high standard of integrity and competence
within the legal profession. The New Mexico State Bar Foundation was established in 1991 to accomplish many of the
goals of the State Bar in public service and public education, among them to improve the relationships between the legal
profession and the public; to encourage and assist in the delivery of legal service to all in need; to aid in improving the
administration of justice; and to foster and maintain high ideals of integrity, learning, competence, and public service.
Accounting Department
The Accounting Department oversees daily accounting activities including licensing fees, membership status applications,
payroll, accounts payable/receivable, and administers the IOLTA program.
Carol Mieszerski
Accounting Manager
Carol oversees all accounting functions
for State Bar and Bar Foundation and
manages the Accounting Department
staff. She prepares the financial
statements, reconciles accounts and
bank statements, processes payroll and
works with all departments preparing
the annual budgets.
Angela Sanchez
Bookkeeper
Angela provides assistance to members
with respect to annual licensing fees,
including Bridge the Gap Mentorship
Program fees. She is responsible for
accounts receivables and payables,
including but not limited to State Bar
Center room rentals, Bar Bulletin, Bench &
Bar Directory, pro hac vice registrations,
the Center for Legal Education and annual meetings.
Bridge the Gap Mentorship Program
Lawyers & Judges Assistance Program
The Lawyers & Judges Assistance Program (JLAP) provides free, confidential assistance for law students and members of
the bench and bar concerned about their own, a colleague’s or family member’s alcohol/other drug abuse, depression, stress,
cognitive impairment, or other mental health issues. Clinical services include information and referrals, assessments, peer
support, and professional interventions.
The Bridge the Gap (BTG) Mentorship Program, a mandatory program under Rule 24-110, is designed to ease the transition
from law school into active practice for newly admitted lawyers by helping them acquire the practical skills, judgment, and
resources needed to thrive as competent and ethical legal professionals. Over the course of a year, each new lawyer works
through an individualized curriculum plan with an experienced attorney who has been approved as a BTG mentor. Upon
completion of the full curriculum, the new lawyer and mentor receive a full year of required CLE credits.
Jill Anne Yeagley
Lawyers & Judges Assistance
Program/Mentorship Program
Administrator
Jill, a licensed social worker and
alcohol and drug counselor, provides
mental health and substance abuserelated assessments, interventions,
and consultations for members of
the bar and bench. She also works
closely with JLAP Committee members to provide outreach,
peer assistance and prevention initiatives. In addition, Jill
has overall management responsibility for the Bridge the
Gap Mentorship Program, including program development,
evaluation, and mentor and new lawyer orientation.
Elizabeth Aikin
Mentorship Program Coordinator
Elizabeth assists the administrator
of the Bridge the Gap Mentorship
Program, maintaining documents and
providing compliance status, guidance,
and support to new attorneys
and program mentors. She has an
associate’s degree in paralegal studies.
2015 Staff Directory
3
Communications and Member Services Department
The Communications and Member Services Department provides assistance to sections, committees, and divisions;
produces State Bar publications (Bar Bulletin, Bench & Bar Directory, New Mexico Lawyer, and eNews); administers and promotes
member benefits and services; and handles media relations.
D.D. Wolohan
Communications and Member
Services Program Manager
D.D. supervises the Communications
and Member Services staff, budget and
programs. She is the managing editor
of State Bar publications, directs media
relations and supervises the marketing
of member benefits and services.
In addition, she provides guidance
regarding bylaws, policies and State Bar resources to sections,
committees, divisions and law student members.
Marcia C. Ulibarri
Account Executive
Marcia is the point of contact for
printing services, advertising and
marketing in the Bar Bulletin; the
New Mexico Lawyer; the Bench & Bar
Directory; eNews; Premium Listings;
State Bar Center exhibit tables; the
Member Benefits Program and the
Annual Meeting sponsorship, exhibitors
and program guide.
Julie Schwartz
Graphic Designer
Julie is the lead designer for State Bar
publications and projects submitted
by other law-related entities. In
addition to the Bar Bulletin, the Bench
& Bar Directory and the New Mexico
Lawyer, she designs advertisements,
newsletters, brochures, flyers and other
publications.
Evann Kleinschmidt
Communications Coordinator
Evann writes and sends news releases,
maintains social media and tracks State
Bar news in the media. She produces
the weekly Bar Bulletin and eNews.
Evann also provides support for section,
committee and division activities.
Digital Print Center
The Digital Print Center (DPC) provides an
array of printing services to the State Bar, its
members and the public.
Brian Sanchez
Digital Print Center Manager
Brian is responsible for the coordination
and execution of print services. The
DPC prints the weekly Bar Bulletin;
special inserts, handbooks, brochures,
newsletters, business cards and
stationery for the State Bar; and projects
for members and the public. He also
participates in the development and
strategic planning of the DPC.
4
State Bar of New Mexico
Michael Rizzo
Digital Print Center Assistant
Michael assists in the Digital Print
Center. His primary focus is production
and on-time delivery of the weekly Bar
Bulletin and preparing materials for the
Center for Legal Education live seminars
and video replays. He also assists in
other areas of digital print production
as needed.
Executive Office
The Executive Office is responsible for the administration related
to the management, policies, and mission of the State Bar and New
Mexico State Bar Foundation. This department also is responsible for the
administration of the Board of Bar Commissioners.
State Bar Center staff coordinate room rentals for members and
outside entities, including room preparation, catering, and audiovisual
services. The Bar Center offers a variety of meeting spaces including an
auditorium, conference rooms, visiting attorney offices, and classrooms.
Carlos J. Arellano
Customer Service/Facilities
Coordinator
Carlos answers switchboard calls and
directs callers to appropriate staff
members, departments or agencies;
assists with member inquiries; prepares
room signs; sets up rooms; reserves
and calendars rooms; prepares billing
information for the reservations; places
orders for all office supplies; maintains inventory; and processes
incoming and outgoing mail.
Tony Horvat
Customer Service/Facilities
Coordinator
Tony answers switchboard calls and
directs callers to appropriate staff
members, departments or agencies;
assists with member inquiries; prepares
room signs; sets up rooms; reserves
and calendars rooms; prepares billing
information for the reservations; places
orders for all office supplies; maintains inventory; and processes
incoming and outgoing mail.
IT Department
The IT Department provides technical support to State Bar staff and members, website and database maintenance, and troubleshooting.
April Armijo
IT Manager
April provides technical support to
staff and State Bar members. She
oversees network and database issues
and support for the website. She also
manages data reporting, security
systems and the use of audio and video
equipment within the State Bar Center.
Pam Zimmer
Database Administrator
Pam maintains the State Bar database
by entering new admittee information
status changes and pro hac vice
certificates; works closely with the
Supreme Court on all address changes.
She coordinates mailings that involve
variable data; handles the new member
packets; and issues bar cards. During
the dues season, she coordinates the data process and assists
Accounting in entering payments.
2015 Staff Directory
5
Office of General Counsel
The Office of General Counsel works to protect the legal and policy interest of the State Bar and Bar Foundation; provides a
professional legal resource for leadership, volunteers, and staff; and assists with the outreach to members, the courts and the
public. This department helps coordinate the efforts of legal programs and services including Fee Arbitration, Ethics Helpline,
Attorney Resource Helpline, Ethics Advisory Committee, Lawyers Professional Liability and Insurance Committee, Statewide
IOLTA program and pro hac vice.
Lizeth Cera
Senior Administrative Coordinator
Lizeth provides administrative assistance and database
maintenance for the Office of the General Counsel and the
programs and projects assigned to the office, including the
Fee Arbitration Program and sections and committees. In
addition, Lizeth assists with administrative duties for human
resources.
New Mexico State Bar Foundation
The New Mexico State Bar Foundation (Bar Foundation) is a 501(c)(3) non-profit corporation established in 1991 to
accomplish many of the goals of the State Bar in public service and public education. The Bar Foundation has an interlocking
board with the State Bar however each board, elects different officers. The Board of the Bar Foundation is comprised of 21
attorneys from throughout the state who are elected by the State Bar membership and the chair of the Paralegal Division.
Center for Legal Education
The Center for Legal Education (CLE) is a non-profit New Mexico
accredited CLE course provider dedicated to providing high
quality, affordable educational programs to the legal community.
CLE offers a full range of educational services including live
seminars, live webcasts, video replays, national series teleseminars,
online self-study videos and self-study DVDs.
CLE Program Manager
(position vacant at press time)
The CLE Program Manager provides leadership and strategic
management of the Center for Legal Education in all areas,
including programs and services, financial management,
marketing, human resources management, member relations
and business partnerships.
6
State Bar of New Mexico
Julie Parada
CLE Program Assistant
Julie assists with all aspects of program
implementation. Once course topics
and speakers have been established,
she handles coordination of programs
including working with speakers,
compiling written materials for
dissemination, registering attendees,
filing credits and maintaining the
programs on the CLE website.
Legal Resources for the Elderly Program
The Legal Resources for the Elderly Program (LREP) is a statewide, free legal helpline for New Mexico residents age 55 and
older. LREP provides legal advice and brief services to more than 4,000 New Mexico seniors annually. LREP also provides referrals
to the private Bar for clients who need full, direct representation. These referrals are done in combination with LREP’s helpline.
Harold Daum
LREP Volunteer
Harold donates many hours each month
to Legal Resources for the Elderly
Program, assisting with quality control
and statistics. He follows up with private
attorneys who accept LREP case referrals,
collects case status information, and
tracks the amount of time attorneys have
donated to LREP clients.
J. Gayolyn Johnson
Staff Attorney
Gayolyn conducts legal workshops
and client clinics at senior centers
throughout the state. She provides
legal advice and information on the
Legal Resources for the Elderly Program
helpline.
Anita Letter
Staff Attorney
Anita provides legal advice and brief
services on the Legal Resources for
the Elderly Program helpline. She also
conducts legal workshops and meets
individually with clients at senior
centers throughout the state.
Richard Weiner
Staff Attorney
Rich provides legal information, legal
advice, and brief services on the Legal
Resources for the Elderly Program
helpline. He also gives presentations on
landlord/tenant and fair housing law.
Rich is fluent in Spanish.
Alicia Peña
Senior Administrative Assistant
Alicia manages the administrative
needs of the Legal Resources for the
Elderly Program including coordinating
statewide referrals to private attorneys,
statewide legal workshops and LREP
intake functions. Alicia also coordinates
other State Bar Foundation programs
including the State Bar General Referral
Program and the Consumer Debt/Bankruptcy Workshop.
Daniel Macy
Intake Clerk
Daniel is the primary intake staff person
for the Legal Resources for the Elderly
Program and assists the Disciplinary
Board of the New Mexico Supreme
Court with Client Protection Fund
matters. Dan also provides support to
several other State Bar programs.
General Referral Program
The General Referral Program assists in finding attorneys for program participants. A fee of $35 is charged to the caller who
receives a 30-minute consultation with a referral panel attorney in the needed practice area.
Cassie King
Administrative Clerk
Cassie is the primary intake staff person for the State Bar
General Referral Program. Cassie also provides support to
several other State Bar programs.
2015 Staff Directory
7
Staff and Program Services Directory
Executive Team
Programs and Services
Joe Conte, Executive Director.......................................................jconte@nmbar.org / 797-6099
Kris Becker, Governance and Special Projects Administrator.....kbecker@nmbar.org / 797-6038
Chris Morganti, Chief Operating Officer................................cmorganti@nmbar.org / 797-6028
Stormy Ralstin, Director of Legal Services..................................sralstin@nmbar.org / 797-6053
Richard Spinello, General Counsel............................................rspinello@nmbar.org / 797-6050
Accounting........................................................................... 797-6015
Address Changes (must be made in writing)
State Bar..................................address@nmbar.org / fax 828-3765
N.M. Supreme Court............... attorneyinfochange@nmcourts.gov
Advertising/Printing Services.........mulibarri@nmbar.org / 797-6058
Attorney Resource Helpline.............rspinello@nmbar.org / 797-6050
Bar Bulletin
Advertising.................................mulibarri@nmbar.org / 797-6058
CLE Calendar.................................. notices@nmbar.org / 797-6087
Editorial/Announcements............. notices@nmbar.org / 797-6087
Subscriptions
(electronic and printed).............. pzimmer@nmbar.org / 797-6092
Bar Cards.............................................................................. 797-6092
Bench & Bar Directory
Editor.........................................dwolohan@nmbar.org / 797-6039.
Advertising.................................mulibarri@nmbar.org / 797-6058
Orders...............................................................................797-6000.
Board of Bar Commissioners................................................ 797-6038
Bridge the Gap Mentorship Program................................... 797-6003
General Referral Program.......................1-800-876-6227 / 797-6066
Certificate of Good Standing (N.M. Supreme Court)............ 827-4860
CLE Registration................................................................... 797-6020
Dues/Licensing...................................license@nmbar.org / 797-6083
eNews................................................ notices@nmbar.org / 797-6087
Ethics Advisory Opinions...................................................... 797-6050
Ethics Helpline...........................................................1-800-326-8155
Fastcase............................................................................... 797-6092
Fee Arbitration..................................................................... 797-6054
IT Help................................................................................. 797-6086
Judges Assistance Helpline........................................1-888-502-1289
Legal Resources for the Elderly (LREP)....797-6005 / 1-800-876-6657
Lawyers and Judges Assistance Program (JLAP).................. 797-6003
Letter of Membership.......................................................... 797-6000
MCLE (not a State Bar department/program)...................... 821-1980
Member Benefit Program.................................................... 797-6058
Membership Database/Mailing Services............................. 797-6092
Membership/Status Inquiries.............................................. 797-6092
Mentorship Program............................................................ 797-6003
New Mexico Lawyer........................dwolohan@nmbar.org / 797-6039
News/Media Inquiries.......................................................... 797-6087
Pro Hac Vice......................................................................... 797-6050
Reservations/Meetings, State Bar Center............................. 797-6000
Website/Web Services......................................................... 797-6086
State Bar Staff
Elizabeth Aikin, Mentorship Program Coordinator.......................eaikin@nmbar.org / 797-6049
April Armijo, IT Manager...........................................................aarmijo@nmbar.org / 797-6086
Carlos J. Arellano, Customer Service/Facilities Coordinator.....carellano@nmbar.org / 797-6055
Lizeth Cera, Senior Administrative Coordinator..............................lcera@nmbar.org / 797-6054
Tony Horvat, Customer Service/Facilities Coordinator..................tonyh@nmbar.org / 797-6085
Evann Kleinschmidt, Communications Coordinator........ekleinschmidt@nmbar.org / 797-6087
Carol Mieszerski, Accounting Manager............................... cmieszerski@nmbar.org / 797-6036
Michael Rizzo, Digital Print Center Assistant...............................mrizzo@nmbar.org / 797-6062
Angela Sanchez, Bookkeeper..................................................asanchez@nmbar.org / 797-6026
Brian Sanchez, Digital Print Center Manager..........................bsanchez@nmbar.org / 797-6062
Julie Schwartz, Graphic Designer...........................................jschwartz@nmbar.org / 797-6031
Marcia C. Ulibarri, Account Executive......................................mulibarri@nmbar.org / 797-6058
D.D. Wolohan, Communications and Member Services
Program Manager.......................................................... dwolohan@nmbar.org / 797-6039
Jill Anne Yeagley, Lawyers & Judges Assistance Program/
Mentorship Program Administrator..................................jyeagley@nmbar.org / 797-6003
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Bar Bulletin - March 4, 2015 - Volume 54, No. 9
17
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Court of Appeals
Opinion Number: 2015-NMCA-008
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
CHRIS TALAYUMPTEWA,
Defendant-Appellee
Docket No. 32,460 (filed October 16, 2014)
APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
LOUIS E. DEPAULI JR., District Judge
GARY K. KING
Attorney General
Santa Fe, New Mexico
M. VICTORIA WILSON
Assistant Attorney General
Albuquerque, New Mexico
for Appellant
Opinion
Michael E. Vigil, Judge
{1} The State appeals from an order of the
district court suppressing statements made
by Defendant during police questioning.
The district court suppressed Defendant’s
statements on the basis that they were the
product of coercive police conduct in the
form of promises of leniency and were
involuntary under the totality of the circumstances. We affirm the district court.
BACKGROUND
{2} The alleged victim gave a SAFE house
interview in which she accused Defendant
of sexual assault. Officers from the McKinley County Sheriff ’s Office left messages
at Defendant’s home that they wanted
to speak with him, and Defendant came
to the Sheriff ’s Office voluntarily, and
agreed to speak with police. Defendant
was questioned there by two police officers, Anthony Ashley and Owen Pena,
for around ninety minutes. During the
course of the interview, Defendant made a
written statement, in the form of an apology letter, and oral statements. Defendant
moved to suppress the statements arguing
that they were involuntary because police
did not give him Miranda warnings prior
to questioning him and because they were
induced by promises of leniency by the
police.
18
JORGE A. ALVARADO
Chief Public Defender
WILL O’CONNELL
Assistant Appellate Defender
Law Offices of the Public Defender
Santa Fe, New Mexico
for Appellee
{3} After an evidentiary hearing, at which
both officers testified, and review of the
transcript of the interview, the district
court ordered Defendant’s statements suppressed. In its written order, the district
court first rejected Defendant’s Miranda
argument, finding that he was not in custody during the interview, and Miranda
therefore did not apply. The district court
specifically found that Defendant was not
in custody because he was informed at the
outset of the interview that he was free to
leave, the officers told him that he would
not be arrested that day, and the officers
did not threaten him. However, the court
found that his statements were nonetheless involuntary because of police overreaching in the form of implied promises
of leniency. The district court found that
immediately at the start of questioning, the
officers began making implied promises of
leniency, which continued throughout the
interview. The district court found that the
multitude of the implied promises of leniency outweighed other factors that might
indicate the statements were voluntary.
The State appeals. Additional facts are
included in the discussion below.
ANALYSIS
{4} The State challenges both the district court’s determination that officers
made implied promises of leniency and
its ruling that the implied promises of
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
leniency outweighed other factors that
might indicate that the statements were
voluntary. “We review de novo the voluntariness of confessions.” State v. Evans,
2009-NMSC-027, ¶ 32, 146 N.M. 319,
210 P.3d 216; see also State v. Leeson,
2011-NMCA-068, ¶ 21, 149 N.M. 823, 255
P.3d 401 (same). “Voluntariness means
freedom from official coercion.” State v.
Sanders, 2000-NMSC-032, ¶ 6, 129 N.M.
728, 13 P.3d 460 (internal quotation
marks and citations omitted). Promises
of leniency on the part of police can be
coercive and may render a subsequent
statement involuntary. See Evans, 2009NMSC-027, ¶ 42 (noting that threats and
promises may rise to the level of coercive
behavior by the police); see also State v.
Tindle, 1986-NMCA-035, ¶ 25, 104 N.M.
195, 718 P.2d 705 (stating that an express
promise of leniency “renders a confession
involuntary as a matter of law”); State v.
Gutierrez, 2011-NMSC-024, ¶ 25, 150
N.M. 232, 258 P.3d 1024 (stating that “unlike an express promise of leniency, which
can render a confession inadmissible as
a matter of law, evidence of an implied
promise is only a factor in the totality of
the circumstances that courts consider
in determining whether a confession is
voluntary”).
Implied Promises of Leniency
{5}We first address the State’s argument
that the district court erred in determining that police made implied promises of
leniency during the interview. “The test in
such a case is ‘whether the accused could
reasonably have inferred a promise going
to the punishment for the crime to be confessed.’” State v. Munoz, 1998-NMSC-048,
¶ 34, 126 N.M. 535, 972 P.2d 847 (quoting
State v. Wickman, 1935-NMSC-035, ¶ 36,
39 N.M. 198, 43 P.2d 933). Our review of
the transcript supports the district court’s
determination that the officers made
numerous implied promises of leniency
to Defendant throughout the interview
in exchange for statements that accorded
with the alleged victim’s version of events.
{6}Defendant responded to the officers’
questions by saying that he could not remember what happened because he was
intoxicated when the alleged incidents
occurred. In response, the officers repeatedly told Defendant they would be meeting
with the district attorney, that his claims
not to remember were legally invalid, and
that they had the ability to influence the
district attorney with respect to the level
Advance Opinions
of charges Defendant faced. Among other
similar statements, Officer Pena told Defendant:
You’re giving us nothing and that’s
what we’re gonna [sic] go to the
D.A.s with . . . is that he gave us
nothing . . . he tried to use the old
. . . I don’t remember because I was
intoxicated defense . . . . And that’s
what we’re gonna tell the D.A. . . . .
He came in and he gave us a convenient excuse . . . . Oh I was drunk
. . . . Oh I don’t remember . . . . It
coulda [sic] happened, but I don’t
know if it did . . . or anything like
that. . . . So if you do remember
what happened, just come clean
with us . . . . We’re trying to help
you here . . . . Okay, but we can
only help you so much. . . . Okay,
I can’t go to the D.A.s and be like
hey let’s . . . you know let’s cut
this guy a break or . . . or let’s . . .
you know let’s do this or . . . let’s
uh . . . you know let’s think about
it second [sic] if you won’t tell us
what happened cuz [sic] I can’t go
to the D.A. with that . . . . Okay, I
can’t . . . . The D.A. ain’t gonna [sic]
buy that either.
{7} The officers also began to inform Defendant that he was facing multiple felony
charges and that they could help him, but
only if he remembered. Officer Pena told
Defendant:
Okay . . . . I tried to help you here,
I tried to give you a life line, I tried
to help, I tried to give you that life
preserver for you to help yourself,
you don’t wanna [sic] take it that’s
fine. . . . I’ll . . .we . . . Investigator
Ashley will go forward to the . . .
to the D.A.s with what we have
based off what her . . . what she’s
saying ‘cuz [sic] you don’t want to
recant anything she’s saying by just
saying I was intoxicated, I don’t
remember. . . that’s fine, if that’s
. . . that’s the road you wanna
[sic] go down . . . that’s fine, okay
. . . when the warrant comes and
when we’re putting you in jail . . .
for multiple felonies okay . . . don’t
say oh wait a minute, I wanna [sic]
talk now, because that’s gonna
[sic] be gone, once you get cuffed
and put in jail.
In the specific exchange cited by the district court, the officers also discussed the
range of prison terms for different degrees
of felonies in response to Defendant’s
http://www.nmcompcomm.us/
question about how much jail time he
was facing. The following discussion then
occurred:
Defendant:
Is there a way I can like . . . . The
only way I can help myself is to
remember, right?
Officer Pena:
That would be a big help.
Defendant:
And then if I remember and that
is what happened I’m still looking
at those right?
Officer Pena:
No[t] necessarily, uh . . . it’s still
. . . we still have to . . . it’s not like
we sit here and we’re like okay,
we’re gonna [sic] charge him
for this okay . . . we need to get
everything done . . . we still got
some interviews to do and stuff
like that, we’re gonna [sic] do
. . . we’re gonna [sic] interview everybody then we take our whole
case and we give it to the D.A.s
and the D.A.s is the one who say
. . . this and that . . . okay?
Officer Ashley:
[S]eriousness of the crime is way
up here, we can help eventually
bring it back down to maybe almost down to nothing. . .
Officer Pena:
That also depends on . . . us being
able to go to the D.A.s . . . being
able to say to the judge you know,
he was very . . . sorry it was an accident, it was [a] stupid mistake
that he did while he was intoxicated . . . he came in he was honest
about it, he was up front about it
. . . he did remember finally, he
came back in and said hey this is
what I remembered.
{8}These statements and the others like
them constitute implied promises of
leniency because their import was that
Defendant would be arrested on serious
felony charges if he continued to claim a
lack of memory, but that if he made certain
admissions, officers would intercede with
the district attorney on his behalf, and
that they had the ability to have charges
reduced or not brought at all. See Munoz,
1998-NMSC-048, ¶ 34 (stating that an
implied promise of leniency occurs when
the accused could reasonably have inferred
a promise going to the punishment for the
crime to be confessed); cf. State v. Lobato,
2006-NMCA-051, ¶ 18, 139 N.M. 431, 134
P.3d 122 (finding no implied promise of le-
niency where the officer told the defendant
he would get treatment if he confessed, but
did not tell the defendant he would receive
treatment instead of prison time).
{9}The State characterizes the officers
as merely suggesting to Defendant that
his claims not to remember were not
believable and that cooperation would
be more helpful to him than denial. See
Evans, 2009-NMSC-027, ¶ 43 (“[T]hreats
that merely highlight potential real consequences, or are ‘adjurations to tell the
truth,’ are not characterized as impermissibly coercive.”). The State also argues
that Defendant could not have inferred a
promise of leniency because the officers
told him that any charging decision was
ultimately up to the district attorney.
Defendant counters that Officer Ashley’s
statement that the charges could be reduced “maybe down to almost nothing”
rose to the level of an express promise of
leniency, and the statements are therefore
inadmissible as a matter of law. See Lobato,
2006-NMCA-051, ¶ 19 (stating that an
express promise of leniency will render a
confession inadmissible as a matter of law).
{10} We cannot agree with Defendant’s
argument that Officer Ashley’s statement
rose to the level of an express promise because it was not an unequivocal guarantee
that Defendant would receive leniency if
he gave a statement. See State v. Munoz,
1990-NMCA-109, ¶ 13, 111 N.M. 118,
802 P.2d 23 (stating that a promise of leniency was implied where the officer merely
speculated about what might happen if the
defendant was cooperative). However, we
also disagree with the State’s assertion that
the officers only suggested that Defendant
could help himself by being cooperative.
The transcript contains numerous statements by the officers throughout the interview, the effect of which was to say that
if Defendant gave a statement they would
act on his behalf and had the ability to get
the charges reduced. This was more than
a mere offer to bring Defendant’s cooperation to the attention of the district attorney,
which courts have found acceptable. See
State v. Sanders, 2000-NMSC-032, ¶ 10
(stating that “merely promising to bring
a defendant’s cooperation to the attention
of the prosecutor is not objectionable”).
{11} Additionally, the fact that the officers
told Defendant that the final decision on
charges was up to the district attorney does
not mean that there was no official promise
of leniency. See State v. Benavidez, 1975NMCA-013, ¶ 7, 87 N.M. 223, 531 P.2d 957
(stating that an unlawful inducement that
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
19
Advance Opinions
renders a confession involuntary need not
be made by a person in an actual position
of authority, but the situation must be such
that the person confessing might reasonably consider the promisor as a person able
to afford him aid). The officers’ other statements during the interview gave rise to the
understanding that, if Defendant made a
statement, they had the ability to influence the district attorney, and Defendant
would face less time in prison, if any. The
reasonableness of this understanding was
reinforced by Officer Pena talking about
another suspect who “finally remembered”
and confessed to burglary, who it “still
worked out for” because the confession
gave Officer Pena the ability to argue for
leniency with the district attorney. Cf. State
v. Barr, 2009-NMSC-024, ¶¶ 10, 27, 146
N.M. 301, 210 P.3d 198 (finding no implied
promise of leniency where the officer told
the suspect that he could not offer him a
deal but offered to speak to the district
attorney on his behalf if he made a statement), overruled on other grounds by State
v. Tollardo, 2012-NMSC-008, 275 P.3d 110;
Munoz, 1990-NMCA-109, ¶ 16 (holding
the confession voluntary where the officer
responded to the defendant’s question by
stating that “in his experience, first offenders who cooperated were less likely to go to
jail than other defendants”). Under these
circumstances, we believe that Defendant
could reasonably infer a promise going to
the crime confessed based on the officers’
statements during the interview. See Munoz, 1998-NMSC-048, ¶ 34 (stating that an
implied promise of leniency occurs when
the accused could reasonably have inferred
a promise going to the punishment for the
crime to be confessed).
Voluntariness
{12} We next turn to the overall question
of voluntariness. See Gutierrez, 2011NMSC-024, ¶ 25 (stating that “evidence of
an implied promise is only a factor in the
totality of the circumstances that courts
consider in determining whether a confession is voluntary”). “On a claim that police
coerced a statement, the prosecution bears
the burden of proving by a preponderance
20
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of the evidence that a defendant’s statement was voluntary.” Evans, 2009-NMSC027, ¶ 34. “[W]e review the entire record
and the circumstances under which the
statement or confession was made in order
to make an independent determination of
whether a defendant’s confession was voluntary.” State v. Fekete, 1995-NMSC-049,
¶ 34, 120 N.M. 290, 901 P.2d 708. “[T]he
preponderance of the evidence must establish that the confession was not ‘extracted
from an accused through fear, coercion,
hope of reward, or other improper inducements.’” State v. Cooper, 1997-NMSC-058,
¶ 30, 124 N.M. 277, 949 P.2d 660 (quoting
State v. Turnbow, 1960-NMSC-081, ¶ 41,
67 N.M. 241, 354 P.2d 533).
{13} Again, our review of the transcript
of the interview supports the district
court’s ruling. As the district court
found, there were a multitude of implied
promises of leniency that started at the
outset of the interview and continued
throughout, constituting coercive police
overreaching. We also find it significant
that prior to making both the oral and
written statements at issue, Defendant
indicated that he was acting in an effort
to avoid prison. See Munoz, 1998-NMSC048, ¶ 21 (stating that “[f]or the confession to be involuntary, there must be an
‘essential link between coercive activity
of the State . . . and a resulting confession
by a defendant’” (omission in original)).
Before writing the apology letter at the
request of the officers, Defendant said:
“I’ll do anything to avoid jail cuz [sic]
I don’t wanna [sic] to miss out on my
daughter[’]s life.” Also, while making
statements purporting to remember the
events of the evening, Defendant repeatedly said that his motivation was to avoid
jail: “I’m trying to remember because I
really don’t want to go to jail or anything
else . . . . I’m trying to remember because I
wanna [sic] be able to just put this behind
me and just move on.” “I’m trying to remember but it’s . . . like I will do anything
it takes to avoid jail time.” “I’m just trying
to remember so I don’t . . . I just . . . you
know, I don’t wanna [sic] to go to jail.” See
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
State v. Watson, 1971-NMCA-104, ¶ 11,
82 N.M. 769, 487 P.2d 197 (stating that
“[i]f the accused confesses because he was
induced by the promise that his punishment will not be so severe as it otherwise
might be, the confession is not admissible
because it was not voluntary”); cf. Gutierrez, 2011-NMSC-024, ¶ 28 (rejecting the
argument that a confession was obtained
through promises of leniency where the
suspect indicated that he did not expect
leniency upon confession).
{14} The State points to the fact that
Defendant came voluntarily to the police
station, was informed that he was free to
leave, and did not appear sleepy, nervous,
or intoxicated to the officers. The State also
notes that the officers reminded Defendant
that they personally would not be making
the charging decision. However, while
these factors may weigh in favor of voluntariness to some extent, based on the totality of the circumstances, we agree with the
district court that they are insufficient to
outweigh the coercive effect of the numerous implied promises of leniency made to
Defendant by the officers throughout the
interview. See Barr, 2009-NMSC-024, ¶ 24
(stating that a confession is coerced when
the defendant’s will is overborne and his
capacity for self-determination is critically
impaired). We therefore agree with the district court the State did not meet its burden
to show that the statements were voluntary
by a preponderance of the evidence, and
we affirm its order suppressing the statements. See Evans, 2009-NMSC-027, ¶ 34
(stating that the State’s failure to make
such a showing requires a ruling that the
confession was involuntary as a matter of
law).
CONCLUSION
{15} The order of the district court is affirmed.
{16} IT IS SO ORDERED.
MICHAEL E. VIGIL, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
MICHAEL D. BUSTAMANTE, Judge
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Court of Appeals
Opinion Number: 2015-NMCA-009
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
TREVOR M.,
Child-Appellant
Docket No. 32,905 (filed October 16, 2014)
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
GARY L. CLINGMAN, District Judge
GARY K. KING
Attorney General
JAMES W. GRAYSON
Assistant Attorney General
Santa Fe, New Mexico
for Appellee
Opinion
Michael D. Bustamante, Judge
{1}Child appeals the revocation of his
probation. We conclude that Child had a
statutory right to confront the witnesses
against him that was violated when the
district court permitted a witness to testify
by telephone without determining that
telephonic testimony was necessary to
further an important public interest. We
also conclude that the admissible evidence
was insufficient to support a conclusion
that Child willfully violated his conditions
of probation. We reverse and remand.
BACKGROUND
{2}Child pled guilty to residential burglary and was sentenced to supervised probation for two years. Roughly six months
later, Child admitted that he violated the
conditions of probation and was sentenced
to one year commitment to the Children,
Youth and Families Department, which
was suspended in favor of a new two-year
term of supervised probation. One of the
terms of the probation agreement signed
by Child required him to “[a]ttend and
successfully complete an [o]ut[-]of[-h]
ome [p]lacement.” Child was placed with
New Visions Group Home in Clovis, New
Mexico.
{3}After New Visions staff suspected
Child of taking drugs or alcohol, they
decided to discharge him from the program. While Child was being discharged,
JORGE A. ALVARADO
Chief Public Defender
KIMBERLY CHAVEZ COOK
Assistant Appellate Defender
Law Offices of the Public Defender
Santa Fe, New Mexico
for Appellant
he walked out of the group home, and a
warrant was issued for his arrest. Child was
arrested nine days later. The State filed a
petition to revoke Child’s probation based
on his failure to complete the out-of-home
placement. An adjudicatory hearing on the
petition was held before a special master.
The State presented testimony of a social
worker at New Visions Group Home and
the juvenile probation officer (JPO) assigned to Child’s case. The social worker
testified by telephone over Child’s objection.
{4}The special master found that Child
had willfully violated the probation agreement by failing to successfully complete
the out-of-home placement, and the
district court adopted the special master’s
findings and revoked Child’s probation.
Child’s exceptions to the special master’s
report were denied. Additional facts are
provided as necessary to our discussion.
DISCUSSION
{5} Child makes four arguments for reversal of the district court’s ruling and/or for
a new hearing. First, Child maintains that
his right to confront witnesses against him
was violated when the social worker testified by telephone. See U.S. Const. amends.
VI, XIV. Second, he contends that the State
failed to demonstrate that he willfully
violated his probation conditions. Third,
he argues that the district court erred in
admitting hearsay testimony by both of
the State’s witnesses. Finally, Child argues
that the hearing was faulty because he did
not consent to the appointment of a special master as required by the Children’s
Code. We conclude that Child’s confrontation rights were violated and that there
was insufficient evidence supporting the
special master’s determination that Child
willfully violated his probation conditions.
We address Child’s evidentiary arguments
in our discussion of the sufficiency of the
evidence. Because it was not preserved for
appeal, we do not consider Child’s argument as to the appointment of a special
master. We reverse and remand for a new
hearing.
{6} “The . . . issue of whether the admission
of evidence violates an accused’s rights under the [Sixth Amendment] is a question of
law which is reviewed de novo on appeal.”
In re Darcy S., 1997-NMCA-026, ¶ 13, 123
N.M. 206, 936 P.2d 888. Child argues that
(1) the Sixth Amendment’s guarantee of
the right to confrontation applies to juvenile probation revocation hearings; (2) he
is entitled to due process of law—including
confrontation of witnesses—by the Fourteenth Amendment; and (3) regardless of
whether the Sixth Amendment applies
here as a matter of constitutional law, the
Legislature has guaranteed the right to
confrontation through NMSA 1978, Section 32A-2-24(B) (2009). See U.S. Const.
amends. VI, XIV. Because we agree with
the latter argument, we need not address
the first two.
{7} It is well established that juveniles have
the same rights at trial as adults, including
the “right to notice of charges, to counsel,
to confrontation and to cross-examination
of witnesses, and to the privilege against
self-incrimination[.]” State v. Rudy B.,
2010-NMSC-045, ¶ 55, 149 N.M. 22, 243
P.3d 726 (emphasis added) (citing In re
Gault, 387 U.S. 1, 33-34, 41, 55-56 (1967));
see NMSA 1978, § 32A-2-14(A) (2009)
(“A child subject to the provisions of the
Delinquency Act is entitled to the same
basic rights as an adult, except as otherwise
provided in the Children’s Code, including rights provided by the Delinquency
Act[.]”); § 32A-2-1 (2007) (stating that
“Chapter 32A, Article 2 NMSA 1978 may
be cited as the ‘Delinquency Act.’ ”); Form
10-424 NMRA (“Advice of rights by judge”
form listing the rights a child gives up by
entering a plea or consent decree, including “the right to confront the witnesses
against the child and to cross-examine
them”). Unlike adult probation revocations, which are decidedly different from
trials, “[a]n allegation of a juvenile probation violation is treated as if it were a
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
21
Advance Opinions
charge brought in a delinquency proceeding.” State v. Erickson K., 2002-NMCA-058,
¶ 15, 132 N.M. 258, 46 P.3d 1258; see State
v. Guthrie, 2011-NMSC-014, ¶ 10, 150
N.M. 84, 257 P.3d 904 (discussing adult
probation revocation hearings and stating
that “[b]ecause loss of probation is loss of
only conditional liberty, ‘the full panoply
of rights due a defendant in a [criminal
trial] do [ ] not apply’ ” (quoting Morrissey
v. Brewer, 408 U.S. 471, 480 (1972)). This
approach to probation revocation hearings is reflected in the Children’s Code
and Children’s Court rules. For instance,
Section 32A-2-24(B) provides that “proceedings to revoke probation shall be
governed by the procedures, rights and duties applicable to proceedings on a delinquency petition.” Similarly, Rule 10-261(C)
NMRA provides that “[p]roceedings to
revoke probation shall be conducted in the
same manner as proceedings on petitions
alleging delinquency. The child whose
probation is sought to be revoked shall be
entitled to all rights that a child alleged to
be delinquent is entitled to under law and
these rules[.]” The effect of this language
is plain: since juveniles have the right to
confront witnesses during delinquency
proceedings, they must be accorded that
right in probation revocation hearings.
{8}The State concedes that “[b]y virtue
of the [fact that] Section 32A-2-24[(B)]
[provides] that a juvenile has the same
rights at a probation revocation hearing
as an adjudication of delinquency, Child
undoubtedly had a statutory right to faceto-face confrontation at the hearing.” The
State maintains, however, that this Court
should not address Child’s statutory argument because Child failed to preserve it. In
response to the State’s motion for permission for its witness to testify by telephone,
Child filed a written objection citing his
right to confront witnesses under the
Sixth Amendment. The objection did not
mention the Children’s Code or Section
32A-2-24(B). The district court granted
the State’s motion without a hearing. At
the probation revocation hearing before
the special master, Child objected again
on confrontation grounds but did not
specify the basis for the right asserted.
The State argues that because Child did
not cite Section 32A-2-24(B), his objection
was insufficient to alert the district court
or special master to the argument that his
right to confrontation derives from statute.
See State v. Varela, 1999-NMSC-045, ¶ 25,
128 N.M. 454, 993 P.2d 1280 (“In order to
preserve an error for appeal, it is essential
22
http://www.nmcompcomm.us/
that the ground or grounds of the objection or motion be made with sufficient
specificity to alert the mind of the trial
court to the claimed error or errors, and
that a ruling thereon then be invoked.”
(internal quotation marks and citation
omitted)). We disagree.
{9}Here, inherent in Child’s invocation
of the Sixth Amendment were two questions: (1) whether Child had a right to
Sixth Amendment-like confrontation in
a probation revocation hearing, and (2)
whether the right would be violated by
telephonic testimony. In our view, it was
thus not necessary to refer specifically to
the statute to raise the first question because, although in this context the specific
source of the right is statutory, the nature
and scope of the right is the same as that
under the Sixth Amendment.
{10} The State cites State v. Jason F., 1998NMSC-010, ¶¶ 8-9, 125 N.M. 111, 957 P.2d
1145 for the proposition that “[w]hen a statute or rule provides greater protection than
the constitution, an appellant does not fairly
invoke a ruling on the greater protection by
exclusively arguing a constitutional violation.” Jason F. is inapposite. In that case, the
child objected to appointment of a special
master on constitutional grounds. Id. ¶ 8.
On appeal, he argued that appointment of
the special master was error because the
appointment did not comply with the rule
governing such matters. Id. ¶ 7. The Court
held that “[the child] did not invoke a ruling on the application of [the rule]” and
therefore the issue was not preserved. Id.
¶ 9. The distinguishing feature between
Jason F. and the present case is that the
child’s constitutional objection at trial was
entirely unrelated to his rule-based argument on appeal. In contrast, here, the right
provided by Section 32A-2-24(B) is the
right guaranteed by the Sixth Amendment
and, consequently, the analysis of an alleged
violation of the right is the same whether
Child invoked the Sixth Amendment alone
or Section 32A-2-24(B). Cf. State v. Guthrie, 2009-NMCA-036, ¶¶ 10, 13, 145 N.M.
761, 204 P.3d 1271 (recognizing that the
confrontation rights guaranteed under the
Sixth Amendment and Fourteenth Amendments differ, distinguishing between an
objection based on the confrontation clause
and one based on a “more general constitutional argument regarding confrontation,”
and holding that the latter was sufficient
to preserve a due process challenge for appeal), rev’d on other grounds, 2011-NMSC014. We conclude that the district court was
sufficiently apprised of Child’s argument.
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
{11} Having concluded that Child was
entitled to confront the State’s witnesses,
we turn now to whether that right was
violated when the social worker testified by telephone. “[T]he [c]onfrontation [c]lause [of the Sixth Amendment]
guarantees the defendant a face-to-face
meeting with witnesses appearing before
the trier of fact.” Maryland v. Craig, 497
U.S. 836, 844 (1990) (internal quotation
marks and citations omitted). The right
is not absolute and deviation from live,
face-to-face testimony may be permitted
when an “exception is necessary to further an important public policy.” State v.
Schwartz, 2014-NMCA-066, ¶ 6, 327 P.3d
1108, cert. denied, 2014-NMCERT-006,
328 P.3d 1188 (internal quotation marks
and citation omitted). Any exception
must be supported by “a particularized
showing of necessity [by the district
court].” State v. Smith, 2013-NMCA-081,
¶ 8, 308 P.3d 135, cert. denied, 2013-NMCERT-006, 304 P.3d 425. “Where there
are requirements of important public
policy and showing of necessity, mere
inconvenience to the witness is not
sufficient to dispense with face-to-face
confrontation.” State v. Almanza, 2007NMCA-073, ¶ 12, 141 N.M. 751, 160 P.3d
932.
{12} Here, the district court did not make
any findings on the necessity of telephonic
testimony. Moreover, the State’s motion
stated only that telephonic testimony was
“in the best interest of judicial economy.”
The State advised the court at the probation revocation hearing that, if the motion
was not granted, it would need a continuation to a later date in order to have the social worker present. This position implies
that the witness could be present but just
not on the day of the hearing and amounts
to “mere inconvenience.” Id. There being
no particularized findings of necessity and
the State’s justification being insufficient,
we conclude that the social worker’s testimony by telephone violated Child’s right
to confront the witness. See id. (holding
that “the [witness’s] busy schedule and the
inconvenience that would be caused by
either requiring his testimony or postponing the trial until he was able to testify are
just the sort of considerations that do not
satisfy the exceptions to the [c]onfrontation [c]lause.”).
{13} “A violation [of the right to confrontation] alone, however, does not require a
new trial. Rather, only when a violation of
the confrontation clause is harmful to the
defendant does the violation require a new
Advance Opinions
trial.” Schwartz, 2014-NMCA-066, ¶ 15.
The burden is on the state to demonstrate
that admission of the telephonic testimony
was harmless. Id. Here, the State’s only
arguments related to the confrontation
clause are that it does not apply in juvenile
probation revocation hearings and that
Child failed to preserve the issue properly.
The State did not address whether any
violation was harmless and therefore failed
to meet its burden.
{14} We next address Child’s contention
that there was insufficient evidence that he
willfully violated the conditions of his probation. More specifically, Child maintains
that the State failed to prove that it was
Child’s willful behavior that caused him
to be discharged from New Visions Group
Home. See In re Bruno R., 2003-NMCA057, ¶ 11, 133 N.M. 566, 66 P.3d 339 (“To
establish a violation of a probation agreement, the obligation is on the [s]tate to
prove willful conduct on the part of the
probationer so as to satisfy the applicable
burden of proof.”). “The test for sufficiency
of the evidence is whether substantial evidence of either a direct or circumstantial
nature exists to support a verdict of guilt
beyond a reasonable doubt with respect to
every element essential to a conviction.”
State v. Duran, 2006-NMSC-035, ¶ 5, 140
N.M. 94, 140 P.3d 515 (internal quotation
marks and citation omitted). We examine
the evidence in the light most favorable
to the district court’s ruling. See id. In our
analysis, we focus only on admissible evidence. See Erickson K., 2002-NMCA-058,
¶ 22.
{15} Because we have already determined
that the social worker’s testimony was
improperly admitted, we consider only
the JPO’s testimony. Child argues that
the JPO’s testimony “consisted largely of
inadmissible hearsay, which should have
been excluded.” See Rules 11-801, -802
NMRA; Erickson K., 2002-NMCA-058,
¶ 20 (holding that the rules of evidence
apply in the adjudicatory phase of juvenile probation revocation hearings). He
points to the JPO’s testimony that she is
based in Hobbs while New Visions Group
Home is in Clovis, and maintains that the
JPO’s testimony about Child’s conduct and
discharge was based on what New Visions
staff told her. For instance, the JPO testified
that
[her] understanding [] is that
the incident occurred while they
were trying to take him to school,
he got off the van, they found
him a short time later under the
http://www.nmcompcomm.us/
influence. At that time was when
they had informed me about
that, and that they were going to
discharge him. And I had asked
him, I’m like, well, if he’s under
the influence of Spice, can you
please obtain that UA for me.
And shortly after that is when
they called me again stating that
he left the premises.
{16} The State argues that this argument
was not preserved for review. We disagree.
Child moved for a directed verdict at the
conclusion of evidence. In his motion, he
argued that the JPO’s testimony was both
nonspecific and “secondhand.” He stated,
“[The JPO] was not supervising [Child],
so what she presented to you in large
part was . . . what had been relayed to her
from people in Clovis.” These statements
are sufficient to alert the district court of
the basis of the objection and preserve a
hearsay objection for appeal. See State v.
Johnson, 1995-NMCA-127, ¶ 6, 121 N.M.
77, 908 P.2d 770 (holding that even though
the defendant did not mention the specific
right at issue, the “[defendant’s] arguments
. . . were adequate to alert the trial court
to the basis for [the d]efendant’s proffer”),
rev’d on other grounds, 1997-NMSC-036,
123 N.M. 640, 944 P.2d 869.
{17} In what we understand to be a
request that we apply the “right for any
reason” principle, the State also argues
that it “likely would have sought to admit
the statements under the business records
exception to the hearsay rule” had Child
objected during the testimony. See Scott v.
Murphy Corp., 1968-NMSC-185, ¶ 10, 79
N.M. 697, 448 P.2d 803 (“It is hornbook
law that the decision of a trial court will be
upheld if it is right for any reason.”); Rule
11-803(6) NMRA. We note, however, that
the State did not seek to admit any documents that would fit within the business
records exception. See Erickson K., 2002NMCA-058, ¶ 22 (“[T]he [s]tate made
no attempt to present documentation
that might have been admissible under a
recognized hearsay exception.”). Nor does
it provide on appeal any foundation for
admission of any evidence as a business
record. See Rule 11-803(6); State ex rel.
Elec. Supply Co. v. Kitchens Constr., Inc.,
1988-NMSC-013, ¶¶ 10-11, 106 N.M. 753,
750 P.2d 114 (discussing the foundational
requirements for business records). Further, the State does not explain how the
JPO’s statements would have been admissible under the business record exception.
This argument is therefore unavailing.
Cf. Gracia v. Bittner, 1995-NMCA-064,
¶ 1, 120 N.M. 191, 900 P.2d 351 (“Every
litigated case is tried at least three times:
there is the trial the attorneys intended to
conduct; there is the trial the attorneys
actually conducted; and there is the trial
that, after the verdict, the attorneys wished
they had conducted.”).
{18} After a review of the testimony, we
agree with Child that the JPO’s testimony
as to the events in Clovis was improperly
admitted because it was based on what
she had been told by others. See Erickson
K., 2002-NMCA-058, ¶ 22 (concluding
that the testimony of a juvenile probation
officer was insufficient to prove that a
juvenile defendant failed to complete an
out-of-home placement where the officer
did not have firsthand knowledge that the
defendant had been discharged and why,
and “[t]he [s]tate did not present the testimony of a [group home] staff member who
might have had firsthand knowledge of
[the d]efendant’s situation”). Thus, since all
of the testimony presented by the JPO and
the social worker on Child’s conduct before he was discharged from New Visions
Group Home was improperly admitted, we
conclude that the evidence was insufficient
to support a finding that Child’s discharge
was the result of willful conduct. See id.
{19} Nevertheless, we remand for a
new hearing. “While it is true that the
State failed to present sufficient admissible evidence to support the revocation
of [Child’s] probation, we must consider
all of the evidence presented, including
the wrongfully admitted evidence, to
determine whether to remand for a new
hearing.” Id. ¶ 25; see State v. Post, 1989NMCA-090, ¶ 22, 109 N.M. 177, 783 P.2d
487 (“If all of the evidence, including the
wrongfully admitted evidence, is sufficient, then retrial following appeal is not
barred.”). Here, the social worker testified
that Child had “absconded” from school
and was not compliant with the group
home’s rules prohibiting substance abuse.
This evidence supports a determination
that Child willfully violated his conditions
of probation. We note that Child argues
that there was inadequate foundation
for the social worker’s opinion testimony
that Child was under the influence of
“something” when he returned to the
group home. See Rule 11-701 NMRA. We
need not address this contention, however, because, even if that testimony was
improperly admitted, we still consider it
in our analysis of the appropriateness of
remand for a new hearing.
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
23
Advance Opinions
{20} Finally, we do not address Child’s
argument that revocation of his probation should be reversed because he did
not consent to appointment of a special
master. See Rule 10-163(C) NMRA (“[T]he
special master shall not preside at a[n] . . .
adjudicatory hearing or dispositional hearing without concurrence of the parties.”).
Child did not object to the appointment
of the special master when the district
court ordered the hearing before a special
master, nor at any time before or during the
hearing. Child’s failure to object and participation in the hearing without objection
is akin to a waiver of any objection to the
appointment. See Jason F., 1998-NMSC010, ¶ 10 (stating that the child’s failure to
object to appointment of a special master
based on non-compliance with the rule
was a waiver of the objection). In addition,
Child objected to the special master only
after the hearing was completed and the
special master’s report filed. This untimely
objection was insufficient to preserve
Child’s argument.
CONCLUSION
{21} Child’s right to confront the witnesses against him was violated when one
of the witnesses testified by telephone
without the district court’s determination
24
http://www.nmcompcomm.us/
that telephonic testimony was necessary
to further an important public interest.
In addition, the admissible evidence was
insufficient to prove the required elements
of a probation violation. We therefore reverse the revocation of Child’s probation.
But because the entirety of the evidence
supports a conclusion that Child violated
his conditions of probation, we remand for
a new hearing.
{22} Finally, both parties agree that the
judgment and disposition erroneously
included a count that was dismissed pursuant to the plea agreement. On remand, the
district court should correct the judgment
to reflect the plea agreement.
{23} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
MICHAEL E. VIGIL, Judge
M. MONICA ZAMORA, Judge
(specially concurring).
ZAMORA, Judge (specially concurring).
{24} I concur in Judge Bustamante’s
opinion as it pertains to Child’s first three
arguments. I understand that Jason F.,
1998-NMSC-010, ¶ 10 is controlling as
it applies to Child’s fourth argument that
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
he did not consent to the appointment
of a special master to preside over his
probation revocation hearing. See Trujillo
v. City of Albuquerque, 1998-NMSC-031,
¶ 33, 125 N.M. 721, 965 P.2d 305 (“Stare
decisis is the judicial obligation to follow
precedent, and it lies at the very core of
the judicial process of interpreting and announcing law.”). This special concurrence
is for the purposes of requesting that the
Supreme Court invite the Children’s Court
Rules Committee to modify Children’s
Court Rule 10-163(C) to clarify who has
the burden of requesting and showing
that there was concurrence of the parties
allowing a special master to preside over
the proceedings. Rule 10-111(C) NMRA
(1995) as it applied in Jason F. and its recompilation as Rule 10-163(C) are identical. My concern, in both Jason F. and this
case, lies with the Child’s failure to either
preserve the issue for appeal or to timely
object to the appointment. The question
raised is whether a Child’s right to trial by
a judge can be so casually waived, where
the intent of appointing a special master
was for purposes of expeditious handling
of children’s court cases and was meant to
be the exception rather than the rule.
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Bar Bulletin - March 4, 2015 - Volume 54, No. 9
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Investigator
State of NM Judicial Standards Commission
(www.nmjsc.org), located in Albuquerque, is
hiring an Investigator. At-will, exempt, unclassified, part-time position with part-time benefits. Initial target salary is $33.00/hour DOE
and budget availability (Exempt Range 99). Up
to 19 hours per week. Assists investigation and
prosecution of cases involving removal, retirement, or discipline of judges. Must possess, exhibit, and maintain exemplary ethics and have
no history of professional discipline. Knowledge
and experience of NM law, court procedures,
and trial preparation necessary. Excellent interpersonal and oral and written communication
skills required. Skill in research, report writing,
all aspects of investigation, witness interview/
interrogation techniques, evidence gathering,
information analysis, and surveillance techniques. Ability to use sound discretion and
judgment, and to adapt to frequently changing
priorities and high stress. Must be able to work
independently and excel in a collaborative,
small office environment. Fluency in Spanish
is an asset. No telephone calls, e-mails, faxes,
or walk-ins accepted. Full announcement and
application instructions at www.nmcourts.gov/
jobs/jobselectpage.php or on announcements
page of Commission website.
SUBMISSION DEADLINES
All advertising must be submitted via
e-mail by 4 p.m. Wednesday, two weeks
prior to publication (Bulletin publishes
every Wednesday). 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
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, 13 days prior
to publication.
For more advertising
information, contact:
Marcia C. Ulibarri at 505-797-6058 or
email mulibarri@nmbar.org
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
29
Paralegal
Albuquerque personal injury law firm, seeks
paralegal must have experience and a knowledge of opening claims with insurance companies, tort claim notices, negotiate property
damage claims, medical care arrangements,
prepare medical record summaries, keep
insurance adjusters updated, prepare settlement demand packages, negotiate settlement
of personal injury claims and a knowledge of
subrogation issues. Prefer bi-lingual English/
Spanish. Must have exceptional client relation
skills. Please fax resume to 505-883-5012.
Paralegal
The Santa Fe office of Hinkle Shanor LLP
seeks a paralegal for the practice areas of
environmental, water, natural resources,
real property, public utility and administrative law. Candidates should have a strong
academic background, excellent research
skills and the ability to work independently.
Competitive salary and benefits. All inquires
kept confidential. Please email resume to:
gromero@hinklelawfirm.com
Services
Available for Research and
Writing Assignments
Attorney with 7 years appellate court experience available for research and writing
assignments. Reliable and thorough: motions,
briefs, research. Email llhouselaw@gmail.
com or call 505-715-6566 or 505-281-9293.
Legal Asst/Paralegal Skills Available
for Contract Assignment
E-mail, Scan, E-File; Knowledge of Court
Procedures; Reliable; Prof Appearance
HLeaglee@msn.com
Office Space
620 Roma N.W.
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference
rooms, a large waiting area, access to full
library, receptionist to greet clients and take
calls. Call 243-3751 for appointment to inspect.
Taos Conference and Office Space
Taos conference and office space available
for depositions and mediations. Call Robyn
575-758-1225
Office Available for Rent
One office available for rent, including secretarial area, at 2040 4th St. NW (I-40 & 4th
St.), ABQ. Rent includes receptionist, use of
conference rooms, high speed internet, phone
system, free parking for staff and clients, use
of copy machine, fax machine and employee
lounge. Contact Jerry or George at 505-2436721 or gbischof@dcbf.net
NEW MEXICO LAWYERS and JUDGES ASSISTANCE PROGRAM (JLAP)
Through JLAP, I’ve been given the freedom to become
the person that I’ve always wanted to be. This
program saved my life and my family.
–SM
Thanks to JLAP, I am happier, healthier and stronger
than I have ever been in my entire life!
–KA
Free, confidential assistance to help identify
and address problems with alcohol, drugs,
depression, and other mental health issues.
Help and support are only a phone call away.
Confidential assistance – 24 hours every day.
Judges call 888-502-1289
Lawyers and law students call 505-228-1948 or 800-860-4914
www.nmbar.org
30
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
We welcome
Jenny J. Dumas and
Justin J. Solimon
as partners
Experience. Service. Passion.
From left: Karl E. Johnson, Justin J. Solimon, Jenny J. Dumas, Dolph Barnhouse
and Kelli J. Keegan
Jenny & Justin bring to the firm their extensive
experience in the practice of Indian law, litigation,
natural resources, land and employment law.
Justin is a member of Laguna Pueblo, and Jenny is
a descendent of the Nulhegan Band of the Coosuk
Abenaki Nation.
Johnson Barnhouse & Keegan is a full-service
law firm focusing on the representation of Indian
Tribes, Pueblos, tribal business enterprises and
nonprofit entities.
www.indiancountrylaw.com
Our attorneys are committed to the firm’s mission
to provide high-quality specialized service and longterm value to the clients and communities we serve.
Representing clients in all aspects of law affecting native peoples
7424 4th Street NW, Los Ranchos de Albuquerque, New Mexico 87107 I Telephone: 505.842.6123 Fax 505.842.6124 Toll-free 866.448.6123
Bar Bulletin - March 4, 2015 - Volume 54, No. 9
31
When First
Impressions Matter
TED C. BACA
Mary Ann R. Burmester
Attorney at Law • Retired Chief District Court Judge
(505) 881-2566
NM Divorce & Custody Law LLC
MAILING ADDRESS:
PO BOX 3070
Albuquerque, NM 87190
Mary Ann R. Burmester
Virginia R. Dugan
Tatiana D. Engelmann-Corp
Jon A. Feder
Robert P. Matteucci Jr.
Patrick L. McDaniel
Thomas C. Montoya
Denise E. Ready
PHYSICAL ADDRESS:
City Place | Suite 2000
2155 Louisiana Blvd NE
Albuquerque, NM 87110
TED C. BACA
Mary Ann R. Burmester
2727 San Pedro NE, Suite 114
Albuquerque, NM 87110
(505) 321-4549 • tedcbaca@gmail.com
Attorney
Attorney at Law
601 Calle del Pajarito N.W.
Albuquerque, New Mexico 87114
TED C. BACA
Attorney at Law
CITY PLACE SUITE 2000
2155 LOUISIANA NE
P.O. BOX 3070
87190
Albuquerque, New Mexico
Tatiana D. Engelmann
601 Calle del Pajarito N.W.
Albuquerque, New Mexico 87114
(505) 321-4549 • tedcbaca@gmail.com
(505) 881-2566
2727 San Pedro NE | Suite 114
Albuquerque, NM 87110
attorney at law
CITY PLACE | SUITE 2000
2155 LOUISIANA NE
Albuquerque, NM 87110
P.O. BOX 3070 (87190-3070)
Retired Chief District Court Judge
We help families solve problems.
(505) 883-3070
Fax (505) 889-3111
e-mail: tde@atkinsonkelsey.com
web: www.atkinsonkelsey.com
mrb@nmdivorcecustody.com
www.nmdivorcecustody.com
2727 San Pedro NE, Suite 114, Albuquerque, NM 87110
We’re ready to print YOUR
business package!
www.nmdivorcecustody.com
• stationery
601 Calle del Pajarito N.W., Albuquerque, New Mexico 87114
• business cards
W. W. Atkinson
(1910–1993)
Telephone (505) 883-3070 | Fax (505) 889-3111
www.AtkinsonKelsey.com
• envelopes
Quality, full-color printing.
Local service with fast turnaround.
For more information, contact Marcia Ulibarri
at 505-797-6058 or mulibarri@nmbar.org
Ask about your member discount.
Brought to you by the
Digital Print Center
DIGITAL PRINT CENTER
Stephen J.E. Sprague
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