Congratulations to the new Chief Judge of the New Mexico Court of Appeals, Miles Hanisee

Judge Miles Hanisee was recently sworn in as Chief Judge of the New Mexico Court of Appeals. He takes over from Judge Monica Zamora, who served in the post since January.

Judge Miles Hanisee, new Chief Judge of the New Mexico Court of Appeals

Chief Judge Hanisee was originally appointed to the Court in 2011, and was reappointed after losing in the 2012 general election. He won election in his own right in 2014. You can read my campaign interviews with him here and here.

Congratulations to Chief Judge Hanisee!

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“‘Faithless Electors’ Could Tip the 2020 Election. Will the Supreme Court Stop Them?”

This article by Adam Liptak in the New York Times describes a split in authority between the Washington Supreme Court, which upheld a law imposing fines on “faithless electors” who vote contrary to their state’s presidential vote winner, and the Tenth Circuit’s recent decision in Baca v. Colorado Department of State, which held that the federal constitution presidential elector’s right to choose how he or she will vote.

I learned some interesting facts from this article: (1) that ten Electoral College members voted, or tried to vote, for candidates other than the one chosen by their parties; and (2) that a swing by ten Electoral College members would have changed the result of five presidential elections in our history.

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CA10: Use of code words, and time spent with drug dealer, sufficient to support drug convictions

In United States v. Duran (opinion by Judge Bacharach), the Tenth Circuit upheld the defendant’s convictions for drug distribution offenses.

The evidence was sufficient, although the government offered no direct evidence the defendant possessed cocaine. In telephone conversations with a business associate, the defendant used code words apparently describing the conversion of powder cocaine into crack. The defendant met with the associate for over an hour, and then police engaged in three controlled purchases of crack cocaine from the associate. The court also upheld the admission of police expert testimony interpreting the code words.

For all of you appellate typography fans, you’ll appreciate that Judge Bacharach loves him some bullet points.

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NMCA issues another opinion on UM/UIM insurance

New Mexico’s appellate courts have issued a long line of decisions dealing with uninsured and underinsured motorist in insurance. In fact, last year I made my own contribution to the genre.

This week the Court of Appeals issued another UM/UIM insurance decision, Sanchez v. Essentia Insurance Company (opinion by Judge Ives). But because my firm is involved in this case, I won’t be commenting on it.

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Judge Zachary Ives’ campaign website is now up

You can find it here.

I have not yet heard whether Judge Ives will face any opposition in the Democratic primary, or any opposition in next year’s general election. But I’ll let you know when I know.

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NMSC: Trial judge properly granted new trial after he had ex parte contact with jury

After a murder trial that involved some confusing jury instructions, the jury appeared to return an inconsistent verdict on one count. Without notifying counsel, the trial judge walked over to the jury room and said “I’m confused about your verdict,” told them to read the instructions again, and that they needed to clarify the verdict. (For more on the crime charged, see this story by Patrick Lohmann in the Albuquerque Journal).

The trial judge disclosed this contact to trial counsel, and granted a new trial.

In State v. Aguilar, a direct appeal, the Supreme Court unanimously held (in an opinion by Justice Shannon Bacon) that a trial judge properly granted the new trial, and that double jeopardy does not preclude a retrial.

Retired Justice Petra Jimenez Maes, and former Justice Gary Clingman (who was defeated in the 2018) election, participated in this decision, presumably under judge pro tempore appointment orders.

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NMSC: Defendant need not expressly state “I am guilty” to enter a valid guilty plea

In State v. Yancey, the Supreme Court held, in a unanimous opinion by Chief Justice Nakamura, that a criminal defendant need not expressly state “I am guilty” or “I plead guilty” in open court to enter a valid guilty plea.

The Court said that although the best practice is to ask the defendant if he or she “pleads guilty,” the validity of the guilty plea is evaluated in light of the totality of the circumstances. Here, the defendant signed plea agreements stating that he “agrees to plead guilty.” The agreements explained the rights he was giving up by doing so. At the hearing, he acknowledged that he understood the agreements, that he was giving up important rights, and he agreed that the State had evidence to prove his guilt.

You can listen to the oral argument here.

This decision overturns the Court of Appeals’ 2-1 decision in State v. Yancey, and vindicates now-Chief Judge Monica Zamora’s dissent in that case.

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CA10: When an appellate decision is split, district courts must keep their eyes on the result

The case of Adlynn and Robert Harte generated widespread attention a couple of years ago. Mr. Harte attracted police attention by visiting a garden store to obtain supplies for growing tomatoes in the family’s basement. (Evidently, people sometimes visit garden stores to buy supplies for growing marijuana). Police searched the family’s trash, and discovered plant matter, which they thought was marijuana, but which turned out to be loose tea leaves discarded by Ms. Harte, an avid tea-drinker.

Unfortunately, the police’s mistake led to an early-morning SWAT raid on the Hartes’ home outside of Kansas City, which, of course, turned up no evidence of criminal activity. The Hartes sued under Section 1983, and in July 2017 the result was a 100-page 10th Circuit opinion (Harte v. Board of Commissioners) in which each panelist wrote a separate opinion. The case was sent back for trial on some of the claims.

On remand, the parties sorted through the split opinions with the district court, and while they agreed on much, they disagreed on whether the Hartes’ dissipation-of-probable-cause claim should be tried. The district court decided it could not.

Last week, in Harte v. Board of Commissioners (opinion by Judge Joel Carson), reversed this decision. The first paragraph explains what happened:

“[I]n this case, Plaintiffs allege that probable cause dissipated during the search of their home. One judge on the prior panel held that Plaintiffs abandoned the issue on appeal. Two judges agreed that probable cause dissipated, but one of those two judges voted to grant qualified immunity because he believed the law was not clearly established. Thus, we are left with a panel opinion where two judges employed common reasoning to conclude probable cause dissipated, but a different combination of two judges believed Defendants were entitled to summary judgment on that issue, albeit for different reasons. Which is our holding that the district court must follow: allow the dissipation claim to proceed based on the common reasoning or dismiss the dissipation claim based on the common result? For the reasons that follow, we hold that, in applying a fractured panel’s holding, the district court need look only to and adopt the result the panel reached. To hold otherwise would be to go against the result expressed by two of the three panel members. That we cannot do.

On that issue, the opinion makes for good reading for appellate law nerds. The remainder of the opinion deals with jury voir dire and evidentiary issues, and serves as a reminder that trying to get a jury verdict reversed because an allegedly biased juror was seated is a steep uphill climb on appeal.

Judges Lucero (who was also on the previous opinion in this case) and Hartz joined the opinion in full.

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NMCA: Juvenile “used” BB gun in assault despite not brandishing or referring to it

This case presents an interesting issue of textual interpretation — what does it mean to “use” a weapon? I would not be surprised to see our Supreme Court take up this case:

Suspecting that 12-year old Zachariah G. had some sort of weapon, the principal of his middle school in Clovis brought Zachariah to his office. A search of his pockets revealed a CO2 cartridge, which the principal knew was commonly used with BB guns.

The principal then noticed a bulge in Zachariah’s waistband that was not normal. Zachariah declined to show the object to the principal, but instead asked: “What would happen if somebody shot up the school?” “Are you afraid to die?” and “How would you feel if a twelve-year-old shot you?”

Zachariah did not say that he had a gun, or remove the object from his waistband, or gesture as if he had a gun. When police arrived, the searched Zachariah and found a BB gun in his pants. (A news report of the incident is here).

A jury later convicted Zachariah of aggravated assault with a deadly weapon on a school employee. The jury was instructed that an element of the offense was that Zachariah “used” a deadly weapon in committing the assault. (N.B. the statutory definition of “assault” is “any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery[.]”

On appeal, Zechariah argued that he did not “use” the BB gun in committing the assault, since the evidence did not show that he brandished, retrieved, gestured toward, or even mentioned the gun at any time.

In State v. Zechariah G. (opinion by Judge Vanzi), the Court of Appeals affirmed. It observed that one definition of “use” is “apply to advantage.” The Court then explained and that a jury could have found that Zechariah used the gun to his advantage — despite not pulling it out, gesturing toward it, or referring to it — because there was evidence that Zechariah believed that the principal thought he had a weapon, the jury could therefore infer that his menacing questions took advantage of that.

Judge Vargas concurred, but expressed the view that “New Mexico law would benefit from a more precise definition of the term ‘use’ when considering whether a defendant ‘used’ a weapon in the commission of a crime.”

Judge Ives dissented. In his view, and relying on some California cases, “use” should be more precisely defined as “deliberately showing” a weapon or “otherwise making its presence known.” (Judge Ives also relied on Justice Scalia’s terrific dissent in United States v. Smith). Although there was a bulge in Zechariah’s pants, and a CO2 cartridge, he did nothing with respect to them, and therefore did not “use” them.

I think this case has a better-than-average chance of being reviewed by our Supreme Court.

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NMCA: Instructing jury on offense for which the defendant was never charged is fundamental error

The defendant was charged with escape from jail, but the jury was instructed on the separate offense of escape from an inmate-release program. No objection was made.

In State v. Grubb (opinion by Chief Judge Monica Zamora), the Court of Appeals held that this was fundamental error, and ordered a new trial.

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