This week’s oral arguments at NMSC: Warrior genes, the medical malpractice cap, and more

It’s oral argument week at the New Mexico Supreme Court, and here’s the lineup:

Monday, November 4, 2019

State v. Yepez.

Should a criminal defendant be able to introduce evidence that he has a “warrior gene” which predisposes him to violent acts, and diminishes his culpability for those acts? Disclosure: I wrote a concurring opinion at the Court of Appeals in this case, expressing my view that it was unnecessary to rule on this question.

State v. Price.

Did a search warrant contain sufficient information to justify the search of the defendant’s cell phone?

State v. Groves and State v. Barber.

Is aggravated fleeing from a law enforcement officer a predicate for application of the felony murder rule?

Wednesday, November 6, 2019

Siebert v. Okun.

Does the Medical Malpractice Act’s partial cap on damages violate the New Mexico Constitutions’ guarantee of a right to a jury trial?

Friday, November 8, 2019

Peavy v. Skilled Healthcare Group, Inc.

When a nursing home arbitration agreement allows the nursing home, but not its residents, to bring certain claims in court, what sort of evidentiary showing does a nursing home need to make to prove that the agreement is not unfairly unbalanced? Disclosure: I wrote a dissenting opinion in this case while on the Court of Appeals.

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CA10: Affirmative withdrawal of challenge to presentence report is a waiver

Defendant, Brice Ashton Carter, was convicted of possessing a firearm as a felon. A confidential informant told federal agents that Carter had used two firearms as payment for some methamphetamine. Relying on the informant’s statements, the presentence investigation report applied a Sentencing Guidelines cross-reference, which resulted in an increase in Carter’s offense level.

Carter challenged the factual basis for the confidential informant’s statements on appeal, but in United States v. Carter (opinion by Judge McKay) the Tenth Circuit affirmed. While Carter had originally raised this objection in the district court, he affirmatively withdrew it there. Unsurprisingly, the Court concluded that this was a waiver.

Even if Carter had merely forfeited his claim, rather than waived it, plain error review did not apply, because under that standard, an appellate court does not review a district court’s factual findings in a sentencing proceeding.

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NMCA: Testimony about threatening text did not violate best evidence rule where victim’s phone could not be unlocked

Thomas Stevenson appealed his conviction for shooting into a motor vehicle. He argued that the victim’s nephew’s testimony about a threatening text that Stevenson allegedly sent to the victim was inadmissible under the best evidence rule, because the State should have offered the original text instead.

In State v. Stevenson, in a unanimous opinion by Judge Julie Vargas, the Court of Appeals held that under the exception to the rule for lost or destroyed evidence, the State showed that it had made diligent efforts to unlock the victim’s telephone, but had been unable to do so. The nephew’s testimony was therefore properly admitted.

The Court also rejected claims: (1) that the jury had received extraneous information during its deliberations, because the defendant’s evidence failed to show that any such thing occurred; (2) that the prosecution committed a Brady violation by failing to disclose that one of its witnesses had been arrested for fraud, where the defendant failed to articulate any such claim or present the evidence needed to support the claim in his motion for a new trial; and (3) that although the district court erred by excluding evidence of the victim’s prior violent acts in support of the defendant’s self-defense claim, the defendant had failed to show that he was prejudiced.

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Albuquerque lawyer Kerry Morris to run for New Mexico Supreme Court

Last week, candidates for state elected offices in New Mexico were required to file contribution-and-expense reports. These reports reveal that the first challenger for the New Mexico Supreme Court seats held by Justices Shannon Bacon and David Thomson has come forward.

Kerry Morris is a lawyer at the ABQ Law Clinic in Albuquerque. According to the attorney profile on the firm’s website, he obtained a bachelor’s degree from UNM in 1977, and a J.D. from UNM Law School in 1981. After that, he served as a prosecutor with the Second Judicial District Attorney’s office. His profile lists a wide range of practice areas.

My Google searches reveal that he once ran for a seat on the Metropolitan Court in 1986, and as a Republican in 2004 for a seat on the Second Judicial District Court (see page 16 of this voter guide in the Albuquerque Journal). I’m assuming he’s still a Republican.

From the report on the Secretary of State’s website, it’s not clear whether he’s running against Justice Bacon or Justice Thomson (if any of you know, please drop me a line). I don’t recall ever meeting Mr. Morris, but I’m sure we’ll all learn more about him over the next 13 months.

Welcome to the race, Mr. Morris!

UPDATE (November 21, 2019): A knowledgeable source has told me that Mr. Morris is running against Justice Bacon.

UPDATE (January 11, 2019): I have recently learned that Mr. Morris has switched and is now running against Justice Thomson.

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CA10: Violence in El Salvador is not, by itself, a basis for asylum

Several years ago, Santos Raul Escobar-Hernandez was attacked by a man named Nelson in El Salvador over some political graffiti near his house, and attacked again even after he removed it. His application for asylum in the United States was denied.

In Escobar-Hernandez v. Barr, the Tenth Circuit affirmed, in an opinion by Judge McKay. The Board of Immigration appeals found that Escobar-Hernandez’s dispute with Nelson occurred several years ago, and was a dispute over who should remove the graffiti, regardless of Escobar-Hernandez’s own political views. The Tenth Circuit held that the evidence was sufficient to support these findings.

Moreover, while the Court acknowledged that El Salvador is a violent place, “pervasive violence or civil unrest in an applicant’s country, without any indicia of connection to a protected ground asserted by the applicant, is not a basis for asylum.”

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NMCOA rejects challenge to radar technology used to determine drivers’ speed

Defendant Juan Garcia was convicted of driving 78 miles per hour in a 65-mile-per-hour speed zone, based on the testimony of a police officer who used radar technology to determine his speed. On appeal, Garcia argued that expert testimony was required to establish that radar technology is a scientifically reliable method of determining a driver’s speed.

In State v. Garcia (a unanimous opinion by Judge Megan Duffy), the Court of Appeals rejected this claim based on the longstanding and widespread acceptance of radar as a method of determining driver speed, and on Garcia’s failure to offer any evidence or argument to the contrary. In addition, the Court held that the police offer was properly allowed to testify that the radar unit that he used was operating properly.

Judges Jennifer Attrep and Briana Zamora joined the opinion. Maris Veidemanis was counsel for the State, and Daniel R. Lindsey represented Mr. Garcia.

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Colorado will ask SCOTUS to review Tenth Circuit’s ruling on “faithless electors”

Colorado’s secretary of state and attorney general have announced that they will ask the Supreme Court to review the Tenth Circuit’s ruling in Baca v. Colorado Department of State. That decision held that the federal constitution bars Colorado from disqualifying or penalizing presidential electors who vote for someone other than the candidate to whom they were pledged.

KDVR News has this story about the announcement, and you can also read about it at Colorado Politics. (Hat tip to Geoffrey Klingsporn).

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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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