Category Archives: Opinions and Analysis

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

by Emil J. Kiehne Posted on October 9, 2019

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 … Continue reading →

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NMCA issues another opinion on UM/UIM insurance

by Emil J. Kiehne Posted on October 9, 2019

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 … Continue reading →

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

by Emil J. Kiehne Posted on October 8, 2019

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,” … Continue reading →

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

by Emil J. Kiehne Posted on October 8, 2019

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. … Continue reading →

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

by Emil J. Kiehne Posted on October 6, 2019

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 … Continue reading →

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

by Emil J. Kiehne Posted on October 3, 2019

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 … Continue reading →

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

by Emil J. Kiehne Posted on October 3, 2019

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 … Continue reading →

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NMCA: Albuquerque police are immune from claims that they botched an investigation of the death of prominent lawyer Mary Han

by Emil J. Kiehne Posted on September 17, 2019

Mary Han was a prominent civil rights lawyer in Albuquerque whose untimely death has attracted both attention and litigation. In this lawsuit, Ms. Han’s daughter, and the personal representative of her estate, sued the City of Albuquerque and some of … Continue reading →

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NMCA: Underground water rights may be partially forfeited

by Emil J. Kiehne Posted on August 14, 2019

A landowner contended that he owned 394.85 acre-feet of underground water rights in the now-abandoned town of Cutter, New Mexico. The evidence at trial showed that a railroad had previously used the water, but that for 34 years the water … Continue reading →

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NMCA: Fundamental error to instruct jury on element of crime that has been repealed

by Emil J. Kiehne Posted on August 13, 2019

In this case, the defendant, Marcos Figueroa, was charged with criminal sexual penetration of a minor for abusing his son and stepson. At trial, the district court granted the State’s request that the jury be instructed that the defendant had … Continue reading →

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