Wednesday, August 13, 2014

How Bullcoming, Melendez-Diaz, Williams, and Crawford Are Playing Out Today

Prof. Friedman, over at The Confrontation Blog, just posted a recent article on two New Jersey opinions that overlap the confrontation analysis for lab results in Bullcoming, Williams, Crawford, and Melendez-Diaz.

The plurality opinion in Williams regarding experts and the confrontation clause is central to both cases.

It's becoming expressly clear that a defense counsel nowadays better have a handle on the intricacies of Williams, because its holding(s) are becoming vitally important in cases where data is collected from one (non-testifying) witness, while the analysis is done by another (testifying) witness.

This is especially true in DNA cases.

Right now understanding Williams is as important as understanding Crawford was a decade ago.

Here's the article:

Monday, August 11, 2014

Interesting Article: When Not To Appeal (Scotusblog)


No good deed goes unpunished.  But, what attorney could argue with the defendant in this case.  

Petition For Cert. In U.S. Supreme Court Case Concerning Reasonable Suspicion

One of the few remaining cases yet to be decided by the U.S. Supreme Court this term is the case of Heien v. North Carolina, which presents the following question: "Can a police officer's mistake of law provide individualized suspicion that the Fourth Amendment requires in order to conduct a traffic stop?"

Read the Petition here:

This case will present the Court with the second opportunity to review the individualized suspicion doctrine in regards to traffic stops, with the other case being Navarette v. California, which you can read here:

Friday, August 8, 2014

Prosecutorial Misconduct Opinion Just Released By The New Mexico Supreme Court

I will post the holdings later, but the New Mexico Supreme Court just released the opinion in State v. Gutierrez, which is a case dealing with prosecutorial misconduct.

The case was handled by Dan Lindsey in Clovis.

I have been posting articles linking to various websites regarding Sidney Powell over the last couple of weeks, and her whole thesis is prosecutorial misconduct so I knew something like this was coming from New Mexico.

Here's the case:,296.pdf

Wednesday, August 6, 2014

State v. Solomon, New Mexico Supreme Court (Unpublished)

The New Mexico Supreme Court released State v. Solomon on August 4th as an unpublished opinion.  The case is a really good primer on the law of requesting mental health competency evaluations of a defendant.  The case deals with the rare occurrence of a judge denying a defendant's request for an evaluation.  The New Mexico Supreme Court affirms the judge's denial of the competency evaluation.

Holdings Regarding the Issue of District Court's Ability to Approve or Deny a Request for a Mental Health Evaluation

NMSA 1978, Section 31-9-1 (1993) provides that "[w]henever it appears that there is a question as to the defendant's competency to proceed in a criminal case, any further proceeding in the cause shall be suspended until the issue is determined."

NMSA 1978, Section 31-9-2 (1967) provides that "[u]pon motion of any defendant, the court shall order a mental examination of the defendant before making any determination of competency..."

"The issue of the defendant's competency to stand trial shall be determined by the judge, unless the judge finds there is evidence which raises a reasonable doubt as to the defendant's competency to stand trial." 5-602(B)(2) NMRA (emphasis added).  However, "[u]pon motion and upon good cause shown, the court shall order a mental examination of the defendant before making any determination of competency under this rule."  5-602(B)(2) NMRA.  Even so, the district court "may decide that there is no reasonable doubt as to the defendant's competency to stand trial.....Such a determination is only subject to review for abuse of discretion."  State v. Noble, 1977-NMSC-031, p. 7, 90 N.M. 360, 563 P.2d 1153.

A mental health examination may be approved by a district court upon a motion and a showing of good cause.  NMRA 5-602(C).

The district court does not have an "affirmative order a mental examination [when] determining the issue of competency."  State v. Hovey, 1969-NMCA-049, p. 14, 80 N.M. 373, 456 P.2d 206.

NMSA 1978, Section 31-9-1 requires the district court to determine the issue of competency when the defendant's competency is questioned.  But, defense counsel's mere assertion that a defendant may be incompetent does not raise a question, "even though the assertion is [made] in good faith."
State v. Hovey, 1969-NMCA-049, p. 14, 80 N.M. 373, 456 P.2d 206. (analyzing statutes that provided for a determination of a defendant's competency).  (While Hovey analyzed NMSA 1953, Sections 41-13-3.1 and 3.2 (Repl. Vol. 6, Supp. 1967), the predecessors to Section 31-9-1 and -2, the analysis is applicable to this case as the language and substance of the statutes are sufficiently similar.)

A district court may consider defense counsel's observations and opinions, "but that those observations and opinions alone cannot trigger reasonable doubt about the defendant's competency."  State v. Flores, 2005-NMCA-135, p. 29, 138 N.M. 636, 124 P.3d 1175.

Expert testimony is not required to trigger a mental health evaluation, but "an affidavit from someone who has observed the defendant and formulated an opinion about his or her competency, such as a corrections officer or defense counsel's paralegal" might suffice. State v. Flores, 2005-NMCA-135, p. 31, 138 N.M. 636, 124 P.3d 1175.

Holdings Regarding the Issue of Ineffective Assistance of Counsel

"A trial counsel is not incompetent for failing to make a motion when the record does not support the motion."  State v. Stenz, 1990-NMCA-005, p. 7, 109 N.M. 536, 787 P.2d 455.

Where facts necessary to a full determination are not part of the record, an ineffective assistance of counsel claim is more properly brought a habeas corpus petition.  State v. Roybal, 2002-NMSC_027, p. 19, 132 N.M. 657, 54 P.3d 61.

Read the entire case here: