Sunday, July 5, 2015

Updated UJI 14-611 Chart

Print out and keep this handy.  All the recent jurisprudence on child abuse and neglect has led to numerous changes to our jury instructions.  This chart is an official part of the jury instructions.

14-611. Chart.
Harm to child
Age of child
Mens rea of defendant
No death or great bodily harm
Under 18
Intentional or reckless disregard
Great bodily harm
Under 18
Intentional or reckless disregard
At least 12 but less than 18
Intentional or reckless disregard
Under 12
Reckless disregard
Under 12
Under 12 (step- down instruction)
[Adopted by Supreme Court Order No. 15-8300-001, effective for all cases filed or pending on or after April 3, 2015.] 

New Mexico Supreme Court to Hear Serious Youthful Offender Cases

Note to all criminal defense lawyers representing juveniles who are currently representing children charged as a "serious youthful offender":

File your motions now in district court reserving your right to argue any remedies our Supreme Court may issue in the case discussed in the article below.

And, it may be wise to ask for a "stay" while this issue gets decided by the Supremes.

Friday, July 3, 2015

2014 SCOTUS Numbers Are In

The 2014 term is done and the Supreme Court's comprehensive review has been handed down.

And the news is good for............The Honorable Justice Anthony Kennedy.

He is now the most influential person in the American judiciary.

He has positioned himself as the swing vote on the highest court in the land, just as Justice Sandra Day O'Connor did when she was on the bench.  With Kennedy this may have been true for some time, but the new report shows that it's even more true now.

As Breyer, Sotomayor, Kagen, and Ginsburg hold down the left, with Roberts, Scalia, Alito, and Thomas holding down the right, Kennedy is perfectly positioned to be the ultimate decider of many of the important decisions coming down the Court's way.

The report shows many other things as well.

One, Justice Thomas may not be doing much in terms of oral argument, but he is publishing his written opinion more than any other justice on the bench.

Two, that state supreme courts are getting as much, or more, deference from the Supreme Court as the federal appeals courts are.

And three, that Roberts and Alito vote with each other a lot, especially in cases divided by 5-4 splits, as well as Breyer and Ginsburg.

Read the full report below:

Here's an article from the USA Today, which gives one point of view about what the numbers indicate to that publication:

Thursday, July 2, 2015

Best of Brand New: Sufjan Stevens "Should Have Known Better"

I'm not as smitten with the entire "Carrie and Lowell" album as the rest of the world is, but this song is worth the price of admission alone.

State v. Bailey: New Mexico Court of Appeals

A case about prior bad acts, or 404(B) evidence, Bailey is a case where the Court of Appeals affirms a defendant's conviction for criminal sexual contact of a minor.  However, the opinion contains a strong dissent from Judge Garcia, which will most likely lead to close inspection by our State's Supreme Court.

In Bailey, the trial court had suppressed evidence of a prior bad act by the defendant.  This was done in a pretrial motion by the defendant.  However, during the trial, the defendant asked some questions that the trial court determined made the prior bad act relevant, and therefore it permitted the prosecution to inquire about the prior bad act that it had previously excluded.

The defendant was convicted and appealed.  The defendant argues on appeal that the evidence of the prior bad act should not have been admitted because it was impermissible character evidence.  He also argued that the evidence was more prejudicial than probative.

Holdings Regarding the Standard of Review for Evidentiary Issues

An appellate court reviews issues regarding the admission or exclusion of evidence under the abuse of discretion standard.  See State v. Otto, 2007-NMSC-012, p. 9, 141 N.M. 443, 157 P.3d 8 (stating that an appellate court reviews decisions of a trial court to admit evidence under Rule 11-404(B) for an abuse of discretion); id. p. 14 (same under Rule 11-403).

Only when a ruling of the trial court is clearly untenable, not justified by reason, or clearly against the logic and effect of the facts and circumstances of the case, will an appellate court hold that the trial court abused its discretion in admitting or excluding evidence.  State v. Otto, 2007-NMSC-012, p. 9, 141 N.M. 443, 157 P.3d 8.

An appellate court will "not...simply rubber stamp the trial court's determination.  State v. Torrez, 2009-NMSC-029, p. 9, 146 N.M. 331, 210 P.3d 228 (internal quotation marks and citation omitted).

An appellate court reviews a trial court's weighing of probative value against unfair prejudice for an abuse of discretion.  State v. Otto, 2007-NMSC-012, p. 14, 141 N.M. 443, 157 P.3d 8.

"Error in either the admission or exclusion of evidence and error or defect in any not grounds for granting a new trial....unless refusal to take...such action appears to the court inconsistent with substantial evidence." Rule 5-113 NMRA.

Holdings Regarding the Statements of Lawyers

"Statements of the lawyers...are not themselves evidence."  See UJI 14-101 NMRA.

Holdings Regarding the Standard of Review for a Trial Court's Grant or Refusal of a Mistrial

An Appellate Court reviews a trial court's decision to grant or refuse a mistrial for an abuse of discretion.   State v. Torres, 2012-NMSC-006, p. 7, 279 P.3d 740.

"The trial court abuses its discretion in ruling on a motion for a mistrial if in doing so it acted in an obviously erroneous, arbitrary, or unwarranted manner."  State v. Torres, 2012-NMSC-006, p. 7, 279 P.3d 740 (internal quotation marks and citation omitted).

Holdings Regarding the Harmless Error Doctrine

Even if the admission of evidence was in error, such error may be harmless and therefore not reversible.  See State v. Tollardo, 2012-NMSC-008, p. 25, 275 P.3d 110 ("Improperly admitted evidence is not grounds for a new trial unless the error is determined to be harmful.")

When evaluating whether a violation of evidentiary rules was harmless, an appellate court "ask whether there [was] a reasonable probability that the error affected the jury's verdict."  State v. Lovett, 2012-NMSC-036, p. 52, 286 P.3d 265.

Holdings Regarding an Appellate Court's Review for Fundamental Error

Where there is a lack of preservation, an appellate court will only reverse for fundamental error, and where a defendant has not asserted fundamental error on appeal, an appellate court may decline to review for such error.  State v. Sandoval, 2011-NMSC-022, pp. 14-15, 150 N.M. 224, 258 P.3d 1016 (reviewing for fundamental error when parties do not object to tendered jury instructions).

Holdings Regarding Other Crimes, Wrongs, or Acts (11-404(B)) Evidence

Rule 11-404(B) establishes boundaries for the admission of evidence of other crimes, wrongs, or acts.  

Rule 11-404(B) prohibits the use of "[e]vidence of a crime, wrong, or other prove a person's character in order to show that on a particular occasion the person acted in accordance with the character."

Evidence of other misconduct may not be admitted into evidence to demonstrate that "because the defendant committed those acts in the past, he is more likely to have committed them at the time of the charged offense."  David A. Sothenshein, The Misuse of Rule 404(B) on the Issue of Intent in the Federal Courts, 45 Creighton L. Rev. 215, 220 (2011).

Rule 11-404(B) allows evidence of other misconduct to be admitted, if legally relevant, for numerous other purposes, including to prove the intent of the defendant.  See Rule 11-404(B)(2) ('This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."); Rule 11-402 NMRA (stating that relevant evidence is generally admissible except as subject to contrary constitutional, statutory, or rule provisions, but "[i]rrelevant evidence is not admissible").

"Before admitting evidence of other crimes, wrongs or acts, the trial must find that the evidence is relevant to a material issue other than the defendant's character or propensity to commit a crime[.]"
State v. Otto, 2007-NMSC-012, p. 10, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation omitted).

Rule 11-404(B) does not require that "evidence admitted under [the] rule be offered only to rebut evidence presented by the defense." State v. Otto, 2007-NMSC-012, p. 11, 141 N.M. 443, 157 P.3d 8.

Under Rule 11-404(B) the admissibility of evidence of other acts does not depend on whether the evidence is potentially illegitimate evidence of character, but, instead on whether there is a permissible purpose.  See Old Chief v. United States, 519 U.S. 172, 184 (1997) (stating that when certain evidence "has the dual nature of legitimate evidence of an element [of a charge] and illegitimate evidence of character" the evidence satisfies federal Rule 404(B) and admissibility is determined under federal 403); State v. Gallegos, 2007-NMSC-007, p.22, 141 N.M. 185, 152 P.3d 828.

"If the evidence is probative of something other than propensity, then we balance the prejudicial effect of the evidence against its probative value [when applying Rule 11-403."  State v. Lovett, 2012-NMSC-036, p. 32, 286 P.3d 265.

Holdings Regarding Rule 11-403

Rule 11-403 provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

Unfair prejudice, in the context of Rule 11-403, "means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."  State v. Stanley, 2001-NMSC-037, p. 17, 131 N.M. 368, 37 P.3d 85 (internal quotation marks and citation omitted).

Evidence is unfairly prejudicial "if it is best characterized as sensational or shocking, provoking anger, inflaming passions, or arousing overwhelmingly symphonic reactions, or provoking hostility or revulsions or punitive impulses, or appealing entirely to emotion against reason."  State v. Stanley, 2001-NMSC-037, p. 17, 131 N.M. 368, 37 P.3d 85 (internal quotation marks and citation omitted).

The determination of unfair prejudice is "fact sensitive," and, accordingly, "much leeway is given trial judges who must fairly weigh probative value against probable dangers."  State v. Otto, 2007-NMSC-012, p. 14, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation omitted).

 "The purpose of Rule 11-403 is not to guard against any prejudice whatsoever, but only against the danger of unfair prejudice."  State v. Otto, 2007-NMSC-012, p. 16, 141 N.M. 443, 157 P.3d 8 (alterations, internal quotation marks, and citation omitted).

The New Mexico Supreme Court has held that other acts evidence involving the same victim generally may be admitted in child sexual abuse cases to counter evidence that has been admitted showing that the defendant did not have the requisite sexual intent.  See State v. Sena, 2008-NMSC-053, p. 14, 144 N.M. 821, 192 P.3d 1198 (affirming admission of other acts evidence where Defendant told witnesses that he had touched the victim's vagina while putting ointment on her rash and that he had not done so sexually); State v. Kerby, 2007-NMSC-014, p. 26, 141 N.M. 413, 156 P.3d 714 (affirming admission of other at evidence here the defendant "injected the issue of intent by calling his mother to testify that [the [d]efendant told her the touch was merely a fatherly put on the bottom"); State v. Otto, 2007-NMSC-012, p. 11, 141 N.M. 443, 157 P.3d 8 (affirming admission of other acts evidence where evidence had been presented that Defendant told detectives he may have sexually touched the victim unconsciously while he was half-asleep).

"The nearly universal view is that other-acts evidence, although logically relevant to show that the defendant committed the crime by acting consistently with his or her past conduct, is inadmissible because the risk that a jury will convict anyway because a bad person deserves punishment--creates a prejudicial effect."  State v. Gallegos, 2007-NMSC-007, p.21, 141 N.M. 185, 152 P.3d 828 (internal quotation marks and citation omitted); State v. Lamure, 1992-NMCA-137, p. 47, 115 N.M. 61, 846 P.2d 1070 (hartz, J., specially concurring) ("One cannot ignore the long tradition of court and commentators expressing fear that jurors are too likely to give undue weight to evidence of a defendant's prior misconduct and perhaps even to convict the defendant solely because of a belief that the defendant is a bad person."); see also Old Chief v. United States, 519 U.S. 172, 184 (1997) (recognizing that although other acts evidence is relevant, "the risk that a jury will convict for crimes other than those charged---or that, uncertain of guilt, it will convict anyway, because a bad person deserves punishment---creates a prejudicial effect"); People v. Smallwood, 722 P.2d 197, 285 (Cal. 1986) (recognizing that other acts evidence "is the most prejudicial evidence imaginable against an accused"), disagreed with on other grounds by People v. Bean, 760 P.2d 996, 1008 n.8 (Call. 1988); Edward J. Imwinkelreid, Undertaking the Task of Reforming the American Character Evidence Prohibition:  The Importance of Getting the Experiment off on the Right Foot, 22 Fordham Urb. L. J. 285, 288 (1995) ("The contemporary abhorrence of sexual misconduct and offenses against children is as intense as it is widespread.  Repulsed by evidence of such unchanged crimes by an accused, a juror might be tempted to look past weaknesses in the prosecution's proof of the accused's guilt of the uncharged crime." ).

Read the case here: