1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______________________
3 Filing Date: November 20, 2018
4 No. A-1-CA-35562
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 JOHNNY SALAZAR,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 11 Fernando R. Macias, District Judge
12 Hector H. Balderas, Attorney General 13 Emily C. Tyson-Jorgenson, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 Bennett J. Baur, Chief Public Defender 17 Tania Shahani, Assistant Appellate Defender 18 Santa Fe, NM
19 for Appellant OPINION
1 ATTREP, Judge.
2 {1} Defendant Johnny Salazar appeals his convictions for aggravated driving
3 while intoxicated (DWI), in violation of NMSA 1978, Section 66-8-102(D)(3)
4 (2016), and resisting, evading, or obstructing an officer, in violation of NMSA
5 1978, Section 30-22-1(B) (1981). Defendant contends no reasonable suspicion
6 supported his detention and the district court thus erred in denying his motion to
7 suppress. Defendant adds that the district court erred in compelling his counsel to
8 return to the State video evidence the State had initially disclosed, and by failing to
9 permit his counsel to withdraw based on a purported conflict. We affirm
10 Defendant’s convictions.
11 BACKGROUND
12 {2} In March 2015, a magistrate court jury found Defendant guilty of both
13 aggravated DWI and evading an officer. Defendant appealed his convictions to
14 district court, where he moved to suppress any evidence arising from his detention
15 on the ground that reasonable suspicion was lacking. The district court held a
16 hearing on the motion at which the arresting officer testified. The following
17 recitation of facts is based on the officer’s testimony.
18 {3} On an evening in late April 2014, New Mexico State Police set up a DWI
19 checkpoint on Camino Real Road in Las Cruces, New Mexico. Camino Real Road 1 ran roughly north-south through the checkpoint. Cones and signs indicating the
2 checkpoint’s presence and directing drivers to stop were placed both north and
3 south of the checkpoint. Multiple marked police vehicles, including a large state
4 police van displaying the words “state police” in “huge letters” on its sides, were
5 stationed at the checkpoint. At least two of the parked police vehicles were
6 operating their overhead lights continuously. Among the officers on duty was
7 patrolman Oliver Wilson, who was positioned furthest south on Camino Real
8 Road.
9 {4} Just as the sun was setting, Wilson observed a red or maroon, four-door
10 sedan approach the checkpoint from the south. The car traveled north on Camino
11 Real a short distance past the intersection of Dona Ana School Road, which was
12 visible from the checkpoint. Then, roughly one hundred yards south of where
13 Wilson was stationed, the car pulled completely off the road onto the dirt shoulder
14 “just before the cones” marking the checkpoint. Wilson, with an unobstructed
15 view, noted the car lingered at the side of the road “long enough to be noticeable,”
16 before making a U-turn across the double-yellow lines of Camino Real. The car
17 accelerated, turned right on Dona Ana School Road, and drove “rapidly” away
18 from the checkpoint. Wilson’s radar, however, was off, and he was unsure whether
19 the car had at any point traveled faster than the posted speed limit or committed
20 any other traffic violation. Even though there were no other vehicles obstructing
2 1 Wilson’s view of the vehicle, he could not make out a license plate or any
2 identifying features of the driver. Wilson could not recall whether the signs
3 announcing the checkpoint would have been viewable from the vehicle at any
4 point. Wilson, however, testified that the stop, pause, U-turn, and departure at a
5 high rate of speed were uncharacteristic of traffic typically approaching the
6 checkpoint—most traffic either turned at the Dona Ana School Road intersection
7 or continued through the checkpoint.
8 {5} Wilson testified that he “suspected, from [his] experience, that there was
9 someone trying to avoid the checkpoint.” Wilson shouted to his fellow officers that
10 he had seen a “turnaround,” jumped into his patrol car, activated his emergency
11 lights, and drove off in pursuit. He made the right turn onto Dona Ana School
12 Road and re-established visual contact with the car, which was by then ahead by
13 “quite a distance.” The car next turned right on Dona Ana Road. Wilson attempted
14 to close the gap, but he was unsuccessful. As they traveled on Dona Ana Road,
15 Wilson lost sight of the car.
16 {6} Shortly after losing contact, Wilson came to a four-way stop at the
17 intersection of Dona Ana Road and Thorpe Road. He had not seen the car approach
18 this intersection, and, as a result, he had doubts about where to head next. He made
19 his “best guess” and turned right, heading east along Thorpe Road. After driving in
20 that direction briefly, Wilson noticed in his rearview mirror a maroon car parked in
3 1 the driveway of a duplex or triplex just east of the Dona Ana-Thorpe intersection.
2 A man stood outside the car. Wilson believed, though he did not know, that this
3 was the “same maroon vehicle” he had been pursuing. Wilson made a U-turn and
4 approached the man standing next to the car. Wilson asked the man whether he had
5 been trying to evade him, and the man conceded that he had. Wilson investigated
6 further, identified the man as Defendant, and conducted field sobriety tests.
7 Defendant performed poorly on the tests and refused to submit to chemical testing.
8 Wilson later arrested Defendant for aggravated DWI (refusal) and evading an
9 officer.
10 {7} Defense counsel did not present evidence at the suppression hearing but
11 offered to have the district court view the video from Wilson’s dashboard video
12 camera, which the court declined. Defendant argued that Wilson could not have
13 developed reasonable suspicion based on his observation of the U-turn at the
14 checkpoint and that, even if there was reasonable suspicion at the checkpoint,
15 Wilson did not have the requisite particularized suspicion as to Defendant on
16 Thorpe Road because Wilson lost contact in pursuit and guessed about Defendant’s
17 direction of travel. In ruling on the motion to suppress, the district court adopted
18 much of Wilson’s testimony in its oral findings. Specifically, the court found that
19 Defendant had traveled past the Dona Ana School Road intersection on its
20 approach to the checkpoint. Defendant had then paused on the shoulder, before
4 1 making the observed U-turn on Camino Real and accelerating away to “create
2 distance” from Wilson. The court added that Wilson had pursued and lost sight of
3 Defendant’s vehicle briefly, but Wilson eventually reestablished contact with and
4 detained Defendant as described on Thorpe Road. Based on those findings, the
5 district court concluded that Wilson had reasonable suspicion to believe Defendant
6 was or had been driving while under the influence. That suspicion, the district
7 court concluded, supported Wilson’s investigative detention, and thus the court
8 denied Defendant’s motion to suppress.
9 {8} Defendant’s case was slated to go to trial the week after the suppression
10 hearing. The day before trial, the State realized it had lost or misplaced its only
11 copy of Wilson’s dashcam video. Before the magistrate court jury trial, the State
12 had provided defense counsel a copy of the video. Aware that defense counsel had
13 retained the copy, the State requested that defense counsel return to the State a
14 courtesy copy. Defense counsel declined, and the State moved the district court to
15 compel production. On the morning of the first day of trial, the district court
16 granted the State’s motion to compel, ordered defense counsel to produce a copy of
17 the video to the State, and briefly adjourned.
18 {9} Returning from the recess, defense counsel renewed her objection to
19 production, contending the order to produce might give rise to a conflict as she
20 could no longer give her undivided loyalty to Defendant. The district court
5 1 concluded production would raise no conflict and again ordered counsel to produce
2 a copy of the video. Defense counsel complied and then moved to withdraw from
3 her representation and for a new trial, maintaining that Defendant was entitled to
4 conflict-free counsel. The court denied the motions. After Defendant was
5 convicted of both aggravated DWI and evading an officer, defense counsel
6 renewed in writing her motion for a new trial based on the order compelling
7 production of the video. The district court denied the motion, concluding that
8 Defendant had established “no substantial injustice” warranting a new trial. This
9 appeal followed.
10 DISCUSSION
11 {10} We first hold that reasonable suspicion supported Wilson’s detention of
12 Defendant and, thus, the district court did not err in denying Defendant’s motion to
13 suppress. Next, we conclude that the district court did not abuse its discretion in
14 ordering Defendant to return a copy of the video that the State had provided to
15 Defendant in discovery and in denying Defendant’s related motion for a new trial.
16 Finally, we hold that the district court did not err in denying defense counsel’s
17 motion to withdraw because counsel’s compliance with the district court’s order
18 compelling production of the video did not create an actual conflict of interest.
19 I. Reasonable Suspicion Supported Defendant’s Detention
6 1 {11} Defendant maintains the district court erred in concluding Wilson had
2 reasonable suspicion supporting Defendant’s detention in the driveway on Thorpe
3 Road. Defendant first contends that the facts known to Wilson when he departed
4 the DWI checkpoint were insufficient to create reasonable suspicion that
5 Defendant was or had been driving while under the influence. Defendant adds that
6 the insufficiency was compounded when Wilson later lost sight of Defendant and
7 guessed as to his route of travel. The parties agree that Wilson’s investigation of
8 Defendant constituted a seizure under the Fourth Amendment, which must be
9 supported by reasonable suspicion.1 See State v. Contreras, 2003-NMCA-129, ¶ 5,
10 134 N.M. 503, 79 P.3d 1111.
11 {12} A review of a denial of a motion to suppress presents a mixed question of
12 fact and law. See State v. Lowe, 2004-NMCA-054, ¶ 8, 135 N.M. 520, 90 P.3d 539.
13 We give deference to the district court’s findings of fact, reviewing them for
14 substantial evidence. Id. ¶ 9. We recognize fact-finding frequently requires the
15 drawing and selection of specific inferences, and we indulge all reasonable
1 Whether and at what point Wilson may have seized Defendant in this encounter, given the limited facts before us, is unclear. The parties agreed in contesting Defendant’s motion to suppress that Defendant had been seized as a result of a traffic stop, and they contested only the grounds for the stop. The parties likewise have not addressed on appeal whether and when a seizure was made, and we give the questions no further attention. See, e.g., State v. Garnenez, 2015- NMCA-022, ¶ 15, 344 P.3d 1054 (“We will not address arguments on appeal that were not raised in the brief in chief and have not been properly developed for review.”). 7 1 inferences in support of the district court’s decision. See State v. Jason L., 2000-
2 NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856. “Questions of reasonable suspicion
3 are reviewed de novo by looking at the totality of the circumstances to determine
4 whether the detention was justified.” State v. Hubble, 2009-NMSC-014, ¶ 5, 146
5 N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted). We have
6 often explained a police officer may detain an individual in investigating potential
7 criminal activity where the officer has formed a reasonable suspicion the individual
8 “is breaking, or has broken, the law.” Id. ¶ 8 (internal quotation marks and citation
9 omitted). Reasonable suspicion must arise from “specific articulable facts,” along
10 with any “rational inferences that may be drawn from those facts.” Contreras,
11 2003-NMCA-129, ¶ 5 (internal quotation marks and citation omitted).
12 {13} Our Supreme Court has provided specific guidance in evaluating whether
13 reasonable suspicion may arise based on purportedly evasive driving behavior near
14 a DWI checkpoint. See generally State v. Anaya, 2009-NMSC-043, ¶¶ 11-18, 147
15 N.M. 100, 217 P.3d 586. A legal turn in the vicinity of the checkpoint, for
16 example, will not typically give rise to reasonable suspicion. Id. ¶ 16. As in all
17 cases, however, an officer need not have observed illegal activity to develop
18 reasonable suspicion. Id. ¶ 12. A legal turn observed in combination with other
19 circumstances may well support a reasonable suspicion of criminal activity—
20 particularly where the circumstances suggest the turn is made for the purpose of
8 1 evading the checkpoint. Id. ¶¶ 15-16. Anaya explained that various considerations
2 may be relevant in discerning the driver’s purpose for engaging in certain observed
3 activity near a checkpoint. Whether the driver is on notice that the checkpoint is
4 looming is clearly relevant in making the determination. Id. ¶ 16. Thus, questions
5 such as whether the driver “was in a position to observe police emergency lights”
6 emanating from the checkpoint and whether the driver could have observed signs
7 announcing the checkpoint may aid in evaluating the purpose underlying the
8 driver’s behavior. Id. ¶ 18. Other considerations, such as the time of day, the
9 location of the activity and its proximity to the checkpoint, the nature of the road,
10 and the typicality of the conduct observed may also inform the evaluation. Id. ¶ 17.
11 Evaluation of these and any other relevant circumstances should guide the
12 determination of whether an officer may reasonably believe specific driving
13 behavior constitutes an attempt to evade a checkpoint, which in turn may support a
14 reasonable suspicion the driver is driving while intoxicated. Id. ¶ 16.
15 {14} The district court’s findings and associated permissible inferences support a
16 determination of reasonable suspicion here. The district court noted the vehicle had
17 traveled on Camino Real Road past the intersection of Dona Ana School Road in
18 the direction of the checkpoint. Before arriving at the checkpoint, the district court
19 found, the vehicle paused on the shoulder for that period of time notable to Wilson
20 before making its U-turn. Neither of those findings were disputed, and we
9 1 conclude both were supported by substantial evidence. The district court further
2 found that after making the U-turn, the vehicle accelerated away from the
3 checkpoint and must have maintained “an accelerated speed” as Wilson pursued,
4 so as to maintain its distance ahead. While Defendant questions the basis for this
5 latter finding, the district court was entitled to credit Wilson’s observations, and we
6 find no reason to reweigh Wilson’s testimony here. See, e.g., State v. Martinez,
7 2018-NMSC-007, ¶ 15, 410 P.3d 186 (deferring to district court’s implicit
8 acceptance of testifying officer’s perceptions). Were we to end the analysis there,
9 as Defendant appears to do, whether these findings alone—the location of the turn,
10 the pause, the acceleration away from the checkpoint—supported the requisite
11 reasonable suspicion is debatable. See Anaya, 2009-NMSC-043 ¶¶ 13, 16
12 (suggesting legal U-turn made in view of checkpoint may require additional
13 circumstances to support reasonable suspicion).
14 {15} Yet the vehicle’s progress past the Dona Ana School Road intersection and
15 its roadside pause, when viewed in conjunction with the testimony regarding the
16 checkpoint’s visibility, the daylight remaining, the absence of any intervening
17 traffic, and the vehicle’s distance from the checkpoint, support inferences that the
18 driver was aware of the checkpoint and tried to evade it. See id. ¶ 18 (“[The
19 d]efendant was in a position to observe police emergency lights and other lights
20 illuminating the checkpoint.”). In addition, Wilson’s testimony regarding traffic
10 1 patterns that evening suggested the U-turn and subsequent turn onto Dona Ana
2 School Road were abnormal. That abnormality likewise supported inferences that
3 the driver was aware of the checkpoint and sought to evade it. See id. (“[The
4 d]efendant then proceeded in the opposite direction of travel, which was
5 inconsistent with typical driving patterns given the location of the highway.”).
6 Wilson’s testimony regarding the difficulty he had in tracking down the vehicle
7 after he left the checkpoint only served to bolster the inference that the driver was
8 engaging in evasive behavior. Under the totality of these circumstances, we
9 conclude that Wilson had reasonable suspicion that the driver of the maroon
10 vehicle was driving while intoxicated. See id. ¶ 16.
11 {16} Despite the support for those inferences, Defendant makes much of the fact
12 that Wilson lost sight of the vehicle and eventually resorted to his best guess as to
13 where to head next when he reached the intersection of Dona Ana Road and
14 Thorpe Road. When Wilson later came across Defendant standing next to a
15 maroon vehicle in the Thorpe Road driveway, Defendant contends, Wilson could
16 not possibly have had the requisite individualized suspicion with respect to
17 Defendant to support a detention. No doubt an “unsupported intuition” regarding
18 an individual falls short of the “particularized suspicion” necessary to subject the
19 individual to an investigative detention. Jason L., 2000-NMSC-018, ¶ 20.
20 Particularized suspicion must be a suspicion based on all the circumstances known
11 1 to the officer that the “particular individual” detained is breaking or has broken the
2 law, as distinct from a more generalized suspicion untethered to the individual. See
3 id. Officers, however, need not limit themselves to their direct observations in
4 developing suspicions, and they need not “exclude all possible innocent
5 explanations of the facts and circumstances” they observe. State v. Candelaria,
6 2011-NMCA-001, ¶ 14, 149 N.M. 125, 245 P.3d 69 (internal quotation marks and
7 citation omitted); see State v. Alderete, 2011-NMCA-055, ¶ 15, 149 N.M. 799, 255
8 P.3d 377. Instead, they may rely on their own experiences and specialized training
9 to draw inferences and make deductions from the totality of information available
10 to them—inferences and deductions that may well elude the untrained observer.
11 See Alderete, 2011-NMCA-055, ¶ 15; State v. Maez, 2009-NMCA-108, ¶ 23, 147
12 N.M. 91, 217 P.3d 104.
13 {17} Various facts and inferences supported Wilson’s suspicion regarding
14 Defendant here. Wilson testified about the lack of traffic at the checkpoint. His
15 ability to observe the vehicle and its route of travel at a distance, despite the
16 vehicle’s substantial head start and apparently evasive behavior, reinforced the fact
17 that there were few cars on the road to impede his pursuit or view that evening.
18 That suggested the potential universe of suspects was small, as did the short length
19 of the time that Wilson lost contact with the vehicle. Cf. Commonwealth v.
20 Bostock, 880 N.E.2d 759, 764 (Mass. 2008) (finding reasonable suspicion existed
12 1 where the defendant was found in the vicinity of the alleged crimes within minutes
2 of the crimes, the defendant matched the description given by witnesses, and upon
3 canvass of the area no one else matching the description was found); State v.
4 Lovato, 1991-NMCA-083, ¶ 11, 112 N.M. 517, 817 P.2d 251 (finding reasonable
5 suspicion where “the incident involving the reported shooting occurred around
6 midnight, the car occupied by defendants met the general description radioed by
7 the police dispatcher, and there was no other vehicular traffic in the area”). And
8 Defendant’s maroon vehicle in the driveway, close in time and place to the pursuit
9 here, placed him comfortably within that small population of suspects,
10 strengthening the notion that Wilson’s suspicion was sufficiently particularized. Cf.
11 United States v. Mosley, 878 F.3d 246, 252 (8th Cir. 2017) (concluding that, given
12 “the close temporal and physical proximity of the [vehicle] to the crime, the
13 totality of the circumstances indicates that reasonable suspicion supported the
14 vehicle stop and rendered it constitutional” (internal quotation marks and citation
15 omitted)). The district court, thus, was free to credit Wilson’s testimony that the
16 maroon vehicle he spotted on Thorpe Road was “the same maroon vehicle” he had
17 pursued from the checkpoint.
18 {18} Were the brief loss of visual contact by the pursuing officer in this case
19 sufficient to eliminate reasonable suspicion, as Defendant suggests, this might
20 condone a constitutional test not only inconsistent with our prior precedent but also
13 1 dismissive of the significant risk that fleeing drunk drivers pose to the public. We
2 long have held that “in determining whether the totality of circumstances gave [the
3 officer] a reasonable suspicion to stop [the d]efendant, we must balance the
4 possible threat of drunk driving to the safety of the public with [the d]efendant’s
5 right to be free from unreasonable seizure.” Contreras, 2003-NMCA-129, ¶ 13.
6 We have repeatedly acknowledged the “compelling public interest” in eliminating
7 drunk driving and its deadly consequences. State v. Simpson, 2016-NMCA-070,
8 ¶ 24, 388 P.3d 277 (internal quotation marks and citation omitted); State v. Nance,
9 2011-NMCA-048, ¶ 26, 149 N.M. 644, 253 P.3d 934; Contreras, 2003-NMCA-
10 129, ¶ 14. Where, as here, a driver appears to be deliberately evading a DWI
11 checkpoint, giving rise to reasonable suspicion of DWI, and the driver then
12 proceeds to speed away from that checkpoint, posing a substantial danger to others,
13 “the exigency of the possible threat to public safety that a drunk driver
14 poses . . . and the minimal intrusion of a brief investigatory stop tip the balance in
15 favor of the stop[,]” notwithstanding that the pursuing officer lost sight of the
16 fleeing vehicle for a brief period. See Contreras, 2003-NMCA-129, ¶ 21.
17 {19} Given the observations Wilson made at the checkpoint and as he pursued the
18 vehicle, as well as the reasonable inferences he drew under the circumstances, we
19 conclude he had developed reasonable suspicion of DWI and evading an officer
20 and those suspicions were sufficiently particularized with respect to Defendant.
14 1 Defendant’s detention was therefore reasonable, and the district court did not err in
2 denying Defendant’s motion to suppress.
3 II. The District Court Did Not Err in Compelling Defendant to Produce the 4 State’s Video
5 {20} Turning to the issue of the return of the State’s video, Defendant questions
6 the basis for the district court’s order compelling its production and the associated
7 denial of Defendant’s motion for a new trial. Neither our Rules of Criminal
8 Procedure nor our Rules of Professional Conduct, Defendant observes, provide
9 clear guidance for dealing with the State’s loss of its copy of the video here.
10 Defendant contends that in the absence of clear guidance no legal principle should
11 require a defendant to provide the State with evidence harmful to the defendant’s
12 case.
13 {21} We review discovery rulings for abuse of discretion. See State v. Ortiz,
14 2009-NMCA-092, ¶ 24, 146 N.M. 873, 215 P.3d 811. Abuse of discretion occurs
15 when “the ruling is clearly against the logic and effect of the facts and
16 circumstances of the case.” See State v. Layne, 2008-NMCA-103, ¶ 6, 144 N.M.
17 574, 189 P.3d 707 (internal quotation marks and citation omitted). We will
18 determine that an abuse of discretion has occurred only where we can conclude the
19 ruling is “clearly untenable or not justified by reason.” Id. (internal quotation
20 marks and citation omitted). We apply the same standard of review to the district
15 1 court’s denial of Defendant’s motion for new trial. See State v. Guerra, 2012-
2 NMSC-027, ¶ 18, 284 P.3d 1076.
3 {22} The district court determined that while counsel’s refusal to produce the
4 video “arguably [was] not violative of the rules of discovery,” it “[did] run afoul of
5 the spirit, if not the letter, of Rule 16-304(A) [NMRA] of the Rules of Professional
6 Conduct” and “serve[d] to undermine the truth-finding function of a trial[.]” Rule
7 16-304(A) directs that a “lawyer shall not . . . unlawfully obstruct another party’s
8 access to evidence or unlawfully alter, destroy, or conceal a document or other
9 material having potential evidentiary value[.]” The rule tells us nothing more,
10 however, about what might constitute “unlawful” obstruction or concealment, or
11 whether defense counsel’s failure to voluntarily return the video here might have
12 come within the prohibition. Evaluation of the scope of counsel’s obligation
13 requires, instead, examination of our basic rules governing discovery and
14 procedure. Cf. In re Estrada, 2006-NMSC-047, ¶ 32, 140 N.M. 492, 143 P.3d 731
15 (per curiam) (noting that discovery rules are designed to ensure “disclos[ure] to the
16 fullest practicable extent” and counsel’s failure to comply with these rules may rise
17 to the level of violating the Rules of Professional Conduct (internal quotation
18 marks and citation omitted)).
19 {23} No one disputes that our discovery rules for criminal cases generally require
20 only that a defendant disclose to the State the evidence he “intends to
16 1 introduce . . . at the trial.” Rule 5-502(A)(1) NMRA. Whether a district court may
2 compel disclosure of material not explicitly covered by the rules, however, is a
3 different question, and one the rules illuminate further. Rule 5-502, for example,
4 specifies a variety of material for which discovery is not authorized, including
5 reports and documents created by the defense in connection with the case, as well
6 as statements the defendant has made to his agents or attorneys. See Rule 5-502(C).
7 Evidence initially produced by the State and unmodified by the defendant is absent
8 from the list, suggesting it is not subject to the same absolute prohibition. Rule 5-
9 101(B) NMRA adds that our criminal procedure rules are to “be construed to
10 secure simplicity in procedure, fairness in administration and the elimination of
11 unjustifiable expense and delay.” That basic governing principle suggests a district
12 court retains some flexibility in crafting solutions for situations not expressly
13 contemplated by the rules. See Piña v. Espinosa, 2001-NMCA-055, ¶ 28, 130 N.M.
14 661, 29 P.3d 1062 (providing the same in the context of the Rules of Civil
15 Procedure); cf. State v. Le Mier, 2017-NMSC-017, ¶ 18, 394 P.3d 959. (“[T]rial
16 courts shoulder the significant and important responsibility of ensuring the
17 efficient administration of justice in the matters over which they preside[.]”).
18 {24} Defendant makes no reference to these provisions; he instead suggests that a
19 defendant should never be required to turn over “harmful” evidence to the State in
20 the absence of an explicit disclosure requirement. Our Supreme Court, however,
17 1 has long held that the Rules of Criminal Procedure “provide for reciprocal
2 discovery rights and are intended to provide ample opportunity for investigation of
3 facts.” State v. Stills, 1998-NMSC-009, ¶ 52, 125 N.M. 66, 957 P.2d 51 (internal
4 quotation marks and citation omitted); see also United States v. Nixon, 418 U.S.
5 683, 709 (1974) (“The need to develop all relevant facts in the adversary system is
6 both fundamental and comprehensive.”). And while this opportunity for
7 investigation will yield to various privileges and protections, Defendant here has
8 identified no potentially applicable protections whatsoever. See Albuquerque Rape
9 Crisis Ctr. v. Blackmer, 2005-NMSC-032, ¶ 18, 138 N.M. 398, 120 P.3d 820
10 (recognizing “‘the ancient proposition of law’ that ‘the public has a right to every
11 man’s evidence, except for those persons protected by a constitutional, common-
12 law, or statutory privilege’” (omission omitted) (quoting Nixon, 418 U.S. at 709)).
13 {25} While we have no obligation to guess at what Defendant’s arguments might
14 be, we observe that Defendant’s reproduction of the State’s video in this case does
15 not appear to implicate Defendant’s rights or privileges. See Elane Photography,
16 LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We will not . . . guess at
17 what a party’s arguments might be.” (alteration, internal quotation marks, and
18 citation omitted)). Indeed, other jurisdictions facing the same situation have
19 concluded that a defendant is required to return video evidence initially disclosed
20 by the government. See Commonwealth v. Tahlil, 94 N.E.3d 840, 842 (Mass. 2018)
18 1 (holding that the trial court erred in not ordering the defendant to return video
2 originally disclosed by the prosecution); Adams v. State, 969 S.W.2d 106, 114
3 (Tex. Ct. App. 1998) (holding that the district court did not err in compelling the
4 defendant to return videotape of field sobriety test after the state lost original).
5 {26} These courts have determined that production of such evidence does not
6 implicate a defendant’s right to be free from self-incrimination or the attorney-
7 client or work product privileges. See, e.g., Tahlil, 94 N.E.3d at 842 (“Providing a
8 copy of the DVD to the [prosecution] . . . would not be an incriminating
9 admission[.] . . . It would merely be the act of the defendant returning to the
10 [prosecution] a copy of something that the [prosecution] provided to him in the
11 first place.”); Adams, 969 S.W.2d at 114 (rejecting “[t]he notion that information
12 which is tendered as a result of court ordered or statutorily mandated discovery,
13 can be converted into privileged information, though it has not been altered since
14 tendering, enhanced by fruits of an attorney’s labor since tendering, or added to
15 with communicative actions after tendering”). Instead, these courts have concluded
16 that the video evidence initially developed and produced by the government was
17 returnable, largely because it was the government’s evidence to begin with. See,
18 e.g., Adams, 969 S.W.2d at 114 (“The tape is a recording of an event made by the
19 [s]tate and disclosed to the defense as part of statutory pretrial discovery.”); see
20 also Tahlil, 94 N.E.3d at 842 n.3 (“[I]t is exactly this point—that the evidence was
19 1 once in the [prosecutor’s] possession, and that the [prosecutor] gave it to the
2 defendant—that is relevant and dispositive.”); accord United States v. Province, 45
3 M.J. 359, 363 (C.A.A.F. 1996) (“[H]ad the [g]overnment asked the defense for a
4 copy of th[e] document, alleging that their copy had been lost or destroyed, then
5 defense counsel would have been obligated to turn [it] over[.]”).
6 {27} We find these cases persuasive, and they guide our analysis here. The video
7 at issue was the State’s evidence, produced in compliance with its discovery
8 obligations. Because the video originated with the State and remained unaltered by
9 the defense, it appears no constitutional, statutory, or common law prohibition on
10 disclosure applied. In the absence of an identified prohibition or protection, the
11 district court was entitled to resolve the dispute with an eye toward promoting
12 “fairness in administration and the elimination of unjustifiable . . . delay” as
13 contemplated by the rules. See Rule 5-101(B). In short, fairness, expediency, and
14 the absence of an identified prohibition or protection all counseled in favor of
15 production here, regardless whether Rule 16-304(A) required it. Cf. State v.
16 Wasson, 1998-NMCA-087, ¶ 16, 125 N.M. 656, 964 P.2d 820 (“[W]e may affirm
17 the district court’s order on grounds not relied upon by the district court if those
18 grounds do not require us to look beyond the factual allegations that were raised
19 and considered below.”). We thus cannot say that the district court erred in
20 compelling Defendant to return to the State a copy of the video the State had
20 1 initially provided, and as a result, we affirm the district court’s denial of
2 Defendant’s motion for a new trial. See, e.g., State v. Stephens, 1982-NMSC-128,
3 ¶ 15, 99 N.M. 32, 653 P.2d 863 (concluding new trial was unwarranted where no
4 error was identified).
5 III. No Conflict Arose as a Result of the District Court’s Order Compelling 6 Production
7 {28} Defendant argues that his compelled production of the video created a
8 conflict on the ground that defense counsel’s duty as an officer of the court had, at
9 that point, triumphed over her duty as an advocate for Defendant. Defendant
10 maintains that he was entitled to counsel having undivided loyalty and, thus, the
11 district court’s failure to allow counsel to withdraw was error.
12 {29} Claims of conflict of interest and the related question of whether a defendant
13 is entitled to any presumption of prejudice as a result of a conflict are reviewed de
14 novo. See State v. Vincent, 2005-NMCA-064, ¶ 4, 137 N.M. 462, 112 P.3d 1119. A
15 presumption is applicable only where the record reveals “an actual, active conflict
16 that adversely affects counsel’s trial performance[.]” Id. We have long recognized
17 the Sixth Amendment guarantees a defendant the right to counsel of undivided
18 loyalty, free from conflicts of interest. See State v. Santillanes, 1990-NMCA-035,
19 ¶ 1, 109 N.M. 781, 790 P.2d 1062. While the typical conflict arises in cases
20 involving multiple representation, a conflict may also arise in any case where “the
21 interests of the client and the attorney diverge.” See State v. Martinez, 2001- 21 1 NMCA-059, ¶ 25, 130 N.M. 744, 31 P.3d 1018. That proposition is restated
2 slightly in our Rules of Professional Conduct, which direct that “a lawyer shall not
3 represent a client if the representation [of that client may be] . . . materially limited
4 by the lawyer’s responsibilities to . . . a third person or by a personal interest of the
5 lawyer.” Rule 16-107(A)(2) NMRA.
6 {30} We have previously found various considerations to be relevant to our
7 determination of whether a defendant can establish the requisite divergence of
8 interest or material limitation in his counsel’s representation. Where a lawyer is
9 implicated in the same criminal enterprise as the defendant, for example, we have
10 noted a conflict will arise because the “lawyer’s need for self-preservation will
11 trump the duties of representation owed to the client.” Martinez, 2001-NMCA-059,
12 ¶ 25. We also have concluded representation may be impermissibly limited and a
13 conflict may arise where counsel would have pursued “some plausible defense”
14 strategy but avoided it because it would have been “damaging to another’s
15 interest.” Santillanes, 1990-NMCA-035, ¶ 7; see also State v. Sosa, 1997-NMSC-
16 032, ¶ 22, 123 N.M. 564, 943 P.2d 1017 (“[The defendant’s] fail[ure] to prove that
17 [counsel] . . . was forced to abandon the defenses of diminished capacity or duress
18 in order to protect [another] . . . [was] not sufficient to establish an actual conflict
19 of interest.”).
22 1 {31} Defendant here does not rely on these principles. He instead suggests the
2 district court’s order compelling production of the video—and the ensuing
3 possibility of contempt for failure to comply—impermissibly limited his counsel’s
4 loyalty, as his counsel was faced with the unpalatable choice between contempt
5 and weakening her client’s case. New Mexico courts, however, as well as courts
6 elsewhere, have recognized the lawyer’s duties to the client are often, and properly,
7 circumscribed by the lawyer’s duties to the court and the administration of justice.
8 See, e.g., In re Howes, 1997-NMSC-024, ¶ 20, 123 N.M. 311, 940 P.2d 159 (“[In]
9 the end, each member of the bar is an officer of the court. His or her first duty is
10 not to the client or the senior partner, but to the administration of justice.” (internal
11 quotation marks and citation omitted)); see also State v. Kruchten, 417 P.2d 510,
12 515 (Ariz. 1966) (“The duty of an attorney to a client, whether in a private or
13 criminal proceeding, is subordinate to his responsibility for the due and proper
14 administration of justice.”); Commonwealth v. Holliday, 882 N.E.2d 309, 320-21
15 (Mass. 2008) (“[A] lawyer’s duty to advance the interests of his client are properly
16 limited by his duty to comply with court rules.”). Put another way, failure to
17 comply with obligations to the court constitutes not the “zealous advocacy” our
18 adversarial system requires, but violates “professional obligations to the system of
19 justice itself.” Estrada, 2006-NMSC-047, ¶ 32. Compliance with these obligations,
20 particularly in the absence of error by the court, generally gives rise to no conflict.
23 1 See, e.g., Holliday, 882 N.E.2d at 320-21; cf. Nix v. Whiteside, 475 U.S. 157, 176
2 (1986) (highlighting the “problems” and “volumes of litigation” that might be
3 “spawned” by any rule recognizing a conflict between duty of loyalty to the client
4 and ethical obligations to the court).
5 {32} We already have concluded here that the district court did not abuse its
6 discretion when it ordered Defendant to return the video provided by the State.
7 Counsel’s duty to comply with that order thus presented no conflict, and Defendant
8 has not established any “actual, active conflict,” impairing his counsel’s
9 performance at trial. See Martinez, 2001-NMCA-059, ¶ 24. As a result, we cannot
10 conclude the district court erred in denying defense counsel’s motion to withdraw.
11 CONCLUSION
12 {33} We affirm the district court’s denials of Defendant’s motion to suppress,
13 Defendant’s motion for a new trial, and defense counsel’s motion to withdraw.
14 {34} IT IS SO ORDERED.
15 16 JENNIFER L. ATTREP, Judge
17 WE CONCUR:
18 24 1 JULIE J. VARGAS, Judge
2 _______________________________ 3 HENRY M. BOHNHOFF, Judge