State v. Sisneros

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

3 Plaintiff -Appellee,

4 No. 31,550

6 Defendant-Appellant.

8 John P. Paternoster, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender 13 Mary Barket, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

17 BUSTAMANTE, Judge. 1 Defendant challenges his convictions for aggravated driving while under the

2 influence of intoxicating liquor (4th offense), contrary to NMSA 1978, Section 66-8-

3 102 (D) (2010). We issued a second notice of proposed disposition proposing to

4 affirm on August 7, 2012. Defendant has responded with a timely second

5 memorandum in opposition, which we have duly considered. We remain

6 unpersuaded, and we therefore affirm.

7 Defendant continues to argue that the district court erred in denying his motion

8 to disqualify a juror for cause. Defendant argues that juror Karen Ratliff should have

9 been disqualified because her son worked for the district attorney’s office. [Second

10 MIO 1] We review this issue under an abuse of discretion standard. See State v.

11 Johnson, 2010-NMSC-016, ¶ 31, 148 N.M. 50, 229 P.3d 523. An abuse of discretion

12 occurs when the ruling is clearly against the logic and effect of the facts and

13 circumstances of the case. “We cannot say the trial court abused its discretion by its

14 ruling unless we can characterize it as clearly untenable or not justified by reason.”

15 State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation

16 marks and citations omitted). “Where the trial court clearly abused its discretion in

17 failing to excuse a juror who could not be impartial, prejudice is presumed if the

18 petitioner used all peremptory challenges on potential jurors who could be excused for

19 cause before a jury was seated.” Johnson, 2010-NMSC-016, ¶ 31.

2 1 In his second memorandum in opposition, Defendant acknowledges that there

2 was no evidence that Ms. Ratliff’s son was involved in this case or that she could not

3 be impartial. [Second MIO 1-2] Rather, Defendant points out that there was no

4 evidence that the juror’s son was not involved in the case. However, “[t]he

5 challenging party bears the burden of proving juror bias.” Id. Defendant also argues

6 that we should find implied juror bias based on the nuances of the connection between

7 Ms. Ratliff and the district attorney’s office. Specifically, Defendant argues that Ms.

8 Ratliff was likely proud of her son and had a favorable opinion of his co-workers and

9 the work he did. [Second MIO 1-2] We find this insufficient to establish implied juror

10 bias. See State v. Sanchez, 120 N.M. 247, 250, 252, 901 P.2d 178, 181, 183 (1995)

11 (rejecting a claim of implied juror bias based on the juror’s sister’s employment with

12 the district attorney’s office and determining that the relationship was indirect and

13 insufficient as a matter of law to establish implied juror bias). We therefore hold that

14 the district court did not abuse its discretion in refusing to disqualify Ms. Ratliff for

15 cause.

16 Defendant also continues to argue that the district court erred in allowing

17 Officer James Valdez to testify to the results of the auto intoxilizer machine. [Second

18 MIO 2] Defendant makes no new arguments in his second memorandum in

3 1 opposition and relies on his previous arguments. For the reasons stated in our second

2 notice of proposed summary disposition, we affirm on this issue as well.

3 For these reasons, we affirm Defendant’s convictions.

5 6 MICHAEL D. BUSTAMANTE, Judge

7 WE CONCUR:

8 9 JONATHAN B. SUTIN, Judge

10 11 J. MILES HANISEE, Judge