State v. Vigil

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ______________

Filing Date: March 12, 2014

Docket No. 32,166

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CHARLES VIGIL,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Samuel L. Winder, District Judge

Gary K. King, Attorney General
Corinna Laszlo-Henry, Assistant Attorney General
Santa Fe, NM

for Appellee

Lisa Torraco
Albuquerque, NM

for Appellant

OPINION

FRY, Judge.

{1} Defendant Charles Vigil appeals from the district court’s review of his on-record
appeal from metropolitan court. On appeal to this Court, Defendant challenges the
admission of an officer’s testimony referencing a police report as violating the rules of
evidence and his right to confrontation. This Court became aware of deficiencies with
Defendant’s notice of appeal when the matter came before the Court for calendaring. The
Court ordered the parties to brief the issue of whether the conclusive presumption of
ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, ¶¶ 4-6, 105
N.M. 231, 731 P.2d 374, should apply to counsel’s failure to file a timely notice of appeal

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from the district court’s on-record review of a metropolitan court decision.1 We hold that
a conclusive presumption of ineffective assistance of counsel applies to counsel’s failure to
file a timely notice of appeal following the district court’s on-record review of a
metropolitan court decision. As to Defendant’s claim of error, we affirm.

BACKGROUND

{2} Defendant was convicted of driving while intoxicated (DWI), first offense, and
speeding, following a bench trial in metropolitan court. At trial, Albuquerque Police
Department Officer Kelly Enyart testified that she investigated and arrested Defendant for
DWI. Officer Enyart, however, could not recall portions of Defendant’s performance of the
field sobriety tests that she administered during her DWI investigation. Over Defendant’s
objection, the metropolitan court judge allowed Officer Enyart to read from her police report
what she had recorded concerning those portions of the field sobriety tests she could not
recall. Officer Enyart’s report itself was not admitted into evidence. The metropolitan court
judge found Defendant guilty, based in part on Officer Enyart’s testimony regarding
Defendant’s performance of the field sobriety tests, including what Officer Enyart had read
from her police report.

{3} Defendant appealed the metropolitan court’s decision by filing a timely notice of
appeal in district court pursuant to Rule 7-703(A) NMRA. The district court conducted an
on-record review of Defendant’s appeal. On April 19, 2012, the district court issued a
memorandum opinion affirming Defendant’s conviction. Pursuant to NMSA 1978, Section
39-3-3(A)(1) (1972), and Rule 12-201(A)(2) NMRA, a criminal defendant must file his
notice of appeal from the final judgment of a district court within thirty days of the entry of
that judgment. Defendant’s notice of appeal was therefore due on or before Monday, May
21, 2012. Defendant filed an untimely notice of appeal with the district court on Friday,
May 25, 2012.

DISCUSSION

I. Defendant’s Untimely Appeal

{4} Defendant asks this Court to apply a conclusive presumption of ineffective assistance
of counsel and address the merits of his appeal. In response, the State challenges this

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The parties were directed to brief the applicability of Duran to an untimely notice
of appeal at both levels of appellate review—i.e., an appeal from metropolitan court to
district court and an appeal from district court to this Court. Briefing disclosed that the
district court applied the Duran presumption to an untimely statement of issues and not to
an untimely appeal; thus, this opinion addresses only whether the Duran presumption applies
to an untimely notice of appeal following the district court’s on-record review of the
metropolitan court’s decision.

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Court’s jurisdiction to entertain Defendant’s appeal, regardless of its timeliness, and opposes
extending a conclusive presumption of ineffective assistance of counsel to untimely appeals
from the district court’s on-record review of a metropolitan court decision. As an initial
matter, we note that the State’s jurisdictional argument was made prior to this Court’s
issuing its opinion in State v. Carroll, 20__-NMCA-___, ___ P.3d ___ (No. 32,909, Oct. 21,
2013). In Carroll, we held that NMSA 1978, Section 34-5-8(A)(3) (1983) vests this Court
with jurisdiction to review the on-record appellate decisions of the district court in criminal
cases. Id. ¶ 5 (“[T]his Court has been vested with jurisdiction over appeals in all criminal
actions with the limited exception of those where a sentence of death or life imprisonment
is imposed. Had the Legislature intended to limit our jurisdiction to preclude review of the
on-record appellate decisions of the district court, we assume it would have explicitly done
so.”). Given our recent decision in Carroll, we conclude that the State’s challenge to this
Court’s jurisdiction is unavailing.

{5} Returning to the State’s contention that a conclusive presumption of ineffective
assistance of counsel should not apply in this case, the State advances multiple arguments
against extending the Duran presumption. The State contends that the Duran presumption
should only apply where a criminal defendant has both an appeal as of right and a right to
counsel, which the State argues do not exist in appeals such as this. The State further
contends that applying a conclusive presumption of ineffective assistance of counsel to an
untimely appeal to this Court from the district court’s on-record review of a metropolitan
court decision would be an inappropriate extension of Duran.

{6} Before addressing the State’s arguments, we observe that Defendant has not
responded in any detail to those arguments. Despite the absence of developed arguments by
the defense, we have undertaken our own analysis of the issue, given its quasi-jurisdictional
nature. See State v. McNeece, 1971-NMCA-012, ¶ 2, 82 N.M. 345, 481 P.2d 707
(explaining that “lack of jurisdiction at any stage of a proceeding is a controlling
consideration to be resolved before going further” and that the issue may be raised sua
sponte (alteration, internal quotation marks, and citation omitted)).

A. The Duran Presumption

{7} The timely filing of a notice of appeal is a mandatory precondition to this Court’s
exercise of jurisdiction. See Trujillo v. Serrano, 1994-NMSC-024, ¶ 14, 117 N.M. 273, 871
P.2d 369. Accordingly, “we will excuse an untimely appeal only in exceptional
circumstances beyond the control of the parties, which we have determined would include
errors on the part of the court.” State v. Dominguez, 2007-NMCA-132, ¶ 10, 142 N.M. 631,
168 P.3d 761. In addition, this Court has routinely excused untimely and improperly filed
notices of appeal in criminal appeals where the defendant is represented by counsel.

{8} In Duran, this Court established a conclusive presumption of ineffective assistance
of counsel when a notice of appeal from a criminal conviction obtained in district court is
untimely filed. 1986-NMCA-125, ¶ 4. Our holding in Duran was premised on our concern

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that an appeal as of right following conviction “is established precisely to assure that only
those who are validly convicted have their freedom drastically curtailed” and that the right
to appeal not be extinguished “because another right of the appellant—the right to effective
assistance of counsel—has been violated.” Evitts v. Lucey, 469 U.S. 387, 399-400 (1985),
cited in Duran, 1986-NMCA-125, ¶ 3.

B. Duran and the Right to Appeal

{9} The State contends that the Duran presumption should not apply because there is no
appeal as of right to this Court from a district court’s on-record review of a metropolitan
court decision. The State contends that it is implicit from prior cases applying Duran that
a conclusive presumption of ineffective assistance of counsel requires that the defendant
possess an appeal as of right. This Court recently addressed this issue in Carroll. In
Carroll, we held that Section 39-3-3(A)(1) provides criminal defendants with the right to
appeal a district court’s on-record review of a metropolitan court decision. Carroll, 20__-
NMCA-___, ¶¶ 7-9 (“[W]e conclude that Section 39-3-3(A)(1) is intended to include a
defendant’s right to appeal a district court’s review of an on-record metropolitan court
decision.”). Thus, to the extent the State contends that cases applying the Duran
presumption have required there be an appeal as of right for the presumption to apply, we
rely on our holding in Carroll. Consequently, the State’s argument that Duran should not
apply because Defendant does not possess an appeal as of right is unavailing.

C. Duran and the Right to Counsel

{10} The State also argues that a conclusive presumption of ineffective assistance of
counsel cannot lie where a right to counsel does not exist. The State contends that, because
Duran relied on federal due process rights in creating the conclusive presumption of
ineffective assistance of counsel, any extension of Duran is limited to “the boundaries of that
right . . . so clearly defined by United States Supreme Court precedent.” According to the
State, federal law provides that a defendant only has a right to the effective assistance of
counsel in his or her “first appeal as of right.” See Evitts, 469 U.S. at 393-94 (recognizing
that where a state affords a right to appeal “to make that appeal more than a ‘meaningless
ritual’” the state must “supply[] an indigent appellant in a criminal case with an attorney[,]”
but noting that “[t]his right to counsel is limited to the first appeal as of right”); Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987) (“Our cases establish that the right to appointed counsel
extends to the first appeal of right, and no further.”). Consequently, we understand the State
to argue that the Duran presumption would apply to an appeal taken from the metropolitan
court to the district court, but that the presumption should not apply to a second appeal taken
from the district court to this Court. While we agree with the State’s assertion that the
extension of a conclusive presumption of ineffective assistance of counsel should only occur
where a right to counsel exists, see State v. Leon, 2013-NMCA-011, ¶ 9, 292 P.3d 493
(stating that “the presumption can only apply in situations where a defendant has a right to
counsel”), cert. quashed 2013-NMCERT-010, 313 P.3d 251; see also Evitts, 469 U.S. at 397,
n.7 (“[T]he right to effective assistance of counsel is dependent on the right to counsel

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itself.”), we disagree that Duran limits this Court to relying on the right to counsel as defined
by federal law.

{11} This Court has recognized that both the Federal Constitution and Article II, Section
14 of the New Mexico Constitution provide a right to the assistance of counsel both at trial
and on appeal. See State v. Lewis, 1986-NMCA-038, ¶ 7, 104 N.M. 218, 719 P.2d 445.
However, as the State points out, the right at issue in this case is a right to counsel in a
second appeal.

{12} The Legislature has defined the parameters of the right to counsel in New Mexico
with respect to indigent defendants via the Indigent Defense Act, NMSA 1978, §§ 31-16-1
to -10 (1968, as amended through 1973), and the Public Defender Act, NMSA 1978, §§ 31-
15-1 to -12 (1973, as amended through 2013). See State v. Brown, 2006-NMSC-023, ¶ 13,
139 N.M. 466, 134 P.3d 753 (“The New Mexico Legislature has responded to [the federal
and state constitutional right to counsel] by enacting the Indigent Defense Act and the Public
Defender Act[.] These acts comprise the statutory framework for providing counsel to
indigent criminal defendants[.]” (citations omitted)); State ex rel. Quintana v. Schnedar,
1993-NMSC-033, ¶ 4, 115 N.M. 573, 855 P.2d 562 (“New Mexico statutes create an
administrative system for enforcing the constitutional fundamental right to counsel, primarily
through the [Public Defender Act] and the [Indigent Defense Act].”). Pursuant to this
statutory framework, the Public Defender’s Office is required to “represent every person
without counsel who is financially unable to obtain counsel and who is charged in any court
within the district with any crime that carries a possible sentence of imprisonment.” NMSA
1978, § 31-15-10(C) (2001). This representation begins “not later than the time of the initial
appearance of the person before any court and shall continue throughout all stages of the
proceedings against him, including any appeal[.]” Id.2

2
The Indigent Defense Act limits the right to representation to persons being held to
answer for a “serious crime.” Section 31-16-3(A) (“A needy person who is being detained
by a law enforcement officer, or who is under formal charge of having committed, or is
being detained under a conviction of, a serious crime, is entitled to be represented by an
attorney to the same extent as a person having his own counsel[.]”). A “serious crime” is
defined as including “a felony and any misdemeanor or offense which carries a possible
penalty of confinement for more than six months.” Section 31-16-2(D). Thus, the Indigent
Defense Act would not appear to extend to a first offense DWI with a maximum sentence
of ninety days, as charged here. See NMSA 1978, Section 66-8-102(E) (2005, as amended
through 2010). The Public Defender Act, however, requires representation to be provided
to any person facing possible imprisonment, regardless of the duration. Section 31-15-10(C).
We read these statutes in pari materia and conclude that the Legislature’s subsequent
enactment of the Public Defender Act was intended to broaden the right to counsel provided
in the Indigent Defense Act to include a right to counsel for indigent defendants facing less
than six months’ imprisonment. See State ex rel. Quintana, 1993-NMSC-033, ¶ 4 (“[W]e
seek to harmonize the provisions of the [Public Defender Act] and the [Indigent Defense

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{13} Neither the Indigent Defense Act nor the Public Defender Act appears to limit the
right to counsel to a first appeal; instead, they require counsel to be provided in “any
appeal.” See § 31-16-3(B)(2); § 31-15-10(C). Further, where a right to counsel has been
guaranteed, that right includes a guarantee that counsel be effective. See In re Termination
of Parental Rights of James W.H., 1993-NMCA-028, ¶ 4, 115 N.M. 256, 849 P.2d 1079
(stating that a right to counsel “is worthless unless that right includes the right to effective
counsel” (internal quotation marks and citations omitted)); see also Evitts, 469 U.S. at 387
(stating that “[t]he promise of Douglas v. California, [372 U.S. 353 (1963)] that a criminal
defendant has a right to counsel on his first appeal as of right—like the promise of Gideon
v. Wainwright, [372 U.S. 335 (1963)] that a criminal defendant has a right to counsel at
trial—would be a futile gesture unless it comprehended the right to effective assistance of
counsel”). While we acknowledge that in this case Defendant secured his own
representation, the Indigent Defense Act equates the rights of indigent defendants with “a
person having his own counsel.” Section 31-16-3(A). But, perhaps even more importantly,
the scope of the right to counsel cannot be differentiated on the basis of a defendant’s ability
to pay. Cf. Douglas, 372 U.S. at 357 (“But where the merits of the one and only appeal an
indigent has as of right are decided without benefit of counsel, we think an unconstitutional
line has been drawn between rich and poor.”). Thus, we conclude that to the extent the
Legislature has recognized a right to representation in any appeal for indigent defendants,
the same right must necessarily be extended to non-indigent defendants. As a result, we
conclude that Defendant was entitled to the effective assistance of counsel in his second right
of appeal.

D. Extending Duran

{14} The State urges that extending the Duran presumption where the merits of the appeal
have already been reviewed by the district court is contrary to the spirit and the letter of
Duran. Duran, according to the State, was premised on the requirements of Rule 5-702
NMRA, the interest of finality, and the conservation of judicial resources—interests which
the State claims are not furthered by extending the Duran presumption to the untimely filing
of a notice of appeal following a district court’s on-record review of a metropolitan court
decision.

{15} In Duran, we relied on the rules of criminal procedure to reason that, because in an
appeal from a criminal conviction counsel must “timely file either a notice of appeal or an
affidavit of waiver of appeal[,]” Duran, 1986-NMCA-125, ¶ 3 (citing NMSA 1978, Crim.
P. Rule 54(b), now Rule 5-702(B)), “the absence of a notice of appeal and an affidavit of

Act] to the fullest extent reasonable, thereby facilitating the operation of our statutory system
for providing assistance of counsel to indigent criminal defendants.”); see also Brown, 2006-
NMSC-023, ¶ 13 (stating that the Indigent Defense Act and Public Defender Act must be
read in pari materia).

6
waiver strongly suggests the failure of trial counsel to consult adequately with the client
concerning the right to appeal.” State v. Peppers, 1990-NMCA-057, ¶ 20, 110 N.M. 393,
796 P.2d 614 (discussing Duran). However, to the extent the State’s argument rests, in part,
on the procedural underpinnings of Duran—namely, Rule 5-702—this Court recognized in
Leon that we have “extended the presumption in cases where no such rule or procedural
safeguard controls.” 2013-NMCA-011, ¶ 15. For example, Leon points to this Court’s
extension of the Duran presumption to appeals from conditional pleas in magistrate court,
despite the fact that the rules of criminal procedure for magistrate courts “do not impose an
obligation on defense counsel to file a notice or waiver of a defendant’s appeal.” Id. ¶ 15.
We also pointed out in Leon that we have extended the presumption of ineffective assistance
of counsel to cases outside of the criminal context. Id. ¶ 16. In State ex rel. Children Youth
and Families Department v. Ruth Anne E., 1999-NMCA-035, ¶¶ 9-10, 126 N.M. 670, 974
P.2d 164, we applied a presumption of ineffective assistance of counsel to an untimely notice
of appeal in a case involving termination of parental rights. Similarly, in State ex rel.
Children, Youth and Families Department v. Amanda M., 2006-NMCA-133, ¶ 22, 140 N.M.
578, 144 P.3d 137, we applied a presumption of ineffective assistance of counsel to an
untimely appeal from an adjudication of abuse and neglect. “In those cases, we extended the
presumption based on our recognition that the adjudicatory proceedings affected a parent’s
fundamental liberty interest in the care, custody, and management of his children as well as
a parent’s right to counsel in these proceedings.” Leon, 2013-NMCA-011, ¶ 16. And most
recently, in Leon, we held that, due to the liberty interests involved, the Duran presumption
applies where a probationer is entitled to counsel in probation revocation proceedings and
probationer’s counsel fails to timely file a notice of appeal from an order revoking probation.
Id. ¶ 20. Thus, to the extent the State contends that this Court should not apply a conclusive
presumption of ineffective assistance of counsel to appeals from the district court’s on-
record review of a metropolitan court decision because there is no procedural mechanism
similar to Rule 5-702(B) at play, we conclude that our prior extensions of the Duran
presumption obviate such a constrained view of when the presumption applies.

{16} The State also argues that Duran “was concerned with the inevitable need to reach
the merits of a defendant’s claim of error” and “weighed any countervailing burdens as
‘insignificant’ compared to a defendant’s right to review [on] the merits.” The State
contends that, because the merits in these cases have already been considered by a reviewing
court, the countervailing interests of finality and conservation of judicial resources discussed
in Duran outweigh Defendant’s interest in our considering the merits of his appeal. While
we acknowledge that a defendant appealing the district court’s on-record review of a
metropolitan court decision has already received the benefit of the district court’s appellate
review, review by this Court is still a matter of right. See Carroll, 20__-NMCA-___, ¶ 9.
And, as discussed above, a defendant appealing the district court’s on-record review of a
metropolitan court decision is entitled to effective assistance of counsel when pursuing that
right. Consequently, in the event of an untimely notice of appeal, a defendant would still
have the right to raise a claim of ineffective assistance of counsel on direct appeal or
pursuant to habeas corpus. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54
P.3d 61 (“When an ineffective assistance claim is first raised on direct appeal, we evaluate

7
the facts that are part of the record. If facts necessary to a full determination are not part of
the record, an ineffective assistance claim is more properly brought through a habeas corpus
petition, although an appellate court may remand a case for an evidentiary hearing if the
defendant makes a prima facie case of ineffective assistance.”). We conclude that, as a
result, the same finality interests discussed in Duran weigh in favor of extending a
conclusive presumption of ineffective assistance of counsel where an untimely notice of
appeal is filed following the district court’s on-record review of a metropolitan court
decision. See Duran, 1986-NMCA-125, ¶ 5 (discussing cases that were reinstated on this
Court’s docket “by the federal courts or by our [S]upreme [C]ourt because defendants ha[d],
in factual hearings held years after the appeal should have been taken, established their
entitlement to delayed appeals[,]” and noting that “[t]hese cases sometimes take years to
reach us”). Moreover, to the extent the State contends that this Court will waste judicial
resources in hearing the merits of appeals where ineffective assistance of counsel may not
have occurred, we note—as we did in Duran—that “given the limited number of cases in
which the problem is likely to arise, we do not consider it a burden on this [C]ourt to hear
the appeals[.]” Id. ¶ 6. In fact, we believe it to be a greater expenditure of judicial resources
to require each untimely appeal from a district court’s on-record review of a metropolitan
court decision to be remanded for an evidentiary hearing, or dismissed and habeas corpus
proceedings undertaken, to determine if counsel was ineffective in failing to timely file a
notice of appeal. We therefore extend a conclusive presumption of ineffective assistance of
counsel to counsel’s untimely filing of a notice of appeal following the district court’s on-
record review of the metropolitan court’s decision. Accordingly, we now turn to the merits
of Defendant’s appeal.

II. Defendant’s Challenge to the Admission of Information Contained in the Police
Report

A. Challenge on Confrontation Grounds was Abandoned

{17} On appeal to this Court, Defendant contends that the metropolitan court erred in
admitting Officer Enyart’s testimony about the contents of a police report at Defendant’s
trial. Defendant asserts that admission of the contents of the police report violated both his
right to confrontation and our rules governing the admission of evidence. In its answer brief,
the State asserts that, while Defendant objected to the admission of the police report’s
contents under both the rules of evidence and the confrontation clause before the
metropolitan court, Defendant abandoned any objection to the evidence on confrontation
grounds at the district court level.

{18} In response to the State’s argument, Defendant asserts that the confrontation issue
was preserved in the metropolitan court. Yet, even if Defendant raised and preserved the
confrontation argument in the metropolitan court, Defendant abandoned it as an appellate
issue in his appeal to the district court. See State v. Gutierrez, 1996-NMCA-001, ¶ 3, 121
N.M. 191, 909 P.2d 751. Nothing in Defendant’s statement of the issues would have alerted
the district court that Defendant was challenging the admissibility of the police report’s

8
contents on confrontation grounds. Rather, the only argument in Defendant’s district court
brief was his objection to the admissibility of the police report’s contents on evidentiary
grounds and, therefore, the district court did not address the issue of confrontation. To the
extent Defendant has now raised the issue of confrontation in his appeal to this Court, we
hold that Defendant abandoned this issue by not raising it in the district court, and we do not
address this issue on appeal. Id.

B. Challenge to Admission of Police Report on Evidentiary Grounds

{19} Defendant contends that the metropolitan court erred in permitting parts of the police
report to be read into the record as a recorded recollection pursuant to Rule 11-803(5)
NMRA (formerly Rule 11-803(E) NMRA (1976) (amended 2012)) and that the district court
erred in affirming the metropolitan court’s ruling. Defendant does not dispute that Officer
Enyart’s testimony provided sufficient foundation to allow Officer Enyart to read from her
report, pursuant to Rule 11-803(5), what she recorded but could not recall about Defendant’s
performance on the field sobriety tests. Rather, Defendant contends that the exclusion of
police reports under the public record exception of the hearsay rules, see Rule 11-
803(8)(a)(ii) (formerly Rule 11-803(H)(2) NMRA (1976) (amended 2012)), extends so far
as to preclude portions of a police report from being read into the record as a recorded
recollection under Rule 11-803(5).

{20} Generally, “[w]e review the admission of evidence under an abuse of discretion
standard and will not reverse in the absence of a clear abuse.” See State v. Sarracino, 1998-
NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. However, a trial court abuses its discretion
when it exercises its discretion based on a misunderstanding of the law. State v. Elinski,
1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209, overruled on other grounds by State
v. Tollardo, 2012-NMSC-008, 275 P.3d 110. “A misapprehension of the law upon which
a court bases an otherwise discretionary evidentiary ruling is subject to de novo review.”
State v. Martinez, 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232. Because
Defendant’s claim on appeal focuses on whether the metropolitan court judge misapplied the
law to the facts, our review is de novo.

{21} Defendant relies heavily on United States v. Oates, 560 F.2d 45 (2d Cir. 1977), to
argue that a police report cannot be read into the record as a recorded recollection. In Oates,
the Second Circuit Court of Appeals held that a chemist’s report, inadmissible pursuant to
the public records exception, should not be admitted under the business records exception.
Id. at 68-70 (discerning a “clear legislative intent not only to exclude such documents from
the scope of [Federal Rule of Evidence] 803(8) but from the scope of [Federal Rule of
Evidence] 803(6) as well”). In doing so, the Second Circuit stated that “the language of
Rule 803(8) and the congressional intent, as gleaned from the explicit language of the rule
and from independent sources, . . . have impact that extends beyond the immediate confines
of exception (8) itself.” Oates, 560 F.2d 45 at 66.

{22} Defendant asks this Court to apply the reasoning of Oates and hold that the bar

9
against police reports being admitted under the public records exception should extend to
preclude a police report from being read into the record as a recorded recollection.
Defendant does not direct this Court to a single authority applying Oates as Defendant
advocates. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329
(providing that where a party cites no authority to support an argument, we may assume no
such authority exists). We note, however, the existence of persuasive authority supporting
the opposite conclusion. See Parker v. Reda, 327 F.3d 211, 215 (2d Cir. 2003) (affirming
admission of an officer’s testimony from a memorandum satisfying the requirements of a
recorded recollection even if it did not satisfy the requirements of the business records
exception to the hearsay rule); United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1979)
(holding that the rule barring admission of police reports did not disqualify an officer
testifying from a report of a recorded recollection that otherwise satisfied Fed. R. Evid.
803(5)); see also Goy v. Jones, 72 P.3d 351, 353 (Ariz. Ct. App. 2003) (same); State v.
Scally, 758 P.2d 365, 366 (Or. Ct. App. 1988) (same).

{23} In Sawyer, the Seventh Circuit Court of Appeals declined to extend the reasoning of
Oates to disqualify “the recorded recollections of a testifying law enforcement officer, when
such recollections would otherwise be admissible under Rule 803(5).” Sawyer, 607 F.2d at
1193. The Seventh Circuit stated:

We are not persuaded . . . that the restrictions of Rule 803(8) were intended
to apply to recorded recollections of a [t]estifying law enforcement officer
that would otherwise be admissible under Rule 803(5). In our view, the
legislative history of Rules 803(8)(B) and (C) indicates that Congress
intended to bar the use of law enforcement reports as a substitute for the
testimony of the officer.

Sawyer, 607 F.2d at 1193. Perhaps even more persuasive, the Second Circuit has relied on
this reasoning and declined to extend Oates as Defendant advocates. See Parker, 327 F.3d
at 215. There, the Second Circuit reasoned that, “[b]ecause the evidence here was admitted
as recorded recollection rather than as a business record, [t]he accompanying testimony of
the author minimize[d] the danger of unreliability by giving the trier of fact the opportunity
to weigh [the author’s] credibility and consider the circumstances [likely to have]
surround[ed] the preparation of the report.’” Id.(alterations in original) (internal quotation
marks and citation omitted).

{24} State courts have also relied on this reasoning to allow law enforcement officers to
“read their reports into the record when they lack a sufficient present recollection to testify
from memory.” Scally, 758 P.2d at 366 (acknowledging that “[t]he purpose of [Federal Rule
of Evidence] 803(8)(B) is to bar police reports as a substitute for testimony of the officer[]”
and that “[w]hen the officer testifies, the danger of unreliability is minimized[]”); see also
Goy, 72 P.3d at 353 (holding that a testifying officer who could no longer remember details
of a six-year-old arrest could read his police report as evidence). These cases are persuasive.
We therefore hold—consistent with the cases cited above—that Rule 11-803(8)(a)(ii) does

10
not bar a police officer from reading aloud at trial the recorded recollection contained in a
police report provided a proper foundation is laid pursuant to Rule 11-803(5).

CONCLUSION

{25} We hold that a criminal defendant, whose counsel files an untimely notice of appeal
when appealing to this Court from the district court’s on-record review of a metropolitan
court decision, is entitled to a conclusive presumption of ineffective assistance of counsel.
Having applied the conclusive presumption to the untimely filing in this case, and having
considered the merits of Defendant’s claim that the metropolitan court improperly allowed
portions of the police report to be read into the record pursuant to Rule 11-803(5), we affirm.

{26} IT IS SO ORDERED.

_____________________________________
CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

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