State v. Juan

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-041

Filing Date: August 9, 2010

Docket No. 31,319

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CLEO JUAN,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Grant L. Foutz, District Judge

Fine Law Firm
Mark D. Fine
Joseph M. Fine
Albuquerque, NM

for Appellant

Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

MAES, Justice.

{1} Cleo Juan (Defendant) directly appeals her conviction for child abuse resulting in the
death of a child under twelve years of age contrary to NMSA 1978, Section 30-6-1(D) (1973,
prior to 2009 amendment), alleging that the trial court erred by (1) failing to provide an
answer to the jury’s question regarding the option of “hanging,” (2) denying Defendant’s
request for a lesser included offense instruction on child abuse not resulting in the death of
a child, (3) failing to disqualify the Eleventh Judicial District Attorney’s office after

1
discovering the alleged familial relationship between the District Attorney and Defendant,
and (4) failing to consider mitigating evidence pursuant to NMSA 1978, Section 31-18-15.1
(1979, prior to 2009 amendment), which grants the trial court discretion to alter the basic
sentence for noncapital offenses in light of mitigating or aggravating circumstances. We
conclude that (1) the trial court’s improper failure to answer the jury’s question regarding
the option of hanging had a coercive effect upon the jury, (2) Defendant presented
insufficient evidence to support a lesser included offense instruction on child abuse not
resulting in death, (3) the trial court did not abuse its discretion in determining that
Defendant’s familial relationship with the District Attorney did not create a personal bias
that warranted disqualification, and (4) the trial court had the discretion under Section 31-18-
15.1 to alter Defendant’s basic sentence of life imprisonment. Accordingly, we reverse
Defendant’s conviction and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

{2} We begin with a summary of the facts that the jury reasonably could have found on
the basis of the evidence adduced at trial. Additional facts will be set forth as necessary to
address Defendant’s claims on appeal.

{3} Emergency medical technicians (EMT) and Officer Christopher Dale responded to
a 911 call reporting that an infant had stopped breathing. The infant was twenty-one-month-
old Colby Shirley (Baby Colby), who was in the care of Defendant, his foster mother. When
the EMT and Officer Dale arrived at Defendant’s mobile home in Gallup, New Mexico,
Defendant was performing cardiopulmonary resuscitation (CPR) on Baby Colby, who was
lying on the living room floor unable to breath. Defendant told the EMT that she had found
Baby Colby floating face down in the bathtub and that he might have slipped in the tub.
Baby Colby was admitted to the University of New Mexico Hospital (UNMH), where he
died six days later, on March 20, 2006.

{4} Defendant was charged by criminal information with child abuse resulting in the
death of a child under twelve years of age contrary to Section 30-6-1(D)(1) or (2). At trial,
the prosecution called Dr. Mark R. Crowley, Baby Colby’s attending physician in the
Pediatric Intensive Care Unit at UNMH, to testify. He testified that, based on several x-rays,
computerized axial tomography scans (CT scans), and magnetic resonance imaging (MRI),
he discovered that Baby Colby had several subdural hematomas. Dr. Crowley stated that a
subdural hematoma occurs as a result of significant trauma to the brain that tears the blood
vessels connecting the brain and the dura, the brain’s covering. According to Dr. Crowley,
this injury is the product of an acceleration-deceleration injury involving “vigorous shaking
of the child or moving of the child’s body back and forth, and the head lags behind, and . .
. kind of snaps back and forth. . . . [W]hen the head stops, the brain keeps going inside the
skull, and mashes into the back of the skull, and then vice versa.” Since there were multiple
subdural hematomas at different stages of healing, Dr. Crowley concluded that these injuries
occurred on different occasions. Baby Colby also had retinal hemorrhages, which occur
when blood vessels in the eye break due to significant trauma.

2
{5} Dr. Crowley’s conclusions were consistent with those of Dr. Michelle Barry, the
forensic pathologist who supervised the autopsy of Baby Colby and who testified at trial.
Dr. Barry testified that in the course of the autopsy she found retinal hemorrhages inside
both of Baby Colby’s eyes, which were notable “because it takes a lot of force for those to
occur.” She also discovered that Baby Colby had sustained two head injuries that had
occurred at different times and concluded that these injuries were the result of child abuse.
She further concluded that the cause of Baby Colby’s death was “blunt force injuries [to] the
head, and the manner of death [was] homicide.”

{6} In addition to Dr. Crowley and Dr. Barry, the prosecution called three other expert
witnesses: Dr. Karen Campbell, a pediatrician employed by the Children, Youth, and
Families Department (CYFD); Dr. Blaine Hart, a radiologist at UNMH; and Dr. Ken
Stewart, an emergency medicine physician. The experts agreed that Baby Colby’s death was
the result of significant head trauma, likely resulting from forceful shaking. They also
agreed that none of the scenarios that Defendant described to the EMT explained Baby
Colby’s head trauma.

{7} The prosecution also called the lead investigator in the case, Detective Juan Reyes,
who had interviewed Defendant and obtained her signed written statement. During the
Detective’s interview of Defendant, which was read to the jury, Defendant told him that
Baby Colby had fallen on a small yellow toy bus and possibly hit his head. Defendant also
described that when she was bathing Baby Colby, his nose began to bleed and he kept
slouching toward the end of the tub. She claimed that she took Baby Colby to the living
room, and while she was in the bedroom getting his clothes, he stopped breathing. Later in
the interview she described another incident in which she pulled off Baby Colby’s pants “a
little too hard, and he kind of fell back on his head.”

{8} In her written statement, which was also read to the jury during trial, Defendant
wrote:

I regret everything I did. I wish I could turn back everything. And just
wished I would have just changed their clothes.

....

I am so upset with myself. I wish – no, I don’t wish I would take Colby’s
place, and not have him suffer. I take the pain for him. Without thinking
twice. I became a foster parent to take in abused children. And nurture
them. But I have done the most unimaginable thing to a child. An innocent
child who trusted me.

....

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 I have no excuse for what I have done.

She also admitted that she had been having trouble handling the foster children in her care
and had made numerous requests to CYFD to remove the foster children from her home but
did not receive a response. In addition, she disclosed that she was on anti-depression
medication, which she had not been consistently taking. When Detective Reyes asked
during the interview what effect not taking her medications usually has on her, she stated
that she becomes agitated and mad.

{9} At trial, Defendant sought to prove that her husband had shaken Baby Colby,
asserting that on the morning of the incident her husband was alone with Baby Colby, and
when she returned home Baby Colby was acting strangely. Defendant relied on the
statements of expert witnesses at trial to prove that when a child receives significant brain
injuries the child will immediately begin to act abnormally. The experts stated that the
immediate symptoms of the injury could include lethargy, a withdrawn disposition, lack of
appetite, lack of focus, and irritability. Defendant called her brother, David Smith, to testify
that Baby Colby’s behavioral changes had already begun when he and Defendant arrived at
the mobile home the morning that Baby Colby lost consciousness. Defendant’s brother
stated that during breakfast Baby Colby was “stiff . . . like a doll,” seemed to be in a daze,
and hardly ate anything.

{10} Defendant was found guilty of child abuse resulting in the death of a child under
twelve years of age. In accordance with NMSA 1978, Section 31-18-15(A)(1) (1977, prior
to 2007 amendments), Defendant received a life sentence followed by five years of parole.
Defendant appeals her conviction pursuant to Rule 12-102(A)(1) NMRA and Article VI,
Section 2 of the New Mexico Constitution, which provide for direct appeals from the district
court when a sentence of death or life imprisonment has been imposed. On appeal,
Defendant raises four issues: (1) that the trial court erred in failing to answer the jury’s
question about the option of “hanging,” (2) that she was entitled to a lesser included offense
instruction on child abuse not resulting in death, (3) that the district attorney’s office should
have been disqualified as a result of an alleged familial relationship between the District
Attorney and Defendant, and (4) that the trial court erred in ruling that it did not have
discretion to adjust Defendant’s life sentence under Section 31-18-15.1.

II. DISCUSSION

A. Whether the Trial Court Erred in Failing to Answer the Jury’s Question
Regarding the Option of “Hanging”

{11} At the close of evidence, the trial court issued the following relevant jury
instructions:

In this case, there are two possible verdicts as to this crime. One,
guilty, and two, not guilty. Only one of the possible verdicts may be signed

4
 by you as to each charge. If you have agreed upon one verdict as to a
particular charge, that form of verdict is the only form to be signed as to that
charge. The other form of verdict as to that charge is to be left unsigned.

....

. . . Your verdict must represent the considered . . . judgment of each juror.
In order to return a verdict it is necessary that each juror agrees. Your verdict
must be unanimous. It is your duty to consult with one another, and try to
reach an agreement. However, you are not required to give up your
individual judgment. Each of you must decide the case for yourself, but you
must do so only after an impartial consideration of the evidence with your
fellow jurors. In the course of your deliberations, do not hesitate to re-
examine your own view, and change your opinion if you are convinced it is
erroneous. But do not surrender your honest conviction as to the weight or
[effect] of evidence solely because of the opinion of your fellow jurors, or for
the purpose of reaching a verdict. You are judges. Judges of the facts. Your
sole interest is to ascertain the truth from the evidence in the case.

See UJI 14-6010 NMRA (general verdict form); UJI 14-6008 NMRA (“Duty to consult”).

{12} The jury commenced its deliberations at approximately 4:00 p.m. on a Friday
afternoon. The jury submitted various questions to the court throughout its deliberations.
At 6:17 p.m. the jury asked the trial court “how long [it] wanted [the jury] to continue” with
its deliberations. The trial court responded, “I’m gonna leave that up to you. Do you wanna
quit now, and come back tomorrow? Come back Monday? Tell me what you’d like to do.
Or do you wanna deliberate some more this evening?” The jury informed the trial court that
“by consensus, it is the feeling of the jury to stay to try to finish this tonight.”

{13} At approximately 7:30 p.m. the jury submitted the following question to the trial
court: “[I]s a non-verdict or a hung jury an option? It isn’t according to instruction number
seven [UJI 14-6010]?” Defendant requested that the jury be instructed that it had the option
of not reaching a verdict, and the State suggested that the jury be told to rely on the written
instructions the court had provided. The trial court indicated that it would not “answer this
right now. [It was] gonna let it sit for a little bit.” Defense counsel responded that it is
“almost like saying it’s not an option.” The trial court explained that a delay in responding
is “not answering it one way or the other. . . . [T]hey’ve only been in there for four hours.
Not even four . . . .”

{14} At 9:48 p.m., approximately two hours and fifteen minutes later, the jury returned
with a guilty verdict. The trial court never responded to the jury’s question regarding the
option of hanging, even though the trial court had promptly responded to all other inquiries
submitted by the jury throughout the evening.

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{15} Defendant argues on appeal that the trial court erred when it refused to inform the
jury that it had the option of hanging. In the absence of a response from the trial court,
Defendant claims that the jury may have concluded that it was not permitted to hang and
therefore rendered a verdict based on a fear or misunderstanding that it would be forced to
deliberate ad infinitum. The State responds that the jury never indicated that it was
deadlocked or could not reach a verdict but merely asked for clarification on the verdict
form. The State additionally argues that the trial court’s failure to respond to the jury’s
question did not have a coercive effect on the jury.

{16} The decision to issue additional jury instructions generally lies within the sound
discretion of the trial court. State v. Moore, 42 N.M. 135, 143, 76 P.2d 19, 23 (1938).
However, when a jury requests clarification regarding the legal principles governing a case,
the trial court has a duty to respond promptly and completely to the jury’s inquiry. See
Bollenbach v. United States, 326 U.S. 607, 612-13 (1946) (“When a jury makes explicit its
difficulties a trial judge should clear them away with concrete accuracy.”); United States v.
Duran, 133 F.3d 1324, 1334 (10th Cir. 1998) (“[W]hen a jury indicates through its queries
that it is confused as to important legal standards in a case, particularly where there is an
apparent basis for the confusion, it is plain error for the district court not to clarify that
confusion.”); Potter v. United States, 534 A.2d 943, 946 (D.C. 1987) (“[W]here a jury shows
confusion about a central aspect of applicable law, and the general instruction did not
provide the legal information needed, reversible error occurs when the court does not
respond to the jury’s note.”).

{17} Moreover, this Court has recognized that “when a statement is submitted to the court
by the jury during deliberations concerning the inability of the jury to arrive at a verdict,
together with a disclosure of the numerical division, the judge must communicate with that
jury in some fashion.” State v. McCarter, 93 N.M. 708, 710, 604 P.2d 1242, 1244 (1980)
(emphasis added); see also State v. Laney, 2003-NMCA-144, ¶ 52, 134 N.M. 648, 81 P.3d
591 (“[W]hen a jury communicates with the district court during deliberations and expresses
its inability to arrive at a verdict, ‘the judge must communicate with that jury in some
fashion.’” (quoting State v. Neely, 112 N.M. 702, 712, 819 P.2d 249, 259 (1991)). Although
the trial court is prohibited from issuing a “shotgun” instruction, which instructs the jury that
it must deliberate further, the trial court is permitted to “inform the jury that it may consider
further deliberations.” McCarter, 93 N.M. at 710, 604 P.2d at 1244; see also UJI 14-6008
use note (“After the jury has retired for deliberation neither this instruction nor any 'shotgun'
instruction shall be given.”); UJI 14-6030 NMRA use note (indicating that a shotgun
instruction should not be given to the jury).

{18} We recognize that, in this case, the jury did not report that it was deadlocked or
reveal the status of its deliberations in terms of a numerical division. Nonetheless, the jury
plainly was confused by the trial court’s instructions on the law and requested clarification
with respect to whether “a non-verdict or a hung jury [was] an option” under UJI 14-6010,
which instructed the jury that there were only two possible verdicts—guilty or not guilty.
This note revealed that (1) the jury was having difficulty arriving at a unanimous verdict, and

6
(2) the jury was under the mistaken impression that it was required to continue its
deliberations indefinitely until a unanimous verdict was achieved. Under these
circumstances, the trial court had a mandatory duty to clarify the apparent confusion and to
inform the jury that it may cease its deliberations and not arrive at a unanimous verdict if it
was indeed deadlocked. Such an instruction is consistent with McCarter and its progeny
because it permits, but does not require, the jury to continue its deliberations.

{19} Nonetheless, a new trial is required only if the trial court’s failure to issue a
supplementary instruction coerced the jury into arriving at a verdict. See State v. Rickerson,
95 N.M. 666, 668, 625 P.2d 1183, 1185 (1981) (noting that inquiries into the numerical
division of the jury “are reversible error only when shown to have a coercive effect on the
jury”); McCarter, 93 N.M. at 711, 604 P.2d at 1245 (holding that a coerced jury verdict
“violates due process because it impinges on the right to a fair and impartial trial.”); Laney,
2003-NMCA-144, ¶ 56 (“[I]n determining whether the jury was coerced to arrive at a
verdict, the actions as well as the circumstances under which the court’s actions arose should
be considered.”). The record reveals that the jury submitted its question regarding the option
of hanging at approximately 7:30 p.m. on a Friday night. The jury continued deliberating
for an additional two hours and fifteen minutes, until 9:48 p.m., without ever receiving a
response from the trial court. The duration and time of day of the jury’s deliberations,
combined with the trial court’s conspicuous failure to answer the jury’s question regarding
the option of hanging to the exclusion of all other questions, left the jury with the
impermissible impression that it must continue its deliberations indefinitely until the
minority juror or jurors “abandon[ed] their convictions to arrive at a verdict with the
majority.” Laney, 2003-NMCA-144, ¶ 52. We therefore conclude that the trial court’s
failure to issue a supplementary instruction coerced the jury into reaching a verdict.
Accordingly, we reverse the judgment of the trial court and remand for a new trial.

{20} Our conclusion on this point disposes of the present appeal. However, to provide
guidance to the trial court, we reach the merits of Defendant’s remaining three claims, which
may arise on remand. See State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 37, 136 N.M. 309,
98 P.3d 699.

B. Whether the Trial Court Erred in Denying Defendant’s Request for a Lesser
Included Offense Instruction

{21} Defendant requested a lesser included offense jury instruction on child abuse not
resulting in death. Defendant based her request for the instruction on an incident that she
admitted to in the course of the investigation, in which she pulled off Baby Colby’s pants
“a little too hard, and he kind of fell back on his head.” The proposed instruction stated:

For you to find [Defendant] guilty of child abuse which did not result
in death or great bodily harm, the state must prove to your satisfaction
beyond a reasonable doubt each of the following elements of the crime:

7
 1. [Defendant] caused [Baby Colby] to be placed in a situation
which endangered the life or health of [Baby Colby];
2. [Defendant] acted intentionally;
3. [Baby Colby] was under the age of 18;
4. This happened in New Mexico on or about the 14th day of
March, [2006].

The State objected to the instruction, arguing that the charged conduct was an “act that
actually resulted in . . . serious head trauma that resulted in [Baby Colby’s] death” and was
not the same conduct that Defendant alleged in support of her instruction on simple child
abuse. Defendant countered that a lesser included offense instruction is appropriate when,
as occurred in this case, the lesser included offense has all the elements of the greater offense
except one. The trial court denied Defendant’s request for a lesser included offense
instruction.

{22} On appeal, Defendant argues that the trial court erred when it denied her request for
a lesser included offense instruction, because (1) “the statutory elements of simple child
abuse were a subset of the elements of child abuse resulting in death,” and (2) “the element
that distinguishes simple child abuse from child abuse resulting in death was sufficiently in
dispute at trial such that the jury could have rationally acquitted [Defendant] of child abuse
resulting in death and convicted her of simple child abuse.” In response, the State argues
that this claim lacks merit, because (1) “the evidence, even viewed in a light most favorable
to the giving of the instruction, does not support [a charge for] intentional child abuse not
resulting in death,” and (2) the conduct, on which Defendant bases her lesser included
offense jury instruction, was “separate and distinct from the charged conduct and thus not
within the scope of a lesser included offense.”

{23} Defendant relies on the lesser included offense test established in State v. Meadors,
121 N.M. 38, 908 P.2d 731 (1995). In Meadors, we established a test that examines “not
only the offense alleged in the charging instrument but also the evidence adduced at trial.”
Id. at 44, 908 P.2d at 737. Accordingly, Meadors recognized an entitlement to an
instruction on a lesser included offense when the following tests were met:

First, the trial court should, when faced with a request from the State for a
lesser-included offense instruction, grant the request when the statutory
elements of the lesser crime are a subset of the statutory elements of the
charged crime. In addition, the trial court should grant such an instruction
if (1) the defendant could not have committed the greater offense in the
manner described in the charging document without also committing the
lesser offense, and therefore notice of the greater offense necessarily
incorporates notice of the lesser offense; (2) the evidence adduced at trial is
sufficient to sustain a conviction on the lesser offense; and (3) the elements
that distinguish the lesser and greater offenses are sufficiently in dispute such

8
 that a jury rationally could acquit on the greater offense and convict on the
lesser.

Id. The first part of the Meadors test expressly applies in the context of a “request from the
State for a lesser-included offense instruction.” Id. However, examining the strict statutory
elements of the greater and lesser offenses is “unnecessary in the context of a defendant’s
request for a lesser-included instruction,” because the purpose of such an examination is to
determine whether a defendant had adequate notice of the lesser included offense. State v.
Darkis, 2000-NMCA-085, ¶¶ 14-17, 129 N.M. 547, 10 P.3d 871. Thus, we turn directly to
the three factors established in Meadors to determine if the trial court should have granted
Defendant’s request for a lesser included offense instruction.

{24} In the present case, we find the second factor to be dispositive. Under this factor, we
must determine whether there was sufficient evidence adduced at trial to support
Defendant’s claim for a lesser included offense on simple child abuse. In addressing
whether there was substantial evidence to support a conviction of child abuse, we have stated
that “not every risk of injury rises to the level of felony child endangerment.” State v.
Chavez, 2009-NMSC-035, ¶ 35, 146 N.M. 434, 211 P.3d 891. Instead, courts look at
“[w]hether a defendant’s conduct creates a substantial and foreseeable risk of harm” to the
child. Id. ¶ 2. To determine whether the harm to the child was foreseeable, we look at the
magnitude of risk created by a defendant’s conduct. Id. ¶ 23. Notably, we have “declined
to uphold endangerment convictions where the risk of harm is too remote, which may
indicate that the harm was not foreseeable.” Id. ¶ 26.

{25} We generally have considered whether a defendant’s conduct warrants civil remedies
or criminal punishment. See id. ¶¶ 12-14; State v. Massengill, 2003-NMCA-024, ¶¶ 45-46,
133 N.M. 263, 62 P.3d 354. In Chavez, this Court noted that

our Legislature has empowered the State with a broad array of civil remedies,
ranging from the benign, like ensuring that children receive nutritious meals,
to the intrusive, such as placement of children in foster care or termination
of parental rights altogether. On the far end of this spectrum lies the sanction
for criminal child abuse, which classifies abuse as, at a minimum, a third-
degree felony punishable by up to three years imprisonment.

2009-NMSC-035, ¶ 12 (citation omitted). The ultimate goal of this scheme is “to preserve
and reunify the family” and to give parents a “reasonable opportunity to improve their
parenting skills.” Id. ¶ 14. Thus, resort to criminal punishment that results in imprisonment
is reserved for the most extreme cases, since it removes the opportunity for parents to
improve their parenting skills and be reunited with their children for the duration of their
imprisonment, which can be up to three years. The Legislature did not intend for courts to
expose care givers to criminal punishment for their “imprudent and possibly negligent
conduct.” Massengill, 2003-NMCA-024, ¶ 46 (internal quotation marks and citation
omitted) (noting that if “imprudent and possibly negligent conduct were sufficient to expose

9
a care giver to criminal liability for child endangerment, undoubtedly the majority of parents
in this county would be guilty of child endangering” (internal quotation marks and citation
omitted)).

{26} In Massengill, the Court of Appeals reversed the defendant’s conviction of child
abuse that was based on an incident in which the defendant pushed the child’s stroller out
in front of him beyond his reach and it fell over, causing the child to get a bruise on the
forehead. Id. ¶¶ 43-47. The Court of Appeals held that there was insufficient evidence to
support the conviction because the harm created by the defendant’s conduct was too remote.
Id. ¶¶ 45, 47. The Court reasoned that in making the offense a third-degree felony, the
Legislature only intended to punish “conduct with potentially serious consequences to the
life or health of a child.” Id. ¶ 46 (internal quotation marks and citation omitted).

{27} In the present case, Defendant admitted to yanking Baby Colby’s pants off in a rough
manner, causing him to fall backward and hit his head against a carpeted floor. This was the
only evidence presented at trial about this incident, which Defendant claims as the basis for
her right to an instruction on a lesser included offense. We conclude that the “pants
yanking” incident does not rise to the level of criminally punishable conduct, because the
conduct amounts to ordinary imprudent conduct, which under our statute is not criminally
punishable. Conduct is only subject to criminal punishment if it presents a risk of harm that
is “substantial and foreseeable,” Chavez, 2009-NMSC-035, ¶ 2, and could have “potentially
serious consequences to the life or health of a child,” Massengill, 2003-NMCA-024, ¶ 46
(internal quotations marks and citation omitted). The risk of harm associated with the
incident was minimal and remote at best. The experts agreed that Baby Colby’s death was
the result of significant trauma to his head, likely resulting from forceful shaking.
Accordingly, there was insufficient evidence to support a conviction for simple child abuse
not resulting in death.

{28} Since the conduct that Defendant alleges in support of her lesser included offense
instruction is not criminal, we need go no further in our Meadors analysis. Therefore, we
conclude that the trial court properly denied Defendant’s request for a lesser included
offense instruction.

C. Whether the Trial Court Erred in Failing to Disqualify the District Attorney
and His Office After Discovering That He Had a Familial Relationship with
Defendant

{29} Defendant filed a motion for a new trial seeking to set aside the verdict on the ground
that Defendant’s due process right to be prosecuted by a disinterested prosecutor were
violated because the Eleventh Judicial District Attorney Karl Gillson (District Attorney) was
Defendant’s second cousin. At the hearing on the issue, Defendant called five witnesses.
Woody Spencer, Defendant’s uncle by marriage, testified that Lloyd Baldwin, Defendant’s
grandfather, and the District Attorney visited often. He further testified that, during one of
these visits, Lloyd Baldwin introduced the District Attorney to Defendant as her grandfather

10
on her father’s side, in the Navajo sense of the word. Defendant’s brothers, Cornelius Smith,
David Smith, and Lloyd Spencer, testified that the District Attorney was like a cousin. They
further testified that when the District Attorney was a judge he acknowledged their familial
relationship and gave them favorable treatment in proceedings before him. Cornelius Smith’s
wife, Lisa Juan, also testified and corroborated her husband’s testimony. The State admitted
the affidavit of the District Attorney into evidence, in which he swore that he had very little
contact with Lloyd Baldwin, that Defendant was at best his third cousin, that although he is
one-half Navajo he was unaware of any clan relationship between them, and that he had
never had personal or direct contact with Defendant until after the prosecution of her case
had begun. The District Attorney also swore that he had only recently found out that his
grandmother was the sister of Defendant’s great-grandfather. The trial court determined that
the distant relationship had no bearing on the case and denied Defendant’s motion for a new
trial. During the sentencing phase of her trial, Defendant renewed her objection to the
continued involvement of the Eleventh Judicial District Attorney’s Office.

{30} Defendant argues on appeal that the trial court violated her right to due process of
law when it failed to disqualify the District Attorney and his office during the sentencing
phase of her trial. Defendant claims that, because she and the District Attorney are cousins
and culturally like grandfather and granddaughter, the District Attorney’s involvement in the
case “created an opportunity for conflict or other improper influence on his professional
judgment.” The State responds that Defendant has failed to carry her burden of establishing
a claim of bias.

{31} The standard of review for a trial court’s decision regarding the disqualification of
a prosecutor or a prosecution office “is not easily defined.” State v. Robinson,
2008-NMCA-036, ¶ 10, 143 N.M. 646, 179 P.3d 1254. We have stated that review of
disqualification orders mandates that the Court look at whether the issues involve legal or
factual questions. State v. Gonzalez, 2005-NMSC-025, ¶¶ 24-25, 138 N.M. 271, 119 P.3d
151. When factual questions are involved, we defer to the sound judgment of the trial court.
Robinson, 2008-NMCA-036, ¶ 10. On the other hand, “[w]here the [trial] court resolves
issues involving values that animate legal principles or the consideration of abstract legal
doctrines that require the balancing of underlying policies and competing legal interests, our
review is de novo.” Id. (internal quotation marks and citation omitted).

{32} “A prosecutor may be removed from a case for a conflict of interest where the
prosecutor has a prior or current relationship with the defendant that either made the
prosecutor privy to relevant, confidential information or where their relationship has created
an interfering personal interest or bias.” Id. ¶ 22 (citation omitted). “The personal bias that
is disqualifying, however, is a bias that creates an opportunity for conflict or other improper
influence on professional judgment. There must be a basis in fact for a determination such
bias exists.” Gonzalez, 2005-NMSC-025, ¶ 39. “[T]he defendant has the burden of going
forward with evidence and the burden of persuasion.” Id. ¶ 28. “[I]f the defendant
establishes that one member of the prosecution team should be disqualified . . . [then] the
burden shifts to the State to prove that the entire office should not be disqualified by

11
imputation.” Robinson, 2008-NMCA-036, ¶ 13. It should be noted, however, that
considering prosecutors’ distinct role as disinterested and impartial public advocates, the
“[d]isqualification of a prosecutor should remain a rare event; disqualification of an entire
office even more so.” Gonzalez, 2005-NMSC-025, ¶ 51.

{33} The question of whether the relationship between Defendant and the District
Attorney created personal bias or prejudice is a question of fact. Therefore, we review the
trial court’s failure to disqualify for abuse of discretion. “An abuse of discretion occurs
when the ruling is clearly against the logic and effect of the facts and circumstances of the
case. We cannot say the trial court abused discretion by its ruling unless we can characterize
it as clearly untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126
N.M. 438, 971 P.2d 829 (filed 1998) (internal quotation marks and citation omitted). With
respect to the factual review, “we do not sit as a trier of fact,” recognizing that the trial court
has the best vantage from which to resolve questions of fact and to evaluate witness
credibility. State v. Vandenberg, 2003-NMSC-030, ¶ 18, 134 N.M. 566, 81 P.3d 19.
Accordingly, “we will not reweigh the evidence nor substitute our judgment for that of the
fact finder.” Bishop v. Evangelical Good Samaritan Soc’y, 2009-NMSC-036, ¶ 28, 146
N.M. 473, 212 P.3d 361 (internal quotation marks and citation omitted).

{34} In resolving this question, the trial court acted as the trier of fact and had the role of
judging the credibility of witnesses and determining the weight of evidence. At the
disqualification hearing, there was a credibility contest between Defendant’s brothers, who
alleged that the District Attorney had a history of giving their family favorable treatment due
to their familial relationship, and the District Attorney, who swore that he had not known
that Defendant was related to him and was disinterested in Defendant’s prosecution. The
trial court could have reasonably believed the District Attorney’s statements in his affidavit
that, prior to Defendant’s motion for disqualification, he was unaware of any familial or clan
relationship between them and that he “never had personal or direct contact with
[Defendant].” Thus, the trial court reasonably concluded that Defendant had not met her
burden of proving personal bias and properly dismissed Defendant’s motion for
disqualification of the District Attorney and his office from the sentencing phase of
Defendant’s trial. Accordingly, the trial court did not abuse its discretion in determining that
the familial relationship between the District Attorney and Defendant was insufficient to
create a personal bias that warranted disqualification.

D. Whether the Trial Court Erred in Ruling That It Lacked Discretion to Alter
Defendant’s Sentence

{35} During the sentencing phase of her trial, Defendant argued that, because child abuse
resulting in the death of a child was a noncapital felony, the trial court had the discretion to
alter her life sentence pursuant to Section 31-18-15.1, if it were to find any mitigating
circumstances. However, the trial court concluded that the Legislature intended that a life
sentence be mandatory for child abuse resulting in death, reasoning that the statute provided

12
that the alteration of a sentence could not exceed one-third of the basic sentence and one-
third of a life sentence could not be calculated. Thus, the trial court did not consider any
mitigating evidence and imposed a life sentence, stating that its “hands [were] tied . . . . And
[it] would really like to do some [sic] different so that [it] could get a ruling out of the
Supreme Court, saying this isn’t what we really mean . . . .”

{36} On appeal, Defendant argues that Sections 31-18-15(A)(1) and 31-18-15.1 plainly
grant the trial court the authority to alter the basic sentence of life imprisonment “for a
[noncapital] first degree felony resulting in the death of a child.” Section 31-18-15(A)(1).
The State responds that “[t]hrough its [one-third] limitation on the alteration of a basic
sentence, the Legislature communicated its intent to disallow the alteration of a life
sentence.”

{37} Defendant’s claim presents this Court with an issue of statutory construction, which
we review de novo. State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022.
“The principal command of statutory construction is that the court should determine and
effectuate the intent of the legislature using the plain language of the statute as the primary
indicator of legislative intent.” State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853
(1994) (internal citation omitted). “The words of a statute . . . should be given their ordinary
meaning, absent clear and express legislative intention to the contrary,” as long as the
ordinary meaning does “not render the statute’s application absurd, unreasonable, or unjust.”
State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (alteration in original)
(internal quotation marks and citations omitted). When the meaning of a statute is unclear
or ambiguous, we have recognized that it is “the high duty and responsibility of the judicial
branch of government to facilitate and promote the legislature’s accomplishment of its
purpose.” State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359
(1994).

{38} Section 30-6-1(H) provides, “A person who commits intentional abuse of a child less
than twelve years of age that results in the death of the child is guilty of a first degree felony
resulting in the death of a child.” Pursuant to Section 31-18-15(A)(1) of the Criminal
Sentencing Act (CSA), “a first degree felony resulting in the death of a child” is a noncapital
felony that carries a basic sentence of life imprisonment. The trial court is required to
impose “[t]he appropriate basic sentence of imprisonment . . . unless the court alters the
sentence pursuant to the provisions of the Criminal Sentencing Act.” Section 31-18-15(B).
NMSA 1978, Section 31-18-15.1(A)(1) (2009)1 of the CSA provides that “[t]he judge may

1
We recognize that, in State v. Frawley, 2007-NMSC-057, ¶ 1, 143 N.M. 7, 172 P.3d 144,
we declared Section 31-18-15.1 to be facially unconstitutional because it permits the trial
court, rather than the jury, to aggravate a defendant’s sentence in violation of a defendant’s
“right to a jury trial under the Sixth and Fourteenth Amendments to the United States
Constitution.” However, in 2009, the Legislature amended Section 31-18-15.1 to rectify this
constitutional infirmity. See 2009 N.M. Laws, ch. 163, § 1. Because Defendant will be

13
alter the basic sentence as prescribed in Section 31-18-15 NMSA 1978 upon . . . a finding
by the judge of any mitigating circumstances surrounding the offense or concerning the
offender.” Although “[t]he amount of the alteration of the basic sentence for noncapital
felonies shall be determined by the judge,” Subsection (G) prohibits the judge from imposing
an “alteration [that] exceed[s] one-third of the basic sentence.” Section 31-18-15.1(G).

{39} “[A] statute must be construed so that no part of the statute is rendered surplusage
or superfluous.” State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d 1 (internal
quotation marks and citation omitted). Sections 31-18-15 and 31-18-15.1 explicitly grant
the trial court the authority to alter the basic sentence for all noncapital felonies, including
those that carry a basic sentence of life imprisonment. See § 31-18-15(A)(1) (first degree
felony resulting in the death of a child); § 31-18-15(A)(2) (first degree felony for aggravated
criminal sexual penetration). To conclude that the trial court lacks this authority would
require us to read Subsections (A)(1) and (A)(2) out of Section 31-18-15, which we cannot
and will not do. Accordingly, we conclude that Sections 31-18-15 and 31-18-15.1 grant the
trial court the authority to alter the basic sentence of life imprisonment for noncapital
felonies.

{40} We next address how to calculate one-third of a basic sentence of life imprisonment.
“[L]ife sentences have always been understood to be different from a sentence for a term of
years.” Compton v. Lytle, 2003-NMSC-031, ¶ 11, 134 N.M. 586, 81 P.3d 39, as modified
by State v. Tafoya, 2010-NMSC-019, ¶ 16, __ N.M. __, __ P.3d __. A life sentence lacks
a maximum determinate term of imprisonment, because “‘the length of the sentence cannot
be determined until the death of the prisoner.’” Id. (quoting Welch v. McDonald, 36 N.M.
23, 26, 7 P.2d 292, 294 (1931)). Likewise, a life sentence lacks a minimum determinate term
of imprisonment, because an inmate must serve at least “thirty years imprisonment before
the possibility of parole and without good time credit eligibility.” Tafoya, 2010-NMSC-019,
¶ 14; see Compton, 2003-NMSC-031, ¶ 13 (holding that the “thirty-year period [of
imprisonment] . . . should not be considered a minimum sentence”). Although a life
sentence lacks a definite term of years, there is “a specific point in time when inmates
serving a life term . . . become eligible for parole.” Compton, 2003-NMSC-031, ¶ 12.
Specifically, “[a]n inmate of an institution who was sentenced to life imprisonment becomes
eligible for a parole hearing after the inmate has served thirty years of the sentence.” NMSA
1978, § 31-21-10(A) (2009).

{41} We conclude that the thirty-year term for parole eligibility is the proper numerical
standard by which to measure the trial court’s authority to alter a basic sentence of life
imprisonment under Sections 31-18-15 and 31-18-15.1. Because the trial court’s “alteration

sentenced under the amended version of the statute if she is convicted on remand, we need
not address the State’s claim that the trial court lacked the discretion to alter Defendant’s
sentence because Section 31-18-15.1 was facially unconstitutional at the time of Defendant’s
sentencing.

14
[cannot] exceed one-third of the basic sentence,” Section 31-18-15.1(G), the trial court lacks
the authority to reduce a defendant’s parole eligibility by more than ten years. Accordingly,
in this case, the trial court had the authority to reduce Defendant’s parole eligibility by up
to ten years, resulting in a sentence of twenty years of imprisonment, before the possibility
of parole.2

{42} We recognize that, after mitigation, a defendant convicted of a first degree noncapital
felony enumerated in Sections 31-18-15(A)(1)-(2) is no longer serving a “life sentence” as
defined by New Mexico law. See Tafoya, 2010-NMSC-019, ¶ 14 (holding that a “life
sentence” means “thirty years imprisonment before the possibility of parole and without
good time credit eligibility”); Compton, 2003-NMSC-031, ¶ 4 (same). This reflects the
Legislature’s manifest intent to treat noncapital felonies that carry a basic sentence of life
imprisonment differently from capital felonies, which carry a mandatory sentence of life
imprisonment. Compare Section 31-18-15(A)(1),(2) (imposing a basic sentence of life
imprisonment for certain noncapital felonies), with NMSA 1978, Section 31-18-14 (2009)
(imposing a mandatory sentence of life imprisonment for capital felonies). Unlike a
mandatory sentence of life imprisonment, a basic sentence of life imprisonment is subject
to alteration, in accordance with the principles set forth in this opinion, if the trial court finds
“any mitigating circumstances surrounding the offense or concerning the offender.” Section
31-18-15.1(A)(1).

III. CONCLUSION

{43} We conclude that the trial court (1) improperly failed to answer the jury’s question
regarding the option of hanging, (2) properly denied Defendant’s request for a lesser
included offense instruction on child abuse not resulting in death, (3) did not abuse its
discretion by denying Defendant’s motion to disqualify the District Attorney’s Office, and
(4) improperly failed to consider mitigating evidence at Defendant’s sentencing hearing
pursuant to Sections 31-18-15 and 31-18-15.1. Accordingly, we reverse Defendant’s
conviction and remand for a new trial.

{44} IT IS SO ORDERED.

____________________________________
PETRA JIMENEZ MAES, Justice

WE CONCUR:

2
We leave open the question of whether a defendant convicted of a first degree felony that
carries a basic sentence of life imprisonment, but whose sentence is altered pursuant to
Section 31-18-15.1(A)(1), is eligible to earn good time credits under the Earned Meritorious
Deductions Act, NMSA 1978, Section 33-2-34 (2006).

15
____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Juan, Docket No. 31,319

AT ATTORNEYS
AT-CI Conflict of Interest

CL CRIMINAL LAW
CL-AG Aggravating or Mitigating Circumstances
CL-CN Child Abuse and Neglect

CA CRIMINAL PROCEDURE
CA-AS Alteration of Sentence
CA-JI Jury Instructions
CA-LO Lesser Included Offense

EV EVIDENCE
EV-CR Credibility of Witnesses

JI JURY INSTRUCTIONS
JI-FG Failure to Give or Request

16