September 23, 2014 – State of New Mexico v. Guadalupe Flores, No. 32,709

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INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number

Filing Date: _ September 23, 2014

NO. 32,709

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

GUADALUPE FLORES,
Defendant-A ppellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

Gary K. King, Attomey General

Corinna Laszlo-Henry, Assistant Attomey General
Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender

Will O’ Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
ZAMORA, Judge.
{1} 	Guadalupe Flores (Defendant) appeals her convictions for murder in the second
degree, three counts of aggravated battery with a deadly weapon, and one count of
aggravated battery on a household member. Defendant contends that systematic
removal of Spanish-only speaking jurors from the jury panels from which her jury was
chosen violated her right to a fair and impartial jury. Defendant also claims that the
district court abused its discretion by failing to sever the charges, which stemmed
from two separate incidents. We conclude that Defendant failed to establish a prima
facie case of systematic exclusion of Spanish-only speakers from jury panels. We
further conclude that the district court did not abuse its discretion in denying
Defendant’s motion to sever. Accordingly, we affirm.
BACKGROUND
{2} 	Defendant and Anthony Mah (Mah) were romantically involved, lived together,
and had four children together. The charges against Defendant stemmed from two
separate incidents involving Defendant and Mah; one occurred in February 2011, and
the other in November 2011.
{3} 	On February 12, 2011, Defendant went looking for Mah, who was out.
Defendant found Mah sitting in his parked vehicle outside a residence with a female

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passenger. Defendant was upset. Witnesses reported seeing Defendant drive her
vehicle into the back of Mah’s vehicle several times. Defendant later told police that
she had run into Mah’s car because he was with another woman. Defendant was
charged with aggravated battery on a household member.
{4} 	Defendant and Mah continued their relationship. On November 1, 2011, Mah
was driving around with a friend, Brandon Vann (Vann), and three female passengers.
Defendant spotted the group and approached their vehicle. When Mah noticed
Defendant, he drove away and Defendant followed in her vehicle. Defendant pursued
Mah and rear-ended the vehicle he was driving multiple times. Eventually, as Mah
began to pull to the side of the road, Defendant hit the vehicle from the side, and the
vehicle flipped several times. Vann was pronounced dead at the scene. Following the
crash, Defendant was charged with one count of second degree murder and four
counts of aggravated battery with a deadly weapon.
{5} 	The charges against Defendant from the February incident and the November
incident were joined. Prior to trial Defendant moved to sever the charges. The motion
was denied and the matters were tried jointly. Defendant was convicted of all charges.
{6} 	Defendant moved for a new trial after learning that all prospective jurors who
spoke Spanish only and required an interpreter were systematically excluded from the
jury panels from which her trial jury was selected. The district court held a hearing on

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the issue. The court clerk responsible for selecting jury panels testified at the hearing.
The clerk testified that in creating jury panels, she put all Spanish-only speaking
prospective jurors on one panel in order to minimize the cost of interpreters. In this
case, the jury pool was comprised of approximately one thousand prospective jurors.
The clerk divided them into five panels and assigned all Spanish-only speakers to
panel three. Defendant’s jury was selected from panels one and two. In her motion for
a new trial, Defendant claimed that the clerk’s practice deprived her of a fair and
impartial jury. The motion was denied. This appeal followed.
DISCUSSION
A. 	Systematic Exclusion of Prospective Jurors
1. 	Preservation
{7} 	The State argues that Defendant failed to preserve her objection to the
composition of the jury venire because she failed to alert the district court to the basis
of her claim with the requisite specificity to satisfy preservation requirements. We
disagree.
{8} 	Rule 12-216 NMRA provides that a question is preserved for appellate review
if it “appear[s] that a ruling or decision by the district court was fairly invoked . . .
[and f]urther, if a party has no opportunity to object to a ruling or order at the time it
is made, the absence of an objection does not thereafter prejudice the party.”

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The primary purposes of the preservation requirements are: (1) to
specifically alert the district court to a claim of error so that the error
may be corrected at that time, (2) to allow the opposing party adequate
opportunity to respond to a claim of error, and (3) to create a sufficient
record to allow this Court to make an informed decision regarding the
contested issue.
State v. Moncayo, 2012-NMCA-066, ¶ 5, 284 P.3d 423.
{9} 	In this case, Defendant was not aware of the clerk’s jury panel selection
procedures until after her trial. Once Defendant became aware that Spanish-only
speaking prospective jurors were excluded from the two jury panels from which her
jury was selected, she moved for a new trial. The State responded, and the district
court held a hearing on the motion. At the hearing, the court clerk testified regarding
her jury panel selection process. After hearing the testimony and arguments from the
parties, the district court ruled on the merits of the motion. Because the district court
was alerted to Defendant’s claim of error and had a sufficient opportunity to fully
address it, the issue was sufficiently preserved for our review.
2. 	Waiver Pursuant to NMSA 1978, § 38-5-16 (1969)
{10} 	The State also argues that because Defendant did not object to the jury venire
composition prior to the empaneling of the jury, Defendant waived her right to object
under Section 38-5-16. We are not persuaded.
{11} 	Determining whether Section 38-5-16 bars Defendant’s objection to the clerk’s
jury selection process even though Defendant was not aware of the procedure until

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after her trial is an issue of statutory interpretation. Accordingly, our review is de
novo. United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 7, 148
N.M. 426, 237 P.3d 728. The guiding principle when construing statutes is to
“determine and give effect to legislative intent.” OS Farms, Inc. v. N.M. Am. Water
Co., 2009-NMCA-113, ¶ 19, 147 N.M. 221, 218 P.3d 1269 (internal quotation marks
and citation omitted). To discern the Legislature’s intent, “we look first to the plain
language of the statute, giving the words their ordinary meaning, unless the
Legislature indicates a different one was intended.” Marbob Energy Corp. v. N.M. Oil
Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135 (alteration,
internal quotation marks, and citation omitted). Statutory language that is clear and
unambiguous must be given effect. Trinosky v. Johnstone, 2011-NMCA-045, ¶ 11,
149 N.M. 605, 252 P.3d 829.
{12} 	Section 38-5-16 states, in pertinent part, that a criminal defendant “may
challenge the jury panel on the ground that the members thereof were not selected
substantially in accordance with law. . . . Such a challenge is waived if not raised
before the trial jury panel has been sworn and selection of the trial jury commenced.”
By definition, waiver is “[t]he voluntary relinquishment or abandonment . . . of a legal
right or advantage[.]” Black’s Law Dictionary 1717 (9th ed. 2009). “The party alleged

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to have waived a right must have had both knowledge of the existing right and the
intention of forgoing it.” Id.
{13} 	In this case, Defendant was not aware of the clerk’s policy to segregate
Spanish-only speaking prospective jurors at the time her jury was being empaneled.
She could not have objected to the procedure in accordance with Section 38-5-16
because she did not know that her objection was warranted until after her trial. We do
not believe that the Legislature intended for Section 38-5-16 to bar objections to
unlawful jury selection where a party does not know the selection process has been
unlawful prior to swearing in the prospective jury panel and jury selection has been
commenced. We decline to apply the statute in that way. See State v. Stevens, 2014-
NMSC-011, ¶ 15, 323 P.3d 901 (“It is the high duty and responsibility of the judicial
branch of government to facilitate and promote the [L]egislature’s accomplishment
of its purpose. Although we look first to the language of the statute, we will reject a
formalistic and mechanical statutory construction when the results would be absurd,
unreasonable, or contrary to the spirit of the statute.” (internal quotation marks and
citation omitted)). Accordingly, we conclude that Defendant did not waive her right
to object to the composition of the jury venire.
3. 	Representative Cross-Section of the Community

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{14} 	We turn now to Defendant’s claim that she was deprived of a fair and impartial
jury as a result of the systematic exclusion of Spanish-only speakers from the majority
of jury panels in Curry County. Article II, Section 14 of the New Mexico Constitution
entitles criminal defendants to a “trial by an impartial jury,” which requires that the
jury represent a “fair cross[-]section of the community.” State v. Aragon, 1989-
NMSC-077, ¶¶ 5, 25, 109 N.M. 197, 784 P.2d 16. Defendant relies heavily on Aragon
to support her contention that the systematic exclusion of Spanish-only speakers from
jury panels is unconstitutional.
{15} 	However, Defendant’s reliance on Aragon is misplaced. Aragon involved a
constitutional challenge to a prosecutor’s purposeful, discriminatory, and systematic
exercise of peremptory strikes to exclude members of a cognizable racial group from
the jury panel. Id. ¶¶ 9, 15-16. This type of alleged violation requires an examination
of the prosecutor’s conduct, and inferences that can be made about the prosecutor’s
discriminatory intent. Id. ¶ 17 (“[T]he party may show that [the prosecutor] has struck
most or all of the members of the identified group from the venire, or has used a
disproportionate number of peremptories against the group. He may also demonstrate
that the jurors in question share only this one characteristic—their membership in the
group—[or] . . . the failure of [the prosecutor] to engage the same jurors in more than

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desultory voir dire, or indeed to ask them any questions at all.” (internal quotation
marks and citation omitted)).
{16} 	This type of analysis is distinguishable from the analysis we apply to claims
that the jury selection process as a whole has resulted in systematic exclusion of a
particular group. This Court has adopted a two-step test for determining whether there
was a violation of a defendant’s constitutional right to a jury selected from a fair
cross-section of the community from the United States Supreme Court, Duren v.
Missouri, 439 U.S. 357 (1979). First, the defendant must establish whether there was
a prima facie violation of the fair cross-section requirement.
[T]o show a prima facie violation of the fair cross-section requirement,
a defendant must demonstrate that (1) the group alleged to be excluded
is a ‘distinctive’ group in the community, (2) the group’s representation
in venires from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community, and (3) this
under-representation results from the systematic exclusion of the group
in the jury-selection process.
State v. Casillas, 2009-NMCA-034, ¶ 13, 145 N.M. 783, 205 P.3d 830 (citing Duren,
439 U.S. 357, 364). If there was a prima facie violation, the second part of the test
provides the government an opportunity to defend its practices by demonstrating that
a significant state interest is advanced by the process that results in the exclusion of
a distinctive group. Duren at 367-68.

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{17} 	Here, 	Defendant 	relies 	primarily 	on 	authority 	related 	to 	prosecutorial
discrimination, and does not address the Duren test. As a result, Defendant has not
fully developed her argument regarding a prima facie violation of the fair cross-
section requirement. This Court will not rule on an inadequately-briefed issue where
doing so would require this Court “to develop the arguments itself, effectively
performing the parties’ work for them.” Elane Photography, LLC v. Willock, 2013-
NMSC-040, ¶ 70, 309 P.3d 53, cert. denied, 134 S. Ct. 1787 (2014); see id. (“[W]e
are not required to do their research. . . . This creates a strain on judicial resources and
a substantial risk of error. It is of no benefit either to the parties or to future litigants
for this Court to promulgate case law based on our own speculation rather than the
parties’ carefully considered arguments.” (internal quotation marks and citation
omitted)). Our Court has been clear that it is the responsibility of the parties to set
forth their developed arguments, it is not the court’s responsibility to presume what
they may have intended. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶
15, 137 M.M. 339, 110 P.3d 1076 (holding that this Court has no duty to review an
argument that is not adequately developed or guess at what the argument might be);
see also In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329
(holding where a party cites no authority to support an argument, we may assume no
such authority exists). To do otherwise is setting a very dangerous precedent.

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Moreover, for us to unilaterally develop Defendant’s constitutional argument, and rule
on that basis here, would deprive the State of an opportunity to advance any argument
it may have regarding a significant state interest served by the challenged process.
This would result in a substantial disadvantage to the State.
{18} 	The same disadvantage exists regarding Defendant’s assertion that Article II,
Section 14 of the New Mexico Constitution provides greater protection than the
federal constitution. The dissent believes that Defendant has presented an argument
that Aragon should be extended to prohibit the actions of a court official that result in
all Spanish-only speakers being segregated. However, Aragon, only related to
prosecutorial misconduct. The mere statement that the New Mexico Constitution
provides greater protection does not articulate how the greater protection offered by
Article II, Section 14 applies in this context and, therefore, provides no basis for
response by the State. The dissent believes that the Duren test is “out of place” and
should not apply, but if it does not, it is not clear what would apply. Although the
principle of Aragon may conceivably be applicable, that, without more, is not
argument. In sum, we conclude that Defendant has not met her burden and has failed
to establish the systematic exclusion of Spanish-only speakers from the jury panels.
{19} 	The district court has an affirmative responsibility to empanel jurors in a
random manner. NMSA 1978, § 38-5-11(A) (2005). Accordingly, it is important to

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stress 	that 	the 	Ninth 	Judicial 	District’s 	court 	clerk’s 	systematic 	policy 	of
impermissibly manipulating the jury selection process is a miscarriage of that
responsibility and borders on the egregious. By placing all Spanish-only speaking
prospective jurors in one panel, the clerk has effectively excluded them from all of the
other panels. This process can potentially violate both the prospective jurors’ right to
serve and the criminal defendant’s right to a fair and impartial jury. See State v.
Samora, 2013-NMSC-038, ¶ 7, 307 P.3d 328 (“This Court has recognized more than
once that Article VII, Section 3 [of the New Mexico Constitution] unambiguously
protects the rights of Spanish-only speakers to serve on our state juries.”); see also
Aragon, 1989-NMSC-077, ¶ 25 (“Article II, Section 14, [of the New Mexico
Constitution] entitl[es the defendant] to a jury representing a fair cross[-]section of the
community[.]”).
{20} 	In this case, although the clerk’s action is inexcusable, the record does not
reveal whether Spanish-only speaking members of the jury pool were actually
prevented from serving as a result of the clerk’s policy. It is also unclear whether the
policy resulted in trial juries that were not representative of the community.
B. 	Defendant’s Motion to Sever Charges
{21} 	Prior to trial, Defendant moved to sever the charge of aggravated battery on a
household member related to the February incident from the charges of second-degree

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murder and four charges of aggravated battery with a deadly weapon related to the
November incident. The district court denied the motion to sever finding that the
evidence would have been cross-admissible, that Defendant failed to show undue
prejudice resulting from the joinder of charges, and that the evidence of the February
incident was relevant to rebut Defendant’s claim that the November crash was an
accident. We review the denial of a motion to sever for an abuse of discretion. State
v. Lovett, 2012-NMSC-036, ¶10, 286 P.3d 265.
{22} 	Defendant argues that the evidence of the aggravated battery on a household
member would not be cross-admissible because it was improper evidence under Rule
11-404(B) NMRA. Defendant further argues that, even if the evidence were cross-
admissible, it should have been kept out because the probative value was substantially
outweighed by the danger of unfair prejudice under Rule 11-403 NMRA. The State
contends that the evidence would be cross-admissible because it shows intent (that the
collision between the two vehicles was not an accident), and because it was not more
prejudicial than probative.
{23} 	Rule 5-203(A) NMRA requires the State to join certain charges if the offenses
“(1) are of the same or similar character, even if not part of a single scheme or plan;
or (2) are based on the same conduct or on a series of acts either connected together
or constituting parts of a single scheme or plan.” State v. Gallegos, 2007-NMSC-007,

13
¶¶ 10, 141 N.M. 185, 152 P.3d 828. However, “a [district] court may abuse its
discretion in failing to sever charges” if there is prejudice to the accused. Id. ¶¶ 9, 16.
{24} 	In determining whether a district court’s failure to sever resulted in prejudice
to the defendant, we must first determine whether the evidence pertaining to each
charge would be cross-admissible in separate trials. Id. ¶ 19 (“[T]here is a high risk
of undue prejudice whenever joinder of counts allows evidence of other crimes to be
introduced in a trial of charges with respect to which the evidence would otherwise
be inadmissible. On the other hand, cross-admissibility of evidence dispels any
inference of prejudice.” (alterations, internal quotation marks, and citations omitted)).
{25} 	We determine cross-admissibility through an analysis of Rule 11-404(B). See
Lovett, 2012-NMSC-036, ¶ 37; Gallegos, 2007-NMSC-007, ¶¶ 20-21. Rule 11-
404(B)(1) states: “Evidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Nonetheless, evidence of a crime, wrong, or other act
may be used for another purpose, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule
11-404(B)(2). The district court may admit evidence of prior acts where such evidence
is relevant to a material issue other than the defendant’s character. State v. Martinez,
1999-NMSC-018, ¶ 30, 127 N.M. 207, 979 P.2d 718. However, the state must

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“identify and articulate the consequential fact to which the evidence is directed.”
Gallegos, 2007-NMSC-007, ¶ 22.
{26} 	Here, the evidence relevant to the charge of battery on a household member,
arising from the February incident, would have been cross-admissible under Rule 11-
404(B)(2). The evidence of the first incident, during which Defendant purposefully
ran her vehicle into Mah’s vehicle after finding him in the company of another
woman, could show that she purposefully collided with the vehicle Mah was driving
in November, when she once again found him in the company of other women. This
evidence does not necessarily imply that Defendant has the propensity or character to
behave dangerously, which would be improper character evidence under Rule 11-
404(B)(1). Rather, it is permissible under Rule 11-404(B)(2). We conclude that the
district court did not abuse its discretion by denying Defendant’s motion to sever.
CONCLUSION
{27} 	For the foregoing reasons we affirm.
{28} 	IT IS SO ORDERED.
_______________________________
M. MONICA ZAMORA, Judge

I CONCUR:

JAMES J. WECHSLER, Judge

LINDA M. VANZI, Judge, dissenting).

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VANZI, Judge (dissenting)
{29} 	Defendant has argued in the district court and on appeal that the systematic and
complete exclusion of Spanish-only speakers from the panels from which her petit
jury was drawn violated her right to a venire that represented a cross-section of the
community. 	The 	jury 	clerk 	for 	the 	Ninth 	Judicial 	District 	testified 	that 	she
intentionally manipulated the jury venire to ensure that all Spanish-only speakers were
placed on a single separate panel in order to save the costs of hiring additional
interpreters. This practice of segregating Spanish-speaking venire members potentially
violates the sixth amendment to the United States Constitution, Article II, Section 14
of the New Mexico Constitution, and Section 38-5-11(A) (“The court shall empanel
jurors in a random manner.”). Given the nature of the rights at stake of both a
prospective juror’s right to serve and a criminal defendant’s right to a fair and
impartial jury, I cannot join in ¶¶ 14-19 of the majority’s Opinion.
{30} 	I am fully aware of the importance of ensuring that litigants adequately brief
relevant issues on appeal. However, this concern should not prevent review of an
alleged constitutional violation that the majority itself recognizes is a “miscarriage”
of judicial responsibility that “borders on the egregious.” Majority Op. ¶ 18. I also
believe that Defendant’s briefing is adequate. Defendant argues that Article II, Section
14 of the New Mexico Constitution provides greater protection than its federal

1I also note that we applied this test in Casillas only because the defendant in
that case did not preserve an argument that the state constitution was violated. 2009-
17
counterpart. Defendant cites Aragon, which adopted California’s “Wheeler Doctrine,”
extending the state constitution’s fair cross-section guarantee to prevent prosecutors
from using racially discriminatory peremptory challenges at the impaneling stage.
1989-NMSC-077, ¶¶ 21-23; see State v. Gonzales, 1991-NMCA-007, ¶ 34, 111 N.M.
590, 808 P.2d 40 (holding that the same rationale applies to prevent discrimination on
the basis of gender). In Aragon, our Supreme Court departed from federal cross-
section precedent, reasoning that “the state should not be able to accomplish indirectly
at the selection of the petit jury what it has not been able to accomplish directly at the
selection of the venire.” 1989-NMSC-077, ¶ 23. I interpret Defendant’s argument as
an invitation to extend this reasoning to Defendant’s situation, where a court official
rather than the State has intentionally manipulated the venire panels to totally exclude
Spanish-only speakers from the actual jury.
{31} 	I see no reason why we cannot consider Defendant’s argument. I, like
Defendant, find it difficult to distinguish between a prosecutor’s exercise of
peremptory challenges to exclude a particular group from the jury panel, and a court
official’s ability to unilaterally accomplish the same result. While the standards for
measuring the discriminatory use of peremptory strikes may be of no use here, in my
view, the majority’s test adopted from Duren seems to be equally out of place. 1

NMCA-034, ¶ 11. Defendant here has preserved her argument under Article II,
Section 14 of the New Mexico Constitution.
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Majority Op. ¶¶ 16-17.
{32} 	The Duren approach focuses on underrepresentation, proven by statistically
quantifiable disparity levels between the jury pool and the jury-eligible population,
and is unconcerned with the makeup of the actual petit jury panel. See Lockhart v.
McCree, 476 U.S. 162, 173 (1986). Requiring Defendant to prove that Spanish-only
speakers, who are constitutionally protected in this state, constitute a distinctive group,
and requiring Defendant to present census data and other statistical evidence to
demonstrate that—at an inclusion rate of zero percent—they are systematically
underrepresented, seems to me an exercise in futility that ignores the heart of the
issue: Does Article II, Section 14 of the New Mexico Constitution allow a court
official to remove all Spanish-only speakers from a jury panel, solely based on their
language, when a prosecutor likely cannot?
{33} 	Even if the Duren approach applies, I disagree with the majority’s statement
that applying the test and ruling on the issue would deprive the State of an opportunity
to advance its interest in continued exclusion. The State articulated its interest in a
written response and at a hearing on Defendant’s motion for a new trial. I do not
believe that economic concerns, leave alone unsubstantiated ones, can justify the
Ninth Judicial District’s practice of systematically stacking its jury panels—a practice

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that appears to remain in effect today. I respectfully dissent.
__________________________________
LINDA M. VANZI, Judge