November 20, 2018- State of New Mexico v. Johnny Salazar, No. A-1-CA-35562

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ________ _
3 Filing Date: November 20, 2018
4 	No. A-1-CA-35562
5 STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V .
8 JOHNNY SALAZAR,
9 	Defendant-Appellant.
10 	APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
11 	Fernando R. Macias, District Judge
12 Hector H. Balderas, Attorney General
13 	Emily C. Tyson-Jorgenson, Assistant Attorney General
14 	Santa Fe , NM
15 	for Appellee
16 Bennett J. Baur , Chief Public Defender
17 Tania Shahani, Assistant Appellate Defender
18 	Santa Fe, NM
19 	for Appellant
Court of Appeals of New Mexico
Filed 11/20/2018 11:18 AM
Mark Reynolds

OPINION
1 A TTREP, Judge.
2 {I} 	Defendant Johnny Salazar appeals his convictions for aggravated driving
3 while intoxicated (DWI), in violation of NMSA 	1978, Section 66-8-102(D)(3)
4 (2016), and resisting, evading, or obstructing an officer, in violation ofNMSA 1978,
5 Section 30-22-l(B) (1981). Defendant contends no reasonable suspicion supported
6 his detention and the district court thus erred in denying his motion to suppress.
7 Defendant adds that the district court erred in compelling his counsel to return to the
8 State video evidence the State had initially disclosed, and by failing to permit his
9 counsel 	to 	withdraw 	based 	on 	a 	purported 	conflict. 	We 	affirm 	Defendant's
10 convictions.
11 BACKGR OUND
12 	{2} 	In March 2015 , a magistrate court jury found Defendant guilty of both
13 	aggravated DWI and evading an officer. Defendant appealed his convictions to
14 	district court, where he moved to suppress any evidence arising from his detention
15 	on the ground that reasonable suspicion was lacking. The district court held a hearing
16 	on the motion at which the arresting officer testified. The following recitation of
17 facts is based on the officer's testimony.
18 	{3} 	On an evening in late April 2014, New Mexico State Police set up a DWI
19 checkpoint on Camino Real Road in Las Cruces, New Mexico. Camino Real Road

1 ran roughly north-south through the checkpoint. Cones and signs indicating the
2 checkpoint' s presence and directing drivers to stop were placed both north and south
3 of the checkpoint. Multiple marked police vehicles, including a large state police
4 van displaying the words "state police" in "huge letters" on its sides, were stationed
5 at the checkpoint. At least two of the parked police vehicles were operating their
6 overhead lights continuously. Among the officers on duty was patrolman Oliver
7 Wilson, who was positioned furthest south on Camino Real Road.
8 	{4} 	Just as the sun was setting, Wilson observed a red or maroon, four-door sedan
9 approach the checkpoint from the south. The car traveled north on Camino Real a
10 	short distance past the intersection of Dona Ana School Road, which was visible
11 	from the checkpoint. Then, roughly one hundred yards south of where Wilson was
12 	stationed, the car pulled completely off the road onto the dirt shoulder "just before
13 	the cones" marking the checkpoint. Wilson, with an unobstructed view, noted the
14 	car lingered at the side of the road "long enough to be noticeable," before making a
15 	U-tum across the double-yellow lines of Camino Real. The car accelerated, turned
16 right on Dona Ana School Road, and drove "rapidly" away from the checkpoint.
17 	Wilson' s radar, however, was off, and he was unsure whether the car had at any
18 	point traveled faster than the posted speed limit or committed any other traffic
19 	violation. Even though there were no other vehicles obstructing Wilson' s view of
20 the vehicle, he could not make out a license plate or any identifying features of the
2

1 driver. Wilson could not recall whether the signs announcing the checkpoint would
2 have been viewable from the vehicle at any point. Wilson, however, testified that the
3 stop, pause, U-tum, and departure at a high rate of speed were uncharacteristic of
4 traffic typically approaching the checkpoint-most traffic either turned at the Dona
5 Ana School Road intersection or continued through the checkpoint.
6 {5} 	Wilson testified that he "suspected, from [his] experience, that there was
7 someone trying to avoid the checkpoint." Wilson shouted to his fellow officers that
8 he had seen a "turnaround," jumped into his patrol car, activated his emergency
9 lights, and drove off in pursuit. He made the right tum onto Dona Ana School Road
10 	and re-established visual contact with the car, which was by then ahead by "quite a
11 	distance." The car next turned right on Dona Ana Road. Wilson attempted to close
12 	the gap, but he was unsuccessful. As they traveled on Dona Ana Road, Wilson lost
13 	sight of the car.
14 	{6} 	Shortly after losing contact, Wilson came to a four-way stop at the intersection
15 	of Dona Ana Road and Thorpe Road. He had not seen the car approach this
16 	intersection, and, as a result, he had doubts about where to head next. He made his
17 "best guess" and turned right, heading east along Thorpe Road. After driving in that
18 	direction briefly, Wilson noticed in his rearview mirror a maroon car parked in the
19 	driveway of a duplex or triplex just east of the Dona Ana-Thorpe intersection. A
20 man stood outside the car. Wilson believed, though he did not know, that this was
3

1 the "same maroon vehicle" he had been pursuing. Wilson made a U-tum and
2 approached the man standing next to the car. Wilson asked the man whether he had
3 been trying to evade him, and the man conceded that he had. Wilson investigated
4 further, 	identified 	the 	man 	as 	Defendant, 	and 	conducted 	field 	sobriety 	tests.
5 Defendant performed poorly on the tests and refused to submit to chemical testing.
6 Wilson later arrested Defendant for aggravated DWI (refusal) and evading an
7 officer.
8 	{7} 	Defense counsel did not present evidence at the suppression hearing but
9 offered to have the district court view the video from Wilson' s dashboard video
10 	camera, which the court declined. Defendant argued that Wilson could not have
11 	developed reasonable suspicion based on his observation of the U-tum at the
12 	checkpoint and that, even ifthere was reasonable suspicion at the checkpoint, Wilson
13 	did not have the requisite particularized suspicion as to Defendant on Thorpe Road
14 	because Wilson lost contact in pursuit and guessed about Defendant' s direction of
15 	travel. In ruling on the motion to suppress, the district court adopted much of
16 	Wilson' s testimony in its oral findings. Specifically, the court found that Defendant
17 	had traveled past the Dona Ana School Road intersection on its approach to the
18 	checkpoint. Defendant had then paused on the shoulder, before making the observed
19 	U-tum on Camino Real and accelerating away to "create di stance" from Wilson. The
20 	court added that Wilson had pursued and lost si ght of Defendant' s vehicle briefly,
4

1 but 	Wilson 	eventually 	reestablished 	contact 	with 	and 	detained 	Defendant 	as
2 described on Thorpe Road. Based on those findings, the district court concluded that
3 Wilson had reasonable suspicion to believe Defendant was or had been driving while
4 under the influence. That suspicion, the district court concluded, supported Wilson's
5 investigative detention, and thus the court denied Defendant's motion to suppress.
6 	{8} 	Defendant's case was slated to go to trial the week after the suppression
7 hearing. The day before trial, the State realized it had lost or misplaced its only copy
8 of Wilson's dashcam video. Before the magistrate court jury trial, the State had
9 provided defense counsel a copy of the video. Aware that defense counsel had
10 	retained the copy, the State requested that defense counsel return to the State a
11 	courtesy copy. Defense counsel declined, and the State moved the district court to
12 	compel production. On the morning of the first day of trial, the district court granted
13 	the State's motion to compel, ordered defense counsel to produce a copy of the video
14 	to the State, and briefly adjourned.
15 	{9} 	Returning 	from 	the 	recess, 	defense 	counsel 	renewed 	her 	objection 	to
16 	production, contending the order to produce might give rise to a conflict as she could
17 	no longer give her undivided loyalty to Defendant. The district court concluded
18 	production would raise no conflict and again ordered counsel to produce a copy of
19 the 	video. Defense 	counsel complied 	and then moved to 	withdraw 	from 	her
20 representation and for a new trial, maintaining that Defendant was entitled to
5

1 conflict-free counsel. The court denied the motions. After Defendant was convicted
2 	of both aggravated DWI and evading an officer, defense counsel renewed in writing
3 her motion for a new trial based on the order compelling production of the video.
4 The district court denied the motion, concluding that Defendant had established "no
5 substantial injustice" warranting a new trial. This appeal followed.
6 DISCUSSION
7 	{10} 	We first hold that reasonable susp1c10n supported Wilson's detention of
8 Defendant and, thus, the district court did not err in denying Defendant's motion to
9 suppress. Next, we conclude that the district court did not abuse its discretion in
10 ordering Defendant to return a copy of the video that the State had provided to
11 	Defendant in discovery and in denying Defendant' s related motion for a new trial.
12 	Finally, we hold that the district court did not err in denying defense counsel ' s
13 	motion to withdraw because counsel ' s compliance with the district court' s order
14 	compelling production of the video did not create an actual conflict of interest.
15 	I. 	Reasonable Suspicion Supported Defendant's Detention
16 	{11 } 	Defendant 	maintains 	the 	district 	court 	erred 	in 	concluding 	Wilson 	had
17 reasonable suspicion supporting Defendant's detention in the driveway on Thorpe
18 	Road. Defendant first contends that the facts known to Wilson when he departed the
19 	DWI checkpoint were insufficient to create reasonable suspicion that Defendant was
20 	or had been driving while under the influence. Defendant adds that the insufficiency
6

1 was compounded when Wilson later lost sight of Defendant and guessed as to his
2 route 	of travel. 	The 	parties 	agree 	that 	Wilson's 	investigation 	of Defendant
3 constituted a seizure under the Fourth Amendment, which must be supported by
4 reasonable suspicion. 1 See State v. Contreras, 2003-NMCA- l 29, ,r 5, 13 4 N .M. 5 03 ,
5 79P.3dllll.
6 	{12} 	A review of a denial of a motion to suppress presents a mixed question of fact
7 and law. See State v. Lowe, 2004-NMCA-054, ,r 8, 135 N.M. 520, 90 P.3d 539. We
8 give deference to the district court's findings of fact, reviewing them for substantial
9 evidence. Id. ,r 9. We recognize fact-finding frequently requires the drawing and
10 	selection of specific inferences, and we indulge all reasonable inferences in support
11 	of the district court's decision. See State v. Jason L., 2000-NMSC-Ol 8, ,r 10 , 129
12 N.M. 119, 2 P.3d 856. "Questions of reasonable suspicion are reviewed de novo by
13 	looking at the totality of the circumstances to determine whether the detention was
14 justified." State v. 	Hubble, 	2009-NMSC-014, if 5, 	146 N.M. 	70, 206 P.3d 579
15 	(internal quotation marks and citation omitted). We have often explained a police
1 Whether and at what point Wilson may have seized Defendant in this
encounter, given the limited facts before us, is unclear. The parties agreed in
contesting Defendant 's motion to suppress that Defendant had been seized as a result
of a traffic stop, and they contested only the grounds for the stop. The parties
likewise have not addressed on appeal whether and when a seizure was made, and
we give the questions no further attention. See, 	e.g., State v. Garnenez, 20 l 5-
NMCA-022, ,r 15, 344 P.3d 1054 ("We will not address arguments on appeal that
were not raised in the brief in chief and have not been properly developed for
review.").
7

1 officer may detain an individual in investigating potential criminal activity where
2 the officer has formed a reasonable suspicion the individual "is breaking, or has
3 broken, the law." Id. ,I 8 (internal quotation marks and citation omitted). Reasonable
4 suspicion must arise from "specific articulable facts," along with any "rational
5 inferences that may be drawn from those facts." Contreras, 2003-NMCA-129, il 5
6 (internal quotation marks and citation omitted).
7 {13} 	Our Supreme Court has provided specific guidance in evaluating whether
8 reasonable suspicion may arise based on purportedly evasive driving behavior near
9 a DWI checkpoint. See generally State v. Anaya, 2009-NMSC-043, ilil 11-18, 147
10 N.M. 100,217 P.3d 586. A legal tum in the vicinity of the checkpoint, for example,
11 	will not typically give rise to reasonable suspicion. Id. ,I 16. As in all cases, however,
12 	an officer need not have observed illegal activity to develop reasonable suspicion.
13 	Id. ,I 12. A legal tum observed in combination with other circumstances may well
14 	support 	a 	reasonable 	suspicion 	of 	criminal 	activity-particularly 	where 	the
15 	circumstances suggest the tum is made for the purpose of evading the checkpoint.
16 Id. 	ilil 15-16. 	Anaya explained that various 	considerations may be relevant in
17 	discerning the driver's purpose for engaging in certain observed activity near a
18 	checkpoint. Whether the driver is on notice that the checkpoint is looming is clearly
19 	relevant in making the determination. Id. ,I 16. Thus, questions such as whether the
20 	driver "was in a position to observe police emergency lights" emanating from the
8

1 checkpoint and whether the 	driver could have 	observed signs announcmg the
2 checkpoint may aid in evaluating the purpose underlying the driver's behavior.
3 Id. ,I 18. Other considerations, such as the time of day, the location of the activity
4 and its proximity to the checkpoint, the nature of the road, and the typicality of the
5 conduct observed may also inform the evaluation. Id. ,I 17. Evaluation of these and
6 any other relevant circumstances should guide the determination of whether an
7 officer may reasonably believe specific driving behavior constitutes an attempt to
8 evade a checkpoint, which in tum may support a reasonable suspicion the driver is
9 driving while intoxicated. Id. ,I 16.
10 	{14} 	The district court's findings and associated permissible inferences support a
11 	determination of reasonable suspicion here. The district court noted the vehicle had
12 	traveled on Camino Real Road past the intersection of Dona Ana School Road in the
13 	direction of the checkpoint. Before arriving at the checkpoint, the district court
14 	found, the vehicle paused on the shoulder for that period of time notable to Wilson
15 	before making its U-tum. Neither of those findings were disputed, and we conclude
16 	both were supported by substantial evidence. The district court further found that
17 	after making the U-tum, the vehicle accelerated away from the checkpoint and must
18 	have maintained "an accelerated speed" as Wilson pursued, so as to maintain its
19 	distance ahead. While Defendant questions the basis for this latter finding, the
20 	district court was entitled to credit Wilson' s observations, and we find no reason to
9

1 reweigh Wilson's testimony here. See, e.g. , State v. Martinez, 2018-NMSC-007,
2 ,r 15, 410 P.3d 186 (deferring to district court' s implicit acceptance of testifying
3 officer's perceptions). Were we to end the analysis there, as Defendant appears to
4 do, whether these findings alone-the location of the tum , the pause, the acceleration
5 away 	from 	the 	checkpoint-supported 	the 	requisite 	reasonable 	suspicion 	is
6 debatable. See Anaya, 2009-NMSC-043 ,r,r 13 , 16 (suggesting legal U-tum made in
7 view of checkpoint may require additional circumstances to support reasonable
8 suspicion).
9 {IS} 	Yet the vehicle's progress past the Dona Ana School Road intersection and its
10 	roadside pause, when viewed in conjunction with the testimony regarding the
11 	checkpoint's visibility, the daylight remaining, the absence 	of any intervening
12 	traffic, and the vehicle ' s distance from the checkpoint, support inferences that the
13 	driver was aware of the checkpoint and tried to evade it. See id. 	,r 18 (" [The
14 	d]efendant was in a position to observe police emergency lights and other lights
15 	illuminating the checkpoint."). In addition, Wilson's testimony regarding traffic
16 patterns that evening suggested the U-tum and subsequent tum onto Dona Ana
17 School Road were abnormal. That abnormality likewise supported inferences that
18 	the driver was aware of the checkpoint and sought to evade it. See id. 	("[The
19 	d]efendant then proceeded in the opposite direction of travel, which was inconsistent
20 with 	typical 	driving 	patterns 	given 	the 	location 	of the 	highway." ). 	Wilson' s
10

1 testimony regarding the difficulty he had in tracking down the vehicle after he left
2 the checkpoint only served to bolster the inference that the driver was engaging in
3 evasive behavior. Under the totality of these circumstances, we conclude that Wilson
4 had reasonable suspicion that the driver of the maroon vehicle was driving while
5 intoxicated. See id. ,I 16.
6 {16} 	Despite the support for those inferences, Defendant makes much of the fact
7 that Wilson lost sight of the vehicle and eventually resorted to his best guess as to
8 where to head next when he reached the intersection of Dona Ana Road and Thorpe
9 Road. When Wilson later came across Defendant standing next to a maroon vehicle
10 	in the Thorpe Road driveway, Defendant contends, Wilson could not possibly have
11 	had the requisite individualized suspicion with respect to Defendant to support a
12 	detention. No doubt an "unsupported intuition" regarding an individual falls short of
13 	the "particularized suspicion" necessary to subject the individual to an investigative
14 	detention. Jason L., 2000-NMSC-018, ,I 20. Particularized suspicion must be a
15 	suspicion based on all the circumstances known to the officer that the "particular
16 	individual" detained is breaking or has broken the law, as distinct from a more
17 generalized suspicion untethered to the individual. See id. Officers, however, need
18 	not limit themselves to their direct observations in developing suspicions, and they
19 	need not "exclude all possible innocent explanations of the facts and circumstances"
20 	they observe. State v. Candelaria, 2011-NMCA-001, ,I 14, 149 N.M. 125,245 P.3d
11

1 69 (internal quotation marks and citation omitted); see State v. 	Alderete, 2011-
2 NMCA-055, ,r 15, 149 N.M. 799, 255 P.3d 377. Instead, they may rely on their own
3 experiences and specialized training to draw inferences and make deductions from
4 the totality of information available to them-inferences and deductions that may
5 well elude the untrained observer. See Alderete, 2011-NMCA-055, ,r 15; State v.
6 Maez, 2009-NMCA-108, ,r 23, 147 N.M. 91,217 P.3d 104.
7 {17} 	Various 	facts 	and 	inferences 	supported 	Wilson's 	susp1c10n 	regarding
8 Defendant here. Wilson testified about the lack of traffic at the checkpoint. His
9 ability to observe the vehicle and its route of travel at a distance, despite the vehicle's
10 	substantial head start and apparently evasive behavior, reinforced the fact that there
11 	were few cars on the road to impede his pursuit or view that evening. That suggested
12 the potential universe of suspects was small, as did the short length of the time that
13 	Wilson lost contact with the vehicle. Cf Commonwealth v. Bostock, 880 N.E.2d 759,
14 	764 (Mass. 2008) (finding reasonable suspicion existed where the defendant was
15 	found in the vicinity 	of the alleged crimes within minutes 	of the crimes, the
16 	defendant matched the description given by witnesses, and upon canvass of the area
17 no one else matching the description was found); State v. Lovato, 1991-NMCA-083,
18 	,r 11, 112 N .M. 51 7, 81 7 P .2d 251 (finding reasonable suspicion where "the incident
19 	involving the reported shooting occurred around midnight, the car occupied by
20 	defendants met the general description radioed by the police dispatcher, and there
12

1 was no other vehicular traffic in the area"). And Defendant's maroon vehicle in the
2 driveway, close in time and place to the pursuit here, placed him comfortably within
3 that small population of suspects, strengthening the notion that Wilson's suspicion
4 was sufficiently particularized. Cf United States v. Mosley, 878 F.3d 246, 252 (8th
5 Cir. 2017) (concluding that, given "the close temporal and physical proximity of the
6 [vehicle] to the crime, the totality of the circumstances indicates that reasonable
7 suspicion 	supported the 	vehicle 	stop 	and 	rendered 	it 	constitutional" 	(internal
8 quotation marks and citation omitted)). The district court, thus, was free to credit
9 Wilson's testimony that the maroon vehicle he spotted on Thorpe Road was "the
10 	same maroon vehicle" he had pursued from the checkpoint.
11 	{18} 	Were the brief loss of visual contact by the pursuing officer in this case
12 	sufficient to eliminate reasonable suspicion, as Defendant suggests, this might
13 	condone a constitutional test not only inconsistent with our prior precedent but also
14 	dismissive of the significant risk that fleeing drunk drivers pose to the public. We
15 	long have held that "in determining whether the totality of circumstances gave [the
16 	officer] a reasonable suspicion to stop [the d] efendant, we must balance the possible
17 threat of drunk driving to the safety of the public with [the d]efendant's right to be
18 	free 	from unreasonable 	seizure." 	Contreras , 2003-NMCA-129, ,r 13. 	We have
19 	repeatedly acknowledged the "compelling public interest" in eliminating drunk
20 	driving and its deadly consequences. State v. Simpson, 2016-NMCA-070, ,r 24, 388
13

1 P.3d 277 (internal quotation marks and citation omitted); State v. Nance, 2011-
2 NMCA-048, ,r 26, 149 N.M. 644,253 P.3d 934; Contreras, 2003-NMCA-129, ,r 14.
3 Where, as here, a driver appears to be deliberately evading a DWI checkpoint, giving
4 rise to reasonable suspicion of DWI, and the driver then proceeds to speed away
5 from that checkpoint, posing a substantial danger to others, "the exigency of the
6 possible threat to public safety that a drunk driver poses ... and the minimal
7 intrusion 	of a brief investigatory stop tip the balance in favor 	of the stop[,]"
8 notwithstanding that the pursuing officer lost sight of the fleeing vehicle for a brief
9 period. See Contreras, 2003-NMCA-129, ,r 21.
10 	{19} 	Given the observations Wilson made at the checkpoint and as he pursued the
11 	vehicle, as well as the reasonable inferences he drew under the circumstances, we
12 	conclude he had developed reasonable suspicion of DWI and evading an officer and
13 	those 	suspicions 	were 	sufficiently 	particularized 	with 	respect 	to 	Defendant.
14 	Defendant's detention was therefore reasonable, and the district court did not err in
15 	denying Defendant's motion to suppress.
16 	II.
17
18 	{20}
The District Court Did Not Err in Compelling Defendant to Produce the
State's Video
Turning to the issue of the return of the State's video, Defendant questions the
19 	basis for the district court's order compelling its production and the associated denial
20 	of Defendant's motion for a new trial. Neither our Rules of Criminal Procedure nor
21 	our Rules of Professional Conduct, Defendant observes, provide clear guidance for
14

1 dealing with the State 's loss of its copy of the video here. Defendant contends that
2 in the absence of clear guidance no legal principle should require a defendant to
3 provide the State with evidence harmful to the defendant's case.
4 	{21} 	We review discovery rulings for abuse of discretion. See State v. Ortiz, 2009-
5 NMCA-092, ,r 24, 146 N.M. 873, 215 P.3d 811. Abuse of discretion occurs when
6 "the ruling is clearly against the logic and effect of the facts and circumstances of
7 the case." See State v. Layne, 2008-NMCA-103, ,r 6, 144 N.M. 574, 189 P.3d 707
8 (internal quotation marks and citation omitted). We will determine that an abuse of
9 discretion has occurred only where we can conclude the ruling is "clearly untenable
10 	or not justified by reason." Id. (internal quotation marks and citation omitted). We
11 	apply the same standard of review to the district court's denial of Defendant's motion
12 	for new trial. See State v. Guerra, 2012-NMSC-027, ,r 18 ,2 84 P.3d 1076.
13 	{22} 	The district court determined that while counsel's refusal to produce the video
14 "arguably [was] not violative of the rules of discovery," it "[did] run afoul of the
15 	spirit, if not the letter, of Rule 16-304(A) [NMRA] of the Rules of Professional
16 	Conduct" and "serve[d] to undermine the truth-finding function of a trial[.]" Rule
17 	l 6-304(A) directs that a "lawyer shall not ... unlawfully obstruct another party's
18 	access to evidence or unlawfully alter, destroy, or conceal a document or other
19 material having potential evidentiary value[.]" The rule tells us nothing more,
20 however, about what might constitute "un lawful" obstruction or concealment, or
15

1 whether defense counsel ' s failure to voluntarily return the video here might have
2 	come 	within 	the 	prohibition. 	Evaluation 	of the 	scope 	of counsel ' s obligation
3 requires, instead, examination of our basic rules governing discovery and procedure.
4 	Cf In re Estrada, 2006-NMSC-047, ~ 32, 140 N.M. 492, 143 P.3d 731 (per curiam)
5 (noting that discovery rules are designed to ensure "disclos[ ure] 	to the fullest
6 practicable extent" and counsel ' s failure to comply with these rules may rise to the
7 level of violating the Rules of Professional Conduct (internal quotation marks and
8 citation omitted)).
9 	{23} 	No one disputes that our discovery rules for criminal cases generally require
10 only that a defendant disclose to the State the evidence he "intends to introduce . . . at
11 	the trial." Rule 5-502(A)(l) NMRA. Whether a district court may compel disclosure
12 	of material not explicitly covered by the rules, however, is a different question, and
13 	one the rules illuminate further. Rule 5-502, for example, specifies a variety of
14 	material for which discovery is not authorized, including reports and documents
15 	created by the defense in connection with the case, as well as statements the
16 	defendant has made to his agents or attorney s. See Rule 5-502(C). Evidence initially
17 produced by the State and unmodified by the defendant is absent from the list,
18 	suggesting it is not subject to the same absolute prohibition. Rule 5-lOl(B) NMRA
19 	adds that our criminal procedure rules are to "be construed to secure simplicity in
20 	procedure, fairness in administration and the elimination of unjustifiable expense
16

1 and delay." That basic governing principle suggests a district court retains some
2 flexibility in crafting solutions for situations not expressly contemplated by the rules.
3 See Pina 	v. Espinosa, 2001-NMCA-055, 	if 28 , 	130 N.M. 	661, 	29 P.3d 	1062
4 (providing the same in the context of the Rules of Civil Procedure); cf 	State v. Le
5 Mier, 2017-NMSC-017, ,r 18 , 394 P.3d 959. (" [T]rial courts shoulder the significant
6 and important responsibility of ensuring the efficient administration of justice in the
7 matters over which they preside[.]").
8 {24} 	Defendant makes no reference to these provisions; he instead suggests that a
9 defendant should never be required to tum over "harmful" evidence to the State in
10 the absence of an explicit disclosure requirement. Our Supreme Court, however, has
11 	long held that the Rules of Criminal Procedure "provide for reciprocal discovery
12 rights and are intended to provide ample opportunity for investigation of facts." State
13 	v. Stills, 1998-NMSC-009, ,r 52, 125 N.M. 66, 957 P.2d 51 (internal quotation marks
14 	and citation omitted); see also United States v. Nixon, 418 U.S. 683 , 709 (1974)
15 	("The need to develop all relevant facts in the adversary system is both fundamental
16 	and comprehensive."). And while this opportunity for investigation will yield to
17 various privileges and protections, Defendant here has identified no potentially
18 	applicable protections whatsoever. See Albuquerque Rape Crisis Ctr. v. Blackmer,
19 	2005-NMSC-032, ,r 18 , 138 N.M. 398, 120 P.3d 820 (recognizing "'the ancient
20 proposition of law' that 'the public has a right to every man' s evidence, except for
17

1 those persons protected by a constitutional, common-law, or statutory privilege "'
2 ( omission omitted) (quoting Nixon, 418 U.S. at 709)).
3 	{25} 	While we ha ve no obligation to guess at what Defendant's arguments might
4 be, we observe that Defendant' s reproduction of the State' s video in this case does
5 not appear to implicate Defendant' s rights or privileges. See Elane Photography,
6 LLCv . Willo c k, 2013-NMSC-040, ,r 70, 309 P.3d 53 ("We will not ... guess at what
7 a part y' s arguments might be." (alteration, internal quotation marks, and citation
8 omitted)). Indeed, other jurisdictions facing the same situation ha ve concluded that
9 a 	defendant 	is 	required 	to 	return 	video 	evidence 	initially 	disclosed 	by 	the
10 	government. 	See 	Commonwealth 	v. 	Tahlil, 94 N.E.3d 840, 842 (Mass. 2018)
11 	(holding that the trial court erred in not ordering the defendant to return video
12 	originally disclosed by the prosecution); Adams v. Stat e, 969 S.W.2d 106, 114 (Te x.
13 	Ct. App. 1998) (holding that the district court did not err in compelling the defendant
14 	to return videotape of field sobriety test after the state lost original).
15 	{26} 	These courts have determined that production of such evidence does not
16 	implicate a defendant's right to be free from self-incrimination or the attorney-client
17 	or work product privileges. See, e .g. , Tahlil, 94 N.E.3d at 842 ("Providing a copy of
18 	the DVD to the [prosecution] .. . would not be an incriminating admission[.] ... It
19 	would merely be the act of the defendant returning to the [prosecution] a copy of
20 	something that the [prosecution] provided to him in the first place."); Adams, 969
18

1 S.W.2d at 114 (rejecting "[t]he notion that information which is tendered as a result
2 	of court ordered or statutorily mandated discovery, can be converted into privileged
3 information, though it has not been altered since tendering, enhanced by fruits of an
4 attorney's labor since tendering, or added to with communicative actions after
5 tendering"). Instead, these courts have concluded that the video evidence initially
6 developed and produced by the government was returnable, largely because it was
7 the government's evidence to begin with. See, e.g., Adams, 969 S.W.2d at 114 ("The
8 tape is a recording of an event made by the [sJtate and disclosed to the defense as
9 part of statutory pretrial discovery."); see also Tahlil, 94 N.E.3d at 842 n.3 ("[I]t is
10 	exactly this point-that the evidence was once in the [prosecutor's] possession, and
11 	that the [prosecutor] gave it to the defendant-that is relevant and dispositive.");
12 	accord United States v. Province, 45 M.J. 359, 363 (C.A.A.F. 1996) ("[H]ad the
13 	[g]overnment asked the defense for a copy of th[ e] document, alleging that their
14 	copy had been lost or destroyed, then defense counsel would have been obligated to
15 	tum [it] over[.]").
16 	{27} 	We find these cases persuasive, and they guide our analysis here. The video
17 	at issue was the 	State's evidence, 	produced in compliance with its discovery
18 	obligations. Because the video originated with the State and remained unaltered by
19 the defense, it appears no constitutional, statutory, or common law prohibition on
20 	disclosure applied. In the absence of an identified prohibition or protection, the
19

1 district court was entitled to resolve the dispute with an eye toward promoting
2 "fairness 	in 	administration 	and 	the 	elimination 	of unjustifiable ... delay" 	as
3 contemplated by the rules. See Rule 5-101 (B). In short, fairness, expediency, and the
4 absence of an identified prohibition or protection all counseled in favor of production
5 here, regardless whether Rule 16-304(A) required it. Cf State v. 	Wasson, 	1998-
6 NMCA-087, ,r 16, 125 N.M. 656, 964 P.2d 820 ("[W]e may affirm the district
7 court's order on grounds not relied upon by the district court if those grounds do not
8 require us to look beyond the factual allegations that were raised and considered
9 below."). We thus cannot say that the district court erred in compelling Defendant
10 	to return to the State a copy of the video the State had initially provided, and as a
11 	result, we affirm the district court 's denial of Defendant 's motion for a new trial.
12 	See, e.g., State v. 	Stephens, 	1982-NMSC-1 28, if 15 , 99 N.M. 32, 653 P.2d 863
13 	(concluding new trial was unwarranted where no error was identified).
14 	III.
15
16 	{28}
No Conflict Arose as a Result of the District Court's Order Compelling
Production
Defendant argues that his compelled production of the video created a conflict
17 on the ground that defense counsel ' s duty as an officer of the court had, at that point,
18 	triumphed over her duty as an advocate for Defendant. Defendant maintains that he
19 	was entitled to counsel having undivided loyalty and, thus, the district court's failure
20 	to allow counsel to withdraw was error.
20

1 {29} 	Claims of conflict of interest and the related question of whether a defendant
2 is entitled to any presumption of prejudice as a result of a conflict are reviewed de
3 nov o. See State v. Vincent, 2005-NMCA-064, ,I 4, 137 N.M. 462, 112 P.3d 1119. A
4 presumption is applicable only where the record reveals "an actual, active conflict
5 that adversely affects counsel's trial performance[.]" Id. We have long recognized
6 the Sixth Amendment guarantees a defendant the right to counsel of undivided
7 	lo yalty, free from conflicts of interest. See State v. Santillanes, 1990-NMCA-035,
8 ,I 1, 	109 N .M. 	781 , 790 P .2d 1062. While the typical conflict arises in cases
9 involving multiple representation, a conflict may also arise in any case where "the
10 	interests of the client and the attorney diverge." See State v. Martinez, 2001-NMCA-
11 	059, ,I 25, 130 N.M. 744, 31 P.3d 1018. That proposition is restated slightly in our
12 	Rules of Professional Conduct, which direct that "a lawyer shall not represent a
13 	client if the representation [of that client may be] ... materially limited by the
14 	lawyer's responsibilities to ... a third person or by a personal interest of the lawyer."
15 	Rule 16-107(A)(2) NNIRA.
16 	{30 } 	We have previously found vanous considerations to 	be relevant to 	our
17 	determination of whether a defendant can establish the requisite divergence of
18 	interest or material limitation in his counsel's representation. Where a lawyer is
19 	implicated in the same criminal enterprise as the defendant, for example, we have
20 noted a conflict will arise because the "lawyer's need for self-preservation will trump
21

1 the duties of representation owed to the client." Martinez, 2001-NMCA-059, ,-r 25 .
2 We also have concluded representation may be impermissibly limited and a conflict
3 may arise where counsel would have pursued "some plausible defense" strategy but
4 avoided it because it would have been "damaging to another's interest." Santillanes,
5 	1990-NMCA-035, ,-r 7; see also State v. Sosa, 1997-NMSC-032, ,-r 22, 123 N.M. 564,
6 943 P.2d 1017 (" [The defendant's] fail[ure] to prove that [counsel] . .. was forced
7 to abandon the defenses 	of diminished capacity or duress in order to protect
8 [another] ... [was] not sufficient to establish an actual conflict of interest.").
9 {31} 	Defendant here does not rely on these principles. He instead suggests the
10 	district 	court's 	order 	compelling 	production 	of the 	video--and 	the 	ensuing
11 	possibility of contempt for failure to comply- 	impermissibly limited his counsel 's
12 	loyalt y, as his counsel was faced with the unpalatable choice between contempt and
13 	weakening her client's case. New Mexico 	courts, however, as 	well 	as 	courts
14 	elsewhere, have recognized the lawyer 's duties to the client are often, and properly,
15 	circumscribed by the lawyer 's duties to the court and the administration of justice.
16 	S ee, e .g. , In re Howes , 1997-NMSC-024, ,-r 20, 123 N.M. 311, 940 P.2d 159 ("[In]
17 the end, each member of the bar is an officer of the court. His or her first duty is not
18 	to the client or the senior partner, but to the administration of justice." (internal
19 	quotation marks and citation omitted)); see also State v. Kruchten, 417 P.2d 510,
20 	515 (Ariz. 1966) ("The duty of an attorney to a client, whether in a private or
22

1 criminal proceeding, is subordinate to his responsibility for the due and proper
2 administration of justice."); Commonwealth v. Holliday, 882 N.E.2d 309, 320-21
3 (Mass. 2008) ("[A] lawyer's duty to advance the interests of his client are properly
4 limited by his duty to comply with court rules."). Put another way, failure to comply
5 with obligations to the court constitutes not the "zealous advocacy" our adversarial
6 system requires, but violates "professional obligations to the system of justice itself."
7 Estrada, 2006-NMSC-047, ii 32. Compliance with these obligations, particularly in
8 the absence of error by the court, genera ll y gives rise to no conflict. See, 	e.g.,
9 Holliday, 882 N.E.2d at 320-21; cf Nix v. Whiteside, 475 U.S. 157, 176 (1986)
10 	(highlighting the "problems" and "volumes of litigation" that might be "spawned"
11 	by any rule recognizing a conflict between duty of loyalty to the client and ethical
12 	obligations to the court).
13 	{32} 	We already have concluded here that the district court did not abuse its
14 	discretion when it ordered Defendant to return the video provided by the State.
15 	Counsel's duty to comply with that order thus presented no conflict, and Defendant
16 	has 	not 	established 	any 	"actual, 	active 	conflict," 	impairing 	his 	counsel's
17 performance at trial. See Martinez, 2001-NMCA-059, ii 24. As a result, we cannot
18 	conclude the district court erred in denying defense counsel's motion to withdraw.
23

1 CONCLUSION
2 	{33} 	We affirm the district court's denials of Defendant's motion to suppress,
3 Defendant 's motion for a new trial, and defense counsel's motion to withdraw.
4 	{34} 	IT IS SO ORDERED.
5 	~ttfbL6 	JEN 	~TTREP,Judge
7 WE CONCUR:
8 ----I-I-...L.ILl.~----11-----Y-~'--'-"Jl'-11£.1"'--ft----
9 	JU
10 	~ 	·-/~
11 	IlkRY M. BOHNHOF,Judge
24