March 17, 2022- State of New Mexico v. Antonio M., No. A-1-CA-39709

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: March 17, 2022	3
No. A-1-CA-39709	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
ANTONIO M.,	8
Child-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	10
Grace B. Duran, District Judge	11
Hector H. Balderas, Attorney General	12
Santa Fe, NM	13
Meryl E. Francolini, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Harrison & Hart, LLC	17
Nicholas T. Hart	18
Albuquerque, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 3/17/2022 11:34 AM

OPINION	1
HENDERSON, Judge.	2
{1} 	Following an adjudicatory hearing, a jury found Antonio M. (Child or A.M.)	3
committed felony murder, attempt to commit armed robbery, conspiracy to commit	4
armed robbery, child abuse, and aggravated assault by the use of a deadly weapon.	5
On appeal, Child argues (1) the State failed to bring him to an adjudicatory hearing	6
in a timely manner; (2) the witness identifications of Child during the adjudicatory	7
hearing were unnecessarily suggestive; (3) the district court abused its discretion by	8
admitting evidence regarding “rumors” that Child and two others planned to rob	9
Fabian Lopez (Victim); (4) the State failed to present sufficient evidence to sustain	10
Child’s delinquency adjudications; and (5) the cumulative impact of these errors	11
warrant the reversal of his delinquency adjudications.	12
{2} 	We hold that the delays before the adjudicatory hearing did not require the	13
district court to dismiss the petition and do not require this Court to vacate Child’s	14
delinquency adjudications. Nevertheless, because we conclude that the in-court	15
identifications were impermissively suggestive, we reverse and remand for a new	16
adjudicatory hearing. We address Child’s remaining arguments to the extent	17
necessary to avoid error in retrial and to ensure that retrial does not violate double	18
jeopardy protections.	19

2
BACKGROUND	1
I. 	Factual Background	2
{3} 	On the night of August 4, 2020, Victim drove with his girlfriend (Girlfriend)	3
and their infant son to Frenger Park in Las Cruces, New Mexico. Victim parked his	4
vehicle at Frenger Park, and not long after, a young man walked up to the driver’s	5
side of the car and asked Victim if he could get in. After getting into the front	6
passenger seat of Victim’s car, the young man, later identified as M.M., was heard	7
counting and apologizing to Victim. M.M. then stepped out of the vehicle, took out	8
a gun, and pointed it at Victim, telling him, “Give me what you got.” Victim held	9
his hands up and responded to M.M., “I don’t have anything. You already have	10
whatever you wanted.” While pointing a gun at Victim, two other young males	11
walked up to the driver’s side of the vehicle and also pointed guns at Victim. M.M.	12
shot and killed Victim as he sat in the driver’s seat with his hands up.	13
{4} 	The medical investigator determined that Victim died from a gunshot wound	14
to the chest that entered his body from the right side and exited on his left side.	15
{5} 	Child, along with two other individuals, M.M. and A.C., were later arrested	16
and charged with the robbery and killing of Victim.	17
II. 	Procedural Background	18
{6} 	On August 17, 2020, the State filed a delinquency petition against Child,	19
alleging that he committed first degree felony murder for his involvement in the	20

3
robbery and killing of Victim. On August 19, 2020, the district court ordered that	1
Child be detained pending further proceedings. The original date for Child’s	2
adjudicatory hearing was set for September 18, 2020.	3
{7} 	On 	September 	4, 	2020, 	the 	State 	filed 	a 	motion 	to 	continue 	Child’s	4
adjudicatory hearing for sixty days. The State asserted that the lead investigator on	5
the case, who would provide crucial testimony to the State’s case, would be	6
unavailable for the original setting. The State also cited a pending autopsy report and	7
a social media warrant as additional reasons to continue the hearing. Child opposed	8
the State’s motion; however, the district court granted the motion to continue and	9
rescheduled Child’s adjudicatory hearing for October 16, 2020.	10
{8} 	The State filed an amended delinquency petition on September 9, 2020,	11
alleging Child committed five additional delinquent acts, including armed robbery,	12
conspiracy to commit armed robbery, abuse of a child, and two counts of aggravated	13
assault with a deadly weapon.	14
{9} 	On September 29, 2020, the State filed a second motion to continue Child’s	15
adjudicatory hearing for thirty days, because the autopsy report from the New	16
Mexico Office of the Medical Investigator (OMI), a material piece of the State’s	17
case, was still pending. Additionally, the State noted general societal delays caused	18
by the COVID-19 pandemic as another reason to continue Child’s hearing. The	19

4
district court again granted the State’s motion over the objection of Child and	1
rescheduled the adjudicatory hearing for November 13, 2020.	2
{10} 	On November 2, 2020, the State filed its third motion to continue Child’s	3
adjudication for thirty days, explaining the COVID-19 pandemic “has caused	4
[e]xceptional [c]ircumstances . . . out of the State’s control” and requesting live	5
testimony that was, at the time, restricted due to COVID-19 infection concerns.	6
Child again opposed the motion; however, the district court granted the State’s	7
motion to continue citing “[e]xceptional [c]ircumstances caused by the current	8
COVID-19 [p]andemic that would jeopardize the health of all parties involved,” and	9
extended the deadline to hold Child’s adjudicatory hearing to December 13, 2020.	10
{11} 	On November 13, 2020, our Supreme Court issued Order No. 20-8500-039,1
11
which suspended all in-person civil and criminal trials set to begin on or after	12
November 16, 2020, until at least January 1, 2021. Consequently, the district court	13
informed the parties via e-mail on November 24, 2020, that it had sua sponte vacated	14
the December trial date. However, the district court did not enter an order extending	15
the time limit to hold Child’s adjudicatory hearing and the State did not file another	16
motion asking the district court to do so. On November 29, 2020, Child filed a	17
motion seeking release from detention based on the State’s failure to bring him to an	18
1 See 	Supreme 	Court 	Order 	No. 	20-8500-039 	(Nov. 	13, 	2020),
https://www.nmcourts.gov/wp-content/uploads/2020/12/Combined-Order-No_-20-
8500-039-Amending-PHE-Protocols-Nos-1-2-and-3.pdf

5
adjudicatory hearing within thirty days. The district court denied the motion	1
following a hearing on December 10, 2020.	2
{12} 	On January 3, 2021, Child filed a motion to dismiss the petition with	3
prejudice. Child alleged that the State had failed to comply with the Children’s Court	4
rules of procedure and that “the failure to hold an adjudicatory hearing within the	5
designated time limits required a dismissal with prejudice.”2 Specifically, Child	6
argued that Rule 10-243(A) NMRA requires that an adjudicatory hearing be held	7
within thirty days, and that any extensions of this deadline cannot, according to Rule	8
10-243(D), exceed ninety days absent a showing of exceptional circumstances. Child	9
also asserted that under Rule 10-243(E), a motion to extend time limits must be filed	10
no later than ten days after the deadline has passed, and the State failed to file such	11
a motion before ten days after the December 13, 2020 deadline. The State opposed	12
the motion, citing the Supreme Court’s order suspending jury trials through January	13
2021, and the district court’s e-mail sua sponte vacating Child’s hearing, arguing	14
that the e-mail removed the necessity for the State to file a motion to continue. In its	15
response, the State also requested the court enter an order for an extension of time	16
nunc pro tunc, to the date the adjudicatory hearing was vacated.	17
2 Child also filed a motion for immediate release at the same time as his motion
to dismiss.

6
{13} 	The district court denied both of Child’s motions. The court referenced	1
Supreme Court Order No. 20-8500-039, noting it “imposed strict limitations on all	2
in-person judicial proceedings” and suspended all jury trials until January 1, 2021.	3
The court clarified that it vacated Child’s adjudicatory hearing on November 23,	4
2020, “to comply with the Supreme Court order, as well as with the [s]tate public	5
health order and the Judiciary’s Emergency Court Protocols.” The district court also	6
noted that “[t]he delay in this case is entirely due to the public health emergency.	7
These are exceptional circumstances that were out of the [c]ourt’s and the State’s	8
control and that justif[ies] an extension of time beyond [ninety] days pursuant to	9
Rule 10-243(D).” Last, the district court granted nunc pro tunc the extension of the	10
deadline to hold Child’s hearing from December 13, 2020 to February 26, 2021.	11
Ultimately, Child’s adjudicatory hearing was set for February 22, 2021.	12
III. 	Adjudicatory Hearing	13
{14} 	Girlfriend provided further details regarding the night Victim was killed. She	14
testified that while the two males were right outside the driver’s side window, she	15
was screaming that there was a baby in the vehicle. One of the young males was	16
holding a small compact revolver and the other was holding what looked like a rifle.	17
Girlfriend was unable to see the faces of the males on the driver’s side of the car, but	18
she was able to generally describe them. The male that was holding the rifle was	19
“medium in weight,” “medium complected,” and was 5 feet 5 inches or 5 feet 6	20

7
inches in height. The male who was holding the handgun was described as “skinny,”	1
“medium tan,” “probably the same height as the one on the passenger’s side,” and	2
he had “dreadlocks.” After two shots were fired at Victim, the first from the driver’s	3
side and the second from the passenger’s side, the three males waited a couple of	4
seconds and then ran off.	5
{15} 	Another witness, M.A., was at Frenger Park on the night of August 4, 2020.	6
M.A. testified that she was sitting in her pickup truck when she saw two young	7
males, one who was wearing a red hoodie, jump a fence near the park and pass “a	8
long object” to one another before walking away. Approximately thirty minutes	9
later, she saw a small vehicle pull up and park behind her, and the same two young	10
males from earlier reappeared and approached the vehicle. After they reached the	11
vehicle, it appeared that they were arguing with the occupants of the vehicle, and	12
M.A. testified that it was then that one of the males pulled out a gun and pointed it	13
at the driver. She saw the gun, drove off, and heard a gunshot.	14
{16} 	E.M. testified that he and another friend, Y.C., drove M.M., A.C., and Child	15
to Frenger Park “because they were going to do a drug trade.” E.M. further testified	16
that A.C. said something about them “hitting a lick” or committing robbery while at	17
the park. After E.M. dropped the three males off at the park, he and Y.C. went and	18
parked a few blocks away. A few minutes later Child came running to the vehicle in	19

8
a panic and said, “Some shit went down” and “they shot someone.” After all three	1
males returned to the vehicle, E.M. drove them to another friend’s, D.G.’s, house.	2
{17} 	Y.C. also offered testimony recounting a similar story as E.M. She assumed	3
that the three males were going to the park to buy “weed or Xanax” because “[t]hat	4
was what we were all mainly doing at the time.” Y.C. confirmed that Child came	5
running back to the car, panicking, and screaming, “He shot him.”	6
{18} 	D.G. confirmed that late on August 4, 2020, E.M., Y.C., M.M., A.C., and	7
Child came to her house. She testified that, upon their arrival, they were all “freaked	8
out” and she overheard one of them saying, “I think we hurt somebody.” D.G. further	9
testified that when they arrived, Child was wearing a dark hoodie, and A.C. was	10
wearing a red and black sweater. She also testified that, at the time, Child had “curls	11
or dreads or something, but he had blonde in his hair.” That night, she saw M.M.	12
with a gray handgun and A.C. with a black or brown shotgun.	13
{19} 	E.M., Y.C., and D.G. all testified that they only had brief interactions with	14
Child leading up to and following the night of August 4, 2020, when Victim was	15
killed. However, all three witnesses identified Child in court during the hearing.	16
{20} 	Detective Ricky Bardwell, the lead investigator on the case, testified that upon	17
canvassing the area surrounding the crime scene, he located pills leading away from	18
the vehicle. There were also pills and a pill bottle found in Victim’s vehicle.	19
Following his initial investigation at the crime scene, Detective Bardwell spoke to	20

9
Girlfriend and learned that Victim was communicating with someone via Snapchat	1
to coordinate the meeting at the park. Detective Bardwell then obtained photos of	2
this person, later identified as M.M., from Victim’s phone. Detective Bardwell used	3
these photos to put out a news release, and he obtained tips from the public that led	4
him to M.M. and A.C. After speaking with M.M., E.M., and D.G., he was able to	5
develop enough evidence to charge M.M., A.C., and Child in connection with the	6
death of Victim. The State also presented photos of M.M., A.C., and Child taken	7
during the course of Detective Bardwell’s investigation that illustrated how the three	8
males looked around the time of the killing. Detective Bardwell identified Child in	9
the photos and described him as having “dreads” with dark roots and blonde	10
highlighted tips that went down to his cheeks.	11
{21} 	The jury found that Child committed felony murder, contrary to NMSA 1978,	12
Section 30-2-1(A)(2) (1994) and NMSA 1978, Section 32A-2-3 (2019), attempt to	13
commit armed robbery, contrary to NMSA 1978, Section 30-16-2 (1973), NMSA	14
1978, Section 30-28-1 (1963) and Section 32A-2-3, conspiracy to commit armed	15
robbery, contrary to Section 30-16-2, NMSA 1978, Section 30-28-2 (1979) and	16
Section 32A-2-3, child abuse, contrary to NMSA 1978, Section 30-6-1(D) (2009)	17
and Section 32A-2-3, and aggravated assault by the use of a deadly weapon, contrary	18
to NMSA 1978, Section 30-3-2(A) (1963) and Section 32A-2-3. This appeal	19
followed.	20

10
DISCUSSION	1
I. 	Timeliness of Child’s Adjudicatory Hearing	2
{22} 	Child’s first argument is that the State’s failure to bring him to an adjudicatory	3
hearing in a timely manner pursuant to Rule 10-243 requires his delinquency	4
adjudications to be vacated and remanded with instructions to dismiss the petition	5
with prejudice. We are not persuaded.	6
{23} 	We review a district court’s interpretation of rules of procedure de novo. See	7
State v. Stephen F., 2006-NMSC-030, ¶ 7, 140 N.M. 24, 139 P.3d 184 (applying de	8
novo review to interpretation of children’s court rules). However, Child’s argument	9
involves extensions of time under the rules, based on timeliness and exceptional	10
circumstances. We review a district court’s decision to deny or grant a continuance	11
or extension under an abuse of discretion standard. See State v. Anthony L., 2019-	12
NMCA-003, ¶¶ 7, 16, 433 P.3d 347 (holding that the district court did not abuse its	13
discretion in granting an extension to commence a child’s adjudication under the	14
Children’s Code); see also Vigil v. Fogerson, 2006-NMCA-010, ¶¶ 54, 56, 138 N.M.	15
822, 126 P.3d 1186 (noting that we consider relief for exceptional circumstances to	16
be equitable relief, which we review for an abuse of discretion). “An abuse of	17
discretion occurs when the ruling is clearly untenable or not justified by reason.”	18
State v. Alejandro M., 2021-NMCA-013, ¶ 5, 485 P.3d 787 (internal quotation marks	19

11
and citation omitted). We conduct our review “in the light most favorable to the	1
district court’s decision.” Id.	2
{24} 	Rule 10-243 provides, in pertinent part:	3
A. 	Child 	in 	detention. 	If 	the 	child 	is 	in 	detention, 	the	4
adjudicatory hearing shall be commenced within thirty (30) days from	5
whichever of the following events occurs latest:	6
(1) 	the date the petition is served on the child;	7
. . . .	8
D. 	Extensions of time. For good cause shown, the time for	9
commencement of an adjudicatory hearing may be extended by the	10
children’s court, provided that the aggregate of all extensions granted	11
by the children’s court shall not exceed ninety (90) days, except upon a	12
showing of exceptional circumstances. An order granting an extension	13
shall be in writing and shall state the reasons supporting the extension.	14
An order extending time beyond the ninety (90)-day limit set forth in	15
this paragraph shall not rely on circumstances that were used to support	16
another extension.	17
E. 	Procedure for extensions of time. The party seeking an	18
extension of time shall file with the clerk of the children’s court a	19
motion 	for 	extension 	concisely stating the facts 	that 	support 	an	20
extension of time to commence the adjudicatory hearing. The motion	21
shall be filed within the applicable time limit prescribed by this rule,	22
except that it may be filed within ten (10) days after the expiration of	23
the applicable time limit if it is based on exceptional circumstances	24
beyond the control of the parties or trial court which justify the failure	25
to file the motion within the applicable time limit. . . .	26
F. 	Effect of noncompliance with time limits.	27
. . . .	28
(2) 	In the event the adjudicatory hearing of any person does	29
not commence within the time limits provided in this rule, including	30

12
any 	court-ordered 	extensions, 	the 	case 	shall 	be 	dismissed 	with	1
prejudice.	2
{25} 	Child first contends that the district court erred in granting the State’s motions	3
to continue because each continuance was based upon the same reason as prior	4
extension request, in violation of Rule 10-243(D). Child next contends that the	5
district court violated Rule 10-243(E) when it granted the fourth extension of time	6
because it did not require the State to demonstrate exceptional circumstances even	7
though the extension resulted in the adjudicatory hearing being scheduled more than	8
ninety days after the State filed its amended petition. Child also argues that the	9
district court erred when it extended Child’s hearing for the fourth and fifth times	10
without the State filing a motion or requiring the State to show exceptional	11
circumstances as required by Rule 10-243(D), (E). Child’s fourth argument is that	12
even if the district court considered the State’s response to the Child’s motion to	13
dismiss as a request for an extension of time, it erred in granting this request because	14
it was filed outside of the time limit for doing so under Rule 10-234(E). Finally,	15
Child argues that the failure to bring him to an adjudicatory hearing in a timely	16
manner should have resulted in a dismissal of his case as a matter of policy.	17
A. 	Circumstances Supporting the First Three Extensions	18
{26} 	First, we address Child’s argument that the first three extensions the district	19
court granted the State were for the same reason, contrary to Rule 10-243(D). Upon	20
our review of the motions in the record, this is inaccurate. The State’s first motion	21

13
was based upon the unavailability of Detective Bardwell, who would provide	1
testimony necessary for the State’s case. The motion also noted that the autopsy	2
report and a social media warrant were both pending. The district court was well	3
within its discretion to grant this motion. See State v. Pruett, 1984-NMSC-021, ¶ 8,	4
100 N.M. 686, 675 P.2d 418 (“The grant or denial of a motion for continuance based	5
on absence of evidence rests in the sound discretion of the [district] court.”); see also	6
State v. Doe, 1977-NMCA-065, ¶¶ 6-11, 90 N.M. 568, 566 P.2d 117 (holding that	7
the absence of a witness, in part, was good cause for the continuance of a child’s	8
hearing).3
9
{27} 	In support of its second motion to continue, the State noted that the autopsy	10
was still pending and would not be available for another ninety days, according to	11
OMI. The State also acknowledged that the COVID-19 pandemic was causing	12
“delays in every aspect of our society.” The reasoning in the second motion to	13
continue, although similar, was not the same as the State’s first motion. Again, the	14
district court did not abuse its discretion in granting this motion. See Pruett, 1984-	15
NMSC-021, ¶ 8.	16
3 The State’s first motion to continue was filed prior to the filing of the
amended petition, on September 9, 2020. The rule triggering the time to commence
the adjudication, Rule 10-243(A)(1), may not require the amendment of the petition
to be considered in the analysis when determining whether the time limits for
adjudicatory hearings were followed; however, we have included it for a full
understanding of what occurred below.

14
{28} 	Finally, 	the 	district 	court 	granted 	the 	State’s 	third 	motion 	that 	noted	1
exceptional circumstances created by the COVID-19 pandemic, the increasing	2
COVID-19 cases in Doña Ana County at the time, and the State’s request for live	3
testimony. The State argued that it would “be at a disadvantage if it were to proceed	4
to trial without live testimony,” but also acknowledged the potential risks posed by	5
the COVID-19 pandemic that would “jeopardize the health of all parties involved”	6
if the court proceeded without a continuance. Rule 10-243(D) states that “the	7
aggregate of all extensions granted by the children’s court shall not exceed ninety	8
(90) days, except upon a showing of exceptional circumstances.” 4 The third	9
extension was not entirely the same as the other two motions as Child suggests. The	10
first motion relied on missing witnesses and evidence, the second motion explained	11
that the COVID-19 pandemic was generally causing delays, and the third motion	12
argued 	that 	live 	witness 	testimony 	was 	not 	feasible 	because 	of 	COVID-19	13
restrictions and risks. Moreover, this Court recently held that “the COVID-19	14
pandemic and the resulting precautionary measures were exceptional circumstances	15
warranting an extension of time.” Alejandro M., 2021-NMCA-013, ¶ 9; see also id.	16
¶ 8 (“COVID-19 is a rapidly evolving public health crisis of an extraordinary	17
magnitude.”). The same holds true here. Because the State showed different reasons	18
4 We do not determine whether Rule 10-243 only requires extensions that are
beyond the ninety-day limit set forth in section (D) be on new grounds.

15
and exceptional circumstances for the third continuance of Child’s adjudicatory	1
hearing, it met Rule 10-243(D)’s requirements and the district court, therefore, did	2
not abuse its discretion in granting this motion.	3
B. 	The Nunc Pro Tunc Fourth Extension	4
{29} 	Next, we address the entry of the extension of time nunc pro tunc. Supreme	5
Court Order No. 20-8500-039,5 dated November 13, 2020, suspended jury trials	6
until January 1, 2021. 	Because the district court sua sponte vacated Child’s	7
adjudicatory hearing based on our Supreme Court’s Order No. 20-8500-039, the	8
State did not need to file an additional motion for continuance under Rule 10-243(E)	9
and show exceptional circumstances. Nevertheless, the State, in its response to	10
Child’s motion to dismiss, requested that the district court enter a fourth order to	11
continue nunc pro tunc dated for the day the adjudicatory hearing was vacated.	12
{30} 	On January 13, 2021, the district court entered and granted the State’s final,	13
albeit unrequired, motion to continue nunc pro tunc. Child argues that the final	14
request to continue in the State’s response to Child’s motion dismiss, was not filed	15
within ten days of the expiration of the ninety-day time-to-adjudication period as set	16
forth by Rule 10-243(E). However, because the district court entered the motion	17
nunc pro tunc and dated it for November 24, 2020, the date Child’s hearing was	18
vacated, this argument also fails. See State v. Reyes-Arreola, 1999-NMCA-086,	19
5See Supreme Court Order No. 20-8500-039, supra note 1.

16
¶ 17, 127 N.M. 528, 984 P.2d 775 (“A nunc pro tunc order has reference to making	1
of an entry now, of something which was actually previously done, so as to have it	2
effective as of the earlier date.” (internal quotation marks and citation omitted)). This	3
date, November 24, 2020, was within the time confines required by Rule 10-243(E),	4
and thus, the filing cannot be considered to be in violation of the rule.	5
C. 	Exceptional Circumstances for the Fourth and Fifth Extensions of Time	6
Limits	7
{31} 	Child’s argument that the fourth extension (after Supreme Court Order No.	8
20-8500-039) and the fifth and final extension (after Child’s motion to dismiss) were	9
done in error because the State did not show exceptional circumstances fails because	10
the COVID-19 pandemic and the resulting precautionary measures have already	11
been determined to be exceptional circumstances. See Alejandro M., 2021-NMCA-	12
013, ¶ 9. This fact is bolstered by the record, which reflects that the State	13
demonstrated such circumstances by articulating that the COVID-19 pandemic was	14
a necessary reason for a continuance and included an exhibit of our Supreme Court’s	15
Order suspending jury trials until the beginning of 2021. See Anthony L., 2019-	16
NMCA-003, ¶ 16 (“Because there was good cause in the record, although not	17
memorialized in the district court’s order granting the extension of time limits, we	18
hold that the district court did not abuse its discretion in granting the [s]tate’s motion	19
for extension of time in which to commence [the c]hild’s adjudication.”). Therefore,	20

17
because there was no violation of Rule 10-243, we hold that the district court did not	1
abuse its discretion in extending Child’s hearing for the fourth or fifth and final time.	2
{32} 	The delays in Child’s adjudicatory hearing were unfortunate, but unavoidable.	3
However, they cannot be attributed to error on the part of the State or the district	4
court. See Rule 10-243(E). The COVID-19 pandemic has disrupted all facets of life,	5
and although there are important policy considerations to protect children’s liberty	6
interests by bringing them to adjudication as soon as possible, the pandemic has	7
created exceptional circumstances and delays far beyond the control of the judiciary.	8
For these reasons, we conclude the district court did not abuse its discretion in	9
granting any of the extensions of Child’s adjudicatory hearing.	10
II. 	In-Court Identification Procedures	11
{33} 	The State asked three witnesses at Child’s adjudication hearing to identify	12
Child as follows:	13
“Your Honor, I would like to ask [E.M.] if he can identify [A.M.]. But	14
I would like to ask if [A.M.] could take off his mask for the purpose of	15
identification so he can see his face.”	16
. . . .	17
“Your Honor, I would like to ask [Y.C.] if she could identify [A.M.].	18
Could I please ask [A.M.] to remove his mask just long enough for her	19
to see if she identifies him or not? . . . So please look at this young man.	20
Can you tell is this [A.M.] or not?”	21
. . . .	22
“Your Honor, I would like to ask if [D.G.] could identify [A.M.]. I	23
would like to ask if [A.M.] could briefly remove his mask to see if she	24

18
can identify him . . . Please look at this young man here and tell us if	1
this is [A.M.].”	2
{34} 	At the time of Child’s adjudicatory hearing, a Supreme Court Order No. 21-	3
8500-0036 was in place due to the COVID-19 pandemic that required everyone	4
present to wear a mask and limited the number of individuals in the courtroom. The	5
individuals present during the hearing included the judge, court personnel, jurors,	6
the witness, counsel, and Child. Child did not object to the State’s identification	7
procedures, the district court permitted Child to briefly remove his mask each time,	8
and, subsequently, the three witnesses positively identified Child.	9
{35} 	Child argues that these in-court identifications were unnecessarily suggestive	10
and violated his due process rights under both the United States and New Mexico	11
constitutions, and urges us to extend the recent standard set forth in State v. Martinez,	12
2021-NMSC-002, 	478 	P.3d 	880, 	for 	unnecessarily 	suggestive 	out-of-court	13
identification procedures to in-court identification procedures. We agree with Child	14
that his due process rights were violated under the United States Constitution;	15
however, as we explain, we decline to extend the new standard set forth in Martinez	16
to the facts of this case.	17
6 See 	Supreme 	Court 	Order 	No. 	21-8500-003 	(Feb. 	12, 	2021),
https://www.nmcourts.gov/wp-content/uploads/2021/02/Order-No.-21-8500-003-
Amending-PHE-Protocol-No.1-2-12-21-Combined.pdf.

19
A. 	Standard of Review	1
{36} 	The admission of identification evidence implicates a child’s right to due	2
process. State v. Ramirez, 2018-NMSC-003, ¶ 29, 409 P.3d 902. Appellate courts	3
review questions of suppression bearing on “important constitutional rights” de	4
novo. State v. Belanger, 2009-NMSC-025, ¶ 8, 146 N.M. 357, 210 P.3d 783 (internal	5
quotation marks and citation omitted); see also id. (“This appeal implicates . . . the	6
Fourteenth Amendment right to due process of law, including the right to a fair trial,	7
and therefore our review is de novo.”).	8
{37} 	However, Child did not object to the State’s in-court identification procedures	9
at his adjudicatory hearing. As a result, the parties agree we should review this issue	10
for plain error. Plain error review applies “to errors that affect substantial rights of	11
the accused and only applies to evidentiary matters.” State v. Dartez, 1998-NMCA-	12
009, ¶ 21, 124 N.M 455, 952 P.2d 450. Otherwise, the rule of fundamental error	13
applies. Id. To hold that either kind of error occurred, we “must be convinced that	14
admission of the testimony constituted an injustice that creates grave doubts	15
concerning the validity of the verdict.” Id. ¶ 22 (internal quotation marks and citation	16
omitted). “Further, in determining whether there has been plain error, we must	17
examine the alleged errors in the context of the testimony as a whole.” State v.	18
Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056 (alteration, omission, internal	19
quotation marks, and citation omitted).	20

20
B. 	The Manson and Martinez Standards Regarding Witness Identifications	1
{38} 	Because 	this 	appeal 	involves 	the 	interplay 	between 	the 	due 	process	2
protections afforded by United States and New Mexico Constitutions and the	3
different types of identification procedures, we first offer a brief explanation of the	4
legal principles in play. In Manson v. Brathwaite, 432 U.S. 98 (1977), the Supreme	5
Court of the United States set forth the federal due process standard for the	6
admissibility of pretrial eyewitness identifications. Id. at 99. Recently, in Martinez,	7
our Supreme Court rejected the Manson identification standard for the purposes of	8
the due process protections under the New Mexico Constitution. Martinez, 2021-	9
NMSC-002, ¶ 3. The question in this case, however, involves the procedure used for	10
an 	in-court 	identification 	of 	Child, 	and 	not 	out-of-court, 	“police-arranged	11
identification procedures.” Id.	12
{39} 	The State argues that “an in-court identification, which is independent of, and	13
not tainted by the extra-judicial identification is admissible.” State v. Clark, 1986-	14
NMCA-058, ¶ 40, 104 N.M. 434, 722 P.2d 685; see State v. Stampley, 1999-NMSC-	15
027, ¶¶ 31-32, 127 N.M. 426, 982 P.2d 477. We agree with Child that in these cases,	16
the 	issue 	was 	whether 	an 	in-court 	identification 	was 	tainted 	by 	a 	pretrial	17
identification, exposure to pre-identification media, or the reality that the defendant	18
was the only Black man in the room during the in-court identification. See Stampley,	19
1999-NMSC-027, ¶ 30; Clark, 1986-NMCA-058, ¶ 45. Those Courts did not address	20

21
whether a procedure used by the prosecutor, and permitted by the district court, to	1
obtain the in-court identifications were impermissibly suggestive.	2
{40} 	Our Supreme Court has applied the Manson principles to determine whether	3
in-court 	identification 	procedures 	violate 	due 	process 	under 	the 	Fourteenth	4
Amendment. See Ramirez, 2018-NMSC-003, ¶¶ 30-31. In Ramirez, the defendant	5
argued that media reports tainted in-court identifications and that his placement at	6
the defense table, his ethnicity, and his gender were overly suggestive. Id. ¶ 28. The	7
Court first observed that its “treatment of the issue presented by [the defendant] is	8
guided by Perry v. New Hampshire, 565 U.S. 228 (2012).” See Ramirez, 2018-	9
NMSC-003, ¶ 30. After considering the circumstances of Perry, the Ramirez Court	10
observed that Perry applied Manson “to determine whether due process requires	11
suppression of eyewitness identification.” Ramirez, 2018-NMSC-003, ¶¶ 30-31.	12
Under this analysis, the Ramirez Court rejected the defendant’s arguments because	13
(1) only law enforcement procedures—and not media or the common arrangement	14
of a courtroom—could be the source of unconstitutional tainted identifications; and	15
(2) other constitutional safeguards protected the defendant from “any fundamental	16
unfairness resulting from eyewitness identifications.” Id. ¶¶ 33-36.	17
{41} 	Because this case involves only a challenge to in-court identification, and not	18
an 	argument 	that 	out-of-court 	identification 	procedures 	tainted 	an 	in-court	19
identification, we first follow the approach set forth in Ramirez to evaluate whether	20

22
the in-court identification violated federal due process protections before turning to	1
Child’s assertion that the state Constitution provides additional protections under	2
Martinez.	3
C. 	The Fourteenth Amendment—Manson Standard	4
{42} 	Child contends that the procedures used by the State to obtain the in-court	5
identifications were suggestive and resulted in a high likelihood of irreparable	6
misidentification because “the procedures gave the witness only one result—to	7
identify Child[] who was already identified by the State.” Child further asserts that	8
because the procedures used gave the witnesses only one possibility to choose from,	9
and because the State “used procedures that rigged the system to indicate to the	10
witness that it wanted the witness to identify Child[], the risk of misidentification	11
was high.” He maintains that because it was established that each witness had limited	12
or brief interactions with Child prior to his adjudicatory hearing and the in-court	13
identification 	procedure 	used 	was 	“rigged,” 	these 	identifications 	cannot 	be	14
considered reliable. We agree.	15
{43} 	Ramirez and Manson set forth an approach to take in deciding if due process	16
requires suppression of eyewitness identifications. Ramirez, 2018-NMSC-003, ¶ 31.	17
The Manson test requires appellate courts to analyze “whether the procedure used	18
was so impermissibly suggestive as to give rise to a very substantial likelihood of	19
irreparable misidentification and whether, under the totality of the circumstances,	20

23
the identification was still reliable.” Martinez, 2021-NMSC-002, ¶ 28 (internal	1
quotation marks and citation omitted). As we noted, in Ramirez, our Supreme Court	2
rejected the defendant’s due process argument because law enforcement did not taint	3
the procedures and because other due process protections ameliorated any suggestive	4
procedures that occurred in the courtroom. 2018-NMSC-003, ¶¶ 33-36. Applying	5
those principles, a different outcome than in Ramirez is required in the present case.	6
{44} 	We agree with Child that the in-court identifications were unreliable, tainted	7
by the State’s suggestiveness while eliciting the identifications and other due process	8
protections did not provide an opportunity for Child to counteract the taint, and	9
resulted in a violation of his due process rights under the Fourteenth Amendment.	10
We hold that under the circumstances of this case, as set forth below, the State’s acts	11
triggered a due process concern when eyewitness evidence was procured in-court	12
under unnecessarily suggestive circumstances. See Martinez, 2021-NMSC-002, ¶ 28	13
(considering 	under 	the 	federal 	standard, 	“whether, 	under 	the 	totality 	of 	the	14
circumstances, the [in-court] identification[s were] . . . reliable” (internal quotation	15
marks and citation omitted)); cf. Ramirez, 2018-NMSC-003, ¶¶ 33-36. Considering	16
the identifications in the context of the testimony as a whole, we hold that it was	17
plain error to admit the identifications.	18
{45} 	First, the State used Child’s name while asking each witness to identify him.	19
Second, the State asked two of the witnesses to “please look at this young man,”	20

24
instead of asking the witnesses if they saw Child in the courtroom. Finally, the State	1
singled Child out by asking him to remove his mask, which is comparable to asking	2
Child to identify himself by raising his hand or turning around. No amount of cross-	3
examination would lessen the impact of having the prosecutor, for three witnesses	4
in succession, identify Child by name, ask that he remove his mask on command to	5
be the only unmasked person in the room, and have each witness confirm that Child	6
was A.M. See Ramirez, 2018-NMSC-003, ¶ 36 (describing other constitutional	7
safeguards to prevent against unfairness). The State suggested exactly who it wanted	8
the witnesses to identify and did not allow the witnesses to identify Child on their	9
recollection. Under the totality of circumstances, the procedures used by the State	10
rendered the in-court identifications highly suggestive, and consequently, unreliable.	11
Because the prosecutor used unnecessarily suggestive procedures to elicit the in-	12
court identifications of Child, the district court erred in admitting the three	13
identifications. We therefore turn to the next step of plain error analysis, whether the	14
“admission of the testimony constituted an injustice that created grave doubts	15
concerning the validity of the verdict.” Montoya, 2015-NMSC-010, ¶ 46 (internal	16
quotation marks and citation omitted).	17
{46} 	Identity was a central issue in this case. It was undisputed that M.M. killed	18
Victim. However, the two eyewitnesses to the crime testified that they did not get a	19
clear look at the other two males who also pointed guns at Victim, and none of the	20

25
eyewitnesses to the crime identified Child. E.M. and Y.C. are the only witnesses to	1
put Child at the park that night. No other evidence connected Child specifically to	2
the crimes. Furthermore, the three witnesses that identified Child in court—and	3
particularly E.M. and Y.C.—only had brief interactions him prior to the adjudicatory	4
hearing. In light of the witnesses’ testimonies as a whole, the State’s actions tending	5
to suggest the identification of Child for these witnesses in court “constituted an	6
injustice” that creates doubts about the validity of the verdict and violated his right	7
to due process. Id. Therefore, we reverse and remand for a new adjudicatory hearing.	8
D. 	The New Mexico Constitution—–Martinez Standard	9
{47} 	Child next urges us to extend our Supreme Court’s per se exclusionary rule	10
for unnecessarily suggestive out-of-court identifications articulated in Martinez to	11
unnecessarily suggestive in-court identification procedures. We decline to do so.	12
{48} 	The first reason we decline to apply the newly adopted per se exclusionary	13
rule is because Martinez is silent with regard to in-court identification procedures	14
and only “overrule[d] prior cases to the extent that they apply the Manson reliability	15
standard to determine whether unnecessarily suggestive, police-arranged, pretrial	16
identifications are nonetheless admissible.” Martinez, 2021-NMSC-002, ¶ 72; see	17
State v. Sanchez, 2015-NMSC-018, ¶ 26, 350 P.3d 1169 (“The general rule is that	18
cases are not authority for propositions not considered.” (internal quotation marks	19
and citation omitted)).	20

26
{49} 	Second, we decline to apply Martinez, which would analyze whether these in-	1
court identifications violated due process under the New Mexico Constitution,	2
because we have already held error under the federal constitution. See State v.	3
Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1 (“Under the interstitial	4
approach, the [C]ourt asks first whether the right being asserted is protected under	5
the federal constitution. If it is, then the state constitutional claim is not reached.”).	6
As such, we decline to consider extending the Martinez per se exclusionary rule to	7
in-court identification procedures in this instance.	8
III. 	Hearsay	9
{50} 	Child also argues that the district court abused its discretion by allowing	10
testimony regarding rumors that M.M., A.C., and Child planned to engage in a drug	11
deal and rob Victim. Because we are reversing and remanding on other grounds, we	12
need not address Child’s hearsay argument; however, we exercise our discretion to	13
do so to provide guidance to the district court as this question is likely to recur on	14
remand. See State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 37, 136 N.M. 309, 98 P.3d	15
699 (providing guidance on issues unnecessary to the resolution of the case but that	16
may “arise[] again on remand”). Specifically, Child challenges the admission of	17
E.M.’s testimony regarding (1) why he drove Child and the other two young males	18
to the park, and (2) their plan to commit a robbery. We disagree and explain.	19

27
{51} 	“We review the admission of evidence under an abuse of discretion standard	1
and will not reverse in the absence of a clear abuse.” State v. Sarracino, 1998-	2
NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “An abuse of discretion occurs when	3
the ruling is clearly against the logic and effect of the facts and circumstances of the	4
case. We cannot say the [district] court abused its discretion by its ruling unless we	5
can characterize [the ruling] as clearly untenable or not justified by reason.” State v.	6
Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks	7
and citation omitted); see also State v. Kincheloe, 1974-NMCA-126, ¶ 9, 87 N.M.	8
34, 528 P.2d 893 (“In order to establish an abuse of discretion, it must appear that	9
the [district] court acted unfairly, arbitrarily or committed manifest error.”).	10
{52} 	Upon our review of the record, we conclude that the district court did not err	11
in admitting E.M.’s testimony. Child’s argument that E.M. should not have been	12
allowed to testify regarding the reason why he was driving Child and the others to	13
the park fails because this testimony is not hearsay. Rule 11-801(C) NMRA defines	14
hearsay as “a statement that (1) the declarant does not make while testifying at the	15
current trial or hearing, and (2) a party offers in evidence to prove the truth of the	16
matter asserted in the statement.” E.M. did not answer the State’s inquiry with an	17
out-of-court statement offered for the truth of the matter asserted and thus, could not	18
have violated the rule against hearsay. We decline to address Child’s second	19
argument that E.M. should not have been allowed to testify about the plan to commit	20

28
robbery because it was unpreserved. See State v. Leon, 2013-NMCA-011, ¶ 33, 292	1
P.3d 493 (“We generally do not consider issues on appeal that are not preserved	2
below.” (internal quotation marks and citation omitted)). Because we conclude the	3
district court did not admit inadmissible hearsay and Child’s second argument was	4
unpreserved, we hold that the district court did not abuse its discretion by admitting	5
the testimony at issue.	6
IV. 	Sufficiency of the Evidence	7
{53} 	Because we reverse on Fourteenth Amendment grounds, we must address	8
Child’s 	contention 	that 	insufficient 	evidence 	was 	presented 	to 	support 	his	9
delinquency adjudications so as to avoid double jeopardy concerns on remand if	10
Child is retried. See State v. Consaul, 2014-NMSC-030, ¶ 41, 332 P.3d 850 (“To	11
avoid any double jeopardy concerns, we review the evidence presented at the first	12
trial to determine whether it was sufficient to warrant a second trial.”); State v.	13
Gonzales, 2020-NMCA-022, ¶ 22, 461 P.3d 920 (same). Child argues that absent	14
the improper, suggestive in-court identifications and hearsay statements about the	15
drug deal and robbery, there is not sufficient evidence to support any of his five	16
delinquency adjudications. We disagree.	17
{54} 	The test for sufficiency of the evidence is whether substantial evidence of	18
either a direct or circumstantial nature exists to support a finding that the child	19
committed the act beyond a reasonable doubt with respect to every element essential	20

29
to a delinquency adjudication. See Montoya, 2015-NMSC-010, ¶ 52. “[S]ubstantial	1
evidence means such relevant evidence as a reasonable mind might accept as	2
adequate to support a conclusion[.]” State v. Baca, 1997-NMSC-059, ¶ 14, 124 N.M.	3
333, 950 P.2d 776 (internal quotation marks and citation omitted). The reviewing	4
court “view[s] the evidence in the light most favorable to the guilty verdict,	5
indulging all reasonable inferences and resolving all conflicts in the evidence in	6
favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711,	7
998 P.2d 176.	8
{55} 	Our review of the record shows that Child’s adjudication as a delinquent was	9
supported 	by 	substantial 	evidence. 	Child 	argues 	that 	absent 	the 	in-court	10
identifications of him and testimony regarding why M.M., A.C., and Child were	11
dropped off at the park, i.e., to engage in a drug deal and commit robbery, there was	12
not sufficient evidence to show that Child planned and attempted to rob Victim, was	13
present when Victim was killed, or pointed a gun at Victim. However, Child’s	14
argument is flawed because when considering sufficiency of the evidence, reviewing	15
courts consider all evidence, even improperly admitted evidence. See State v.	16
O’Kelley, 1994-NMCA-033, ¶ 16, 118 N.M. 52, 878 P.2d 1001 (“The correct rule is	17
that when determining whether retrial is barred because there was insufficient	18
evidence of guilt at the trial from which the appeal is taken, the appellate court	19

30
considers all of the evidence admitted, even that evidence which it holds was	1
admitted improperly.”).	2
{56} 	Upon consideration of the evidence presented by the State, including the in-	3
court identifications and the testimony regarding why the three young males were	4
dropped off at the park, Child has not persuaded us that the evidence was insufficient	5
to support his delinquency adjudications. Therefore, here, there are no double	6
jeopardy concerns. See Consaul, 2014-NMSC-030, ¶ 41. On remand, adjudication	7
proceedings on these charges are not precluded. See State v. Lizzol, 2007-NMSC-	8
024, ¶ 15, 141 N.M. 705, 160 P.3d 886 (stating that “a defendant may be retried if	9
the conviction was set aside because of trial error, including the situation when the	10
trial 	court 	wrongly 	admitted 	incriminating 	evidence 	or 	wrongly 	excluded	11
exculpatory evidence”).	12
V. 	Cumulative Error	13
{57} 	Lastly, Child argues that the errors raised on appeal constitute cumulative	14
error sufficient to overturn his delinquency adjudications. Child relies on State v.	15
Baca, which states, “Under the doctrine of cumulative error, [appellate courts] must	16
reverse a conviction when the cumulative impact of the errors that occurred at trial	17
was so prejudicial that the defendant was deprived of a fair trial.” 1995-NMSC-045,	18
¶ 39, 120 N.M. 383, 902 P.2d 65 (alteration, internal quotation marks, and citation	19
omitted). 	However, 	because 	we 	have 	already 	held 	reversible 	error, 	Child’s	20

31
delinquency adjudications have been vacated, and this case is being remanded for a	1
new adjudicatory hearing, we need not address this issue. See State v. French, 2021-	2
NMCA-052, ¶ 13 n.3, 495 P.3d 1198 (“[A]ppellate courts need not address questions	3
unnecessary for the resolution of the case.”). Thus, we proceed no further on the	4
question of cumulative error.	5
CONCLUSION	6
{58} 	We 	reverse 	Child’s 	delinquency 	adjudications 	and 	remand 	for 	a 	new	7
adjudicatory hearing.	8
{59} 	IT IS SO ORDERED.	9
__________________________________	10
SHAMMARA H. HENDERSON, Judge	11
WE CONCUR:	12
_________________________________	13
KRISTINA BOGARDUS, Judge	14
_________________________________	15
KATHERINE A. Wray, Judge	16