{ "id": 3669985, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Steven R. MORELAND, Defendant-Appellee", "name_abbreviation": "State v. Moreland", "decision_date": "2007-02-28", "docket_number": "No. 25,831", "first_page": "549", "last_page": "558", "citations": [ { "type": "official", "cite": "141 N.M. 549" }, { "type": "parallel", "cite": "157 P.3d 728" }, { "type": "parallel", "cite": "2007-NMCA-047" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2004-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428000 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0329-01" ] }, { "cite": "121 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566519 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "4" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0001-01" ] }, { "cite": "102 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580243 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "384-85" }, { "page": "472-73" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0383-01" ] }, { "cite": "2005-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2550283 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 7" }, { "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0659-01" ] }, { "cite": "2004-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428037 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0171-01" ] }, { "cite": "115 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725410 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "571" }, { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0567-01" ] }, { "cite": "2000-NMCA-099", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217172 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "\u00b6\u00b6 28-29" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0742-01" ] }, { "cite": "2001-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352637 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "\u00b6\u00b6 4-10" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0676-01" ] }, { "cite": "2003-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77118 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0453-01" ] }, { "cite": "69 N.M. 89", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787466 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "91", "parenthetical": "holding that a judgment in a criminal case is not final until sentence is imposed" }, { "page": "349", "parenthetical": "holding that a judgment in a criminal case is not final until sentence is imposed" } ], "opinion_index": 0, "case_paths": [ "/nm/69/0089-01" ] }, { "cite": "121 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566678 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "114", "parenthetical": "stating that interpretation of a statute is a question of law reviewed de novo" }, { "page": "1382", "parenthetical": "stating that interpretation of a statute is a question of law reviewed de novo" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0111-01" ] }, { "cite": "2002-NMCA-076", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260681 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "\u00b6 9", "parenthetical": "stating that interpretation of a statute is a question of law reviewed de novo" }, { "parenthetical": "stating that interpretation of a statute is a question of law reviewed de novo" }, { "parenthetical": "stating that interpretation of a statute is a question of law reviewed de novo" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0479-01" ] }, { "cite": "2006-NMCA-040", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2542983 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0381-01" ] } ], "analysis": { "cardinality": 1101, "char_count": 30803, "ocr_confidence": 0.684, "pagerank": { "raw": 6.83922119376206e-08, "percentile": 0.41718378175716037 }, "sha256": "dae33656dfbc6ea82872a37665049a819c3016e60109b5e67c52ffc83b722e3e", "simhash": "1:b146e832ea981f6b", "word_count": 5115 }, "last_updated": "2023-07-14T21:58:03.770248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JONATHAN B. SUTIN, Chief Judge and LYNN PICKARD, Judge." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Steven R. MORELAND, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} The State appeals from an order of the district court granting Defendant a new trial, asserting: (1) the district court had no jurisdiction to grant Defendant\u2019s motion, and (2) if it did have jurisdiction, the district court abused its discretion. We affirm. Since other rulings of the district court may or may not be repeated on retrial, we do not address them in this appeal.\nFACTUAL AND PROCEDURAL BACKGROUND\n{2} Defendant and his live-in fiancee injected themselves with methamphetamine. While both of them were intoxicated from the drug, she said Defendant attacked her in a variety of ways, threatening and hitting her with a hatchet, attempting to drown her in the toilet and in the bathtub, trying to pull off her finger, dragging her around the house with a chain, trying to choke her with toothpaste, and tearing off some of her clothes. She eventually ran out of the house and called 911.\n{3} When the police arrived, Defendant had already left and he was located and arrested at his mother\u2019s house. Defendant\u2019s mother and maybe Defendant himself told the officers he had overdosed on some drugs and Defendant said he needed to go to the hospital. At the hospital, Defendant struggled with the officers, which resulted in charges of battery and assault on peace officers, disorderly conduct, and resisting a peace officer.\n{4} After trial, a jury found Defendant guilty of first degree kidnaping, possession of a controlled substance, possession of drug paraphernalia, assault with intent to commit the violent felony of murder on a household member, battery on a peace officer, assault on a peace officer, disorderly conduct, and resisting or evading a peace officer. The jury found Defendant not guilty of aggravated battery with a deadly weapon against a household member (using a hatchet) and aggravated battery with a deadly weapon against a household member (using a chain).\n{5} The jury verdicts were returned in open court on August 23, 2003, and the district court ordered that Defendant be jailed pending imposition of sentence. The district court then committed Defendant to the Department of Corrections for a sixty-day diagnostic evaluation on September 9, 2003. The psychologist who evaluated Defendant at the Department of Corrections reported that while Defendant had valid profile indicators on two separate tests, his profile was \u201cinconsistent with any established profile type[.]\u201d The psychologist further noted, \u201cIt appears that when [Defendant] is under the influence of illicit substances, he experiences an idiosyncratic type of intoxication and engages in hostile behavior, which he would not normally display, if he were not under the influence of an illicit substance.\u201d\n{6} In light of the foregoing information, counsel for Defendant made arrangements for a more extensive psychological evaluation. The State did not oppose Defendant\u2019s motion asking that a police officer transport him from jail to Dr. Samuel Roll\u2019s office for the evaluation and return Defendant to jail at his own expense. Consequently, the district court granted the motion on January 12, 2004, and directed that Defendant was to be taken to Dr. Roll\u2019s office for the evaluation on January 19, 2004.\n{7} The sentencing hearing was set for February 25, 2004. At that time Defendant\u2019s attorney asked that the hearing be continued because he was filing a motion for new trial based on the two evaluations. However, Dr. Roll had asked for raw data which he had not yet received and he had not yet completed his forensic evaluation report. The State objected, arguing that under Rule 5-614(C) NMRA, Defendant\u2019s motion for a new trial was untimely because more than ten days had passed since the verdict. The district court wanted to consider Dr. Roll\u2019s assessment, and vacated the hearing, directing defense counsel to have the sentencing hearing reset upon receipt of Dr. Roll\u2019s report. Dr. Roll completed his findings in a report dated June 18, 2004. In the meantime, the district court had ordered a separate trial on certain counts in the indictment, and they were set to be tried on June 28, 2004. Defendant had undergone a competency examination to ascertain whether he could proceed to trial on the severed counts, but the results of the examination were not available. The State therefore did not oppose Defendant\u2019s motion, filed on June 22, 2004, to vacate that trial setting. A stipulated order vacating that trial was filed on June 24, 2004.\n{8} On September 7, 2004, the district court set Defendant\u2019s motion for new trial to be heard on January 20, 2005. At the hearing, the court and the parties realized that Defendant\u2019s motion for a new trial had been placed in the back of the court file and not file stamped. Defendant said he thought the motion was filed in open court at the original sentencing hearing on February 25, 2004. He said that when the State had asserted that the motion for new trial was not timely, more that ten days having elapsed since the verdicts, it should have been noted that the motion was filed in open court on that day. The State agreed, and the district court certified that Defendant\u2019s motion for a new trial was filed as of February 25, 2004. Following the January 20, 2005 hearing, the district court issued a letter on April 20, 2005, stating it was going to grant Defendant\u2019s motion for new trial. The State appeals from the formal order, which was subsequently filed on May 25, 2005, granting the motion. The State argues that the district court had no jurisdiction to grant the motion for two reasons: Defendant did not file the motion on time, and if he did, the district court did not act on time, because it was already deemed denied by operation of law. The State also argues that on the merits, the district court abused its discretion in granting Defendant a new trial. We affirm.\nDISCUSSION\nIssue 1: The District Court\u2019s Jurisdiction to Grant the Motion for New Trial\n{9} The question of whether the district court had jurisdiction to grant Defendant\u2019s motion for new trial presents a question of law, which we review de novo. City of Roswell v. Smith, 2006-NMCA-040, \u00b6 10, 139 N.M. 381, 133 P.3d 271. In this case, Rule 5-614 and Rule 5-104(B) NMRA of the Rules of Criminal Procedure for the District Courts are relevant to our jurisdictional inquiry. We apply the same rules to the construction of these rules as we apply to statutes. See In re Michael L., 2002-NMCA-076, \u00b6 9, 132 N.M. 479, 50 P.3d 574. As such, our interpretation of the rules is also de novo. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (stating that interpretation of a statute is a question of law reviewed de novo).\n{10} Rule 5-614 is entitled \u201cMotion for new trial\u201d and provides:\nA. Motion. When the defendant has been found guilty, the court on motion of the defendant, or on its own motion, may grant a new trial if required in the interest of justice.\nB. Evidence on motion. When a motion for new trial calls for a decision on any question of fact, the court may consider evidence on such motion by affidavit or otherwise.\nC. Time for making motion for new trial. A motion for new trial based on the ground of newly discovered evidence may be made only before final judgment, or within two (2) years thereafter, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for new trial based on any other grounds shall be made within ten (10) days after verdict or finding of guilty or within such further time as the court may fix during the ten (10) day period. If a motion for new trial is not granted within thirty (30) days from the date it is filed, the motion is automatically denied.\nD. Procedure; hearing. When the defendant has been found guilty by a jury or by the court, a motion for new trial may be dictated into the record, if a court reporter is present, and may be argued immediately after the return of the verdict or the finding of the court. Such motion may be in writing and filed with the clerk. Such motion, written or oral, shall fully set forth the grounds upon which it is based.\nE. Waiver. Failure to make a motion for a new trial shall not constitute a waiver of any error which has been properly brought to the attention of the court.\n{11} The State contends that the district court lacked jurisdiction to grant a new trial in this ease. First, the State contends that Defendant\u2019s motion for new trial was filed too late under Rule 5-614(C) because it was filed more than ten days after the verdict. Second, the State argues that even if the motion was based on newly discovered evidence and was filed on time, the district court lost jurisdiction over the motion under Rule 5-614(C) because it was not granted within thirty days from the date it was filed. Considering the motion to have been filed on February 25, 2004, the State asserts it was deemed denied under Rule 5-614(C), thirty days later, with the result that the district court did not have jurisdiction to grant the motion when it issued its letter decision on April 20, 2005, or when the formal order was later filed on May 25, 2005.\n{12} We first determine whether Defendant\u2019s motion for a new trial was timely filed. Defendant\u2019s motion asserts it is based on his psychological and psychiatric condition that was not known at the time of trial, and the order granting the new trial is based on Defendant\u2019s psychological disorder, which the district court found was not discoverable at the time of trial. The motion was premised upon, and granted because of, newly discovered evidence. Since the ten-day limitation under Rule 5-614(C) does not apply to a motion based on newly discovered evidence, we do not consider it further.\n{13} Concerning newly discovered evidence, Rule 5-614(C) states in pertinent part, \u201c[a] motion for new trial based on the ground of newly discovered evidence may be made only before final judgment, or within two (2) years thereafter.\u201d In this case, no final judgment was entered prior to the district court\u2019s decision to grant the motion for a new trial. The verdicts of the jury do not constitute a final judgment because Defendant still needed to be sentenced. Further, the order to undergo a sixty-day commitment to the Department of Corrections for a diagnostic evaluation was not a sentence; it was ordered to assist the district court in determining an appropriate sentence. It is well settled that until a sentence for the crime is imposed, there is no final judgment in a criminal case. See State v. Morris, 69 N.M. 89, 91, 364 P.2d 348, 349 (1961) (holding that a judgment in a criminal case is not final until sentence is imposed). The district court determined, with the agreement of the parties, that the motion for new trial was filed as of February 25, 2004. Since no sentence had been filed as of that date, the motion for new trial was filed \u201cbefore final judgment\u201d as specified in Rule 5-614(C). We therefore hold that Defendant\u2019s motion for a new trial, filed as of February 25, 2004, based on newly discovered evidence, was timely filed as required by Rule 5-614(C).\n{14} Next, we consider the State\u2019s argument that the district court lost jurisdiction to grant the motion for a new trial under Rule 5-614(C), which provides: \u201cIf a motion for new trial is not granted within thirty (30) days from the date it is filed, the motion is automatically denied.\u201d Clearly more than thirty days elapsed from the time the motion for new trial was filed on February 25, 2004, and the order granting the motion was filed on May 25, 2005. However, the State\u2019s argument overlooks another provision of the Rules of Criminal Procedure for the District Courts in the context of what transpired in the district court.\n{15} When the parties convened for sentencing on February 25, 2004, Defendant requested and was granted a continuance for the purpose of receiving the forensic evaluation by Defendant\u2019s expert, Dr. Roll, whose report had not yet been received. The district court granted the continuance, stating that the report should be received and the sentencing hearing reset.\n{16} Rule 5-104(B) states:\nB. Enlargement. When by these rules or by a notice given thereunder or by order of court, an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion:\n(1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or\n(2) upon motion made after the expiration of the specified period permit the act to be done.\nThe court may not extend the time for filing a motion for new trial, for filing a notice of appeal, for filing a motion for acquittal or for filing a motion for an extension of time for commencement of trial.\nIn State v. Sandoval, 2003-NMSC-027, \u00b6 11, 134 N.M. 453, 78 P.3d 907, our Supreme Court expressly stated, \u201c[f]or timely-filed motions, ... Rule 5 \u2014 104(B)(1) recognizes the district court\u2019s discretion to enlarge the period within which the act is required or allowed to be done.\u201d Since we have already concluded that Defendant\u2019s motion for new trial was timely, we consider whether the district court extended the time for it to decide the motion as permitted by Rule 5-104(B)(1).\n{17} As we have already pointed out, through some error, it was not originally noted that Defendant\u2019s motion for new trial was filed in open court on February 25, 2004. Nevertheless, the district court certified that the motion had in fact been filed as of February 25, 2004, by agreement of the parties when this mistake was discovered. That same day, February 25, 2004, Defendant moved for a continuance, which constituted a request for an enlargement of time for the district court to either rule on the motion for new trial or sentence him. The district court granted Defendant\u2019s continuance motion because it wanted to consider Dr. Roll\u2019s report and it was not yet completed. The effect of the order was that \u201cfor cause shown\u201d the district court exercised its discretion under Rule 5-104(B)(l) and ordered that the time be enlarged within which it would either rule on the motion for new trial or sentence Defendant. The district court\u2019s decision to certify the motion for new trial as having been filed in open court as of February 25, 2004, is supported by substantial evidence. In addition, we hold that the district court did not abuse its discretion in ordering a continuance for the purpose of allowing Dr. Roll\u2019s evaluation report to be prepared. Finally, we cannot say that under the facts of this case, there was any undue delay or prejudice to the State. Defendant remained in custody. Dr. Roll\u2019s evaluation report was not issued until June 18, 2004, and on June 24, 2004, the State agreed to continue trial of the severed counts pending a report of Defendant\u2019s competency to stand trial on those charges. On September 7, 2004, the district court set the hearing on Defendant\u2019s motion for new trial to be heard on January 20, 2005, and the record contains no objection by the State or prejudice argument concerning the hearing date.\n{18} We hold that Defendant\u2019s motion for new trial was not automatically denied by Rule 5-614(C) because within thirty days of the filing of the motion (in fact, the very day that the motion was filed in open court), the district court enlarged the time for it to rule on the motion as allowed by Rule 5-104(B)(1). Therefore, the district court had jurisdiction to grant the motion for new trial on May 25, 2005, when the order was filed.\n{19} For their separate purposes, the parties cite to three eases as controlling the outcome of this case. They are State v. Lucero, 2001-NMSC-024, \u00b6\u00b6 4-10, 130 N.M. 676, 30 P.3d 365; Sanchez v. Saylor, 2000-NMCA-099, \u00b6\u00b6 28-29, 129 N.M. 742, 13 P.3d 960; and State v. Ratchford, 115 N.M. 567, 571, 855 P.2d 556, 560 (1993). These eases, however, are not applicable, nor do they conflict with our decision here.\n{20} Ratchford was decided before Sandoval and did not consider whether and under what circumstances Rule 5-104(B) has any effect on Rule 5-614(C). Sanchez involved the circumstance of a notice of appeal divesting the district court of jurisdiction. And Lucero involved an untimely motion. Those cases are not helpful to our analysis here.\n{21} The State relies on Martinez v. Friede, 2004-NMSC-006, \u00b6 13, 135 N.M. 171, 86 P.3d 596, to argue that the policy of encouraging the expeditious handling of post-trial motions would be thwarted by a decision holding that the district court retains jurisdiction to decide a motion for new trial under the circumstances of this case. We disagree for several reasons. First, we question how important that policy is inasmuch as the Supreme Court recently adopted revised Rules of Civil Procedure eliminating all thirty-day, deemed-denied language in those rules. See Rules 1-052, 1-054.1, and 1-059 NMRA (as amended effective August 21, 2006). Second, Martinez did not consider the effect of any rule like Rule 5-104(B).\n{22} Third, although the Supreme Court ruled that the district court did not have authority under Rule 1-059, it also held that under Rule 1-060(B) NMRA (providing that for specified reasons, \u201c[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding\u201d), a district court retains a \u201creservoir of equitable power\u201d to assure that justice has been done, and may, in exceptional circumstances, reopen judgment and order a new trial sua sponte. Martinez, 2004-NMSC-006, \u00b6 15, 135 N.M. 171, 86 P.3d 596 (internal quotation marks and citation omitted). Ultimately, the district court order granting the motion for a new trial was affirmed. Id. \u00b6 28. Consistent with Martinez, Rule 5-614(A) could also be construed as reserving to the district court a \u201creservoir of equitable power\u201d to assure that justice is done, and order a new trial sua sponte beyond the thirty days specified in Rule 5-614(C). Rule 5-614(A) specifically states, \u2018When the defendant has been found guilty, the court on motion of the defendant, or on its own motion, may grant a new trial if required in the interest of justice.\u201d (Emphasis added.)\n{23} In summary, we hold that Defendant\u2019s motion for new trial was timely filed and that the district court had jurisdiction to grant the motion because it was not deemed automatically denied under Rule 5-614(C). We therefore proceed to determine whether the district court abused its discretion in granting the motion.\nIssue 2: The District Court\u2019s Decision to Grant Defendant\u2019s Motion for a New Trial\n{24} The district court found that Defendant suffers from a disorder that, if presented to a jury, would have warranted an instruction on diminished capacity, and that Defendant\u2019s condition was not discoverable by counsel at the time of trial. No instruction on diminished capacity was given at Defendant\u2019s trial. Accordingly, the district court granted Defendant a new trial.\n{25} \u201c[W]e will not disturb a [district] court\u2019s exercise of discretion in denying or granting a motion for a new trial unless there is a manifest abuse of discretion.\u201d State v. Garcia, 2005-NMSC-038, \u00b6 7, 138 N.M. 659, 125 P.3d 638. \u201cBecause the function of passing upon motions for new trial on newly discovered evidence belongs naturally and peculiarly, although not exclusively, to the [district] court, the discretion of a [district] court is not to be lightly interfered with.\u201d Id. (internal quotation marks and citations omitted). In Garcia, our Supreme Court held that this Court erred in reversing the district court\u2019s order granting a new trial because we did not give sufficient deference to the district court\u2019s determination that the newly discovered evidence would probably change the result in a new trial, and it con-eluded that the \u201csum of the district court judge\u2019s findings justified] the decision \u25a0 to grant a new trial.\u201d Id. \u00b6 17.\n{26} To justify a new trial on grounds of newly discovered evidence the newly discovered evidence must satisfy all of the following requirements: \u201c(1) it will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it could not have been discovered before the trial by the exercise of due diligence; (4) it must be material; (5) it must not be merely cumulative; and (6) it must not be merely impeaching or contradictory.\u201d Id. \u00b6 8 (quoting State v. Volpato, 102 N.M. 383, 384-85, 696 P.2d 471, 472-73 (1985)).\n{27} The State argues that Defendant failed to prove prongs 2 and 3 of the Volpato test. Specifically, the State argues that it was known before trial that Defendant had injected methamphetamine on January 28, 2003. Further, the fact that methamphetamine causes violent behavior was nothing new to Defendant: at trial, the State explored with Defendant\u2019s fiancee her extensive history of violence and drug use, and Defendant\u2019s mother gave a police statement two years before trial in which she said that she was \u201cvery frightened\u201d of her son when he was on drugs. Moreover, Defendant\u2019s fiancee testified that she and Defendant shot up methamphetamine and Defendant was \u201cacting crazy\u201d on the date of the incidents. The State further argues that it cannot be said that Defendant suffers from a formally classified \u201cmental disease or disorder\u201d; and that, even if he is considered to be suffering from one, Defendant\u2019s counsel should have exercised due diligence in searching out any basis for a diminished capacity instruction prior to trial. Accordingly, the State contends, the district court misapplied the applicable law or abused its discretion because its ruling was \u201cclearly against the logic and effect of the facts and circumstances of the case.\u201d See State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995).\n{28} Finally, the State argues that Defendant\u2019s counsel\u2019s decision not to pursue a diminished capacity instruction in this case was simply a trial strategy decision that failed, and Defendant should not be allowed a second chance to present a new trial strategy. At trial, Defendant\u2019s defense theory rested on efforts to show that Defendant was not a \u201cbad person\u201d who uses drugs, that Defendant tried to stop his fiancee from using methamphetamine, and that she was the methamphetamine user who became violent, hallucinated, and lied about the events at issue. A new trial, the State argues, will allow Defendant to pursue a new defense theory: Defendant\u2019s extensive methamphetamine use exonerates him of the specific intent crimes he committed.\n{29} The district court explained its application of Volpato in its letter decision, stating:\n... [Defendant] argues that he should be entitled to a diminished capacity instruction because of his use of methamphetamine during the events constituting the offenses charged.\n[The] Detention officer ... testified that [Defendant] has always displayed good behavior during his [two] years incarceration period. She called him a \u201cmodel prisoner.\u201d She has never seen him act in such a manner to indicate he had any mental defects.\nDr. Samuel Roll testified that he reviewed the Diagnostic Evaluation and performed a Psychological Evaluation of [Defendant]. He determined that [Defendant\u2019s] reaction to methamphetamine is idiosyncratic. [Defendant] is incapable of dealing with overstimulation. When using drugs, [Defendant\u2019s coping deficit index is over taxed. His executive autonomous functions, or free will is adversely affected resulting in diminished capacity. Dr. Roll testified that this was not discovered during the pre-trial phase without testing. The Diagnostic Evaluation noted \u2018There is a possibility that [Defendant] might have some type of impulse control disorder, but none could be substantiated during this evaluation period\u2019 (Diagnostic Evaluation Page. 5).\nThe Court will find that [Defendant\u2019s condition was not discoverable prior to trial. Had the jury been presented evidence of Dr. Roll\u2019s evaluation, an instruction on diminished capacity [UJI 14-5111 NMRA] would have been appropriate. And, if the jury found [Defendant\u2019s capacity had been diminished, the result would have been different. Accordingly, the Court will grant the Motion for a New Trial on those counts requiring specific intent.\nThe formal order granting Defendant a new trial then makes the following specific findings of fact:\n[ 1.] [Defendant] suffered from a disorder that, if presented to the jury in his trial, would have warranted an instruction on diminished capacity pursuant to [UJI 14-5111].\n[ 2.] [Defendant\u2019s condition was undiscoverable by prior counsel at time of trial.\nOn the basis of these findings, the new trial was granted. These findings and conclusions of the district court are supported by the testimony presented at the hearing on the motion for a new trial and the diagnostic evaluations prepared by both the State\u2019s and Defendant\u2019s experts.\n{30} The State\u2019s expert who performed the diagnostic evaluation after the trial stated that while Defendant produced valid profiles on both structured objective measures of personality, \u201c[h]is profile was inconsistent with any established profile type.\u201d The State\u2019s expert also stated: \u201cIt appears that when he is under the influence of illicit substances, he experiences an idiosyncratic type of intoxication and engages in hostile behavior, which he would not normally display, if he were not under the influence of an illicit substance.\u201d Further, the State\u2019s expert said, \u201cThere is a possibility that [Defendant] might have some type of impulse control disorder, but none could be substantiated during this evaluation period.\u201d\n{31} At the hearing on the motion for new trial, Dr. Roll specifically stated that off of drugs Defendant already has a diminished thinking capacity, which the use of methamphetamine makes more severe: \u201c[W]e cannot expect him to think; to reason; to perceive correctly; to access reality correctly; or to use any other host of intellectual skills that we need for decision making.\u201d Further, and most significantly, Dr. Roll said that a normal lay person could not determine this fact from working and visiting with Defendant. Thus, what was not known and could not be discovered by any lay person such as Defendant\u2019s fiancee, Defendant\u2019s mother, or Defendant\u2019s counsel, was the extent to which, even off methamphetamine, Defendant was \u201cless capable than most people of coming to reasonable conclusions about relationships, between events, and maintaining a connected flow of associations in which they follow each other in a comprehensive manner,\u201d as his brief contends. As such, although looking and acting normally when not under the influence of methamphetamine, Defendant, again in the words of his brief, has \u201csevere ... deficits,\u201d including \u201can impaired thinking process\u201d; he is someone who is \u201cincapable, in a very stable way, of dealing with new stimulation and especially with over stimulation\u201d; his \u201cefforts to focus his attention with precision, and to synthesize his experience, falls below that of most people.\u201d Dr. Roll also specifically testified that, given the \u201clevel of distortion of his thinking,\u201d his impaired cognitive processes, and his \u201cimpaired thinking process\u201d off of drugs, \u201c[Defendant\u2019s] ability to put things together is not there when he is on amphetamines.\u201d Dr. Roll summarized:\nNow, from a psychological point of view, that\u2019s a diminished capacity to make reasonable choices. I am not making a legal decision of course, or legal position. From the psychological position, this interferes. When you put all of these together, you have someone who is walking around, who looks [like] he is just fine, but has a number of very serious deficits that will diminish his capacity for executive acts. And then, when you combine them with the amphetamines, then you have someone who is assuredly ... going to have some diminished capacities at a very serious level.\n{32} We hold that under the circumstances of this case, the district court properly applied the Volpato test. Specifically with regard to prongs 2 and 3, which are contested by the State, the evidence demonstrates that Defendant has a diminished capacity to reason on a day-to-day basis, which is greatly exacerbated by methamphetamine and an idiosyncratic type of intoxication that was not discoverable prior to trial and it could not have been discovered prior to trial with the exercise of due diligence.\n{33} The newly discovered evidence is the opinions of the diagnostic experts that Defendant has serious mental deficits including a serious diminished capacity for reasoning and for carrying out executive acts in general, made more severe by an idiosyncratic intoxication from methamphetamine. The State failed to present any evidence challenging the validity or conclusions of either of the two evaluations concerning Defendant. Further, the State does not challenge the fact that Defendant has psychological defects and deficiencies, which interfere with his ability to form specific intent. \u201cWhen the defendant has advanced evidence that reasonably tends to show an incapacity to form specific intent, the prosecution then has the additional burden of proving the defendant was capable of forming the deliberate intent despite the alleged intoxication or mental disorder.\u201d State v. Balderama, 2004-NMSC-008, \u00b6 38, 135 N.M. 329, 88 P.3d 845. In this case, the jury was not allowed to consider whether Defendant was capable of forming specific intent because the evidence was unknown, and it could not have been discovered prior to trial by the exercise of due diligence. The evidence was discovered only because the district court initially ordered a diagnostic evaluation, which then led to further diagnostic testing.\n{34} The district court did not abuse its discretion by granting Defendant a new trial on the basis of this newly discovered evidence on the two crimes requiring specific intent.\nCONCLUSION\n{35} We affirm the district court\u2019s jurisdiction and its order granting Defendant a new trial on the kidnaping and aggravated assault charges. We decline to address the other issues raised by the State because those issues may or may not be repeated on retrial.\n{36} IT IS SO ORDERED.\nWE CONCUR: JONATHAN B. SUTIN, Chief Judge and LYNN PICKARD, Judge.", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellant.", "Doerr & Knudson, P.A., Stephen Doerr, Portales, NM, for Appellee." ], "corrections": "", "head_matter": "2007-NMCA-047\n157 P.3d 728\nSTATE of New Mexico, Plaintiff-Appellant, v. Steven R. MORELAND, Defendant-Appellee.\nNo. 25,831.\nCourt of Appeals of New Mexico.\nFeb. 28, 2007.\nCertiorari Granted, No. 30,301, April 20, 2007.\nGary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellant.\nDoerr & Knudson, P.A., Stephen Doerr, Portales, NM, for Appellee." }, "file_name": "0549-01", "first_page_order": 599, "last_page_order": 608 }