State v. Antonio M.

                                                        Office of the
                                                            Director                           New Mexico
                                                                                               Compilation
                                                         2022.08.31                            Commission
                                                    '00'06- 12:23:57
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 17, 2022

No. A-1-CA-39709

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ANTONIO M.,

       Child-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Grace B. Duran, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Meryl E. Francolini, Assistant Attorney General
Albuquerque, NM

for Appellee

Harrison & Hart, LLC
Nicholas T. Hart
Albuquerque, NM

for Appellant

                                         OPINION

HENDERSON, Judge.

{1}    Following an adjudicatory hearing, a jury found Antonio M. (Child or A.M.)
committed felony murder, attempt to commit armed robbery, conspiracy to commit
armed robbery, child abuse, and aggravated assault by the use of a deadly weapon. On
appeal, Child argues (1) the State failed to bring him to an adjudicatory hearing in a
timely manner; (2) the witness identifications of Child during the adjudicatory hearing
were unnecessarily suggestive; (3) the district court abused its discretion by admitting
evidence regarding “rumors” that Child and two others planned to rob Fabian Lopez
(Victim); (4) the State failed to present sufficient evidence to sustain Child’s delinquency
adjudications; and (5) the cumulative impact of these errors warrant the reversal of his
delinquency adjudications.

{2}     We hold that the delays before the adjudicatory hearing did not require the
district court to dismiss the petition and do not require this Court to vacate Child’s
delinquency adjudications. Nevertheless, because we conclude that the in-court
identifications were impermissively suggestive, we reverse and remand for a new
adjudicatory hearing. We address Child’s remaining arguments to the extent necessary
to avoid error in retrial and to ensure that retrial does not violate double jeopardy
protections.

BACKGROUND

I.     Factual Background

{3}     On the night of August 4, 2020, Victim drove with his girlfriend (Girlfriend) and
their infant son to Frenger Park in Las Cruces, New Mexico. Victim parked his vehicle at
Frenger Park, and not long after, a young man walked up to the driver’s side of the car
and asked Victim if he could get in. After getting into the front passenger seat of Victim’s
car, the young man, later identified as M.M., was heard counting and apologizing to
Victim. M.M. then stepped out of the vehicle, took out a gun, and pointed it at Victim,
telling him, “Give me what you got.” Victim held his hands up and responded to M.M., “I
don’t have anything. You already have whatever you wanted.” While pointing a gun at
Victim, two other young males walked up to the driver’s side of the vehicle and also
pointed guns at Victim. M.M. shot and killed Victim as he sat in the driver’s seat with his
hands up.

{4}   The medical investigator determined that Victim died from a gunshot wound to
the chest that entered his body from the right side and exited on his left side.

{5}   Child, along with two other individuals, M.M. and A.C., were later arrested and
charged with the robbery and killing of Victim.

II.    Procedural Background

{6}     On August 17, 2020, the State filed a delinquency petition against Child, alleging
that he committed first degree felony murder for his involvement in the robbery and
killing of Victim. On August 19, 2020, the district court ordered that Child be detained
pending further proceedings. The original date for Child’s adjudicatory hearing was set
for September 18, 2020.

{7}    On September 4, 2020, the State filed a motion to continue Child’s adjudicatory
hearing for sixty days. The State asserted that the lead investigator on the case, who
would provide crucial testimony to the State’s case, would be unavailable for the original
setting. The State also cited a pending autopsy report and a social media warrant as
additional reasons to continue the hearing. Child opposed the State’s motion; however,
the district court granted the motion to continue and rescheduled Child’s adjudicatory
hearing for October 16, 2020.

{8}    The State filed an amended delinquency petition on September 9, 2020, alleging
Child committed five additional delinquent acts, including armed robbery, conspiracy to
commit armed robbery, abuse of a child, and two counts of aggravated assault with a
deadly weapon.

{9}    On September 29, 2020, the State filed a second motion to continue Child’s
adjudicatory hearing for thirty days, because the autopsy report from the New Mexico
Office of the Medical Investigator (OMI), a material piece of the State’s case, was still
pending. Additionally, the State noted general societal delays caused by the COVID-19
pandemic as another reason to continue Child’s hearing. The district court again
granted the State’s motion over the objection of Child and rescheduled the adjudicatory
hearing for November 13, 2020.

{10} On November 2, 2020, the State filed its third motion to continue Child’s
adjudication for thirty days, explaining the COVID-19 pandemic “has caused
[e]xceptional [c]ircumstances . . . out of the State’s control” and requesting live
testimony that was, at the time, restricted due to COVID-19 infection concerns. Child
again opposed the motion; however, the district court granted the State’s motion to
continue citing “[e]xceptional [c]ircumstances caused by the current COVID-19
[p]andemic that would jeopardize the health of all parties involved,” and extended the
deadline to hold Child’s adjudicatory hearing to December 13, 2020.

{11} On November 13, 2020, our Supreme Court issued Order No. 20-8500-039, 1
which suspended all in-person civil and criminal trials set to begin on or after November
16, 2020, until at least January 1, 2021. Consequently, the district court informed the
parties via e-mail on November 24, 2020, that it had sua sponte vacated the December
trial date. However, the district court did not enter an order extending the time limit to
hold Child’s adjudicatory hearing and the State did not file another motion asking the
district court to do so. On November 29, 2020, Child filed a motion seeking release from
detention based on the State’s failure to bring him to an adjudicatory hearing within
thirty days. The district court denied the motion following a hearing on December 10,
2020.

{12} On January 3, 2021, Child filed a motion to dismiss the petition with prejudice.
Child alleged that the State had failed to comply with the Children’s Court rules of
procedure and that “the failure to hold an adjudicatory hearing within the designated
time limits required a dismissal with prejudice.” 2 Specifically, Child argued that Rule 10-
243(A) NMRA requires that an adjudicatory hearing be held within thirty days, and that
any extensions of this deadline cannot, according to Rule 10-243(D), exceed ninety

1See Supreme Court Order No. 20-8500-039 (Nov. 13, 2020), https://www.nmcourts.gov/wpcontent/uploads/2020/12/Combined-Order-No_-20-8500-039-Amending-PHE-Protocols-Nos-1-2-and-
3.pdf
2Child also filed a motion for immediate release at the same time as his motion to dismiss.
days absent a showing of exceptional circumstances. Child also asserted that under
Rule 10-243(E), a motion to extend time limits must be filed no later than ten days after
the deadline has passed, and the State failed to file such a motion before ten days after
the December 13, 2020 deadline. The State opposed the motion, citing the Supreme
Court’s order suspending jury trials through January 2021, and the district court’s e-mail
sua sponte vacating Child’s hearing, arguing that the e-mail removed the necessity for
the State to file a motion to continue. In its response, the State also requested the court
enter an order for an extension of time nunc pro tunc, to the date the adjudicatory
hearing was vacated.

{13} The district court denied both of Child’s motions. The court referenced Supreme
Court Order No. 20-8500-039, noting it “imposed strict limitations on all in-person
judicial proceedings” and suspended all jury trials until January 1, 2021. The court
clarified that it vacated Child’s adjudicatory hearing on November 23, 2020, “to comply
with the Supreme Court order, as well as with the [s]tate public health order and the
Judiciary’s Emergency Court Protocols.” The district court also noted that “[t]he delay in
this case is entirely due to the public health emergency. These are exceptional
circumstances that were out of the [c]ourt’s and the State’s control and that justif[ies] an
extension of time beyond [ninety] days pursuant to Rule 10-243(D).” Last, the district
court granted nunc pro tunc the extension of the deadline to hold Child’s hearing from
December 13, 2020 to February 26, 2021. Ultimately, Child’s adjudicatory hearing was
set for February 22, 2021.

III.   Adjudicatory Hearing

{14} Girlfriend provided further details regarding the night Victim was killed. She
testified that while the two males were right outside the driver’s side window, she was
screaming that there was a baby in the vehicle. One of the young males was holding a
small compact revolver and the other was holding what looked like a rifle. Girlfriend was
unable to see the faces of the males on the driver’s side of the car, but she was able to
generally describe them. The male that was holding the rifle was “medium in weight,”
“medium complected,” and was 5 feet 5 inches or 5 feet 6 inches in height. The male
who was holding the handgun was described as “skinny,” “medium tan,” “probably the
same height as the one on the passenger’s side,” and he had “dreadlocks.” After two
shots were fired at Victim, the first from the driver’s side and the second from the
passenger’s side, the three males waited a couple of seconds and then ran off.

{15} Another witness, M.A., was at Frenger Park on the night of August 4, 2020. M.A.
testified that she was sitting in her pickup truck when she saw two young males, one
who was wearing a red hoodie, jump a fence near the park and pass “a long object” to
one another before walking away. Approximately thirty minutes later, she saw a small
vehicle pull up and park behind her, and the same two young males from earlier
reappeared and approached the vehicle. After they reached the vehicle, it appeared that
they were arguing with the occupants of the vehicle, and M.A. testified that it was then
that one of the males pulled out a gun and pointed it at the driver. She saw the gun,
drove off, and heard a gunshot.
{16} E.M. testified that he and another friend, Y.C., drove M.M., A.C., and Child to
Frenger Park “because they were going to do a drug trade.” E.M. further testified that
A.C. said something about them “hitting a lick” or committing robbery while at the park.
After E.M. dropped the three males off at the park, he and Y.C. went and parked a few
blocks away. A few minutes later Child came running to the vehicle in a panic and said,
“Some shit went down” and “they shot someone.” After all three males returned to the
vehicle, E.M. drove them to another friend’s, D.G.’s, house.

{17} Y.C. also offered testimony recounting a similar story as E.M. She assumed that
the three males were going to the park to buy “weed or Xanax” because “[t]hat was
what we were all mainly doing at the time.” Y.C. confirmed that Child came running back
to the car, panicking, and screaming, “He shot him.”

{18} D.G. confirmed that late on August 4, 2020, E.M., Y.C., M.M., A.C., and Child
came to her house. She testified that, upon their arrival, they were all “freaked out” and
she overheard one of them saying, “I think we hurt somebody.” D.G. further testified that
when they arrived, Child was wearing a dark hoodie, and A.C. was wearing a red and
black sweater. She also testified that, at the time, Child had “curls or dreads or
something, but he had blonde in his hair.” That night, she saw M.M. with a gray
handgun and A.C. with a black or brown shotgun.

{19} E.M., Y.C., and D.G. all testified that they only had brief interactions with Child
leading up to and following the night of August 4, 2020, when Victim was killed.
However, all three witnesses identified Child in court during the hearing.

{20} Detective Ricky Bardwell, the lead investigator on the case, testified that upon
canvassing the area surrounding the crime scene, he located pills leading away from
the vehicle. There were also pills and a pill bottle found in Victim’s vehicle. Following his
initial investigation at the crime scene, Detective Bardwell spoke to Girlfriend and
learned that Victim was communicating with someone via Snapchat to coordinate the
meeting at the park. Detective Bardwell then obtained photos of this person, later
identified as M.M., from Victim’s phone. Detective Bardwell used these photos to put out
a news release, and he obtained tips from the public that led him to M.M. and A.C. After
speaking with M.M., E.M., and D.G., he was able to develop enough evidence to charge
M.M., A.C., and Child in connection with the death of Victim. The State also presented
photos of M.M., A.C., and Child taken during the course of Detective Bardwell’s
investigation that illustrated how the three males looked around the time of the killing.
Detective Bardwell identified Child in the photos and described him as having “dreads”
with dark roots and blonde highlighted tips that went down to his cheeks.

{21} The jury found that Child committed felony murder, contrary to NMSA 1978,
Section 30-2-1(A)(2) (1994) and NMSA 1978, Section 32A-2-3 (2019), attempt to
commit armed robbery, contrary to NMSA 1978, Section 30-16-2 (1973), NMSA 1978,
Section 30-28-1 (1963) and Section 32A-2-3, conspiracy to commit armed robbery,
contrary to Section 30-16-2, NMSA 1978, Section 30-28-2 (1979) and Section 32A-2-3,
child abuse, contrary to NMSA 1978, Section 30-6-1(D) (2009) and Section 32A-2-3,
and aggravated assault by the use of a deadly weapon, contrary to NMSA 1978,
Section 30-3-2(A) (1963) and Section 32A-2-3. This appeal followed.

DISCUSSION

I.     Timeliness of Child’s Adjudicatory Hearing

{22} Child’s first argument is that the State’s failure to bring him to an adjudicatory
hearing in a timely manner pursuant to Rule 10-243 requires his delinquency
adjudications to be vacated and remanded with instructions to dismiss the petition with
prejudice. We are not persuaded.

{23} We review a district court’s interpretation of rules of procedure de novo. See
State v. Stephen F., 

, 

, 

 (applying de
novo review to interpretation of children’s court rules). However, Child’s argument
involves extensions of time under the rules, based on timeliness and exceptional
circumstances. We review a district court’s decision to deny or grant a continuance or
extension under an abuse of discretion standard. See State v. Anthony L., 2019-NMCA-
003, ¶¶ 7, 16, 

 (holding that the district court did not abuse its discretion in
granting an extension to commence a child’s adjudication under the Children’s Code);
see also Vigil v. Fogerson, 

, 

, 

(noting that we consider relief for exceptional circumstances to be equitable relief, which
we review for an abuse of discretion). “An abuse of discretion occurs when the ruling is
clearly untenable or not justified by reason.” State v. Alejandro M., 

, 

 (internal quotation marks and citation omitted). We conduct our review
“in the light most favorable to the district court’s decision.” 

{24}   Rule 10-243 provides, in pertinent part:

              A.     Child in detention. If the child is in detention, the adjudicatory
       hearing shall be commenced within thirty (30) days from whichever of the
       following events occurs latest:

                     (1)    the date the petition is served on the child;

       ....

              D.      Extensions of time. For good cause shown, the time for
       commencement of an adjudicatory hearing may be extended by the
       children’s court, provided that the aggregate of all extensions granted by
       the children’s court shall not exceed ninety (90) days, except upon a
       showing of exceptional circumstances. An order granting an extension
       shall be in writing and shall state the reasons supporting the extension. An
       order extending time beyond the ninety (90)-day limit set forth in this
       paragraph shall not rely on circumstances that were used to support
       another extension.
               E.        Procedure for extensions of time. The party seeking an
       extension of time shall file with the clerk of the children’s court a motion for
       extension concisely stating the facts that support an extension of time to
       commence the adjudicatory hearing. The motion shall be filed within the
       applicable time limit prescribed by this rule, except that it may be filed
       within ten (10) days after the expiration of the applicable time limit if it is
       based on exceptional circumstances beyond the control of the parties or
       trial court which justify the failure to file the motion within the applicable
       time limit. . . .

              F.     Effect of noncompliance with time limits.

       ....

                    (2)    In the event the adjudicatory hearing of any person
       does not commence within the time limits provided in this rule, including
       any court-ordered extensions, the case shall be dismissed with prejudice.

{25} Child first contends that the district court erred in granting the State’s motions to
continue because each continuance was based upon the same reason as prior
extension request, in violation of Rule 10-243(D). Child next contends that the district
court violated Rule 10-243(E) when it granted the fourth extension of time because it did
not require the State to demonstrate exceptional circumstances even though the
extension resulted in the adjudicatory hearing being scheduled more than ninety days
after the State filed its amended petition. Child also argues that the district court erred
when it extended Child’s hearing for the fourth and fifth times without the State filing a
motion or requiring the State to show exceptional circumstances as required by Rule
10-243(D), (E). Child’s fourth argument is that even if the district court considered the
State’s response to the Child’s motion to dismiss as a request for an extension of time,
it erred in granting this request because it was filed outside of the time limit for doing so
under Rule 10-234(E). Finally, Child argues that the failure to bring him to an
adjudicatory hearing in a timely manner should have resulted in a dismissal of his case
as a matter of policy.

A.     Circumstances Supporting the First Three Extensions

{26} First, we address Child’s argument that the first three extensions the district court
granted the State were for the same reason, contrary to Rule 10-243(D). Upon our
review of the motions in the record, this is inaccurate. The State’s first motion was
based upon the unavailability of Detective Bardwell, who would provide testimony
necessary for the State’s case. The motion also noted that the autopsy report and a
social media warrant were both pending. The district court was well within its discretion
to grant this motion. See State v. Pruett, 

, ¶ 8, 

, 

 (“The grant or denial of a motion for continuance based on absence of evidence
rests in the sound discretion of the [district] court.”); see also State v. Doe, 1977-NMCA-
065, ¶¶ 6-11, 

, 

 (holding that the absence of a witness, in part,
was good cause for the continuance of a child’s hearing). 3

{27} In support of its second motion to continue, the State noted that the autopsy was
still pending and would not be available for another ninety days, according to OMI. The
State also acknowledged that the COVID-19 pandemic was causing “delays in every
aspect of our society.” The reasoning in the second motion to continue, although similar,
was not the same as the State’s first motion. Again, the district court did not abuse its
discretion in granting this motion. See Pruett, 

, ¶ 8.

{28} Finally, the district court granted the State’s third motion that noted exceptional
circumstances created by the COVID-19 pandemic, the increasing COVID-19 cases in
Doña Ana County at the time, and the State’s request for live testimony. The State
argued that it would “be at a disadvantage if it were to proceed to trial without live
testimony,” but also acknowledged the potential risks posed by the COVID-19 pandemic
that would “jeopardize the health of all parties involved” if the court proceeded without a
continuance. Rule 10-243(D) states that “the aggregate of all extensions granted by the
children’s court shall not exceed ninety (90) days, except upon a showing of exceptional
circumstances.”4 The third extension was not entirely the same as the other two motions
as Child suggests. The first motion relied on missing witnesses and evidence, the
second motion explained that the COVID-19 pandemic was generally causing delays,
and the third motion argued that live witness testimony was not feasible because of
COVID-19 restrictions and risks. Moreover, this Court recently held that “the COVID-19
pandemic and the resulting precautionary measures were exceptional circumstances
warranting an extension of time.” Alejandro M., 

; see also id. ¶ 8
(“COVID-19 is a rapidly evolving public health crisis of an extraordinary magnitude.”).
The same holds true here. Because the State showed different reasons and exceptional
circumstances for the third continuance of Child’s adjudicatory hearing, it met Rule 10-
243(D)’s requirements and the district court, therefore, did not abuse its discretion in
granting this motion.

B.      The Nunc Pro Tunc Fourth Extension

{29} Next, we address the entry of the extension of time nunc pro tunc. Supreme
Court Order No. 20-8500-039, 5 dated November 13, 2020, suspended jury trials until
January 1, 2021. Because the district court sua sponte vacated Child’s adjudicatory
hearing based on our Supreme Court’s Order No. 20-8500-039, the State did not need
to file an additional motion for continuance under Rule 10-243(E) and show exceptional
circumstances. Nevertheless, the State, in its response to Child’s motion to dismiss,

3The 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.
4We 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.
5See Supreme Court Order No. 20-8500-039, supra note 1.
requested that the district court enter a fourth order to continue nunc pro tunc dated for
the day the adjudicatory hearing was vacated.

{30} On January 13, 2021, the district court entered and granted the State’s final,
albeit unrequired, motion to continue nunc pro tunc. Child argues that the final request
to continue in the State’s response to Child’s motion dismiss, was not filed within ten
days of the expiration of the ninety-day time-to-adjudication period as set forth by Rule
10-243(E). However, because the district court entered the motion nunc pro tunc and
dated it for November 24, 2020, the date Child’s hearing was vacated, this argument
also fails. See State v. Reyes-Arreola, 

, 

, 

 (“A nunc pro tunc order has reference to making of an entry now, of something
which was actually previously done, so as to have it effective as of the earlier date.”
(internal quotation marks and citation omitted)). This date, November 24, 2020, was
within the time confines required by Rule 10-243(E), and thus, the filing cannot be
considered to be in violation of the rule.

C.     Exceptional Circumstances for the Fourth and Fifth Extensions of Time
       Limits

{31} Child’s argument that the fourth extension (after Supreme Court Order No. 20-
8500-039) and the fifth and final extension (after Child’s motion to dismiss) were done in
error because the State did not show exceptional circumstances fails because the
COVID-19 pandemic and the resulting precautionary measures have already been
determined to be exceptional circumstances. See Alejandro M., 

.
This fact is bolstered by the record, which reflects that the State demonstrated such
circumstances by articulating that the COVID-19 pandemic was a necessary reason for
a continuance and included an exhibit of our Supreme Court’s Order suspending jury
trials until the beginning of 2021. See Anthony L., 

 (“Because
there was good cause in the record, although not memorialized in the district court’s
order granting the extension of time limits, we hold that the district court did not abuse
its discretion in granting the [s]tate’s motion for extension of time in which to commence
[the c]hild’s adjudication.”). Therefore, because there was no violation of Rule 10-243,
we hold that the district court did not abuse its discretion in extending Child’s hearing for
the fourth or fifth and final time.

{32} The delays in Child’s adjudicatory hearing were unfortunate, but unavoidable.
However, they cannot be attributed to error on the part of the State or the district court.
See Rule 10-243(E). The COVID-19 pandemic has disrupted all facets of life, and
although there are important policy considerations to protect children’s liberty interests
by bringing them to adjudication as soon as possible, the pandemic has created
exceptional circumstances and delays far beyond the control of the judiciary. For these
reasons, we conclude the district court did not abuse its discretion in granting any of the
extensions of Child’s adjudicatory hearing.

II.    In-Court Identification Procedures
{33} The State asked three witnesses at Child’s adjudication hearing to identify Child
as follows:

       “Your Honor, I would like to ask [E.M.] if he can identify [A.M.]. But I would
       like to ask if [A.M.] could take off his mask for the purpose of identification
       so he can see his face.”

       ....

       “Your Honor, I would like to ask [Y.C.] if she could identify [A.M.]. Could I
       please ask [A.M.] to remove his mask just long enough for her to see if
       she identifies him or not? . . . So please look at this young man. Can you
       tell is this [A.M.] or not?”

       ....

       “Your Honor, I would like to ask if [D.G.] could identify [A.M.]. I would like
       to ask if [A.M.] could briefly remove his mask to see if she can identify him
       . . . Please look at this young man here and tell us if this is [A.M.].”

{34} At the time of Child’s adjudicatory hearing, a Supreme Court Order No. 21-8500-
003 6 was in place due to the COVID-19 pandemic that required everyone present to
wear a mask and limited the number of individuals in the courtroom. The individuals
present during the hearing included the judge, court personnel, jurors, the witness,
counsel, and Child. Child did not object to the State’s identification procedures, the
district court permitted Child to briefly remove his mask each time, and, subsequently,
the three witnesses positively identified Child.

{35} Child argues that these in-court identifications were unnecessarily suggestive
and violated his due process rights under both the United States and New Mexico
constitutions, and urges us to extend the recent standard set forth in State v. Martinez,

, 

, for unnecessarily suggestive out-of-court identification
procedures to in-court identification procedures. We agree with Child that his due
process rights were violated under the United States Constitution; however, as we
explain, we decline to extend the new standard set forth in Martinez to the facts of this
case.

A.     Standard of Review

{36} The admission of identification evidence implicates a child’s right to due process.
State v. Ramirez, 

, 

. Appellate courts review
questions of suppression bearing on “important constitutional rights” de novo. State v.
Belanger, 

, ¶ 8, 

, 

 (internal quotation marks
and citation omitted); see also 

 (“This appeal implicates . . . the Fourteenth

6See Supreme Court Order No. 21-8500-003 (Feb. 12, 2021), https://www.nmcourts.gov/wpcontent/uploads/2021/02/Order-No.-21-8500-003-Amending-PHE-Protocol-No.1-2-12-21-Combined.pdf.
Amendment right to due process of law, including the right to a fair trial, and therefore
our review is de novo.”).

{37} However, Child did not object to the State’s in-court identification procedures at
his adjudicatory hearing. As a result, the parties agree we should review this issue for
plain error. Plain error review applies “to errors that affect substantial rights of the
accused and only applies to evidentiary matters.” State v. Dartez, 

, 124 N.M 455, 

. Otherwise, the rule of fundamental error applies. 

 To
hold that either kind of error occurred, we “must be convinced that admission of the
testimony constituted an injustice that creates grave doubts concerning the validity of
the verdict.” Id. ¶ 22 (internal quotation marks and citation omitted). “Further, in
determining whether there has been plain error, we must examine the alleged errors in
the context of the testimony as a whole.” State v. Montoya, 

, 

 (alteration, omission, internal quotation marks, and citation omitted).

B.     The Manson and Martinez Standards Regarding Witness Identifications

{38} Because this appeal involves the interplay between the due process protections
afforded by United States and New Mexico Constitutions and the different types of
identification procedures, we first offer a brief explanation of the legal principles in play.
In Manson v. Brathwaite, 

 (1977), the Supreme Court of the United States
set forth the federal due process standard for the admissibility of pretrial eyewitness
identifications. 

. Recently, in Martinez, our Supreme Court rejected the Manson
identification standard for the purposes of the due process protections under the New
Mexico Constitution. Martinez, 

. The question in this case,
however, involves the procedure used for an in-court identification of Child, and not out-of-court, “police-arranged identification procedures.” 

{39} The State argues that “an in-court identification, which is independent of, and not
tainted by the extra-judicial identification is admissible.” State v. Clark, 

,
¶ 40, 

, 

; see State v. Stampley, 

,

, 

. We agree with Child that in these cases, the issue was
whether an in-court identification was tainted by a pretrial identification, exposure to preidentification media, or the reality that the defendant was the only Black man in the
room during the in-court identification. See Stampley, 

; Clark,

, ¶ 45. Those Courts did not address whether a procedure used by the
prosecutor, and permitted by the district court, to obtain the in-court identifications were
impermissibly suggestive.

{40} Our Supreme Court has applied the Manson principles to determine whether in-court identification procedures violate due process under the Fourteenth Amendment.
See Ramirez, 

. In Ramirez, the defendant argued that media
reports tainted in-court identifications and that his placement at the defense table, his
ethnicity, and his gender were overly suggestive. Id. ¶ 28. The Court first observed that
its “treatment of the issue presented by [the defendant] is guided by Perry v. New
Hampshire, 

 (2012).” See Ramirez, 

. After
considering the circumstances of Perry, the Ramirez Court observed that Perry applied
Manson “to determine whether due process requires suppression of eyewitness
identification.” Ramirez, 

. Under this analysis, the Ramirez
Court rejected the defendant’s arguments because (1) only law enforcement
procedures—and not media or the common arrangement of a courtroom—could be the
source of unconstitutional tainted identifications; and (2) other constitutional safeguards
protected the defendant from “any fundamental unfairness resulting from eyewitness
identifications.” Id. ¶¶ 33-36.

{41} Because this case involves only a challenge to in-court identification, and not an
argument that out-of-court identification procedures tainted an in-court identification, we
first follow the approach set forth in Ramirez to evaluate whether the in-court
identification violated federal due process protections before turning to Child’s assertion
that the state Constitution provides additional protections under Martinez.

C.     The Fourteenth Amendment—Manson Standard

{42} Child contends that the procedures used by the State to obtain the in-court
identifications were suggestive and resulted in a high likelihood of irreparable
misidentification because “the procedures gave the witness only one result—to identify
Child[] who was already identified by the State.” Child further asserts that because the
procedures used gave the witnesses only one possibility to choose from, and because
the State “used procedures that rigged the system to indicate to the witness that it
wanted the witness to identify Child[], the risk of misidentification was high.” He
maintains that because it was established that each witness had limited or brief
interactions with Child prior to his adjudicatory hearing and the in-court identification
procedure used was “rigged,” these identifications cannot be considered reliable. We
agree.

{43} Ramirez and Manson set forth an approach to take in deciding if due process
requires suppression of eyewitness identifications. Ramirez, 

.
The Manson test requires appellate courts to analyze “whether the procedure used was
so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification and whether, under the totality of the circumstances, the identification
was still reliable.” Martinez, 

 (internal quotation marks and citation
omitted). As we noted, in Ramirez, our Supreme Court rejected the defendant’s due
process argument because law enforcement did not taint the procedures and because
other due process protections ameliorated any suggestive procedures that occurred in
the courtroom. 

. Applying those principles, a different
outcome than in Ramirez is required in the present case.

{44} We agree with Child that the in-court identifications were unreliable, tainted by
the State’s suggestiveness while eliciting the identifications and other due process
protections did not provide an opportunity for Child to counteract the taint, and resulted
in a violation of his due process rights under the Fourteenth Amendment. We hold that
under the circumstances of this case, as set forth below, the State’s acts triggered a
due process concern when eyewitness evidence was procured in-court under
unnecessarily suggestive circumstances. See Martinez, 

(considering under the federal standard, “whether, under the totality of the
circumstances, the [in-court] identification[s were] . . . reliable” (internal quotation marks
and citation omitted)); cf. Ramirez, 

. Considering the
identifications in the context of the testimony as a whole, we hold that it was plain error
to admit the identifications.

{45} First, the State used Child’s name while asking each witness to identify him.
Second, the State asked two of the witnesses to “please look at this young man,”
instead of asking the witnesses if they saw Child in the courtroom. Finally, the State
singled Child out by asking him to remove his mask, which is comparable to asking
Child to identify himself by raising his hand or turning around. No amount of crossexamination would lessen the impact of having the prosecutor, for three witnesses in
succession, identify Child by name, ask that he remove his mask on command to be the
only unmasked person in the room, and have each witness confirm that Child was A.M.
See Ramirez, 

 (describing other constitutional safeguards to
prevent against unfairness). The State suggested exactly who it wanted the witnesses
to identify and did not allow the witnesses to identify Child on their recollection. Under
the totality of circumstances, the procedures used by the State rendered the in-court
identifications highly suggestive, and consequently, unreliable. Because the prosecutor
used unnecessarily suggestive procedures to elicit the in-court identifications of Child,
the district court erred in admitting the three identifications. We therefore turn to the next
step of plain error analysis, whether the “admission of the testimony constituted an
injustice that created grave doubts concerning the validity of the verdict.” Montoya,

 (internal quotation marks and citation omitted).

{46} Identity was a central issue in this case. It was undisputed that M.M. killed Victim.
However, the two eyewitnesses to the crime testified that they did not get a clear look at
the other two males who also pointed guns at Victim, and none of the eyewitnesses to
the crime identified Child. E.M. and Y.C. are the only witnesses to put Child at the park
that night. No other evidence connected Child specifically to the crimes. Furthermore,
the three witnesses that identified Child in court—and particularly E.M. and Y.C.—only
had brief interactions him prior to the adjudicatory hearing. In light of the witnesses’
testimonies as a whole, the State’s actions tending to suggest the identification of Child
for these witnesses in court “constituted an injustice” that creates doubts about the
validity of the verdict and violated his right to due process. 

 Therefore, we reverse
and remand for a new adjudicatory hearing.

D.     The New Mexico Constitution—–Martinez Standard

{47} Child next urges us to extend our Supreme Court’s per se exclusionary rule for
unnecessarily suggestive out-of-court identifications articulated in Martinez to
unnecessarily suggestive in-court identification procedures. We decline to do so.
{48} The first reason we decline to apply the newly adopted per se exclusionary rule is
because Martinez is silent with regard to in-court identification procedures and only
“overrule[d] prior cases to the extent that they apply the Manson reliability standard to
determine whether unnecessarily suggestive, police-arranged, pretrial identifications are
nonetheless admissible.” Martinez, 

; see State v. Sanchez, 2015-
NMSC-018, ¶ 26, 

 (“The general rule is that cases are not authority for
propositions not considered.” (internal quotation marks and citation omitted)).

{49} Second, we decline to apply Martinez, which would analyze whether these in-court identifications violated due process under the New Mexico Constitution, because
we have already held error under the federal constitution. See State v. Gomez, 1997-
NMSC-006, ¶ 19, 

, 

 (“Under the interstitial approach, the [C]ourt
asks first whether the right being asserted is protected under the federal constitution. If
it is, then the state constitutional claim is not reached.”). As such, we decline to consider
extending the Martinez per se exclusionary rule to in-court identification procedures in
this instance.

III.   Hearsay

{50} Child also argues that the district court abused its discretion by allowing
testimony regarding rumors that M.M., A.C., and Child planned to engage in a drug deal
and rob Victim. Because we are reversing and remanding on other grounds, we need
not address Child’s hearsay argument; however, we exercise our discretion to do so to
provide guidance to the district court as this question is likely to recur on remand. See
State v. Alvarez-Lopez, 

, 

, 

 (providing
guidance on issues unnecessary to the resolution of the case but that may “arise[] again
on remand”). Specifically, Child challenges the admission of E.M.’s testimony regarding
(1) why he drove Child and the other two young males to the park, and (2) their plan to
commit a robbery. We disagree and explain.

{51} “We review the admission of evidence under an abuse of discretion standard and
will not reverse in the absence of a clear abuse.” State v. Sarracino, 

, 

, 

. “An abuse of discretion occurs when the ruling is clearly
against the logic and effect of the facts and circumstances of the case. We cannot say
the [district] court abused its discretion by its ruling unless we can characterize [the
ruling] as clearly untenable or not justified by reason.” State v. Rojo, 

, 

, 

 (internal quotation marks and citation omitted); see
also State v. Kincheloe, 

, ¶ 9, 

, 

 (“In order to
establish an abuse of discretion, it must appear that the [district] court acted unfairly,
arbitrarily or committed manifest error.”).

{52} Upon our review of the record, we conclude that the district court did not err in
admitting E.M.’s testimony. Child’s argument that E.M. should not have been allowed to
testify regarding the reason why he was driving Child and the others to the park fails
because this testimony is not hearsay. Rule 11-801(C) NMRA defines hearsay as “a
statement that (1) the declarant does not make while testifying at the current trial or
hearing, and (2) a party offers in evidence to prove the truth of the matter asserted in
the statement.” E.M. did not answer the State’s inquiry with an out-of-court statement
offered for the truth of the matter asserted and thus, could not have violated the rule
against hearsay. We decline to address Child’s second argument that E.M. should not
have been allowed to testify about the plan to commit robbery because it was
unpreserved. See State v. Leon, 

, 

 (“We generally
do not consider issues on appeal that are not preserved below.” (internal quotation
marks and citation omitted)). Because we conclude the district court did not admit
inadmissible hearsay and Child’s second argument was unpreserved, we hold that the
district court did not abuse its discretion by admitting the testimony at issue.

IV.    Sufficiency of the Evidence

{53} Because we reverse on Fourteenth Amendment grounds, we must address
Child’s contention that insufficient evidence was presented to support his delinquency
adjudications so as to avoid double jeopardy concerns on remand if Child is retried. See
State v. Consaul, 

, 

 (“To avoid any double jeopardy
concerns, we review the evidence presented at the first trial to determine whether it was
sufficient to warrant a second trial.”); State v. Gonzales, 

, 

 (same). Child argues that absent the improper, suggestive in-court
identifications and hearsay statements about the drug deal and robbery, there is not
sufficient evidence to support any of his five delinquency adjudications. We disagree.

{54} The test for sufficiency of the evidence is whether substantial evidence of either a
direct or circumstantial nature exists to support a finding that the child committed the act
beyond a reasonable doubt with respect to every element essential to a delinquency
adjudication. See Montoya, 

. “[S]ubstantial evidence means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion[.]” State v. Baca, 

, 

, 

(internal quotation marks and citation omitted). The reviewing court “view[s] the
evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.
Cunningham, 

, 

, 

.

{55} Our review of the record shows that Child’s adjudication as a delinquent was
supported by substantial evidence. Child argues that absent the in-court identifications
of him and testimony regarding why M.M., A.C., and Child were dropped off at the park,
i.e., to engage in a drug deal and commit robbery, there was not sufficient evidence to
show that Child planned and attempted to rob Victim, was present when Victim was
killed, or pointed a gun at Victim. However, Child’s argument is flawed because when
considering sufficiency of the evidence, reviewing courts consider all evidence, even
improperly admitted evidence. See State v. O’Kelley, 

, ¶ 16, 

, 

 (“The correct rule is that when determining whether retrial is barred
because there was insufficient evidence of guilt at the trial from which the appeal is
taken, the appellate court considers all of the evidence admitted, even that evidence
which it holds was admitted improperly.”).
{56} Upon consideration of the evidence presented by the State, including the in-court
identifications and the testimony regarding why the three young males were dropped off
at the park, Child has not persuaded us that the evidence was insufficient to support his
delinquency adjudications. Therefore, here, there are no double jeopardy concerns. See
Consaul, 

. On remand, adjudication proceedings on these
charges are not precluded. See State v. Lizzol, 

, 

,

 (stating that “a defendant may be retried if the conviction was set aside
because of trial error, including the situation when the trial court wrongly admitted
incriminating evidence or wrongly excluded exculpatory evidence”).

V.     Cumulative Error

{57} Lastly, Child argues that the errors raised on appeal constitute cumulative error
sufficient to overturn his delinquency adjudications. Child relies on State v. Baca, which
states, “Under the doctrine of cumulative error, [appellate courts] must reverse a
conviction when the cumulative impact of the errors that occurred at trial was so
prejudicial that the defendant was deprived of a fair trial.” 

, ¶ 39, 

, 

 (alteration, internal quotation marks, and citation omitted).
However, because we have already held reversible error, Child’s delinquency
adjudications have been vacated, and this case is being remanded for a new
adjudicatory hearing, we need not address this issue. See State v. French, 2021-
NMCA-052, ¶ 13 n.3, 

 (“[A]ppellate courts need not address questions
unnecessary for the resolution of the case.”). Thus, we proceed no further on the
question of cumulative error.

CONCLUSION

{58} We reverse Child’s delinquency adjudications and remand for a new adjudicatory
hearing.

{59}   IT IS SO ORDERED.

SHAMMARA H. HENDERSON, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

KATHERINE A. WRAY, Judge