State v. Lucero

                                                                       Office of the Director   New Mexico
                                                                                                Compilation
                                                                 '00'06- 11:10:36 2023.05.15
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          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: February 28, 2023

No. A-1-CA-38776

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

JANICE LUCERO,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Brett Loveless, District Court Judge

Raúl Torres, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Luz C. Valverde, Assistant Appellate Defender
Albuquerque, NM

                                         OPINION

YOHALEM, Judge.

{1}     Defendant Janice Lucero entered a conditional plea of guilty in metropolitan court
to a first offense of driving under the influence of intoxicating liquor or drugs (DWI),
contrary to NMSA 1978, Section 66-8-102 (2010, amended 2016). The charge arose
out of a single-car rollover accident in which Defendant was injured. With her conditional
plea, Defendant reserved the right to appeal the metropolitan court’s denial of her
motion to suppress what Defendant claims are physician-patient communications
privileged under Rule 11-504 NMRA. The communication Defendant seeks to suppress
is a conversation she had with an emergency medical technician (EMT) for the purpose
of diagnosis or treatment, 1 during which Defendant disclosed, in answer to a question
from the EMT, that she had consumed alcohol before driving. Defendant’s
communication to the EMT was overheard and recorded by a law enforcement officer
who entered the ambulance where the conversation took place just after the EMT
began questioning Defendant, and, according to Defendant, without her knowledge. The
metropolitan court concluded based on the circumstances that “it was unreasonable for
. . . Defendant to believe her communication with the [EMT] was private and therefore
the confidentiality requirement of the Doctor-Patient privilege was not met.” The district
court affirmed the metropolitan court’s decision. 2 We conclude that the metropolitan
court failed to apply the correct standard of law. We therefore reverse and remand to
the metropolitan court to make the factual findings required under the correct principles
of law.

{2}    Defendant also argues on appeal that she was denied due process of law by
delay in the resolution of her appeal in the district court. Not persuaded by her due
process argument, we affirm the district court’s denial of Defendant’s motion to dismiss.

BACKGROUND

{3}     The following evidence was adduced at a hearing in the metropolitan court on
Defendant’s motion to exclude from evidence at her DWI trial “any statements made
while being attended to by any health care professional,” pursuant to physician-patient
privilege, Rule 11-504

{4}    Defendant was in a single-vehicle rollover crash on January 18, 2015. Deputy
Weeks was the first law enforcement officer to arrive at the scene of the accident.
Deputy Weeks found Defendant still in her overturned, smoke-filled vehicle; he broke
the vehicle’s rear passenger-side window and Defendant was able to crawl out through
the broken window.

{5}    With Deputy Weeks steadying her, Defendant walked across the road and sat on
a curb. An ambulance arrived within a few minutes. Deputy Weeks told the paramedics
that Defendant was having trouble walking and difficulty with speech. The paramedics
immediately attended to Defendant, asking her if she was okay. Defendant told them


1The parties do not dispute whether the EMT was a “physician” as defined in Rule 11-504(A)(2), for
purposes of the application of the physician-patient privilege. Further, although the State argued below
that the questions regarding Defendant’s alcohol consumption were not for the purpose of diagnosis or
treatment, the State does not pursue this argument on appeal. We therefore assume without deciding that
the EMT qualifies as a “physician” under the privilege and that the communications between Defendant
and the EMT were for the purpose of diagnosis or treatment.
2At the time this action was filed, appeals from convictions for driving under the influence of intoxicating
liquors or drugs in metropolitan court were taken to the district court and then from the district court to this
Court. See NMSA 1978, § 34-8A-6 (1993, amended 2019). “For on-record appeals the district court acts
as a typical appellate court, with the district judge simply reviewing the record of the metropolitan court
trial for legal error.” State v. Trujillo, 

, 

, 

. “In subsequent
appeals such as this, we apply the same standards of review employed by the district court.” State v. Bell,

, 

.
that she had injured her right knee and that the pain was very bad. The paramedics got
her onto a gurney and took her to the ambulance.

{6}    Deputy Cordova, who had arrived on the scene of the accident just before the
ambulance, testified that when he got close to Defendant, he smelled alcohol near her
face, her speech was slurred, and he saw vomit on her dress. Based on these
observations and the fact that Defendant had been involved in a rollover crash, Deputy
Cordova decided to pursue a DWI investigation. He followed the gurney to the
ambulance.

{7}    When the gurney reached the ambulance, the paramedics loaded the gurney
with Defendant on it, face up, into the bay of the ambulance through its open back
doors. The bay of the ambulance was empty and Defendant and the EMT were briefly
alone. Deputy Cordova entered through the side door of the ambulance immediately
after Defendant was placed in the ambulance. The side door was behind Defendant,
and Deputy Cordova testified he did not walk past her when he entered. The EMT had
already started questioning Defendant. Almost immediately, Deputy Cordova heard the
EMT ask Defendant how many drinks she had consumed. Defendant responded that
she had “three Crown and Cokes.”

{8}     About a minute or two after entering the ambulance, Deputy Cordova spoke for
the first time. He asked Defendant if she had had anything to drink that night. Defendant
did not immediately respond. Then she asked Deputy Cordova if he was recording.
Deputy Cordova said, “Yes.” Defendant was crying and did not answer him further.
Deputy Cordova asked Defendant whether she would take a blood test for alcohol.
Defendant did not respond. According to Deputy Cordova, she either began nodding off
or pretended to be nodding off. Deputy Cordova took this as a refusal to answer his
questions or, to consent to alcohol testing. Deputy Cordova placed her under arrest for
DWI and the ambulance left to take her to the hospital.

{9}     At the hearing on Defendant’s motion to exclude her communications to the
EMT, Defendant testified to her belief that she was alone in the ambulance with the
EMT during the examination. Defendant described being in intense pain from her knee
injury, said she did not hear the deputy’s radio and was complaining about the pain to
the EMT.

{10} Deputy Cordova was asked by the metropolitan court judge whether he had any
indication that Defendant knew he had entered the ambulance. Deputy Cordova
admitted that Defendant could not see him directly. He stated that he believed
Defendant knew he was there given that he was only a few feet from her, the noise his
radio made, her awareness that police officers were present at the accident scene, and
his belief he was likely visible in her peripheral vision. He could not remember whether
Defendant turned to look at him when he entered the ambulance.

{11} Deputy Cordova filed a criminal complaint charging Defendant with aggravated
DWI, citing his observation of the smell of alcohol near Defendant, Defendant’s
bloodshot and watery eyes, her slurred speech, the vomit he saw on her dress, and
Defendant’s answer to the EMT’s question during her medical examination telling the
EMT that she had consumed “three Crown and Cokes.”

{12} A few days after the suppression hearing, the metropolitan court announced its
decision from the bench. The metropolitan court made the following findings of fact: (1)
Defendant was conscious; (2) Defendant was alert and aware of her surroundings; (3)
Defendant knew she was at an accident scene and officers were present on the scene;
(4) Defendant complained only of knee pain, not of headache or other head “actions”;
(5) the doors to the ambulance were open and an officer was present; (6) Defendant
was facing the rear doors and would have had to turn her head to talk to the EMT; (7)
Deputy Cordova was two to four feet from Defendant; (8) Deputy Cordova was not
hiding; and (9) Defendant should have been aware of who was present, should have
closed the ambulance doors, and should have excluded any third party. The
metropolitan court’s written order denying Defendant’s motion to exclude the allegedly
privileged evidence states that “it was unreasonable for . . . Defendant to believe her
communication with the [EMT] was private, and therefore the confidentiality requirement
of the [physician-p]atient privilege was not met.”

{13} Defendant entered a conditional guilty plea, preserving for appellate review the
issue of whether her communication to the EMT made in an ambulance for the purpose
of diagnosis or treatment was protected by the Rule 11-504 physician-patient privilege.
Defendant filed her appeal to the district court on August 26, 2015. The district court
affirmed the metropolitan court’s denial of Defendant’s motion to exclude evidence on
December 4, 2019. 3 Defendant’s appeal to this Court followed.

DISCUSSION

I.      Were Defendant’s Communications for the Purposes of Diagnosis or
        Treatment Confidential Communications Protected by the Physician-Patient Privilege?

A.      Standard of Review

{14} Because Defendant does not challenge the metropolitan court’s findings of fact,
we assume that these facts are supported by substantial evidence in the record.
Resolution of this appeal requires us to determine both whether the metropolitan court
correctly construed the law of privileges, a question we review de novo, see Allen v.
LeMaster, 

, 

, and whether the metropolitan court
correctly applied that law to the circumstances of this case, a question which we also
review de novo. See Pacheco v. Hudson, 

, 

3Defendant claimed in the district court, and argues on appeal, that her due process right to a reasonably
prompt decision on appeal was violated by the more than four-year delay in the issuance of the district
court’s appellate decision. The district court found no due process violation. We discuss the facts and law
related to Defendant’s due process issue as part of our analysis of that issue.
(explaining that whether specific communications are subject to a privilege is a mixed
question of fact and law that is reviewed de novo on appeal).

B.     The Physician-Patient Privilege, Rule 11-504

{15}   Rule 11-504(B) describes the scope of the physician-patient privilege as follows:

       A patient has a privilege to refuse to disclose, or to prevent any other
       person from disclosing, a confidential communication made for the
       purpose of diagnosis or treatment of the patient’s physical, mental, or
       emotional condition, including drug addiction, between the patient and the
       patient’s physician, psychotherapist, or state or nationally licensed mentalhealth therapist.

{16} This appeal focuses on the definition of the term “confidential communication.”
Rule 11-504(A)(5) defines a “confidential communication” as a communication “made
privately and not intended for further disclosure except to other persons in furtherance
of the purpose of the communication.” This appeal asks this Court to determine under
what circumstances, if any, a communication between a physician and a patient,
overheard by a third party, remains a “confidential communication” protected from
disclosure.

{17} To understand what makes a communication a “confidential communication”
protected by the privilege, we begin by reviewing the history and background of the
Rule 11-504. In New Mexico, privileges are created and defined by either Supreme
Court rule, statute, or our constitution. New Mexico’s rules of evidence differ from the
federal rules of evidence and those of many other states in that New Mexico does not
recognize common law privileges: “New Mexico’s approach to privileges is a special
product of our state law jurisprudence.” Pub. Serv. Co. of N.M. v. Lyons, 2000-NMCA-
077, ¶ 12, 

, 

. We therefore look primarily to our Rule 11-504
precedent to guide our analysis.

{18} We are mindful, as well, that our goal is to interpret and apply Rule 11-504 so as
to give effect to the purpose and intent of our Supreme Court. See H-B-S P’ship v.
Aircoa Hosp. Servs., Inc., 

, 

, 

. We
interpret the rules adopted by our Supreme Court with logic and common sense to avoid
absurd results. Walker v. Walton, 

, 

, 

.
Finally, we note that the party asserting the physician-patient privilege has the burden of
establishing the privilege. See Pina v. Espinoza, 

, 

,

.

{19} The meaning of a confidential physician-patient communication protected by
Rule 11-504 was first construed by this Court in In re Doe, 

, ¶ 24, 

, 

, overruled on other grounds by State v. Roper, 1996-NMC

, 

. Doe, later joined and clarified by Roper,
have remained the leading cases construing New Mexico’s physician-patient privilege
for more than forty years. In re Doe and Roper hold that for a communication to be a
“confidential communication” protected by the Rule 11-504 privilege, two conditions
must be met: (1) the patient must intend the communication to be undisclosed to third
parties; and (2) nondisclosure of the communication must further the interests the
privilege is intended to protect. See In re Doe, 

, ¶¶ 22-24; Roper, 1996-
NMCA-073, ¶ 11.

{20} In addressing the first prong of this two-part test—that the communication is not
intended to be disclosed—Rule 11-504 focuses on the patient’s intent: Does the patient
intend the communication to be confidential? See Roper, 

, ¶ 11. In re
Doe originally required the patient’s intent that the communication not be disclosed to
“be manifested in some fashion with words or words and conduct [that] lead a
[physician] to understand or believe that the information obtained was intended to be
confidential.” 

, ¶ 27. Roper, however, clarified this requirement,
removing any suggestion that the patient must make an explicit request for
confidentiality, and providing instead that the conduct of the patient in submitting to a
private consultation or evaluation by a physician is sufficient circumstantial evidence to
establish the patient’s intent that the communication not be disclosed to others, absent
the patient’s consent. 

, ¶ 12 n.3. “[W]hen a patient is privately
evaluated by a physician, the conduct of the patient agreeing to the evaluation in itself
manifests an intent that any communication made for the purpose of diagnosis or
treatment remain confidential.” Id. ¶ 12.

{21} In In re Termination of Parental Rights of Sherry C. & John M., 

,
¶ 12, 

, 

, this Court addressed when a patient’s intent that the
communication remain confidential is negated by their knowledge that the
communication is subject to disclosure to a third party. The patient in In re Sherry C. &
John M., a parent working a treatment plan following an adjudication of abuse or
neglect, had been informed before the therapy began that the results of her therapy
would be shared with the Human Services Department and the district court. This Court
applied the test adopted by In re Doe concluding that “the patient must intend the
communications to be undisclosed,” In re Sherry C. & John M., 

, ¶ 24,
and explaining that if a patient is told their communications with a doctor or therapist will
be disclosed to a third party and the patient voluntarily proceeds with the consultation
with that knowledge, they will be considered to have consented to or voluntary
acquiescede in the disclosure. Id. ¶ 25. The patient, having voluntarily consented to or
acquiesced in the disclosure by their conduct, cannot claim the privilege. Id.

{22} If the patient intends the communication to be confidential, our precedent applies
a second test to determine if the privilege applies. In re Doe and Roper require a finding
that “non-disclosure of the communication would further the interest of the patient.” In re
Doe, 

, ¶ 24; Roper, 

, ¶ 11 n.2. Roper clarifies that this
prong of the test looks to whether the patient’s interests are consistent with the
privilege’s purpose. 

, ¶ 11 n.2. 4 The recognized purpose of the
privilege is to provide an assurance of confidentiality in order to “encourage a patient to
make complete disclosures of [their] symptoms and conditions to a physician without
fear of publication.” Id. ¶ 6. The privilege represents a recognition that accurate
diagnosis and appropriate medical treatment depend on a patient’s willingness to
disclose embarrassing, and even potentially incriminating, information. See Rule 11-
504(B) (applying the privilege to a patient’s admission of drug addiction).

{23} Recognizing the privilege’s intent to protect even incriminating information, this
Court in Roper refused to make an exception to the application of Rule 11-504 for drunk
driving cases, something some other jurisdictions have done. See Roper, 1996-NMCA-
073, ¶ 17 (citing cases from other jurisdictions). Roper explained that we are not free to
disregard the express language of our rules of evidence when construing a privilege
and that “[s]uccessful prosecution of DWI charges can be achieved without invading an
individual’s privacy and bodily integrity, which the privilege here seeks to protect.” Id. ¶
18.

C.      Conduct or Statements Indicating Voluntary Acquiescence in the Presence
        of a Third Party Is Required to Negate the Privilege

{24} With this background, we turn now to the issue of first impression raised by this
appeal: Under what circumstances does the presence of a third party, able to overhear
a communication between a physician and a patient, negate the privilege?

{25} The metropolitan court adopted an objective test: the communication is not
protected by the privilege if a reasonable person should have known that a third party
could overhear the communication. We conclude that the metropolitan court’s objective
test conflicts with Rule 11-504, as construed by our precedent.

{26} As discussed previously, the application of the physician-patient privilege
depends on whether the patient has an expectation that the communication will not be
disclosed, together with a showing that the purpose of the privilege is served by
honoring the patient’s expectation of confidentiality. See Roper, 

, ¶ 11.
We emphasize that the first inquiry mandated by our precedent focuses on the patient’s
intent: not that of a hypothetical reasonable person. The test looks to the patient’s state
of mind: Did the individual involved have an actual expectation that their communication
with a physician would remain confidential and would not be disclosed to others? See In
re Doe, 

, ¶ 27. Although “[n]o objective standard exists to determine a
person’s state of mind,” “[i]t is not sufficient for a patient to say that in the patient’s mind
the communications were confidential and furthered [their] own interest.” 

 In other
words, intent must be manifested through words or conduct that would lead the



4Although acknowledging that this second prong of the In re Doe test is not mandated by the plain
language of Rule 11-504, Roper holds that consideration of this second prong “irrespective of its
derivation” is necessary to effectuate the purposes of the rule. Roper, 

, ¶ 11 n.2.
physician “to understand or believe that the information obtained was intended to be
confidential.” Id.; see Roper, 

, ¶ 12 n.3.

{27} In applying New Mexico’s law of privilege, our courts examine the defendant’s
conduct to determine whether that conduct is consistent with an expectation that the
communication will not be disclosed. Roper, 

, ¶ 12 n.3. We note that in
addressing what conduct is sufficient to indicate an expectation of confidentiality, this
Court in Roper rejected the requirement for an explicit statement and adopted an
assumption that agreement to a private medical examination or evaluation is sufficient
evidence of the patient’s intent that the communications be confidential and not be
disclosed to third parties. Id. ¶ 12.

{28} Next, the patient’s intent that the communication be confidential must be
examined to determine whether it serves the purposes of the privilege. As we previously
stated, the physician-patient privilege focuses on protecting a patient’s privacy and
autonomy in relating highly sensitive, personal matters concerning their physical or
mental condition to a medical provider for purposes of diagnosis or treatment. See id. ¶
13. The purpose behind this protection is to assure the patient that their
communications will not be disclosed without their consent, so as to encourage the
patient to speak fully and frankly to the medical provider without the fear of publication.
See id. ¶ 6.

{29} Assuming the metropolitan court finds that Defendant intended the
communication to be confidential, the remaining question that requires factfinding is
whether Defendant voluntarily acquiesced in, or consented to, the disclosure. In re
Sherry C. & John M. stands for the proposition that a patient who has actual knowledge
that the communication will be disclosed, and voluntarily participates in the
communication with that knowledge, has consented to or acquiesced in the disclosure
of their physician-patient communication. See 

, ¶ 25. Whether this
exception applies depends on a finding as to whether Defendant actually knew of the
law enforcement officer’s presence, not whether she should have known.

{30} We conclude the metropolitan court erred in adopting an objective test, focused
on what a hypothetical reasonable person should have known. Rather, the metropolitan
court should have looked to the purposes served by the privilege under the
circumstances at issue here, and made findings of fact as to: (1) whether Defendant
intended the communication to be confidential; (2) whether Defendant actually knew
that Officer Cordova had entered the ambulance; and, if so, (3) whether Defendant’s
subsequent conduct was sufficient to constitute voluntarily consent to or acquiescence
in the disclosure of her communications to Deputy Cordova. Because the metropolitan
court’s findings do not answer these questions, but instead look to whether Defendant
“should have” known a law enforcement officer had entered the ambulance, we reverse
and remand to allow the metropolitan court to make the necessary findings, and to
apply the correct legal standard, as set forth in this opinion, to those findings.
II.    Defendant Was Not Denied Due Process by Delay in District Court in
       Deciding Her Appeal

{31} Defendant contends that the four-year period between the filing of her notice of
appeal and the district court’s decision on appeal denied her due process on appeal.
We do not agree.

{32} The delay in the district court occurred because Defendant’s counsel filed two
notices of appeal: one properly noticing an appeal from the metropolitan court to the
district court, filed on August 26, 2015, and a second notice of appeal to this Court from
the district court, filed on December 1, 2015. At the time Defendant’s original notice of
appeal was filed, appeals from convictions of DWI in the metropolitan court were
properly taken to the district court. See § 34-8A-6. Only after the appeal was decided by
the district court could a further appeal be taken to this Court. See id.

{33} Over four years after Defendant appealed to the district court, her defense
counsel petitioned the court either for dismissal based on the delay in reaching a
decision or for expedited consideration of Defendant’s appeal. Defense counsel
withdrew the improperly filed notice of appeal to this Court shortly after November 11,
2019. The district court then entered a decision on Defendant’s appeal.

{34} Because Defendant presented no evidence that the delay prejudiced her, and
because the district court’s finding that the delay was attributable to Defendant rather
than the government, is supported by substantial evidence, we affirm.

{35} We apply the framework established by State v. Garcia, 

, ¶ 46,

, to determine whether appellate delay violates a criminal defendant’s right
to due to process. We emphasized in Garcia that “not every delay in the appeal of a
case, even an inordinate one, violates due process.” Id. ¶ 41 (alteration, internal
quotation marks, and citation omitted). Whether appellate delay is sufficiently egregious
to violate a defendant’s due process rights turns first on: (1) whether the delay has
prejudiced the defendant, and, if so, (2) whether the government’s responsibility for the
delay and the nature and severity of the prejudice warrant dismissal. Id. ¶ 46.

{36} This Court generally looks to two potential forms of prejudice: (1) prejudice to a
defendant’s ability to assert their claims on appeal, and (2) prejudice at trial or on
resentencing following remand. Id. Defendant has claimed no prejudice on appeal or on
remand from the delay, nor do we find any such prejudice. Defendant argues that she
lost job opportunities because of the pendency of the appeal. She bases this claim,
however, on argument of counsel, unsupported by facts. See id. ¶ 47 (holding that
vague, speculative allegations of prejudice are insufficient). Even if this claim of job loss
were somehow proved, it is not the type of prejudice found by this Court in Garcia to
support a violation of due process. 

, ¶ 46. Defendant, therefore, has
failed to establish prejudice. Moreover, even if Defendant had established prejudice, we
see no error in the district court’s finding attributing the delay to the failure of
Defendant’s counsel to follow the procedural rules governing appeals from metropolitan
court.

{37} Where no prejudice was established by Defendant, and the delay was caused by
an error of defense counsel, Defendant was not denied due process.

CONCLUSION

{38} We reverse the denial of Defendant’s motion to exclude from evidence her
privileged communications with the EMT and remand to the district court for findings
and decision on Defendant’s motion to suppress consistent with this opinion.

{39}   IT IS SO ORDERED.

JANE B. YOHALEM, Judge

WE CONCUR:

JENNIFER L. ATTREP, Chief Judge

KRISTINA BOGARDUS, Judge