knowing and voluntary waiver in New Mexico

2020See Padilla, 2002-NMSC-016, ¶ 8 (noting that departure from trial before it has concluded is considered “a knowing and voluntary waiver of the right to be present” (internal quotation marks and citation omitted)); see also id. ¶ 12 (stating that “an accused may either expressly or by implication waive his right to be present by being voluntarily absent” (internal quotation marks and citation omitted)); Hovey v. State, 1986-NMSC-069 , ¶ 17, 104 N.M. 667 , 726 P.2d 344 (holding that a “defendant need not be present in court in order to waive his right to be present”).

2020See Padilla, 2002-NMSC-016, ¶ 8 (noting that departure from trial before it has concluded is considered “a knowing and voluntary waiver of the right to be present” (internal quotation marks and citation omitted)); see also id. ¶ 12 (stating that “an accused may either expressly or by implication waive his right to be present by being voluntarily absent” (internal quotation marks and citation omitted)); Hovey v. State, 1986-NMSC-069 , ¶ 17, 104 N.M. 667 , 726 P.2d 344 (holding that a “defendant need not be present in court in order to waive his right to be present”).

2012Taxation & Revenue Dep’t, 2004-NMCA-025, ¶ 22 , 135 N.M. 152 , 85 P.3d 276 (holding that unlike the waiver of rights of criminal defendants facing prosecution, due process does not require a knowing and voluntary waiver of a right to an administrative hearing); State v. Duran, 107 N.M. 603, 608-09 , 762 P.2d 890, 895-96 (1988) (“[T]o establish a due process violation, and thus reversible error, the defendant must demonstrate prejudice.”), superceded by rule as stated in State v. Gutierrez, 1998-NMCA-172 , 126 N.M. 366 , 969 P.2d 970 . {10} In the present case, it is undisputed that Defendant w

2012Taxation & Revenue Dep’t, 2004-NMCA-025, ¶ 22 , 135 N.M. 152 , 85 P.3d 276 (holding that unlike the waiver of rights of criminal defendants facing prosecution, due process does not require a knowing and voluntary waiver of a right to an administrative hearing); State v. Duran, 107 N.M. 603, 608-09 , 762 P.2d 890, 895-96 (1988) (“[T]o establish a due process violation, and thus reversible error, the defendant must demonstrate prejudice.”), superceded by rule as stated in State v. Gutierrez, 1998-NMCA-172 , 126 N.M. 366 , 969 P.2d 970 . {10} In the present case, it is undisputed that Defendant w

2012Taxation & Revenue Dep’t, 2004-NMCA-025, ¶ 22 , 135 N.M. 152 , 85 P.3d 276 (holding that unlike the waiver of rights of criminal defendants facing prosecution, due process does not require a knowing and voluntary waiver of a right to an administrative hearing); State v. Duran, 107 N.M. 603, 608-09 , 762 P.2d 890, 895-96 (1988) (“[T]o establish a due process violation, and thus reversible error, the defendant must demonstrate prejudice.”), superceded by rule as stated in State v. Gutierrez, 1998-NMCA-172 , 126 N.M. 366 , 969 P.2d 970 . {10} In the present case, it is undisputed that Defendant w

2012Taxation & Revenue Dep’t, 2004-NMCA-025, ¶ 22 , 135 N.M. 152 , 85 P.3d 276 (holding that unlike the waiver of rights of criminal defendants facing prosecution, due process does not require a knowing and voluntary waiver of a right to an administrative hearing); State v. Duran, 107 N.M. 603, 608-09 , 762 P.2d 890, 895-96 (1988) (“[T]o establish a due process violation, and thus reversible error, the defendant must demonstrate prejudice.”), superceded by rule as stated in State v. Gutierrez, 1998-NMCA-172 , 126 N.M. 366 , 969 P.2d 970 . {10} In the present case, it is undisputed that Defendant w

2012Taxation & Revenue Dep’t, 2004-NMCA-025, ¶ 22 , 135 N.M. 152 , 85 P.3d 276 (holding that unlike the waiver of rights of criminal defendants facing prosecution, due process does not require a knowing and voluntary waiver of a right to an administrative hearing); State v. Duran, 107 N.M. 603, 608-09 , 762 P.2d 890, 895-96 (1988) (“[T]o establish a due process violation, and thus reversible error, the defendant must demonstrate prejudice.”), superceded by rule as stated in State v. Gutierrez, 1998-NMCA-172 , 126 N.M. 366 , 969 P.2d 970 . {10} In the present case, it is undisputed that Defendant w

2011In Martinez, the defendant, a juvenile, argued that “the police 4 prevented a knowing and voluntary waiver of rights by excluding his mother from the 5 first interview by way of deception.” 1999-NMSC-018, ¶ 20 .

2011This Court will “evaluate the 11 totality of the circumstances and the particular facts, including consideration of the 12 mental and physical condition, background, experience, and conduct of the accused, 13 as well as the conduct of the police, in determining whether the [s]tate has 14 successfully carried its burden in demonstrating a knowing and voluntary waiver.” 15 Id. (internal quotation marks and citation omitted). 16 The district court held a hearing on Defendant’s motion to suppress evidence. 17 Agent Steve Guthrie testified that Defendant appeared to understand the questions, 18 had

2007Jonathan B., 1998-NMSC-003, ¶11 ; Garcia, 121 N.M. at 547 , 915 P.2d at 303 . {13} However, the case law does not entirely address the situation before us.

2006See id. (stating that the defendant made his initial oral motion to withdraw his plea prior to sentencing, and applying the “knowing and voluntary” standard); State v. Guerro, 1999-NMCA-026, ¶ 6 , 126 N.M. 699 , 974 P.2d 669 (applying a knowing and voluntary standard to a written motion to withdraw guilty plea submitted prior to sentencing).

2006See id. (stating that the defendant made his initial oral motion to withdraw his plea prior to sentencing, and applying the “knowing and voluntary” standard); State v. Guerro, 1999-NMCA-026, ¶ 6 , 126 N.M. 699 , 974 P.2d 669 (applying a knowing and voluntary standard to a written motion to withdraw guilty plea submitted prior to sentencing).

2002See Carnley v. Cochran, 369 U.S. 506, 516 , 82 S.Ct. 884 , 8 L.Ed.2d 70 (1962) (“Presuming waiver from a silent record is impermissible.”); People v. Callahan, 80 N.Y.2d 273 , 590 N.Y.S.2d 46 , 604 N.E.2d 108 , 114 (1992).

2002See Carnley v. Cochran, 369 U.S. 506, 516 , 82 S.Ct. 884 , 8 L.Ed.2d 70 (1962) ("Presuming waiver from a silent record is impermissible."); People v. Callahan, 80 N.Y.2d 273 , 590 N.Y.S.2d 46 , 604 N.E.2d 108 , 114 (1992).

2002Id.

2002Id.

2001According to Defendant, there were several officers at the small residence at the time he gave his statement, and no other officer heard Detective Carter read Defendant his rights pursuant to Miranda, 384 U.S. at 436 , 86 S.Ct. 1602 .

2001According to Defendant, there were several officers at the small residence at the time he gave his statement, and no other officer heard Detective Carter read Defendant his rights pursuant to Miranda, 384 U.S. at 436 , 86 S.Ct. 1602 .

1999State v. Salazar, 1997-NMSC-044, ¶ 62 , 123 N.M. 778 , 945 P.2d 996 (quoting State v. Boeglin, 100 N.M. 127, 132 , 666 P.2d 1274, 1279 (Ct.App.1983)). “[E]very reasonable presumption against waiver is indulged.” Id. {15} On appeal, we accept the factual findings of the district court unless they are clearly erroneous, and view the evidence in the light most favorable to the district court’s ruling.

1999State v. Salazar, 1997-NMSC-044, ¶ 62 , 123 N.M. 778 , 945 P.2d 996 (quoting State v. Boeglin, 100 N.M. 127, 132 , 666 P.2d 1274, 1279 (Ct.App.1983)). “[E]very reasonable presumption against waiver is indulged.” Id. {15} On appeal, we accept the factual findings of the district court unless they are clearly erroneous, and view the evidence in the light most favorable to the district court’s ruling.

1981State v. Garcia, 95 N.M. 246 , 620 P.2d 1271 (1980), but the record of defendant's reliance on his counsel's advice of a plea bargain is uncontroverted.

1981State v. Garcia, 95 N.M. 246 , 620 P.2d 1271 (1980), but the record of defendant's reliance on his counsel's advice of a plea bargain is uncontroverted.