The Double S Express and Kennedy's Citizen Arrest

The "Double S Express" rides again folks and you better get on board. That's right, Steve Suttle is back with a case only Steve could have been assigned. A twisted, funny, farce of a fact pattern, which the great Margaret McLean probably knew was especially made for only one person in her office, and that person is the conductor of the "Double S Express" himself, Mr. Suttle.

For those of you who don't know, Steve is not only a fine criminal appellate attorney with the AG's office, he is also a DJ on Big Oldies 98.5 where he plays the blasts from the past. During his show, Steve invites you to ride the Double S Express, which I believe might be the name of the show. It's a damn fine show, and he's a damn fine DJ. And what I love most is his mixing of Oldies information with legal news from around the State:

(Song fades out) Steve: "Now that's a classic right there from the Coasters. A little song called 'Charlie Brown.' And did you know that Gov. Richardson just appointed a new Judge in Albuquerque named Charles Brown. Yep, that's right, Charlie Brown is a Judge right here in New Mexico."

What I like about Steve is that (1) the man is always smiling, (2) he can laugh at himself, and (3) he's pretty sharp in regards to the law. Kinda like the Judge who wrote the opinion that is the subject of this post, State v. Emmons, 2007-NMCA-082, Decided May 11, 2007. That, of course, would be Judge Kennedy. I'm on the outs with Judge Kennedy right now, for lord knows what reason, but the man is still one of my all-time favorite people in this world. A hero of sorts. If you want to read one of the all-time great dissents in New Mexico Law (it's in the top five at least) then check out Judge Kennedy's dissent in State v. McClaugherty. ABSOLUTE BRILLIANCE (and his argument should have won the day in that case).

However, this post concerns the Emmons case. A case where a guy chases down a couple of repo man and uses a gun to take back his truck that they had just repo'd. One thing the Def. can't say is that he didn't have a sympathetic judge who reviewed his case. If some repo guys told me that they were about to repo a vehicle belonging to Judge Kennedy, I would build a perch in a tree overlooking Kennedy's house, buy a box of popcorn and Goobers, and sit back and watch some repo men get their tails kicked by one ticked off Judge. Now that would be entertainment. (If you know Kennedy, you know what I'm talking about).

I've received a total of 11 e-mails directing my attention to the Emmons case. O.K, O.K., my attention has been directed, as it was in May when it first came out. And, on a second read-through, I agree it needs to be highlighted. It's just too darn funny.

And with that, I give you the Emmons case. (And yes, for all of you who have written, State v. Grogan is coming)

State v. Emmons, 2007-NMCA-082; Filed: May 11, 2007 (Author: Kennedy) (Concurring: Alarid and Bustamante)

FACTS: Def. is sitting at home when he notices headlights in his driveway. When he is able to finally reach the door, he sees his prized truck driving away. Def. arms himself and takes off looking for his truck. He does not call the police. He then catches up to the truck and forces the driver of the truck to the side of the road, all the while pointing a gun at the driver. Once stopped, the driver tells the Def. that he is a repo man and that Def.s truck is being repo'd. The Def. responds with a polite statement of: "Your going to die." Def. then points the gun at the repo man and shoots a shot in the darkness to indicate that "he is serious." (As if we didn't get that, Mr. Emmons) Def. informs the repo men that he is a police officer (although he isn't). Def. then nudges the gun into the driver's chest. At this point, Def. is able to take control of his vehicle and he drives away. He never mentions to the repo men that he intended to arrest them, and he never calls law enforcement. After he leaves, the repo men call the police. The police are waiting for the Def. when he arrives at his home and he is arrested. After the district court refuses his jury instructions on self-defense, defense of property, and citizen's arrest, Def. takes a plea to aggravated assault with a deadly weapon. He appeals.

ISSUE 1: Did the District Court err when it refused the Def. requested jury instruction on self-defense?

ISSUE 1 HOLDING: Absolutely Not. A Def. is entitled to a jury instruction that supports his theory of the crime, but only when the theory is supported by the evidence presented at trial. For a UJI to be given, there must be some evidence to support every element of the defense. The elements of a self-defense claim are: (1) an appearance of immediate danger of death or great bodily harm to the defendant, (2) the defendant was in fact put in fear by the apparent danger, and (3) a reasonable person in the same circumstances would have reacted similarly. State v. Abeyta, 120 N.M. 233, 239, 901 P.2d 164, 170 (1995). In this case, Def. failed to show that he was placed in immediate danger or death by the repo men. As a matter of fact, it was the Def. who was the instigator of the situation, by chasing down the repo men and forcing them off the road. New Mexico case law looks with disain on situations where a Def. is the aggressor or instigator of a situation and then attempts to use self-defense as a justification. Therefore, since there was no evidence of element 2 of the self-defense instruction, the district court did not err in refusing the Def.'s tendered instruction.

ISSUE 2: Did the district court err when it refused the Def.s instruction on defense of property?

ISSUE 2 HOLDING: No, a defense of property instruction should be given only when evidence has been entered that indicates that a def. took action to prevent a theft from occurring. Here, since the evidence shows that Def. did not attempt to stop a theft from occurring, but from taking back a vehicle that had already been taken, a defense of property instruction was not justified. Therefore, the district court did not err when refused Def.'s instruction on defense of property.

ISSUE 3: Did the district court err when it refused to issue Def.'s tendered instruction on citizen's arrest?

ISSUE 3 HOLDING: No. A citizen's arrest historically has been used in cases involving a felony, but has been expanded to include breaches of the peace that occur in the presence of a citizen. However, "vigilantism" is "an unreasonable self-help action by citizens that tends to disprupt the administration of the criminal justice system." Here, we are speaking about vigilantism rather than a legitimate citizen's arrest. For a def. to be entitled to a defense of making a citizen's arrest, he has to show that his actions are reasonable, from an "objective-person standard." In this case, the Def.'s actions were not reasonable as he informed the repo men that he was associated with law enforcement, held them at gunpoint, and fired a shot into the dark of the night. Furthermore, it was never Def.'s intention to call the police, as he admitted he only wanted his truck returned. Therefore, since the Def. behaved as a vigilante rather than a reasonable citizen attempting to make an arrest, the court did not err in refusing his instruction on the defense of making a citizen's arrest.

God Bless Hilary Tompkins (Whoever She Is)

Lots of love goes out to Hilary Tompikins, the Gov.'s current chief counsel, who does not mess around when it comes to doing her job.

Remember the old days when district court vacancies would sit open for months, while Gov.'s took their time making up their minds as to who should fill the seat. Well, I do. Those days are long gone now that Hilary works for the Gov. Unbelievably, once the judicial nominating commissions have forwarded the names of candidates to the Gov., candidate interviews with the Gov. are being set up within a week or two (sometimes even days) after the names have been forwarded. In the case of Vegas and Tucumcari, the interviews were conducted within three working days after the judiclal nominating commissions had met.

Regarding the district court openings in Vegas, Tucumcari, and Deming, the district court seats were filled in less than two-and-a-half weeks from the time the commmittees met. Now, many of you who work up and down the Rio Grande corridor are thinking "who cares, there's always a judge to hear our cases." True. However, what Hilary understands and you don't is that in rural areas of New Mexico, if those judge's seats stay open, it's sometime hard to find a judge pro tem to hear the many cases that need to be heard. If no judge pro tem, guess what happens, cases go by the wayside for a variety of reasons (witnesses leave town, victims recant, timelines run). BTW, to get judge pro tem's to come to the outlying areas costs the State some major bucks (salary, per diem, and other costs).

I don't know Hilary Tompkins, have never met the lady, and wouldn't recognize her if she passed me in the hallway of the court, but she's a friggin goddess to me. And she should be to all court employees in the locations I've mentioned above. By busting her butt and doing her job, she made everybody's life easier in those jurisdictions that were impacted by her work. That deserves recognition.

The Firm (New Mexico Style)

If I had all the money in the world and could hire the six or so brightest legal minds in New Mexico in order to start my own firm, who would they be:

HARRIS HARTZ (Managing Partner) - Not a big fan of Harris' personally, he's a bit stand-offish for my taste, but hey I give credit where credit is due. Give the man a Black's Law Dictionary, a Westlaw Password, and a subscription to the National Review, and you get some great legal opinions, although I disagree with the outcome half the time. The rumour is that his clerks had to do a 50 state search on each issue, as he roamed the stacks at the Supreme Court Library looking for . . . well . . . just looking. Hey the former head of the library, Thaddeus, told me the guy was a world-class researcher, and I believe him. The man's a genius, what can you say.

ED CHAVEZ (Partner) - The man's been hitting home-runs for the last 12 months or so, and his reputation around the State is golden. It took me some time to warm up to him, but that's just because of my rivalry with the great John Blair. In the end, Chavez is smart, sensible, and couragous (hey he could have assigned the case where he overturned the Judge's bribery charges for taking sexual favors to another Justice, but he kept it). He's also personable, and that is a plus for a Justice (compare to Hartz). Yet, I would only hire Chavez if I could get Bosson to take Chavez out to lunch twice weekly, as Bosson and Chavez inspire one another. Chavez/Bosson = McCartney/Lennon.

JIM ELLIS (Senior Associate) - Ok, ok, I can hear the grumblings already. I know that many around the State who didn't attend UNM Law School feel that the whole Jim Ellis craze is just a UNM Law thing, but your wrong. Dead Wrong. Let me put it this way, if the man were at Harvard, he would be quoted every week by some national media outlet. If he taught at one of the Ivy's, it would be like Ichiro playing for the Yankees. They would name a candy bar after him. The man does nothing but sit in his office and read, research, write, and study. He is like a mad genuis in a lab of some kind, like DJ Shadow behind the turntables, like Jay-Z behind the mic. Brilliance.

LYNN PICKARD (Senior Associate) - Won't go any further here- only to say that if you read the Bulletin you know that not only is she prolific, but she usually nails it as well. I think that both Hartz and Chavez have probably learned a thing or two from Judge Pickard. To continue the baseball comparisons, she's like Roger Clemens; when she's called on, she almost always delivers.

STEVE TUCKER (Associate) - You say "Who?" I say only the baddest appellate attorney in the entire state. If our clients want to appeal something, I'll just make a call to the bullpen and bring in "The Tuck" and he'll close it out for the Chavez Firm. You think your briefs are on fire, Tucker's appellate briefs have made grown men fall to the ground due to a sudden onset of blindness because when you look at a Tucker brief you are STARING AT THE SUN. The man is a monster. Trust me. There are currently 140 volumes of the New Mexico Reports. Tucker can brief the entire set in 12 pages. Now, that's good.

JOEL JACOBSEN (Junior Associate) - You say "Who?", I say only the State's secret weapon of legal reasoning and writing. When the great Margaret McLean (I call her great because she was nice enough to call me and put my mind at ease) needs an A.G to step up and do some in-depth work, I bet Joel is the man. To be sure, John Bigelow has one recurring nightmare: he is stuck in a rural motel room, but he can't get to sleep because there is a large neon sign right outside his window blinking on and off and in large red letters the neon sign spells out "J-A-C-O-B-S-E-N." Steve Suttle may be like Mike Tyson ('cept taller and bald), Artie Peppin may have been like Oscar De la Hoya ('cept not nearly as good looking), Ralph Trujillo may be like Smokin Joe Frazier ('cept, hell I don't know, a lot of things), but Joel is like the Greatest, ALI ('cept, well nothing, he really is like Ali, even kinda looks like him in a northern european kinda way). The man can opine on anything, see his Blog for proof. He will go higher places. Trust me. I am always right.

ANDREW SHULTZ (Junior Associate) - Like hartz, he ain't my cup of cup'o'noodles. Once he was giving a talk at UNM Law about his time at the U.S. Supreme Court, and I meekly raised my hand and asked why the U.S. Supreme Court didn't televise their oral arguments like on C-Span 4 or something, and Andy answered me like I had ordered the plague on all in attendance. However, everyone I know who has worked with him speaks highly of his character and intelligence. Just don't mention televisions in the courtroom.

JOSH BOONE (Junior Associate) - I'm going to need a trial lawyer in my firm and Josh is as good as the Blackburn's, Mitchell's, Twohig's, McGinn's, Daniel's, Padilla's, all put together. I know you don't believe me, but trust me, you will. I am always right.

GENE FRANCHINI (Of Counsel) I am going to need someone with a heart and soul in my firm and Franchini will do just fine. When Hartz is going all mad-dog on somebody and I need to calm him down, I'll send Franchini in to speak to him for about thirty minutes or so. Afterwards, Hartz will leave the office wearing a "Vote for Hillary" button and holding a sign that says "Anybody within 20 miles of the Accident is a Forseeable Victim." Now that would be great

Bosson on the Internet

Damn! Doesn't Justice Bosson look scholarly in that picture. But you know what, he is scholarly.

I bet his clerks are too.

Which is why I am glad that Bosson authored the opinion in State v. Kirby, 2007-NMSC-034. The Kirby opinion could have turned into a long diatribe about the internet, websites, and copyright law in general. However, Bosson handles the problem clearly and concisely (remember that term from your legal writing class). The whole opinion is less than 25 paragraphs and Bosson tackles several issues including the difference between websites and web pages, copyright law for websites, as well as contract law concerning websites. The citations are a buckshot of civil opinions, treatises on the law of the internet, definitions out of the American Heritage Dictionary (the official dictionary of the New Mexico Supreme Court?), the federal code, law review articles, and, of course, criminal law citations. But they do the job and fit together well.

To boil down the opinion so that it would be this clear and concise, all the while citing to such a varied list of references, Bosson's law clerk probably put in some bookoo hours. To whomever that is, much respect. BOO-YAH-KA-SHA (as Da Ali G would say). (Hey Richard, take your clerks to lunch at the Blue Corn Cafe, they deserve it.)

(This opinion is a primer to any business out there, or individual, who wish to contract out with a web designer to create a website for them and the business or individual want to own the website from the get-go. SEE BOSSON'S CITE TO THE COPYRIGHT EXCLUSIONS.)

State v. Kirby, 2007-NMSC-034, Decided June 13, 2007, (Author: Bosson) (Concurring: Chavez, Minzner, Maes, and Serna)

Facts: Def. hires a guy to create a website for Def.'s business. The guy agrees to design the website for $1,890. The contract is silent on who would "own" the website after the guy designs the site for the Def.. However, the contract does provide that if the guy is paid in full after designing the site, the Def. would be assigned the rights to the contents of the site. The Def. was responsible for finding a web hosting service for the website, as well as creating a domain name and password for the site. The Def. was also responsible for providing the guy with material to put into the website.

After the guy designs the the website, the Def. doesn't pay the guy for the work he has done. So the guy tells the Def. he will access the site and take back his work until he is paid. The Def. then changes the password to the site so that the guy can't access the site.

Def. is charged with a 4th degree felony fraud count. The complaint alleges that the Def. took "a Website Design belonging to [the guy], by means of fraudalent conduct, practices, or representations." Def. loses in district court, where he argued that he could not commit fraud because fraud entails taking something from someone that belongs to that person. Here, the Def. argues that the website belonged to him and not the guy, and therefore he could not commit fraud against the guy, since the website belonged to him and not the guy.

He appeals.

ISSUE 1: Did the Def. own the website and therefore unable to commit the crime of fraud?

ISSUE 1 HOLDNG: No, the Def. did not own the website. The guy owns the website because he owned copyright to the webpages that make up the site since he authored the web pages.

Furthermore, since a website is nothing more than a collection of web pages, the guy owned the site.

Here, the Def. could have only owned the copyright to the web pages by way of two exclusions to the general rule in copyright law that the author owns the copyright. Those two exclusions are: (1) Work made for hire- i.e. as in an employer-employee relationship, or as in an independant contractor relationship, and (2) joint authorship.

In this case, no argument was made that the guy was an employee of the Def. or that the Def. was a joint author of the web pages. And in order for the independant contractor exclusion to apply, the parties must expressly agree in writing that that the work will be "work for hire" and that the work must be commissioned for one of the nine uses listed in the Copyright Act. Here, those conditions were not present, and since the guy was the sole author, he retained the copyright to the site and is therefore the owner of the site.

"A website designer that is "the initial sole author" is also the owner", in lieu of an agreement to the contrary.

It makes no difference that the Def. owned the domain name, and contracted out a web hosting service, as well as controlled the password to the site. A domain name is just an address, and a password is just a lock to the site. A web hosting service just provides a platform to the site. The essential part of a website are the web pages that comprise the website, and if the guy owned copyright to those, he owned the site.

Thus, since the Def. did not own the website, he could be held criminally liable if a jury found that he obtained the website through deception or cheating. Since a jury did, he's guilty. Affirmed.

(domain name = an acre of land; website = house on that acre of land; website password = key to that house on that acre of land land. Just because you own the acre of land and have a key to the house, doesn't necessarily mean you own the house)

State v. Lucero (Republished)

The Court of Appeals republished their opinion in State v. Lucero, and so the orignal that was filed in mid-June is withdrawn and the July 31st republication takes it place.

The only issue that gets me is issue 3, the confrontation clause issue. Here, a complaining witness files an affidavit that the judge sees prior to a hearing and takes action pursuant to the affidavit, and then at the hearing the witness never testifies, but the Court of Appeals says that since the Def. was given notice of the contents of the affidavit at the hearing and he does not challenge the contents of the affidavit, or request another hearing, then there is no prejudice. I don't know? Maybe so----just doesn't sound right.

And this case brings to light another issue, conversations between judges and individuals like treatment program coordinators and other post-adjudicatry individuals who work with Def.'s. after sentencing (or in this case, after adjudication but BEFORE sentencing). When does this type of ex-parte conversation cross the line?

State v. Lucero, July 31, 2007, (Author: Wechsler) (Concurring: Bustamante and Castillo)

Facts: Def. is convicted of violating a DV order. Def. is required to participate in a "post-adjudication, pre-sentence" program. Def. does not object to his being ordered to participate in the program. Def. participates for four months and then begins his "stalking behavior" again. Judge receives an ex-parte communication from Def.'s ex-wife in the form of an afidavit telling the Judge of this behavior. Judge places Def. in jail for four days. Immediately after leaving jail, he contacts his ex-wife again. (What is up with these stalker guys?). Def. is placed in jail again. Def. hires a new attorney, and he argues many things as we will see when we get to the issues and holding.

ISSUE 1: Is the Def. entitled to appellate review of the "post-adjudication, pre-sentencing" program he was placed on, when he failed to preserve a challenge to the program at the time he was placed on the program, and only challenged the program in his appellate briefs?

ISSUE 1 HOLDING: No, the Def. is not entitled to appeallate review of the program. He did not challenge the validity of the program, or the fact that he was ordered to participate in the program after adjudication but before sentencing, at the time he was placed on the program. Therefore, since he did not preserve this issue at Metropolitian Court, he cannot challenge the program on appeal. The Court reiterates that when it has looked at these programs that theCourts sometimes place defendants on, the time to challenge the validity of the program is at the hearing when the judge orders them to participate in the program. If a def. agrees to participate in a program and signs the program's forms, he essentially waives any challenge to the program. When a def. challenges a progam only after a court takes action against a def. for not following through with the requirements of the program, the timing of such a challenge is not proper and the def.'s argument to the appellate court about the program will most likely be futile.

ISSUE 2: Was the Def. entitled to notice and a probation revocation hearing prior to the metropolitian court ordering the Def. to be placed in jail after the court discovered that def. allegedly violated his conditions of release?

ISSUE 2 HOLDING: No, the Def. was not entitled to a probation revoction hearing because the Def., quite simply, was not on probation. Def. was on conditions of release, and pursuant to those conditions, was participating in a program. Furthermore, Def. did have a hearing on his violation of his conditions of release, and received notice of that hearing, and thereofore his due process was not violated.

ISSUE 3: Was Def.'s right to confront witnesses violated when the metropolitian court judge was provided with affidavits from Def.'s ex-wife and these affidavits wers used at Def.'s hearing as to whether he violated his conditions of release?

ISSUE 3 HOLDING: Yes, Def. should have been entitled to cross-examine the ex-wife regarding the contents of the affidavit, but the Def. did not suffer undue prejudice due to the use of the affidavits, because the metropolitian court informed the Def. of the contents of the affidavit and the Def. did not challenge the assertions within the affidavit and did not request a hearing to challenge the contents of the affidavit.

ISSUE 4: Was Def. entitled to credit for time served during the time he was on conditions of release and participating in the program?

ISSUE 4 HOLDING: No, the Def. was not entitled to credit for time served because he had yet to be sentenced, participated in the program voluntarily, and was on conditions of release rather than on probation.

BOSSON: TAKE NOTE

Oh, about a year and a half ago, Justice Bosson authored an opinion in which he opined about the definition of reasonable doubt, See State v. Garcia. He reminded attorneys to stick to the UJI definition and not attempt to provide your own definition. However, our UJI definition is lacking and this article on Mark Bennett's blog really hits the nail on the head. I hope our former Chief Justice takes a quick read.

By the way, Mark's site is one of the best. In my favorite blog section, you won't see a lot of sites. I have visited a lot of blogs, but only a few keep my interest. Mark and Joel's are two sites that keep me coming back. I think you'll like them too if you click on their links.

Ribeye Steak + Chicken = A Wechsler Opinion

Anybody already open up the new Bulletin and read the fact pattern from hell, and I mean down deep in the lower depths of the lower bowels of the the lower chambers of hell. State v. Neal, 2007-NMCA-086, filed June 20, 2007, is the case. UH....I don't even know what to say, because just getting through the procedural history was like . . .uh . . .torture. I will say this, I feel bad for Ralph Trujillo (Asst. A.G.) and Nancy Simmons (Attorney for Defendant) and Wechsler's clerks and Wechsler himself. Just figuring out the timeline alone is a month's worth of salary.

One shout out: To the prosecutor in Las Cruces who was able to procedurally navigate the Defendant's two cases and revoke his rear-end and get him to serve all the time he deserved without getting lost in the procedural mess-YOU HAVE MY DEEPEST RESPECT. Whoever you are.

No major issue with the opinion except for Issue 2, where it seems that Wechsler wants a little much from our probation officers. Why make the officers go out and search for a guy who admits that he moved without getting permission from his probation officer or even informing the officer that he is moving. To give credit for time when he was actively violating his probation by not informing his officer of his current address is a stretch. Anyway, if you guys have an explanation for this after reading the opinion, let me know?

State v. Neal, June 20, 2007 (Author: Wechsler) (Concurring: Sutin and Bustamante)

Facts: Def. gets convicted of one crime and gets a deferred. Def. gets convicted of a second crime some time after the conviction in the first case. In sentencing for the second crime, the court revokes the deferred sentence in the first case and places the Def. on probation for the first crime, and then places the Def. on probation for the second crime and runs that consecutive to the sentence in the first case. A little while later, Def. gets in trouble again and this time the State revokes probation for the first case and Def. gets sent to the penitentiary. A little time passes and Def. gets released from the pen and is on parole status when he decides he's hungry and so he goes to a Safeway and shoplifts ONE RIBEYE STEAK AND CHICKEN. Boom, Def. is caught again and his parole is revoked and he is incarcerated again pursuant to the first case. The State files a revocation of probation in the second case and also files a petition to seek habitual offender status. However, the Def. argues that the time to revoke his probation in the second case has passed because he should get credit for the time that he was on parole in the first case, to include the time he was incarcerated for the parole violation (due to stealing ONE RIBEYE STEAK AND CHICKEN). Thus, he appeals.

Also, along the way he absconds for a period of two months where he is probably hiding out in the meat freezer of a Las Cruces Safeway.

ISSUE 1: Was Def. entitled to receive credit against his probation in the second case while he was incarcerated for a parole violation stemming from the first case?

ISSUE 1 HOLDING: No, Def. was not entilted to credit on his probation time for the second case while he was incarcerated for the parole violation in the first case. Statute 31-20-5 (B) clearly states that the time a person is on parole shall count also count for probationary time as well, however if a person violates parole and his parole is revoked, any incarceration time shall not be credited as time served on probation. Here, Def. argues that 31-20-5(B) only applies to a Def. who is under a sentence in a single case, and not where the Def. has multiple sentences he's serving at the same time. The court rejects this reasoning and applying legislative intent determines that if a Def. is placed back into incarceration on one sentence, and he also is on probation for another sentence, the time he is incarcerated on the parole violation on the one sentence is not credited to the probationary time in the other sentence.

ISSUE 2: Did the district court err when it determined that the Def. would not get credit for two months of his probation time in the second case, due to Def. being a fugitive at that time?

ISSUE 2 HOLDING: Yes, the district court erred when it determined that Def. would not get credit for two months of his probationary time in the second sentence. "A defendant is entitled to credit for any time on probation, unless the State can show either (1) it unsucessfully atempted to serve the warrant on the defendant, or (2) any attempt to serve the Def. would have been futile. " The Court holds that before the State can meet its burden that a probationer is a fugitive, the State must ordinarily prove that it issued a warrant and entered it into the NCIC database. Just issueing a bench warrant will not do. Here, although the State showed that it had a warrant issued for Def. and entered the warrant into the NCIC, the State did not prove that the it exercised due diligence in trying to serve the warrant on the Def., and therefore the Def. is entitled to credit for the two months he was on probation.

ISSUE 3: Was the State allowed to file a petition for Habitual Offender Status in regards to the second case prior to the probation running in that case?

ISSUE 3 HOLDING: Yes, the State was allowed to file a petition to have the Def. declared as a habitual offender under the auspices of the second case, because the defendant's probation in that case had not run and therefore no double jeopardy problems were present.

ISSUE 4: Did the district court err in admitting certian evidence at the probationary hearing?

ISSUE 4 HOLDING: No, the district court did not err. In this case, the probationary officer entered into evidence many documents in which she was not the author. However, the court determined that an author of a document does not have to be identified if the authorship of the document is irrelevant. Here, the documents were public records and therefore the authorship of the document was not relevant. Also, there was no error in admitting hearsay at the hearing, because the State did not rely solely on hearsay, See State v. Vigil, 97 N.M. 749 (holding that hearsay may not be sufficient where no non-hearsay evidence is presented.)