 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                     No. 29,486

10 CODY EAST,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
13 John W. Pope, District Judge

14 Gary K. King, Attorney General
15 Nicole Beder, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Chief Public Defender
19 Kathleen T. Baldridge, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 SUTIN, Judge.
 1        Defendant Cody East appeals his convictions of three counts of child abuse

 2 (endangerment) under NMSA 1978, Section 30-6-1 (2005) (amended 2009), and one

 3 count of battery under NMSA 1978, Section 30-3-4 (1963).

 4        Defendant and his brother picked up and drove five young women ranging in

 5 age from thirteen to nineteen to their family’s home. Defendant’s child abuse

 6 convictions involved Sarah M., Eva R., and Rachel P., and his petty misdemeanor

 7 battery conviction involved Sarah M. Defendant and most of the young women had

 8 consumed what appears to be a significant amount of alcohol, and Defendant “took

 9 some pills.” Defendant physically damaged property, committed battery on several

10 individuals, and at one point was seen holding a kitchen knife.

11        Defendant’s appellate points are (1) the district court abused its discretion and

12 denied Defendant due process in admitting several items in evidence that were not

13 timely disclosed to Defendant, and (2) the district court erred in refusing to suppress

14 statements made by Defendant to police officers who advised him of his rights while

15 he was wounded, bleeding, intoxicated, and suicidal because the statements were not

16 the product of a knowing, voluntary, and intelligent waiver of his rights.

17 The Untimely Disclosure Issue

18        Defendant complains of failures of the State to timely disclose several different

19 documents, including witness statements, medical-related documents, and


                                              2
 1 photographs. Defendant also complains that his counsel was not able to interview a

 2 police officer and a neighbor. See State v. Mora, 1997-NMSC-060, ¶ 43, 124 N.M.

 3 346, 950 P.2d 789 (setting out what a court is to consider on the issue of late

 4 disclosure of evidence), abrogated on other grounds as recognized by Kersey v.

 5 Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. We review the admission of

 6 evidence involving alleged discovery violations for abuse of discretion. State v.

 7 Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968, abrogated on other

 8 grounds by State v. Forbes, 2005-NMSC-027, 138 N.M. 264, 119 P.3d 144; State v.

 9 Jackson, 2004-NMCA-057, ¶ 10, 135 N.M. 689, 92 P.3d 1263; State v. Wilson, 2001-

10 NMCA-032, ¶ 39, 130 N.M. 319, 24 P.3d 351, abrogated on other grounds by State

11 v. Montoya, 2005-NMCA-078, 137 N.M. 713, 114 P.3d 393.

12        We have reviewed the arguments. We see no need to detail them or the

13 evidence and circumstances. We hold that there exists no basis on which to rule that

14 the district court abused its discretion. We see no violation of Rules 5-501 or 5-505

15 NMRA relating to disclosure by the State, because the circumstances neither reflect

16 any material breach of any duty by the prosecutor, nor any intentional deprivation of

17 evidence. Further, Defendant fails to show how any evidence or circumstance was

18 material such that there existed a reasonable probability that the outcome of the trial

19 would have been different had the evidence been disclosed or obtained earlier. See


                                              3
 1 State v. McDaniel, 2004-NMCA-022, ¶ 14, 135 N.M. 84, 84 P.3d 701 (holding that

 2 the defendant failed to show “how his cross-examination would have been improved

 3 by an earlier disclosure or how he would have prepared differently for trial”).

 4 Moreover, Defendant did not specifically show how he was prejudiced by any late

 5 disclosure. See State v. Rojo, 1999-NMSC-001, ¶ 61, 126 N.M. 438, 971 P.2d 829

 6 (refusing to hold that the prosecution’s delay in disclosing evidence required reversal

 7 in the absence of a showing of prejudice from the non-disclosure); see also McDaniel,

 8 2004-NMCA-022, ¶ 6 (“The prejudice must be more than speculative.”). We note that

 9 the court made curative rulings with regard to some of the discovery issues.

10 The Suppression Issue

11        Defendant claims that statements he made to law enforcement officers at the

12 scene were involuntary because he was in no condition to understand he was waiving

13 his constitutional rights; he was wounded, bleeding, and intoxicated, and he had

14 suicidal thoughts. We determine whether the law was correctly applied to the facts,

15 we view the facts in the light most favorable to support the decision reached, and we

16 resolve all conflicts and indulge all inferences in favor of the decision. See State v.

17 Vargas, 1996-NMCA-016, ¶ 8, 121 N.M. 316, 910 P.2d 950.

18        We reject the claims. Defendant’s motion to suppress was untimely, having

19 been made on the eve of trial. See Rules 5-212(C) and 5-601(D) NMRA. On the


                                              4
 1 merits, the evidence reflects that Defendant initiated the encounter by approaching the

 2 officer and wanting to speak to the officer to tell his side. Nothing in the record

 3 requires a determination that, based on how Defendant described his physical and

 4 mental conditions, along with the circumstances surrounding the making of the

 5 statements, the district court’s discretion compelled suppression of the statements.

 6 The district court was not required to conclude from Defendant’s description of his

 7 condition that his waiver of rights was not a product of a free and deliberate choice.

 8 There exists no evidence of intimidation, coercion, or deception. See State v.

 9 Martinez, 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 P.2d 718 (stating the

10 prosecution’s burden is to demonstrate that the waiver was a product of a free and

11 deliberate choice rather than intimidation, coercion, or deception and that the waiver

12 was made with a full awareness of the nature of the right and the consequences of

13 abandoning the right).      The evidence reflects that Defendant understood the

14 exchanges, was cognizant of the circumstances, and engaged in coherent conversation.

15 Defendant did not proffer evidence to the contrary.

16 CONCLUSION

17        We affirm.

18        IT IS SO ORDERED.




                                              5
1   __________________________________
2   JONATHAN B. SUTIN, Judge




      6
1 WE CONCUR:



2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge



4 _________________________________
5 LINDA M. VANZI, Judge




                                  7
