 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ____________

 3 Filing Date: September 23, 2014

 4 NO. 32,709

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 GUADALUPE FLORES,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
11 Stephen K. Quinn, District Judge

12 Gary K. King, Attorney General
13 Corinna Laszlo-Henry, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Jorge A. Alvarado, Chief Public Defender
17 Will O’Connell, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                       OPINION

 2 ZAMORA, Judge.

 3   {1}   Guadalupe Flores (Defendant) appeals her convictions for murder in the second

 4 degree, three counts of aggravated battery with a deadly weapon, and one count of

 5 aggravated battery on a household member. Defendant contends that systematic

 6 removal of Spanish-only speaking jurors from the jury panels from which her jury

 7 was chosen violated her right to a fair and impartial jury. Defendant also claims that

 8 the district court abused its discretion by failing to sever the charges, which stemmed

 9 from two separate incidents. We conclude that Defendant failed to establish a prima

10 facie case of systematic exclusion of Spanish-only speakers from jury panels. We

11 further conclude that the district court did not abuse its discretion in denying

12 Defendant’s motion to sever. Accordingly, we affirm.

13 BACKGROUND

14   {2}   Defendant and Anthony Mah (Mah) were romantically involved, lived together,

15 and had four children together. The charges against Defendant stemmed from two

16 separate incidents involving Defendant and Mah; one occurred in February 2011, and

17 the other in November 2011.

18   {3}   On February 12, 2011, Defendant went looking for Mah, who was out.

19 Defendant found Mah sitting in his parked vehicle outside a residence with a female
 1 passenger. Defendant was upset. Witnesses reported seeing Defendant drive her

 2 vehicle into the back of Mah’s vehicle several times. Defendant later told police that

 3 she had run into Mah’s car because he was with another woman. Defendant was

 4 charged with aggravated battery on a household member.

 5   {4}   Defendant and Mah continued their relationship. On November 1, 2011, Mah

 6 was driving around with a friend, Brandon Vann (Vann), and three female passengers.

 7 Defendant spotted the group and approached their vehicle. When Mah noticed

 8 Defendant, he drove away and Defendant followed in her vehicle. Defendant pursued

 9 Mah and rear-ended the vehicle he was driving multiple times. Eventually, as Mah

10 began to pull to the side of the road, Defendant hit the vehicle from the side, and the

11 vehicle flipped several times. Vann was pronounced dead at the scene. Following the

12 crash, Defendant was charged with one count of second degree murder and four

13 counts of aggravated battery with a deadly weapon.

14   {5}   The charges against Defendant from the February incident and the November

15 incident were joined. Prior to trial Defendant moved to sever the charges. The motion

16 was denied and the matters were tried jointly. Defendant was convicted of all charges.

17   {6}   Defendant moved for a new trial after learning that all prospective jurors who

18 spoke Spanish only and required an interpreter were systematically excluded from the

19 jury panels from which her trial jury was selected. The district court held a hearing


                                              2
 1 on the issue. The court clerk responsible for selecting jury panels testified at the

 2 hearing. The clerk testified that in creating jury panels, she put all Spanish-only

 3 speaking prospective jurors on one panel in order to minimize the cost of interpreters.

 4 In this case, the jury pool was comprised of approximately one thousand prospective

 5 jurors. The clerk divided them into five panels and assigned all Spanish-only speakers

 6 to panel three. Defendant’s jury was selected from panels one and two. In her motion

 7 for a new trial, Defendant claimed that the clerk’s practice deprived her of a fair and

 8 impartial jury. The motion was denied. This appeal followed.

 9 DISCUSSION

10 A.      Systematic Exclusion of Prospective Jurors

11 1.      Preservation

12   {7}   The State argues that Defendant failed to preserve her objection to the

13 composition of the jury venire because she failed to alert the district court to the basis

14 of her claim with the requisite specificity to satisfy preservation requirements. We

15 disagree.

16   {8}   Rule 12-216 NMRA provides that a question is preserved for appellate review

17 if it “appear[s] that a ruling or decision by the district court was fairly invoked . . .

18 [and f]urther, if a party has no opportunity to object to a ruling or order at the time it

19 is made, the absence of an objection does not thereafter prejudice the party.”


                                               3
 1          The primary purposes of the preservation requirements are: (1) to
 2          specifically alert the district court to a claim of error so that the error
 3          may be corrected at that time, (2) to allow the opposing party adequate
 4          opportunity to respond to a claim of error, and (3) to create a sufficient
 5          record to allow this Court to make an informed decision regarding the
 6          contested issue.

 7 State v. Moncayo, 2012-NMCA-066, ¶ 5, 284 P.3d 423.

 8   {9}    In this case, Defendant was not aware of the clerk’s jury panel selection

 9 procedures until after her trial. Once Defendant became aware that Spanish-only

10 speaking prospective jurors were excluded from the two jury panels from which her

11 jury was selected, she moved for a new trial. The State responded, and the district

12 court held a hearing on the motion. At the hearing, the court clerk testified regarding

13 her jury panel selection process. After hearing the testimony and arguments from the

14 parties, the district court ruled on the merits of the motion. Because the district court

15 was alerted to Defendant’s claim of error and had a sufficient opportunity to fully

16 address it, the issue was sufficiently preserved for our review.

17 2.       Waiver Pursuant to NMSA 1978, § 38-5-16 (1969)

18   {10}   The State also argues that because Defendant did not object to the jury venire

19 composition prior to the empaneling of the jury, Defendant waived her right to object

20 under Section 38-5-16. We are not persuaded.

21   {11}   Determining whether Section 38-5-16 bars Defendant’s objection to the clerk’s

22 jury selection process even though Defendant was not aware of the procedure until

                                                4
 1 after her trial is an issue of statutory interpretation. Accordingly, our review is de

 2 novo. United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 7, 148

 3 N.M. 426, 237 P.3d 728. The guiding principle when construing statutes is to

 4 “determine and give effect to legislative intent.” OS Farms, Inc. v. N.M. Am. Water

 5 Co., 2009-NMCA-113, ¶ 19, 147 N.M. 221, 218 P.3d 1269 (internal quotation marks

 6 and citation omitted). To discern the Legislature’s intent, “we look first to the plain

 7 language of the statute, giving the words their ordinary meaning, unless the

 8 Legislature indicates a different one was intended.” Marbob Energy Corp. v. N.M. Oil

 9 Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135 (alteration,

10 internal quotation marks, and citation omitted). Statutory language that is clear and

11 unambiguous must be given effect. Trinosky v. Johnstone, 2011-NMCA-045, ¶ 11,

12 149 N.M. 605, 252 P.3d 829.

13   {12}   Section 38-5-16 states, in pertinent part, that a criminal defendant “may

14 challenge the jury panel on the ground that the members thereof were not selected

15 substantially in accordance with law. . . . Such a challenge is waived if not raised

16 before the trial jury panel has been sworn and selection of the trial jury commenced.”

17 By definition, waiver is “[t]he voluntary relinquishment or abandonment . . . of a legal

18 right or advantage[.]” Black’s Law Dictionary 1717 (9th ed. 2009). “The party alleged




                                              5
 1 to have waived a right must have had both knowledge of the existing right and the

 2 intention of forgoing it.” Id.

 3   {13}   In this case, Defendant was not aware of the clerk’s policy to segregate

 4 Spanish-only speaking prospective jurors at the time her jury was being empaneled.

 5 She could not have objected to the procedure in accordance with Section 38-5-16

 6 because she did not know that her objection was warranted until after her trial. We

 7 do not believe that the Legislature intended for Section 38-5-16 to bar objections to

 8 unlawful jury selection where a party does not know the selection process has been

 9 unlawful prior to swearing in the prospective jury panel and jury selection has been

10 commenced. We decline to apply the statute in that way. See State v. Stevens, 2014-

11 NMSC-011, ¶ 15, 323 P.3d 901 (“It is the high duty and responsibility of the judicial

12 branch of government to facilitate and promote the [L]egislature’s accomplishment

13 of its purpose. Although we look first to the language of the statute, we will reject a

14 formalistic and mechanical statutory construction when the results would be absurd,

15 unreasonable, or contrary to the spirit of the statute.” (internal quotation marks and

16 citation omitted)). Accordingly, we conclude that Defendant did not waive her right

17 to object to the composition of the jury venire.




                                              6
 1 3.       Representative Cross-Section of the Community

 2   {14}   We turn now to Defendant’s claim that she was deprived of a fair and impartial

 3 jury as a result of the systematic exclusion of Spanish-only speakers from the majority

 4 of jury panels in Curry County. Article II, Section 14 of the New Mexico Constitution

 5 entitles criminal defendants to a “trial by an impartial jury,” which requires that the

 6 jury represent a “fair cross[-]section of the community.” State v. Aragon, 1989-

 7 NMSC-077, ¶¶ 5, 25, 109 N.M. 197, 784 P.2d 16. Defendant relies heavily on Aragon

 8 to support her contention that the systematic exclusion of Spanish-only speakers from

 9 jury panels is unconstitutional.

10   {15}   However, Defendant’s reliance on Aragon is misplaced. Aragon involved a

11 constitutional challenge to a prosecutor’s purposeful, discriminatory, and systematic

12 exercise of peremptory strikes to exclude members of a cognizable racial group from

13 the jury panel. Id. ¶¶ 9, 15-16. This type of alleged violation requires an examination

14 of the prosecutor’s conduct, and inferences that can be made about the prosecutor’s

15 discriminatory intent. Id. ¶ 17 (“[T]he party may show that [the prosecutor] has struck

16 most or all of the members of the identified group from the venire, or has used a

17 disproportionate number of peremptories against the group. He may also demonstrate

18 that the jurors in question share only this one characteristic—their membership in the

19 group—[or] . . . the failure of [the prosecutor] to engage the same jurors in more than


                                               7
 1 desultory voir dire, or indeed to ask them any questions at all.” (internal quotation

 2 marks and citation omitted)).

 3   {16}   This type of analysis is distinguishable from the analysis we apply to claims

 4 that the jury selection process as a whole has resulted in systematic exclusion of a

 5 particular group. This Court has adopted a two-step test for determining whether there

 6 was a violation of a defendant’s constitutional right to a jury selected from a fair

 7 cross-section of the community from the United States Supreme Court, Duren v.

 8 Missouri, 439 U.S. 357 (1979). First, the defendant must establish whether there was

 9 a prima facie violation of the fair cross-section requirement.

10          [T]o show a prima facie violation of the fair cross-section requirement,
11          a defendant must demonstrate that (1) the group alleged to be excluded
12          is a ‘distinctive’ group in the community, (2) the group’s representation
13          in venires from which juries are selected is not fair and reasonable in
14          relation to the number of such persons in the community, and (3) this
15          under-representation results from the systematic exclusion of the group
16          in the jury-selection process.

17 State v. Casillas, 2009-NMCA-034, ¶ 13, 145 N.M. 783, 205 P.3d 830 (citing Duren,

18 439 U.S. 357, 364). If there was a prima facie violation, the second part of the test

19 provides the government an opportunity to defend its practices by demonstrating that

20 a significant state interest is advanced by the process that results in the exclusion of

21 a distinctive group. Duren at 367-68.




                                               8
 1   {17}   Here, Defendant relies primarily on authority related to prosecutorial

 2 discrimination, and does not address the Duren test. As a result, Defendant has not

 3 fully developed her argument regarding a prima facie violation of the fair cross-

 4 section requirement. This Court will not rule on an inadequately-briefed issue where

 5 doing so would require this Court “to develop the arguments itself, effectively

 6 performing the parties’ work for them.” Elane Photography, LLC v. Willock, 2013-

 7 NMSC-040, ¶ 70, 309 P.3d 53, cert. denied, 134 S. Ct. 1787 (2014); see id. (“[W]e

 8 are not required to do their research. . . . This creates a strain on judicial resources and

 9 a substantial risk of error. It is of no benefit either to the parties or to future litigants

10 for this Court to promulgate case law based on our own speculation rather than the

11 parties’ carefully considered arguments.” (internal quotation marks and citation

12 omitted)). Our Court has been clear that it is the responsibility of the parties to set

13 forth their developed arguments, it is not the court’s responsibility to presume what

14 they may have intended. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶

15 15, 137 M.M. 339, 110 P.3d 1076 (holding that this Court has no duty to review an

16 argument that is not adequately developed or guess at what the argument might be);

17 see also In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329

18 (holding where a party cites no authority to support an argument, we may assume no

19 such authority exists). To do otherwise is setting a very dangerous precedent.


                                                 9
 1 Moreover, for us to unilaterally develop Defendant’s constitutional argument, and

 2 rule on that basis here, would deprive the State of an opportunity to advance any

 3 argument it may have regarding a significant state interest served by the challenged

 4 process. This would result in a substantial disadvantage to the State.

 5   {18}   The same disadvantage exists regarding Defendant’s assertion that Article II,

 6 Section 14 of the New Mexico Constitution provides greater protection than the

 7 federal constitution. The dissent believes that Defendant has presented an argument

 8 that Aragon should be extended to prohibit the actions of a court official that result

 9 in all Spanish-only speakers being segregated. However, Aragon, only related to

10 prosecutorial misconduct. The mere statement that the New Mexico Constitution

11 provides greater protection does not articulate how the greater protection offered by

12 Article II, Section 14 applies in this context and, therefore, provides no basis for

13 response by the State. The dissent believes that the Duren test is “out of place” and

14 should not apply, but if it does not, it is not clear what would apply. Although the

15 principle of Aragon may conceivably be applicable, that, without more, is not

16 argument. In sum, we conclude that Defendant has not met her burden and has failed

17 to establish the systematic exclusion of Spanish-only speakers from the jury panels.




                                              10
 1   {19}   The district court has an affirmative responsibility to empanel jurors in a

 2 random manner. NMSA 1978, § 38-5-11(A) (2005). Accordingly, it is important to

 3 stress that the Ninth Judicial District’s court clerk’s systematic policy of

 4 impermissibly manipulating the jury selection process is a miscarriage of that

 5 responsibility and borders on the egregious. By placing all Spanish-only speaking

 6 prospective jurors in one panel, the clerk has effectively excluded them from all of

 7 the other panels. This process can potentially violate both the prospective jurors’ right

 8 to serve and the criminal defendant’s right to a fair and impartial jury. See State v.

 9 Samora, 2013-NMSC-038, ¶ 7, 307 P.3d 328 (“This Court has recognized more than

10 once that Article VII, Section 3 [of the New Mexico Constitution] unambiguously

11 protects the rights of Spanish-only speakers to serve on our state juries.”); see also

12 Aragon, 1989-NMSC-077, ¶ 25 (“Article II, Section 14, [of the New Mexico

13 Constitution] entitl[es the defendant] to a jury representing a fair cross[-]section of

14 the community[.]”).

15   {20}   In this case, although the clerk’s action is inexcusable, the record does not

16 reveal whether Spanish-only speaking members of the jury pool were actually

17 prevented from serving as a result of the clerk’s policy. It is also unclear whether the

18 policy resulted in trial juries that were not representative of the community.




                                              11
 1 B.       Defendant’s Motion to Sever Charges

 2   {21}   Prior to trial, Defendant moved to sever the charge of aggravated battery on a

 3 household member related to the February incident from the charges of second-degree

 4 murder and four charges of aggravated battery with a deadly weapon related to the

 5 November incident. The district court denied the motion to sever finding that the

 6 evidence would have been cross-admissible, that Defendant failed to show undue

 7 prejudice resulting from the joinder of charges, and that the evidence of the February

 8 incident was relevant to rebut Defendant’s claim that the November crash was an

 9 accident. We review the denial of a motion to sever for an abuse of discretion. State

10 v. Lovett, 2012-NMSC-036, ¶10, 286 P.3d 265.

11   {22}   Defendant argues that the evidence of the aggravated battery on a household

12 member would not be cross-admissible because it was improper evidence under Rule

13 11-404(B) NMRA. Defendant further argues that, even if the evidence were cross-

14 admissible, it should have been kept out because the probative value was substantially

15 outweighed by the danger of unfair prejudice under Rule 11-403 NMRA. The State

16 contends that the evidence would be cross-admissible because it shows intent (that

17 the collision between the two vehicles was not an accident), and because it was not

18 more prejudicial than probative.




                                              12
 1   {23}   Rule 5-203(A) NMRA requires the State to join certain charges if the offenses

 2 “(1) are of the same or similar character, even if not part of a single scheme or plan;

 3 or (2) are based on the same conduct or on a series of acts either connected together

 4 or constituting parts of a single scheme or plan.” State v. Gallegos, 2007-NMSC-007,

 5 ¶¶ 10, 141 N.M. 185, 152 P.3d 828. However, “a [district] court may abuse its

 6 discretion in failing to sever charges” if there is prejudice to the accused. Id. ¶¶ 9, 16.

 7   {24}   In determining whether a district court’s failure to sever resulted in prejudice

 8 to the defendant, we must first determine whether the evidence pertaining to each

 9 charge would be cross-admissible in separate trials. Id. ¶ 19 (“[T]here is a high risk

10 of undue prejudice whenever joinder of counts allows evidence of other crimes to be

11 introduced in a trial of charges with respect to which the evidence would otherwise

12 be inadmissible. On the other hand, cross-admissibility of evidence dispels any

13 inference of prejudice.” (alterations, internal quotation marks, and citations omitted)).

14   {25}   We determine cross-admissibility through an analysis of Rule 11-404(B). See

15 Lovett, 2012-NMSC-036, ¶ 37; Gallegos, 2007-NMSC-007, ¶¶ 20-21. Rule 11-

16 404(B)(1) states: “Evidence of a crime, wrong, or other act is not admissible to prove

17 a person’s character in order to show that on a particular occasion the person acted

18 in accordance with the character.” Nonetheless, evidence of a crime, wrong, or other

19 act may be used for another purpose, “such as proving motive, opportunity, intent,


                                               13
 1 preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule

 2 11-404(B)(2). The district court may admit evidence of prior acts where such

 3 evidence is relevant to a material issue other than the defendant’s character. State v.

 4 Martinez, 1999-NMSC-018, ¶ 30, 127 N.M. 207, 979 P.2d 718. However, the state

 5 must “identify and articulate the consequential fact to which the evidence is directed.”

 6 Gallegos, 2007-NMSC-007, ¶ 22.

 7   {26}   Here, the evidence relevant to the charge of battery on a household member,

 8 arising from the February incident, would have been cross-admissible under Rule 11-

 9 404(B)(2). The evidence of the first incident, during which Defendant purposefully

10 ran her vehicle into Mah’s vehicle after finding him in the company of another

11 woman, could show that she purposefully collided with the vehicle Mah was driving

12 in November, when she once again found him in the company of other women. This

13 evidence does not necessarily imply that Defendant has the propensity or character

14 to behave dangerously, which would be improper character evidence under Rule 11-

15 404(B)(1). Rather, it is permissible under Rule 11-404(B)(2). We conclude that the

16 district court did not abuse its discretion by denying Defendant’s motion to sever.

17 CONCLUSION

18   {27}   For the foregoing reasons we affirm.


                                              14
1   {28}   IT IS SO ORDERED.


2                                        _______________________________
3                                        M. MONICA ZAMORA, Judge




4 I CONCUR:


5 ____________________________
6 JAMES J. WECHSLER, Judge


7 LINDA M. VANZI, Judge, (dissenting).




                                    15
 1 VANZI, Judge (dissenting)

 2   {29}   Defendant has argued in the district court and on appeal that the systematic and

 3 complete exclusion of Spanish-only speakers from the panels from which her petit

 4 jury was drawn violated her right to a venire that represented a cross-section of the

 5 community. The jury clerk for the Ninth Judicial District testified that she

 6 intentionally manipulated the jury venire to ensure that all Spanish-only speakers

 7 were placed on a single separate panel in order to save the costs of hiring additional

 8 interpreters. This practice of segregating Spanish-speaking venire members

 9 potentially violates the sixth amendment to the United States Constitution, Article II,

10 Section 14 of the New Mexico Constitution, and Section 38-5-11(A) (“The court shall

11 empanel jurors in a random manner.”). Given the nature of the rights at stake of both

12 a prospective juror’s right to serve and a criminal defendant’s right to a fair and

13 impartial jury, I cannot join in ¶¶ 14-19 of the majority’s Opinion.

14   {30}   I am fully aware of the importance of ensuring that litigants adequately brief

15 relevant issues on appeal. However, this concern should not prevent review of an

16 alleged constitutional violation that the majority itself recognizes is a “miscarriage”

17 of judicial responsibility that “borders on the egregious.” Majority Op. ¶ 18. I also

18 believe that Defendant’s briefing is adequate. Defendant argues that Article II,

19 Section 14 of the New Mexico Constitution provides greater protection than its

                                               16
 1 federal counterpart. Defendant cites Aragon, which adopted California’s “Wheeler

 2 Doctrine,” extending the state constitution’s fair cross-section guarantee to prevent

 3 prosecutors from using racially discriminatory peremptory challenges at the

 4 impaneling stage. 1989-NMSC-077, ¶¶ 21-23; see State v. Gonzales, 1991-NMCA-

 5 007, ¶ 34, 111 N.M. 590, 808 P.2d 40 (holding that the same rationale applies to

 6 prevent discrimination on the basis of gender). In Aragon, our Supreme Court

 7 departed from federal cross-section precedent, reasoning that “the state should not be

 8 able to accomplish indirectly at the selection of the petit jury what it has not been able

 9 to accomplish directly at the selection of the venire.” 1989-NMSC-077, ¶ 23. I

10 interpret Defendant’s argument as an invitation to extend this reasoning to

11 Defendant’s situation, where a court official rather than the State has intentionally

12 manipulated the venire panels to totally exclude Spanish-only speakers from the

13 actual jury.

14   {31}   I see no reason why we cannot consider Defendant’s argument. I, like

15 Defendant, find it difficult to distinguish between a prosecutor’s exercise of

16 peremptory challenges to exclude a particular group from the jury panel, and a court

17 official’s ability to unilaterally accomplish the same result. While the standards for

18 measuring the discriminatory use of peremptory strikes may be of no use here, in my




                                               17
 1 view, the majority’s test adopted from Duren seems to be equally out of place.1

 2 Majority Op. ¶¶ 16-17.

 3   {32}   The Duren approach focuses on underrepresentation, proven by statistically

 4 quantifiable disparity levels between the jury pool and the jury-eligible population,

 5 and is unconcerned with the makeup of the actual petit jury panel. See Lockhart v.

 6 McCree, 476 U.S. 162, 173 (1986). Requiring Defendant to prove that Spanish-only

 7 speakers, who are constitutionally protected in this state, constitute a distinctive

 8 group, and requiring Defendant to present census data and other statistical evidence

 9 to demonstrate that—at an inclusion rate of zero percent—they are systematically

10 underrepresented, seems to me an exercise in futility that ignores the heart of the

11 issue: Does Article II, Section 14 of the New Mexico Constitution allow a court

12 official to remove all Spanish-only speakers from a jury panel, solely based on their

13 language, when a prosecutor likely cannot?

14   {33}   Even if the Duren approach applies, I disagree with the majority’s statement

15 that applying the test and ruling on the issue would deprive the State of an

16 opportunity to advance its interest in continued exclusion. The State articulated its



          1
17          I also note that we applied this test in Casillas only because the defendant in
18 that case did not preserve an argument that the state constitution was violated. 2009-
19 NMCA-034, ¶ 11. Defendant here has preserved her argument under Article II,
20 Section 14 of the New Mexico Constitution.

                                              18
1 interest in a written response and at a hearing on Defendant’s motion for a new trial.

2 I do not believe that economic concerns, leave alone unsubstantiated ones, can justify

3 the Ninth Judicial District’s practice of systematically stacking its jury panels—a

4 practice that appears to remain in effect today. I respectfully dissent.



5                                         __________________________________
6                                         LINDA M. VANZI, Judge




                                            19
