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State v. Mantelli1/29/2002
cusal, stating that it was untimely because Defendant previously requested the court to exercise its discretion in the case. Defendant argues that his notice was timely because it was filed within ten days of the date of his arraignment as required by Rule 5-106(C).
The issue whether a party's peremptory disqualification of a trial judge is timely under Rule 5-106 presents a mixed question of historical facts and the application of the law to those facts. The court's findings as to historical facts are reviewed to determine whether they are supported by substantial evidence, and the application of law to those facts is reviewed de novo. See State v. Attaway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994).
On October 14, 1998, agent Frank Jacoby of the New Mexico State Police filed a Criminal Complaint charging Defendant with numerous crimes arising from the shooting of Montoya, and the shooting at Rubio. Judge Eugenio S. Mathis was assigned to the case and set the preliminary hearing for December 14, 1998. On December 14, 1998, Defendant filed a motion to dismiss Counts VI and VII of the complaint. On January 28, 1999, Judge Mathis entered an order binding Defendant over on six of the charged offenses, and he dismissed Count II, Conspiracy to Commit Second Degree Murder. On that same day the Special Prosecutor filed the Criminal Information. Defendant's arraignment was set for February 18, 1999. On February 16, 1999, Defendant filed his Notice of Excusal under Rule 5-106.
Under these facts, Defendant's argument that his notice of excusal was timely under Rule 5-106, because he filed it within ten days of the date of his arraignment of February 18, 1999, is without merit. It is well-settled in New Mexico that a party may not excuse a judge after the party has requested that judge to perform a discretionary act. See JBM Retail Props. Co. v. Eastburn, 114 N.M. 115, 118, 835 P.2d 831, 834 (1992). Subsection A of Rule 5-106 does not set any time limit on this rule. Specifically, subsection A does not state it applies only if the party has requested the judge to perform a discretionary act during the period within which a notice of excusal must be filed under subsection C of Rule 5-106 to be considered timely.
In our view, the time limits set forth in subsection C are subject to and conditioned on the rule of subsection A. In other words a notice of excusal is timely if filed within the period set forth in subsection C unless the party has asked the court to perform a discretionary act at some time before the notice is filed.
In this case the preliminary hearing was conducted before the judge who had been assigned to hear the case, Judge Mathis. Defendant, on December 14, 1998, asked the judge, before whom that same matter was to be tried, to dismiss two counts of the criminal complaint. Thus, Defendant asked the trial court to exercise its discretion on a material matter in this case and the notice of excusal was untimely despite being filed within ten days of his arraignment.
V. JURY INSTRUCTIONS FOR SHOOTING AT A MOTOR VEHICLE
Defendant argues that the trial court erred when it refused to give the jury instruction he tendered addressing shooting at a motor vehicle contrary to NMSA 1978, ยง 30-3-8 (1993). Specifically, Defendant argues that the court erred because the instruction given omitted the element found in subsection C of Section 30-3-8 that provides that the section does not apply to a law enforcement officer discharging a firearm in the lawful discharge of his duties.
In this case, the trial court gave the instruction that was tendered by Defendant. The instruction tendered by Defendant did not in
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