I N THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
O pinion Number:

________________ 2

F iling Date: February 28, 2023 3

No. A -1- CA

- 38776 4
S TATE OF NEW MEXICO , 5

P laintiff

- Appellee , 6

v. 7

J ANICE LUCERO , 8

De fendant

- Appell ant

. 9

A PPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Brett Loveless, District Court Judge 11

R aúl Torres, Attorney General 12 Santa Fe, NM 13 John Kloss, Assistant Attorney General 14 Albuquerque, NM 15
f or Appellee 16

B ennett J. Baur, Chief Public Defender 17 Santa Fe, NM 18 Luz C. Valverde, Assistant Appellate Defender 19 Albuquerque, NM 20 The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.OPINION 1

YOHALEM , Judge. 2

{1} Defendant Janice Lucero entered a conditional plea of guilty in metropolitan 3

court to a first offense of driving under the influence of intoxicating liquor or drugs 4 (DWI), contrary to NMSA 1978, Section 66

- 8

- 102 (2010, amended 2016). The 5 charge arose out o f a single

- car rollover accident in which Defendant was injured. 6 With her conditional plea, Defendant reserved the right to appeal the metropolitan 7 court’s denial of her motion to suppress what Defendant claims are physician

- patient 8
communications privileg ed under Rule 11

- 504 NMRA . The communication 9 Defendant seeks to suppress is a conversation she had with an emergency medical 10 technician (EMT) for the purpose of diagnosis or treatment, 1 during which 11
Defendant disclosed, in answer to a question from the EM T, that she had consumed 12 alcohol before driving. Defendant’s communication to the EMT was overheard and 13
recorded by a law enforcement officer who entered the ambulance where the 14 conversation took place just after the EMT began questioning Defendant, and, 15 according to Defendant, without her knowledge. The metropolitan court concluded 16

1 The parties do not dispute whether the EMT was a “physician” as defined in Rule 11

- 504(A)(2), for purposes of the application of the physician

- patient privilege. Further, a lthough the State argued below that the questions regarding Defendant’s alcohol consumpt ion were not for the purpose of diagnosis or treatment, the State does not pursue this argument on appeal. We therefore assume without deciding that the EMT qualifies as a “physician” under the privilege and that the communication s between Defendant and th e EMT w ere for the purpose of diagnosis or treatment.2 based on the circumstances that “it was unreasonable f or

. . . Defendant to believe 1 her communication with the [EMT] was private and therefore the confidentiality 2 requirement of the Doctor

- Patient privilege was not met.” The district court affirmed 3 the metropolitan court’s decision. 2 We conclude that the met ropolitan court failed to 4 apply the correct standard of law. We therefore reverse and remand to the 5 metropolitan court to make the factual findings required under the correct principles 6
of law. 7

{2 } Defendant also argues on appeal that she was denied due p rocess of law by 8 delay in the resolution of her appeal in the district court. Not persuaded by her due 9 process argument, we affirm the district court’s denial of Defendant’s motion to 10
dismiss. 11
BACKGROUND 12

{3 } The following evidence was adduced at a hearing in the metropolitan court on 13 Defendant’s motion to exclude from evidence at her DWI trial “any statements made 14

2 At the time this action was filed, appeals from convictions for driving under the influence of intoxicating liquors or drugs in metropolitan court were taken to the district court and then from the district court to this Court. See NMSA 1978 , § 34

- 8A

- 6 (19 93, amended 2019). “For on

- record appeals the district court acts as a typical appellate court, with the district judge simply reviewing the record of the metropolitan court trial for legal error.” State v. Trujillo , 1999

- NMCA

- 003, ¶ 4, 126 N.M. 603, 973 P .2d 855. “In subsequent appeals such as this, we apply the same standards of review employed by the district court.” State v. Bell , 2015

- NMCA

- 028, ¶ 2, 345 P.3d 342.3 while being attended to by any health care professional,” pursuant to physician

1 patient privilege, Rule 11

- 504 2

{4 } Defendant was in a single

- ve hicle rollover crash on January 18, 2015. Deputy 3
Weeks was the first law enforcement officer to arrive at the scene of the accident. 4 Deputy Weeks found Defendant still in her overturned, smoke

- filled vehicle ; he 5 broke the vehicle’s rear passenger

- side wind ow and Defendant was able to crawl out 6 through the broken window. 7

{5 } With Deputy Weeks steadying her, Defendant walked across the road and sat 8 on a curb. An ambulance arrived within a few minutes. Deputy Weeks told the 9 paramedics that Defendant was havin g trouble walking and difficulty with speech. 10 The paramedics immediately attended to Defendant, asking her if she was okay. 11 Defendant told them that she had injured her right knee and that the pain was very 12
bad. T he paramedics got her onto a gurney and took her to the ambulance. 13

{6 } Deputy Cordova, who had arrived on the scene of the accident just before the 14 ambulance, testified that when he got close to Defendant, he smelled alcohol near 15 her face, her speech was slurred, and he saw vomit on her dress. Based on these 16
observations and the fact that Defendant had been involved in a rollover crash, 17 Deputy Cordova decided to pursue a DWI investigation. He followed the gurney to 18
the ambulance. 194 {7 } When the gurney reach ed the ambulance, the paramedics loaded the gurney 1 with Defendant on it, face up, into the bay of the ambulance through its open back 2 doors. The bay of the ambulance was empty and Defendant and the EMT were 3 briefly alone. Deputy Cordova entered through the side door of the ambulance 4 immediately after Defendant was placed in the ambulance. The side door was behind 5 Defendant, and Deputy Cordova testified he did not walk past her when he entered. 6
The EMT had already started questioning Defendant. Almost immedi ately, Deputy 7 Cordova heard the EMT ask Defendant how many drinks she had consumed

. 8 Defendant responded that she had “three Crown and C okes

. ” 9

{8 } About a minute or two after entering the ambulance , Deputy Cordova spoke 10
for the first time. He asked Defenda nt if she had had anything to drink that night. 11 Defendant did not immediately respond

. T hen she asked Deputy Cordova if he was 12 recording. Deputy Cordova said , “Yes.” Defendant was crying and did not answer 13 him further. Deputy Cordova asked Defendant whether she would take a blood test 14
for alcohol. Defendant did not respond. According to Deputy Cordova, she either 15 began nodding off or pretended to be nodding off. Deputy Cordova took this as a 16 refusal to answer his questions or , to conse nt to alcohol testing. Deputy Cordova 17 placed her under arrest for DWI and the ambulance left to take her to the hospital. 18

{9 } At the hearing on Defendant’s motion to exclude her communications to the 19 EMT, Defendant testified to her belief that she was alo ne in the ambulance with the 205 EMT during the examination. Defendant described being in intense pain from her 1 knee injury , said she did not hear the deputy’s radio and was complaining about the 2 pain to the EMT. 3

{1 0 } Deputy Cordova was asked by the metropolit an court judge whether he had 4 any indication that Defendant knew he had entered the ambulance. Deputy Cordova 5 admitted that Defendant could not see him directly

. He stated that he believed 6 Defendant knew he was there given that he was only a few feet from her, the noise 7 his radio made, her awareness that police officers were present at the accident scene, 8 and his belief he was likely visible in her peripheral vision. He could not remember 9
whether Defendant turned to look at him when he entered the ambulance

. 10

{1 1 } Deputy Cordova filed a criminal complaint charging Defendant with 11 aggravated DWI, citing his observation of the smell of alcohol near Defendant , 12
Defendant’s bloodshot and watery eyes, her slurred speech, the vomit he saw on her 13 dress, and Defendant’s answer to the EMT’s question during her medical 14 examination telling the EMT that she had consumed “three Crown and Cokes.” 15

{1 2 } A few days after the suppression hearing, the metropolitan court announced 16
its d ecision from the bench. The metropolitan court made the following findings of 17
fact: (1) Defendant was conscious ; (2) Defendant was alert and aware of her 18 surroundings; ( 3 ) Defendant knew she was at an accident scene and officers were 19 present on the scene; (4) Defendant complained only of knee pain, not of headache 206 or other head “actions”; (5) the doors to the ambulance were open and an officer was 1 present; (6) Defendant was facing the rear doors and would have had to turn her head 2 to talk to the EMT; (7) De puty Cordova was two to four feet from Defendant; (8) 3 Deputy Cordova was not hiding; and (9) Defendant should have been aware of who 4
was present , should have closed the ambulance doors , and should have excluded any 5 third p arty. The metropolitan court’s wri tten order denying Defendant’s motion to 6 exclude the allegedly privileged evidence states that “it was unreasonable for

. . . 7 Defendant to believe her communication with the [EMT] was private, and therefore 8 the confidentiality requirement of the [physician

- p ] atient privilege was not met.” 9

{1 3 } Defendant entered a conditional guilty plea, preserving for appellate review 10
the issue of whether her communication to the EMT made in an ambulance for the 11 purpose of diagnosis or treatment was protected by the Rule 11

- 504 physician

12 patient privilege. Defendant filed her appeal to the d istrict court on August 26, 2015. 13 The district court affirmed the metropolitan court’s denial of Defendant’s motion to 14 exclude evidence on December 4, 2019. 3 Defendant’s appeal to this Court followed. 15

3 De fendant claimed in the district court, and argues on appeal, that her due process right to a reasonably prompt decision on appeal was violated by the more than four

- year delay in the issuance of the district court’s appellate decision . The district court found no due process violation. We discuss the facts and law related to Defendant’s due process issue as part of our analysis of that issue.7 DISCUSSION 1

I. Were Defendant’s Communications for th e Purposes of Diagnosis or 2 Treatment Confidential Communication s Protected b y the Physician

3 Patient Privilege ? 4
A. Standard of Review 5

{1 4 } Because Defendant does not challenge the metropolitan court’s findings of 6 fact, we assume that these facts are suppor ted by substantial evidence in the record. 7 Resolution of this appeal requires us to determine both whether the metropolitan 8 court correctly construed the law of privileges, a question we review de novo, see 9
Allen v. LeMaster , 2012

- NMSC

- 001, ¶ 11, 267 P.3d 806 , and whether the 10 metropolitan court correctly applied that law to the circumstances of this case, a 11 question which we also review de novo. See Pacheco v. Hudson , 2018

- NMSC

- 022, 12 ¶ 2 4, 415 P.3d 505 (explaining that whether specific communications ar e subject to 13 a privilege is a mixed question of fact and law that is reviewed de novo on appeal). 14

B. The Physician

- Patient Privilege, Rule 11

- 504 15

{1 5 } Rule 11

- 504(B) describes the scope of the physician

- patient privilege as 16
follows: 17 A patient has a privil ege to refuse to disclose, or to prevent any other 18 person from disclosing, a confidential communication made for the 19 purpose of diagnosis or treatment of the patient ’ s physical, mental, or 20 emotional condition, including drug addiction, between the patient and 21 the patient ’ s physician, psychotherapist, or state or nationally licensed 22 mental

- health therapist. 238 {1 6 } This appeal focuses on the definition of the term “confidential 1
communication.” Rule 11

- 504(A)(5) defines a “confidential communication” as a 2

commu nication “made privately and not intended for further disclosure except to 3 other persons in furtherance of the purpose of the communication.” This appeal asks 4 this Court to determine under what circumstances, if any, a communication between 5

a physician and a patient, overheard by a third party , remains a “confidential 6
communication ” protected from disclosure. 7

{1 7 } To understand what makes a communication a “confidential communication” 8 protected by the privilege, we begin by reviewing the history and background of the 9
Rule 11

- 504. In New Mexico, privileges are created and defined by either Supreme 10 Court rule, statute , or our constitution. New Mexico’s r ules of e vidence differ from 11 the federal rules of evidence and those of many other states in that New Mexico does 12 not recognize common law privileges: “New Mexico’s approach to privileges is a 13 special product of our state law jurisprudence.” Pub. Serv. Co. of N.M. v. Lyons , 14
2000

- NMCA

- 077, ¶ 12, 129 N.M. 487, 10 P.3d 166

. We therefore look primarily to 15
our Rule 11

- 504 precedent to guide our analysis. 16

{1 8 } We are mindful, as well, that o ur goal is to interpret and apply Rul e 11

- 504 so 17 as to give effect to the purpose and intent of our Supreme Court. See H

- B

- S P’ship 18 v. Aircoa Hosp. Serv s. , Inc. , 2008

- NMCA

- 013, ¶ 10, 143 N.M. 404, 176 P.3d 1136

. 19 We interpret the rules adopted by our Supreme Court with logic and common sense 209 to avoid absurd results. Walker v. Walton , 2003

- NMSC

- 014, ¶ 11, 133 N.M. 766, 70 1
P.3d 756. Finally, we note that the party asserting the physician

- patient privilege has 2
the bu rden of establishing the privilege

. See Pina v. Espinoza , 2001

- NMCA

- 055, 3 ¶ 24, 130 N.M. 661, 29 P.3d 1062. 4

{1 9 } The meaning of a confidential physician

- patient communication protected by 5
Rule 11

- 504 was first construed by this Court in In re Doe , 1982

- NMCA

- 115, ¶ 24, 6 98 N.M. 442, 649 P.2d 510 , overruled on other grounds by State v. Roper , 1996

- 7
NMCA

- 073, ¶ 12 , n.3, 122 N.M. 126, 921 P.2d 322

. Doe , later joined and clarified 8 by Roper , have remained the leading case s construing New Mexico’s physician

9 patient privilege for more than forty years. In re Doe and Roper hold that for a 10 communication to be a “confidential communication” protected by the Rule 11

- 504 11 privilege, two conditions must be met: (1) the patient must intend the communication 12
to be undisclosed to third parties; and (2) nondisclosure of the communication must 13
further the interests the privilege is intended to protect

. See In re Doe , 1982

- NMCA

14 115, ¶¶ 22

- 24; Roper , 1996

- NMCA

- 073, ¶ 11. 15

{ 20 } In addressing the first prong of this two

- part test

— that the communication is 16
not intended to be disclosed

— Rule 11

- 504 focuses on the patient’s intent: D oes the 17 patient intend the communication to be confidential? See Roper , 1996

- NMCA

- 073, 18 ¶ 11. In re Doe originally required the patient’s intent that the communication not 19
be disclosed to “ be manifested in some fashion with words or words and conduct 2010 [that] lead a [physician] to understand or believe that the information obtained was 1
intended to be confidential.” 1982

- NMCA

- 115, ¶ 27. Roper , however, clarified this 2 requirement, removing any suggestion that the patient must make an explicit request 3
for c onfidentiality, and providing instead that the conduct of the patient in submitting 4 to a private consultation or evaluation by a physician is sufficient circumstantial 5
evidence to establish the patient’s intent that the communication not be disclosed to 6

ot hers , absent the patient’s consent

. 1996

- NMCA

- 073, ¶ 12 n.3. “[W]hen a patient 7 is privately evaluated by a physician, the conduct of the patient agreeing to the 8 evaluation in itself manifests an intent that any communication made for the purpose 9 of diagnos is or treatment remain confidential.” Id. ¶ 12. 10

{ 2 1} In In re Termination of Parental Rights of Sherry C. & John M. , 1991

- NMCA

11
137 , ¶ 12, 113 N.M. 201, 824 P.2d 341 , this Court addressed when a patient’s intent 12 that the communication remain confidential is negated by their knowledge that the 13 communication is subject to disclosure to a third party. The patient i n In re Sherry 14
C. & John M. , a parent working a treatment p lan following an adjudication of abuse 15 or neglect, had been informed before the therapy began that the results of her therapy 16 would be shared with the Human Services Department and the district court. T his 17 Court applied the test adopted by In re Doe conclu ding that “the patient must intend 18 the communications to be undisclosed,” In re Sherry C. & John M. , 1991

- NMCA

19 137, ¶ 24, and explaining that if a patient is told their communications with a doctor 2011 or therapist will be disclosed to a third party and the pa tient voluntarily proceed s 1 with the consultation with that knowledge , they will be considered to have consent ed 2 to or voluntary acquiesce d e in the disclosure. Id. ¶ 25. The patient , having 3 voluntarily consented to or acquiesced in the disclosure by their conduct, cannot 4 claim the privilege. Id. 5

{ 22 } If the patient intends the communication to be confidential, our precedent 6 applies a second test to determine if the privilege applies. In re Doe and Roper 7 require a finding that “ non - disclosure of the communication would further the 8 interest of the patient .” In re Doe , 1982

- NMCA

- 115, ¶ 24; Roper , 1996

- NMCA

- 075, 9 ¶ 11 n

. 2. Roper clarifies that this prong of the test looks to whether the patient’s 10 interests are consistent with the privilege’s purpose. 1996

- NMCA

- 07 3 , ¶ 11 n

. 2. 4 11 The recognized purpose of the privilege is to provide an assur ance of confidentiality 12 in order to “encourage a patient to make complete disclosure s of [their] symptoms 13
and condition s to a physician without fear of publication.” Id. ¶ 6. The privilege 14 represents a recognition that accurate diagnosis and appropriate me dical treatment 15 depend on a patient’s willingness to disclose embarrassing, and even potentially 16

4 Although acknowledging that this second prong of the In re Doe test is not mandated by the plain language of Rule 11

- 504, Roper holds that consideration of this second prong “irrespective of its derivation” is necessary to effectuate the purposes of the rule. Roper , 1996

- NMCA

- 07 3 , ¶ 11 n

. 2.12 incriminating, information. See Rule 11

- 504(B) (applying the privilege to a patient’s 1 admission of drug addiction). 2

{23 } Recognizing the privilege’s intent to protect even incriminating information, 3
this Court in Roper refused to make an exception to the application of Rule 11

- 504 4 for drunk driving cases, something some other jurisdictions have done. See Roper , 5
1996

- NMCA

- 07 3 , ¶ 17 (citing cases from other jurisdictions). Roper explained that 6 we are not free to disregard the express language of our rules of evidence when 7 construing a privilege and that “[s]uccessful prosecution of DWI charges can be 8 achieved without invading a n individual’s privacy and bodily integrity, which the 9 privilege here seeks to protect.” Id. ¶ 18. 10
C. Conduct or Statements Indicating Voluntary Acquiescence in the 11 Presence of a Third Party Is Required to Negate the Privilege 12

{24 } With this background, we turn now to the issue of first impression raised by 13 this appeal: Under what circumstances does the presence of a third party, able to 14 overhear a communication between a physician and a patient, negate the privilege? 15

{25 } The metropolitan court adopted a n objective test: the communication is not 16 protected by the privilege if a reasonable person should have known that a third party 17
could overhear the communication

. We conclude that the metropolitan court’s 18 objective test conflicts with Rule 11

- 504, as cons trued by our precedent. 19

{26 } As discussed previously, the application of the physician

- patient privilege 20 depends on whether the patient has an expectation that the communication will not 2113 be disclosed, together with a showing that the purpose of the privilege is served by 1 honoring the patient’s expectation of confidentiality. See Roper , 1996

- NMCA

- 073, 2 ¶ 11. We emphasize that the first inquiry mandated by our precedent focuses on the 3 patient’s intent: not that of a hypothetical reasonable person. The test looks to the 4 patient’s state of mind : D id the individual involved have an actual expectation that 5 their communication with a physician would remain confidential and would not be 6
disclosed to others ? See In re Doe , 1982

- NMCA

- 115, ¶ 27. Although “[n]o objective 7
standard exists to determine a person’s state of mind,” “[i] t is not sufficient for a 8
pat ient to say that in the patient’ s mind the communications were confidential and 9
furthered [ their] own interest. ” Id. In other words, intent must be manifested through 10
words or conduct that would lead the physician “ to understand or believe that the 11
information obtained was intended to be confidential. ” Id. ; see Roper , 1996

- NMCA

12
073 , ¶ 12 n.3. 13

{27 } In applying New Mexico’s law of privilege, our courts examine the 14
defendant’s conduct to determ ine whether that conduct is consistent with an 15 expectation that the communication will not be disclosed. Roper , 1996

- NMCA

- 073, 16 ¶ 12 n.3. We note that in addressing what conduct is sufficient to indicate an 17 expectation of confidentiality, this Court in Rope r rejected the requirement for an 18 explicit statement and adopted an assumption that agreement to a private medical 1914 examination or evaluation is sufficient evidence of the patient’s intent that the 1
communications be confidential and not be disclosed to thir d parties. Id. ¶ 12. 2

{28 } Next, the patient’s intent that the communication be confidential must be 3 examined to determine whether it serves the purposes of the privilege. As we 4 previously stated, t he physician

- patient privilege focuses on protecting a patient’s 5 privacy and autonomy in relating highly sensitive, personal matters concerning their 6 physical or mental condition to a medical provider for purposes of diagnosis or 7

treatment. See id. ¶ 13

. T he purpose behind this protection is to assure the patient 8
that their co mmunications will not be disclosed without their consent, so as to 9 encourage the patient to speak fully and frankly to the med ical provider without the 10 fear of publication. See i d. ¶ 6

. 11

{29 } Assuming the metropolitan court finds that Defendant intended the 12 communication to be confidential, the remaining question that requires factfinding 13 is whether Defendant voluntarily acquiesced in , or consented to , the disclosure. In 14

re Sherry C. & John M. stands for the proposition that a patient who has actual 15 knowledge that the communication will be disclosed, and voluntarily participates in 16 the communication with that knowledge, has consented to or acquiesced in the 17
disclosure of their physici an - patient communication. See 1991

- NMCA

- 1 37 , ¶ 2 5. 18 Whether this exception applies depends on a finding as to whether Defendant 1915 actually knew of the law enforcement officer’s presence, not whether she should 1
have known. 2

{30 } We conclude the metropolitan cou rt erred in adopting an objective test, 3 focused on what a hypothetical reasonable person should have known. Rather, the 4 metropolitan court should have looked to the purposes served by the privilege under 5 the circumstances at issue here, and made findings o f fact as to: (1) whether 6
Defendant intended the communication to be confidential; (2) whether Defendant 7 actually knew that Officer Cordova had entered the ambulance; and, if so, (3) 8 whether Defendant’s subsequent conduct was sufficient to constitute voluntarily 9 consent to or acquiescence in the disclosure of her communications to Deputy 10
Cor dova. Because the metropolitan court’s findings do not answer these questions, 11
but instead look to whether Defendant “should have” known a law enforcement 12 officer had entered the ambulance, we reverse and remand to allow the metropolitan 13
court to make the necessary findings, and to apply the correct legal standard, as set 14 forth in this opinion, to those findings. 15

II. Defendant Was Not Denied Due Process by Delay in District Court in 16 Deciding Her Appeal 17

{31 } Defendant contends that the four

- year period bet ween the filing of her notice 18 of appeal and the district court’s decision on appeal denied her due process on 19 appeal. We do not agree. 2016 {32 } The delay in the district court occurred because Defendant’s counsel filed two 1 notices of appeal: one properly notic ing an appeal from the metropolitan court to the 2 district court, filed on August 26, 2015, and a second notice of appeal to this Court 3 from the district court, filed on December 1, 2015. At the time Defendant’s original 4 notice of appeal was filed, appeals from convictions of DWI in the metropolitan 5 court were properly taken to the district court. See § 34

- 8A

- 6. Only after the appeal 6 was decided by the district court could a further appeal be taken to this Court. See 7

i d. 8

{33 } Over four years after Defendant appealed to the district court, her defense 9
counsel petitioned the court either for dismissal based on the delay in reaching a 10
decision or for expedited consideration of Defendant’s appeal. Defense coun s el 11 withdrew the impro perly filed notice of appeal to this Court shortly after November 12 11, 2019. The district court then entered a decision on Defendant’s appeal. 13

{34 } Because Defendant presented no evidence that the delay prejudiced her , and 14
b ecause the district court’s find ing that the delay was attributable to Defendant rather 15 than the government, is supported by substantial evidence , w e affirm. 16

{35 } We apply the framework established by State v. Garcia , 2019

- NMCA

- 056, 17 ¶ 46 , 450 P.3d 418 , to determine whether appellate del ay violates a criminal 18 defendant’s right to due to process . We emphasized in Garcia that “not every delay 19 in the appeal of a case, even an inordinate one, violates due process.” Id. ¶ 41 2017 ( alteration, internal quotation marks , and citation omitted). W hether appellate delay 1
is sufficiently egregious to violate a defendant’s due process rights turns first on: (1) 2 whether the delay has prejudiced the defendant, and, if so, (2) whether the 3 government’s responsibility for the delay and the nature and severity of the prejudice 4
warrant dismissal. Id. ¶ 46. 5

{36 } This Court generally looks to two potential forms of prejudice: (1) prejudice 6 to a defendant’s ability to assert their claims on appeal, and (2) prejudice at trial or 7 on resentencing following remand. Id. Defendant has claimed no prejudice on appeal 8

or on remand from the delay, nor do we find any such prejudice. Defendant argues 9 that she lost job opportunities because of the pendency of the appeal. She bases this 10 claim, however, on argument of counsel, unsupported by facts. See i d. ¶ 47 (holding 11 that vague, speculative allegations of prejudice are insufficient). Even if this claim 12 of job loss were somehow proved, it is not the type of prejudice found by this Court 13
in Garcia to support a violation of due process. 2019

- NMCA

- 056, ¶ 46 . Defendant, 14 therefore, has failed to establish prejudice. Moreover, even if Defendant had 15 established prejudice, we see no error in the district court’s finding attributing the 16 delay to the failure of Defendant’s counsel to follow the procedural rules governing 17 appeals from metropo litan court

. 18

{37 } Where no prejudice was established by Defendant, and the delay was caused 19 by an error of defense counsel, Defendant was not denied due process. 2018 CONCLUSION 1

{38 } W e reverse the denial of Defendant’s motion to exclude from evidence her 2 privileged communications with the EMT and remand to the district court for 3 findings and decision on Defendant’s motion to suppress consistent with this 4 opinion. 5

{39 } IT IS SO ORDERED
. 6

_________________________________ 7 J ANE B. YOHALEM, Judge 8
WE CONCUR: 9

_________________________________ 10 JENNIFER L. ATTREP , Chief Judge 11

____________________________ _____ 12 KRISTINA BOGARDUS , Judge 13