This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Filing Date: June 9, 2016 2 STATE OF NEW MEXICO , 3 Plaintiff-Appellee, 4

v. NO. S-1-SC-34953 5 RANDALL JONES , 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 8 Stephen K. Quinn, District Judge 9 Bennett J. Baur, Acting Chief Public Defender 10 William A. O’Connell, Assist ant Appellate Defender 11 Santa Fe, NM 12 for Appellant 13 Hector H. Balderas, Attorney General 14 Steven H. Johnston, Assistant Attorney General 15 Albuquerque, NM 16 for Appellee 17DECISION 1 MAES, Justice. 2 {1}In his direct appeal to this Court, Defendant Randall Jone s claims that the 3 district court abused its di scretion when it refused to disqualify the local district 4 attorney’s office and that the district c ourt erred when it admitted the preliminary 5 hearing testimony of Orlando Martinez, a co-defendant. We affirm Defendant’s 6 convictions. 7 I. Facts Relevant to Defendant’s Claims 8 {2} Defendant was tried for the murder of Shirley Pacheco. Defendant’s friend and 9 former co-defendant, Orlando Martinez, had pleaded guilty to crimes committed 10 during the course of the murder of Shirley Pacheco and testified against Defendant at 11 the preliminary hearing. On the second day of trial, Kirk Chavez, one of the two trial 12 prosecutors, informed the district court that he had met with Martinez and that 13 Martinez had declared that he would not te stify at trial but would instead invoke the 14 Fifth Amendment. Martinez told the prosecu tor to “hit me with a contempt charge, 15 I’ll get an attorney, we’ll run it concurrent to my current prison sentence.” The 16 prosecutor requested that Martinez be brought to the courtroom, outside the presence 172 of the jury, and asked by the district court if he truly intended to assert his Fifth 1 Amendment right. The prosecutor explaine d that he had prepared a use immunity 2 order in the event Martinez agreed to testif y. The prosecutor saidthat he intended to 3 use Martinez’s preliminary hearing testimony at trial if Martinez continued to refuse 4 to testify. 5 {3} Defendant’s attorney requested that th e court appoint a lawyer to represent 6 Martinez so that he could make an informed decision about whether he would testify. 7 The prosecutor responded that Martinez was notentitled to have an attorney assigned 8 for this proceeding and that Martinez wa s no different than any other person who 9 declined to testify when ordered to do so. 10 {4} Martinez was brought into the courtroomand sworn in. He unequivocally told 11 the district court that hewould not testify but woul d instead invoke his Fifth 12 Amendment right. The State provided the district court with a use immunity form and 13 a copy of Martinez’s judgment and sentence stemming from his guilty plea in his 14 related case. The district court questioned Martinez about his plea agreement and 15 Martinez made clear his belief that he was not required to testify at Defendant’s trial. 16 After an examination of th e plea agreement, the prosecu tor and the district court 17 agreed that the plea did not require Martin ez to testify at any subsequent proceedings 183 in this case. 1 {5} The district court asked Martinez if he w ould like to meet with an attorney and 2 Martinez stated that he would. At the c ourt’s direction, the parties located Michael 3 Aragon, the attorney who had represented Martinez on charges related to the murder 4 of Shirley Pacheco. Aragon spoke with the parties, the district court, and Martinez, 5 and confirmed that Martinez would not te stify but would instead invoke the Fifth 6 Amendment. Aragon explained that notwith standing the prosecutor’s offer of a use 7 immunity agreement, Martinez might still face federal charges based on his trial 8 testimony. The district court instructed Aragon to talk with Martinez the next day. 9 {6} Martinez, Aragon, and the parties appearedin district court the next morning. 10 Martinez still refused to testif y at Defendant’s trial, ev en though he knew his refusal 11 could lead to contempt charges. Martinez explained that, “[W]hen you’re in the 12 system, sir, just something you don’t do,” and also expressed his concern that he 13 might be stabbed in retaliation for testifying. 14 {7} Aragon then raised a new problem: he toldthe district court that Martinez had 15 alleged that while he was incarcerated at Quay County Detention Center (QCDC), he 16 contacted Chavez, who at the time was working in private practice. Martinez was 17 sworn in and testified about the meeti ng he claimed to have had with Chavez. 184 Martinez testified that he had trouble obtai ning an attorney he felt could work with 1 him. Martinez recalled Chavez from his first stint in the district attorney’s office 2 when Chavez had prosecuted Martinez as a juvenile. Martinez considered Chavez to 3 be a good lawyer. 4 {8} Martinez alleged he met with Chavez in the spring of 2012, with an eye toward 5 retaining him. This meeting lasted about one hour. In addition to Chavez and 6 Martinez, Chavez had with him an assistant or another attorney who took notes during 7 the meeting. During the meeting Martin ez revealed many details and confidential 8 information to Chavez. Martinez described both his involvement and Defendant’s 9 involvement in Pacheco’s murder. Ch avez purportedly quoted Martinez a fee of 10 $2,500, but Martinez paid neither that norany other amount to Chavez. Nor did 11 Martinez sign any agreement with Chavez. When asked, Martinez agreed that he gave 12 a complete statement to the police and thathe had already testified at Defendant’s 13 preliminary hearing before the alleged meeting with Chavez. 14 {9} The State called Chavez as a witness. He testified that he had returned to the 15 district attorney’s office in April 2013, and had no recollection of any meeting with 16 Martinez. Notwithstanding the fact thatChavez had spoken with Martinez several 17 times the day before, this was the first Chav ez had heard of any allegation that he had 185 met with Martinez while he worked as a criminal defense attorneyin private practice. 1 {10} Chavez agreed that he knew Martinez and had prosecuted him as a juvenile 2 when Chavez first worked for the districtattorney’s office. Likewise, Chavez 3 acknowledged that it wa s possible the two had met at the detention center. Chavez 4 indicated that when he was in private practi ce he visited clients at the detention center 5 and would frequently speak with other inmates as well. Even if they had met, 6 however, Chavez claimed that he would not have discussed Shirley’s murder or the 7 Pacheco family with Martin ez because Chavez was close w ith the Pacheco family and 8 had worked with them in the past. Chav ez explained that he could not have shared 9 any private information provided by Martinez with anyone at the district attorney’s 10 office because he had no such information. 11 {11} Defendant made an oralmotion for a mistrial and to disqualify the district 12 attorney’s office from prosecuting him b ecause of the purported meeting between 13 Chavez and Martinez. The district court found that Defendant’s preliminary hearing 14 was held on August 10, 2011, and that any possible meeting between Chavez and 15 Martinez occurred in the Spring of 2012. The district court further found that even 16 if a meeting had occurred, Shirley Pacheco’s murder was not the subject of discussion, 17 and Chavez had not returned to the distri ct attorney’s office until approximately one 186 year after the possible meeting took place. In light of the “timing of events,” the 1 district court held that Chavez was not ac ting under a conflict of interest and denied 2 Defendant’s request for a mistrial and disqualification. 3 {12} The following day the State proffere d Martinez’s preliminary hearing 4 testimony. Defendant objected, claiming that Martinez’s unavailability had been 5 caused by the State because Deputy DistrictAttorney Chavez represented the State. 6 Defendant also argued that he had not had an opportunity to conduct a meaningful 7 cross-examination at the preliminary hearing because discovery had not been 8 completed at the time of that hearing. 9 {13} The district court found that Martinez wa s unavailable and that the State had not 10 caused that unavailability. Specifically, th e court found that any discussion between 11 Martinez and Chavez while Ch avez was in private practi ce had taken place after the 12 preliminary hearing and did not involve Pacheco’s murder. The district court 13 observed that “admission of preliminary hearing testimony does not violate the 14 confrontation clause if the witness is unavailable and if the defendant had a prior 15 opportunity to cross-examine the statement that is now being offered into evidence 16 against him.” 17 {14} The district court also reviewed part of the transcript of Martinez’s preliminary 187 hearing testimony. The court observed that Defendant had objected during the 1 preliminary hearing that the cross-examin ation of Martinez would not be meaningful 2 or effective because Defendant had not yet received “complete discovery.” But, the 3 prosecutor argued, the district attorney’s office had an open file discovery policy and 4 Defendant had access to all of the discovery available at the time of the preliminary 5 hearing. The district court found that De fendant had made no s howing that discovery 6 subsequent to the preliminary hearing disc losed any information that would contradict 7 or otherwise impeach Martinez. The di strict court again overruled Defendant’s 8 objections. The district court ruled that th e entirety of Martinez’ s preliminary hearing 9 testimony would be admitted at Defendant’s trial. 10 {15} Later that day, and notwithstanding the di strict court’s decision to allow use of 11 Martinez’s preliminary hearing testimony, Distri ct Attorney Rose asked that the court 12 hear testimony from Don Rich Jr., the admi nistrator of the QCDC, and Zac Wachter, 13 Chavez’s former legal assistant. Rich had examined the log signed by attorneys 14 visiting inmates and cross-referenced thos e names and dates with the control tower 15 log, detailing when inmates were taken to legal visits. Rich found that Chavez had 16 visited QCDC on three days that Martinez was incarcerated there. Only on one of 17 those days could any meeting between th e two have occurred and even then, the 188 meeting could not have lasted more than five minutes. 1 {16} Chavez’s former assistant, Wachter, recalled that he had accompanied Chavez 2 to visit clients at QCDC, and while he did not specifically remember Martinez, he 3 agreed it was “possible” they had briefly met. Wachter was certain, however, that he 4 had never spoken to any inmate about a murder cas e. While Chavez would on some 5 occasions quote a price to an inmate duri ng an impromptu meeting, it would be odd 6 for him to have done so after meeting for just five minutes. And to the extent $2,500 7 might have been a fee amount Chavez would have offered in some circumstances, he 8 never would have suggested that amount to represent an inmate in a case involving a 9 murder. 10 {17} The district court’s ruling remained th e same after hearing this additional 11 testimony: the State would be permitted torely upon Martinez’s preliminary hearing 12 testimony at trial. The district court found it highly unlikely that any meeting ever 13 took place between Chavez and Martinez but, ev en if it had, any such meeting lasted 14 no more than five minutes. The State thenpresented Martinez’s testimony to the jury 15 in lieu of Martinez testifying. 16 {18} Following the jury trial, Defendant was convicted of the murder in the first 17 degree of Shirley Pacheco (NMSA 1978, § 30-2-1(A)(1) (1994)), aggravated battery 189 with a deadly weapon (NMSA 1978, § 30-16-4(B) (1963)), unlawful taking of an 1 automobile (NMSA 1978, § 30-16D-1A(1) ( 2009)), tampering with evidence (NMSA 2 1978, § 30-22-5 (2003)), conspiracy to commit tampering with evidence (NMSA 3 1978, § 30-28-2 (1963); § 30-22-5), three c ounts of larceny (NMSA 1978, § 30-16-01 4 (2006)), and two counts of receiving stol en property (dispose/firearm) (NMSA 1978, 5 § 30-16-11 (2006)). The district court senten ced Defendant to a term of life plus ten 6 and one-half years imprisonment. In Defendant’s direct appeal to this Court, he 7 claims that the district court abused its discretion when it refused to disqualify the 8 local district attorney’s o ffice and that the district court erred when it admitted the 9 preliminary hearing testimony of Martinez. This Court exercises appellate jurisdiction 10 where life imprisonment has been imposed. SeeN.M. Const. art. VI, § 2; see also 11 Rule 12-102(A)(1) NMRA (providing a right todirect appeal when a sentence of life 12 imprisonment has been imposed ). “Because Defendant rais es no questions of law that 13 New Mexico precedent does not already sufficiently address, we issue this 14 nonprecedential decision pursuant to Rule 12-405(B)(1) NMRA.” See State v. Evans, 15 No. 33,324, dec. ¶ 2 (N.M. Sup. Ct. June 16, 2014) (nonprecedential). 16 II. Standard of Review 17 {19} “The standard of revi ew for a trial court’s decision regarding the 1810 disqualification of a prosecutor or a prosecution office is not easily defined.” State 1 v. Juan , 2010-NMSC-041, ¶ 31, 148 N.M. 747, 242 P.3d 314 (internal quotation 2 marks and citation omitted). Indeed, the st andard under which we review a decision 3 on a motion to disqualify depends upon the nature of the issues. See id. “When 4 factual questions are involved, we defer tothe sound judgment of the trial court.” Id. 5 But where the district court “resolves i ssues involving values that animate legal 6 principles or the consideration of abstract legal doctrines that re quire the balancing of 7 underlying policies and competing legal interests, our review is de novo.” Id. (internal 8 quotation marks and citation omitted). 9 {20} When evaluating a defendant’s claim th at the State improperly relied upon the 10 use of preliminary hearing testimony at trial, we “first determine whether the 11 preliminary hearing testimony was properly admitted under the Rules of Evidence.” 12 State v. Lopez , 2011-NMSC-035, ¶ 4, 150 N.M. 179, 258 P.3d 458 (internal quotation 13 marks and citation omitted). We review the admission of evidence pursuant to an 14 exception to the hearsay rule fo r an abuse of discretion. See id. “Only if the 15 preliminary hearing testimony was properly admitted do we address the Confrontation 16 Clause issue.” Id. We review claimed violations of the Confrontation Clause de 17

novo. Id. ¶ 10. 1811 III. Discussion 1 A. The District Court Did Not Abus e Its Discretion When It Denied 2 Defendant’s Motion to Disqualify the District Attorney’s Office 3 {21} Defendant argues that the district court abused its discreti on when it failed to 4 disqualify the district attorney’s office based on the claim of a past 5 quasi-attorney-client relations hip between one of the pros ecutors, Kirk Chavez, and 6 a co-defendant, Orlando Martinez. At issue is the nature and c ontent of a meeting 7 between Chavez and Martinez. Defendant argues that Chavez learned confidential 8 information about this case during the meeti ng. The State argues that any meeting that 9 took place was brief and that Martinez did not disclose any confidential information 10 about Pacheco’s murder. Significantly, and as the State observes, motions to 11 disqualify usually arise out of a defendant’s belief that a conflic t exists between the 12 defendant and the prosecutor. 13 {22} A court will remove a pros ecutor based upon “a conflict of interest where the 14 prosecutor has a prior or current relationship with the defendant that either made the 15 prosecutor privy to relevant, confidential information or where their relationship has 16 created an interfering personal interest or bias.” Juan , 2010-NMSC-041, ¶ 32 17 (citation omitted). But in order to require disqualification, the personal interest or bias 18 must be one “that creates an opportunity for conflict or other improper influence on 1912 professional judgment.” Id. (citation omitted). And, of c ourse, there “must be a basis 1 in fact for a determination such bias exists.” Id. (citing State v. Gonzales , 2 2005-NMSC-025, ¶ 39, 138 N.M. 271, 119 P.3d 151). 3 {23} We have held that it is the defendant who has “the burden of going forward 4 with evidence and the burden of persuasion.” Id. When a defendant establishes that 5 one member of the prosecution team should bedisqualified, “the burden shifts to the 6 State to prove that the entire office should not be disqualified by imputation.” Id. 7 (citing State v. Robinson , 2008-NMCA-036, ¶ 13, 143 N.M. 646, 179 P.3d 1254). 8 Significantly, given the distinct role as di sinterested and impartial public advocates, 9 the “[d]isqualification of a prosecutor shoul d remain a rare event; disqualification of 10 an entire office even more so.” Gonzales , 2005-NMSC-025, ¶ 51. 11 {24} Whether the purported meeting between Chavez and Martinez created personal 12 bias or prejudice is a question of fact. See Juan , 2010-NMSC-041, ¶ 33. As a result, 13 we review the trial court’s decision to deny the motion to disqualify for abuse of 14 discretion. See id. “An abuse of discretion occurs when the ruling is clearly against 15 the logic and effect of the facts and circumst ances of the case. We cannot say the trial 16 court abused discretion by its ruling unless we can characterize it as clearly untenable 17 or not justified by reason.” State v. Rojo , 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 1813 P.2d 829 (filed 1998) (internal quotation marks and citation omitted). When 1 undertaking factual review, “we do not sit as a trier of fact,” but instead recognize that 2 “the district court is in the best position to resolve questions of factand to evaluate the 3 credibility of witnesses.” State v. Vandenberg , 2003-NMSC-030, ¶ 18, 134 N.M. 566, 4 81 P.3d 19 (citation omitted). Therefore, “we will not reweigh the evidence nor 5 substitute our judgment for that of the fact finder.” Bishop v. Evangelical Good 6 Samaritan Soc’y , 2009-NMSC-036, ¶ 28, 146 N.M. 473, 212 P.3d 361 (internal 7 quotation marks and citation omitted). 8 {25} Notwithstanding Martinez’s testimony that the purported meeting created a 9 conflict between Defendant and Chavez, the record suggests otherwise. While 10 Martinez claims he divulged confidential information that involved not only himself 11 but also Defendant, the district court correctly credited Chavez’s testimony that there 12 simply could not have been any discussion about Pacheco or any other member of the 13 Pacheco family. In the absence of evid ence that the prosecutor actually received 14 confidential information from or about the accused, we will not require 15 disqualification. See Robinson , 2008-NMCA-036, ¶ 22. 16 {26} We defer to the trial court’s assessment that it is only a remote possibility that 17 a meeting took place at all. And we further hold that it was rational and consistent 1814 with the logic and effect of the facts and circumstances of the case to find that any 1 meeting that may have occurred resulted inno conflict. Thus, even if Chavez and 2 Martinez met, we affirm the district court’s determination to credit Chavez’s 3 testimony that the meeting lasted no more th an five minutes. Ac cordingly, the trial 4 court did not abuse its discretion in determining that any meeting that may have taken 5 place between Chavez and Martinez was insu fficient to create a bias that warranted 6 disqualification. 7 B. The District Court Di d Not Err When It Admitted Martinez’s Preliminary 8 Hearing Testimony at Trial 9 {27} Defendant argues that the district court erred when it found that Martinez was 10 unavailable as a witness because he refu sed to testify and allowed Martinez’s 11 preliminary hearing testimony to be admitted at trial. He further argues that this 12 violated his right to confront the witness against him. The State, relying on Rule 11- 13 804(B)(1) NMRA, claims that the preliminary hearing testimony was properly 14 admitted as an exception to the hearsay rule. 15 {28} “A hearsay statement consists of an out -of-court statement offered to prove the 16 truth of the matter asserted, and is inadmi ssible as substantive evidence unless it falls 17 within an exclusion or excep tion to the hearsay rule.” Lopez , 2011-NMSC-035, ¶ 5 18 (internal quotations marks and citation omitted). Pursuant to Rule 11-804(A)(5) 1915 NMRA, a witness is unavailable when the witness is “absent from the trial or hearing 1 and the statement’s proponent has not beenable, by process or other reasonable 2 means, to procure the declar ant’s attendance . . . .” A statement of an unavailable 3 witness is admissible if the unavailable witness gave that testimony as a witness at 4 another hearing and if the party against whom the testimony is now offered 5 had “an opportunity and similar motive to de velop [the testimony] by direct, cross- or 6 redirect examination.” Rule 11-804(B)(1); see also State v. Gonzales , 7 1992-NMSC-003, ¶ 16, 113 N.M. 221, 824 P.2d 1023 (stating that the motives for 8 cross-examination at the preliminary hearing and trial must be similar, but need not 9 be identical), overruled on other grounds by State v. Montoya , 2013-NMSC-020, ¶ 2, 10 306 P.3d 426. 11 {29} A district court properly finds a witne ss unavailable when the witness “refuses 12 to testify about the subject matter despite a court order to do so .” Rule 11-804(A)(2). 13 Here, the district court found Martinez in contempt of court for refusing to answer 14 questions. In so finding, the court did not abuse its discretion. 15 {30} The next step in the analysis, “[w]heth er a party had an opportunity and similar 16 motive to develop testimony[,] must bedetermined on a case-by-case basis.” Lopez , 17 2011-NMSC-035, ¶ 6. Here, Martinez testified at Defendant’s preliminary hearing. 1816 During Defendant’s cross-examination of Martinez at the preliminary hearing 1 Defendant exposed inconsistencies between Martinez’s te stimony at the hearing and 2 Martinez’s earlier accounts of his involvement in Pacheco’s murder. At both the 3 preliminary hearing and the trial here, “Defe ndant’s motive was to discredit the State’s 4 case and to argue that the evidence did not establish his guilt.” See Lopez , 5 2011-NMSC-035, ¶ 9. Thus, because Defe ndant had a comparable opportunity and 6 motive to cross-examine Martin ez at the preliminary hearing and at trial, “the district 7 court did not abuse its discretion in admitting [Martinez’s] preliminary hearing 8 testimony at trial.” Id. With no violation of the Rules of Evidence, we turn to the 9 Confrontation Clause. 10 {31} Like the Sixth Amendment to the Unite d States Constitution, the New Mexico 11 Constitution provides all criminal defendants w ith the right “to be confronted with the 12 witnesses against him.” N.M. Const. art. 11, § 14; seeU.S. Const. amend. VI. 13 “Testimonial statements satisfying the Rules of Evidence do not necessarily satisfy 14 the requirements of the C onfrontation Clause.” Lopez , 2011-NMSC-035, ¶ 11 ( citing 15 Crawford v. Washington , 541 U.S. 36, 50-51, 68 (2004)). A testimonial statement is 16 not admissible under the Confrontation Clau se unless the witness is unavailable and 17 the defendant had a prior opportunity for cross-examination. See id. (citation 1817 omitted). 1 {32} Testimony at a preliminary hearing is by definition a testimonial statement. If 2 a preliminary hearing witness does not appear at trial subject to cross-examination, the 3 witness’s preliminary hearing testimony cannot be used in place of testimony at trial 4 unless: “(1) the witness is unavailable; and (2) the de fendant had a prior opportunity 5 to cross-examine the statement that is nowbeing offered into evidence against him.” 6 Id. (internal quotation marks and citation omitted). 7 {33} For Confrontation Clause purposes, Martinez’s refusal to testify on Fifth 8 Amendment grounds made him unavailable to testify at trial. See Gonzales , 9 1992-NMSC-003, ¶ 15. Turning to the second requirement, Defendant had an 10 opportunity to cross-examine Martinez on the “statement that is now being offered 11 into evidence against him.” Lopez , 2011-NMSC-035, ¶ 11 (citation omitted). At both 12 the preliminary hearing and at trial, Defendant faced the same charges, had the 13 representation of the same defense c ounsel, and possessed the same motive to 14 cross-examine Martinez. See id. ¶ 19 (citation omitted). Martinez’s unavailability and 15 Defendant’s opportunity to cross-examin e Martinez at the preliminary hearing 16 satisfied the demands of the Confrontation Clause of the Sixth Amendment. 17 Likewise, the introduction of Martinez’s te stimony at the preliminary hearing run 1818 afoul of neither the Rules of Ev idence nor the Sixth Amendment. 1 {34} Our holding is fully supported by State v. Gonzales . There, we held that “the 2 testimony was admissible under an accepted hearsay exception and that, because he 3 was given the opportunity to cross-examine the witness at the preliminary hearing, 4 defendant was not denied the right to confront the witness against him.” Gonzales , 5 1992-NMSC-003, ¶ 20. We observed that prior testimony should not be admitted if 6 “there was a real difference in motive or other limitation on meaningful 7 cross-examination.” Id. ¶ 18 (citations omitted). But weheld that the defendant was 8 not denied a meaningful opportunity for cross-examination by the defendant’s choice 9 not to conduct any cross-examination and to change his theory of defense between the 10 time of the preliminary hearing and the trial. See id. ¶ 20. A defendant’s strategic 11 decision to limit or forgo cross-examinati on at the preliminary hearing is different 12 from a limitation on cross-examination imposed by the court. “The extent of 13 cross-examination, whether at a preliminary hearing or at a trial, is a trial tactic. The 14 manner of use of that trial tactic does not create a constitutional right.” Id. ¶ 19 15 (quoted authority omitted). New Mexico c ourts have long held that defendants have 16 similar motivations for cross-examination at preliminary hearings and trials and that 17 this similar motivation provides a suffi cient opportunity for confrontation. See, e.g. 1819 State v. Massingill , 1983-NMCA-001, ¶ 8, 99 N.M. 283, 657 P.2d 139. 1 {35} Defendant also argues th at he did not have a meaningful opportunity to 2 cross-examine Martinez because his attorn ey was unprepared. Defendant’s attorney 3 objected on the basis that he could not conduc t a meaningful cross-examination at the 4 preliminary hearing without having received all of the discovery material. But this 5 claim is belied by Defendant’s cross-examin ation of Martinez about an inconsistent 6 statement. 7 {36} In any event, the trial judge found thatthere was not enough information in the 8 record for him to rule on that objection. Specifically, the district court observed that 9 Defendant had made no showi ng that any later produced di scovery would have served 10 to contradict or impeach Martinez. Preliminary hearings, which must be held within 11 sixty days of a defendant’s first appear ance, usually occur before discovery is 12 complete. SeeRule 5-302(A) NMRA. The question, however, is not whether all 13 discovery has been exhausted but whether a defendant has had a meaningful 14 opportunity to cross-examine. When a defendant is afforded an opportunity to 15 cross-examine at a preliminary hearing under a motive similar to that at trial, it is a 16 defendant’s burden to show that any outstanding discovery substantially and 17 materially impaired the opportunity for cross-examination. 1820 {37} Defendant had a meaningful, substantial, and effective opportunity for cross1 examination. Accordingly, there was no error when the district court admitted 2 Martinez’s preliminary hearing testimony at trial. 3 IV. Conclusion 4 {38} The district court did not err when it denied Defendant’s motion to disqualify 5 the district attorney’s office and when it admitted at trial Martinez’s preliminary 6 hearing testimony. We affirm Defendant’s convictions. 7 {39}IT IS SO ORDERED. 8

___________________________________ 9 PETRA JIMENEZ MAES, Senior Justice 10 WE CONCUR: 11

__________________________________ 12 CHARLES W. DANIELS, Chief Justice 13

__________________________________ 14 EDWARD L. CHÁVEZ, Justice 15

____________________________________ 16 BARBARA J. VIGIL, Justice 1721 ____________________________________ 1 JUDITH K. NAKAMURA, Justice 2