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In re Padilla

Supreme Court of New Mexico

December 19, 2019


          An Attorney Suspended from the Practice of Law Before the Courts of the State of New Mexico.

          Christine E. Long Albuquerque, NM for Disciplinary Board.

          Rafael Padilla Albuquerque, NM Respondent.


          Barbara J. Vigil, Justice.

         {¶1} With this opinion, we address the failure of Rafael Padilla to competently and diligently defend his client against various criminal charges in violation of the New Mexico Rules of Professional Conduct, Rules 16-100 to -805 NMRA. The Court was presented with this case upon the recommendation of the Disciplinary Board (the Board) to sustain charges and impose discipline based on the Board's conclusion that Padilla violated Rules 16-101 (competence), 16-103 (diligence), and 16-804(D) (engaging in the administration of justice). The Board recommended an indefinite suspension of Padilla for a period of no less than one year.

         {¶2} The Court adopted the Board's findings of fact following oral argument in this matter. Upon review, we adopt the Board's conclusions of law in their entirety. Modifying the Board's recommended discipline, we indefinitely suspended Padilla from the practice of law for no less than one year, subject to partial deferment and conditions on his reinstatement as explained in this opinion and in our order of July 9, 2019. Though Padilla has fully admitted the facts underlying his misconduct and has taken significant remedial measures to improve his practice, we must impose discipline to avoid reoccurrence of his grave errors.

         I. BACKGROUND

         {¶3} Padilla has been licensed to practice law in New Mexico for thirty-six years. He has a prior disciplinary offense for violating the rules of trust accounting. Padilla's private practice in Albuquerque focuses primarily on criminal defense. Beginning in 2013, Padilla defended Dennis Samuel Miera (Defendant) against charges of criminal sexual penetration of a minor, criminal sexual contact of a minor, and bribery of a witness. State v. Miera, 2018-NMCA-020, ¶¶ 1-2, 413 P.3d 491. A jury found Defendant guilty of all counts charged following a trial in December 2014, during which Padilla committed several serious errors. Id. ¶¶ 3-4, 46. Defendant appealed his convictions claiming ineffective assistance of counsel and seeking a new trial based largely on Padilla's failures at his first trial. Id. ¶ 1. The Court of Appeals granted a new trial, concluding that Defendant had made a prima facie showing of ineffective assistance of counsel and that cumulative error had denied him a fair trial. Id. ¶¶ 44, 46, 50. Defendant was incarcerated for approximately three years before his conviction was reversed and his case remanded for a new trial.

         {¶4} Following the Court of Appeals' opinion detailing Padilla's deficiencies in representing Defendant, the Board initiated an investigation and ultimately charged Padilla with professional misconduct in August 2018. Padilla did not contest the Board's charges and admitted all factual allegations contained in the specification of charges.

         {¶5}Padilla failed to provide competent and diligent representation to Defendant in four instances. First, he failed to acquaint himself with the relevant law and to take the steps necessary to meaningfully oppose the State's impeachment of Defendant using a psychological evaluation prepared for purposes of plea negotiations. Id. ¶¶ 6-12. Second, Padilla failed to investigate potentially exculpatory evidence that the alleged victim had accused her stepfather of similar abuse and then recanted her allegations. Id. ¶¶ 19-22, 34-36. Third, Padilla elicited testimony from an investigating officer regarding Defendant's sexual desires and failed to cure the officer's improper and unsupported characterization of Defendant as a "sexual deviant." Id. ¶ 37. Fourth and finally, Padilla failed to adequately investigate and research the admissibility of a report by the Children, Youth and Families Department (CYFD)-a report that he could have used to question the alleged victim's credibility. Id. ¶¶ 38-39. Thus, Padilla was not able to introduce the report or successfully move its admission, in whole or in part. Id. We describe each instance of misconduct in turn.

         A. Psychological Evaluation

         {¶6} As part of plea negotiations, Defendant completed a psychological evaluation that was documented for use in determining his sentence. Id. ¶ 6. Defendant's responses in the evaluation essentially amounted to an admission that he engaged in improper sexual contact with the alleged victim. See id. ¶ 11. The evaluation also contained a statement that Defendant "continued to keep the [alleged victim and her brother] overnight through the time of the alleged event," a fact which Defendant disputed at trial.

         {¶7} The psychological evaluation was given to the State before trial. Id. ¶ 6. The State did not attempt to introduce the evaluation in its case in chief. See Miera, 2018-NMCA-020, ¶¶ 8, 14 ("Rule 11-410(A)(5) NMRA prohibits 'a statement made during plea discussions' from being admitted against the defendant where the discussions did not ultimately result in a guilty plea."). Instead, the State notified the district court and Padilla that it planned to use the evaluation to impeach Defendant should he testify in his own defense. Id. ¶ 8. The State cited State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169, to support its position that the evaluation was admissible impeachment evidence. Miera, 2018-NMCA-020, ¶ 8. Padilla responded that he had not seen the evaluation and was not previously made aware that the State intended to introduce it to impeach Defendant. Id. The State replied that it had discussed the evaluation "a number of times" with Padilla before the trial.

         {¶8} The district court recessed to allow the parties "to gather written authorities for use or nonuse of the material." Id. ¶ 9 (internal quotation marks omitted). When the district court reconvened, Padilla was unable to offer any authority to support the exclusion of the psychological evaluation for impeachment purposes, conceding that the holding of Watkins permitted the State to use the evidence to impeach Defendant. Miera, 2018-NMCA-020, ¶ 9. This response demonstrates Padilla's lack of competence in this area of our evidentiary rules and case law. As we will explain, the State's reliance on Watkins is misplaced, and our precedent interpreting Rule 11-410 clearly prohibits the use of statements made during plea negotiations for impeachment purposes.

         {¶9} Before making its ruling, the district court asked Padilla to confirm that he did not locate any authority to rebut the State's argument that the evaluation could be used to impeach Defendant's testimony. Miera, 2018-NMCA-020, ¶ 9. Padilla confirmed that he did not and added that he "had very little knowledge of this report, and he certainly didn't have a copy of it." Id. (alteration and internal quotation marks omitted). The district court ruled that the State could use the evaluation to impeach Defendant but offered to instruct the jury that it could "only use the evaluation for purposes of credibility and impeachment." Id. (alteration and internal quotation marks omitted). Padilla never requested this limiting instruction, even after the State used the evaluation to elicit damaging admissions from Defendant on cross-examination. Id. ¶¶ 9, 11.

         {¶10} Defendant testified at trial that he did not recall keeping the alleged victim and her brother overnight at the time of the alleged abuse and had never admitted that he abused the alleged victim. Id. ¶¶ 10-11. The State attempted to refresh Defendant's memory, giving him the documentation of the psychological evaluation to review. The State then used the evaluation to impeach Defendant's testimony by asking Defendant how he responded to certain statements in the evaluation. Id. For example, the State asked, "Did you respond in the affirmative or otherwise indicate that you made a mistake which you regret?" and "Did you respond in the affirmative or otherwise indicate that you slipped one time?" Id. ¶ 11. Defendant answered yes to each of the State's questions consistent with the documentation of the psychological evaluation. Id.

         B. Similar ...

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